P L D 1962 Dacca 557 (PLP)

IDRIS, J.‑This appeal at the instance of the defendant, the Province of East Pakistan, is directed against the decision of the Subordinate Judge, 4th Court, Dacca, in a suit for declaration that the order of dismissal of the plaintiff from service is illegal, void and inoperative and that the plaintiff still holds office as a Sub‑Inspector of Police.

2. In 1944 plaintiff was appointed as a Sub‑Inspector of Police. In July 1952, he was Officer‑in‑Charge of Sutrapur Police Station. On the 17th of July 1952, he searched the house of one Samartajan Bibi, wife of one Md. Hashem, at 41, Dinanath Sen Road, found some live‑cartridges and one licence for a pistol in their illegal possession, arrested them and subsequently released them on bail. Md. Hashem was released on the surety of his wife Samartajan Bibi. As there was allegation of illegal extortion against the plaintiff relating to the arrest and release of the accused the then Circle Inspector of Police made inquiry into the matter and on 25‑7‑52 submitted a report to the Superin tendent of Police, Dacca, against the plaintiff and Abdul Hye, Assistant Sub‑Inspector of Police, to the effect that plaintiff released Samartajan Bibi and her husband on taking Rs. 500 as bribe from Samartajan Bibi. On receipt of the report, Superintendent of Police, Dacca, placed plaintiff and Abdul Hye under suspension with effect from 25‑7‑52 and directed Mr. M. Mahmood, the then Additional Superintendent of Police (city), Dacca, to draw up proceedings against the plaintiff and Abdul Hye. Accordingly on `29‑7‑52, Mr. Mahmood drew up proceed ings against the plaintiff with charges. The charge‑sheet was served on the plaintiff on 30‑7‑

52. Mr. Mahmood held the enquiry partly and after him Mr. S. M. Anwar, Additional Superintendent of Police (city), Dacca, conducted the inquiry and submitted his report to the Superintendent of Police on 2‑2‑53 holding that two of the charges were established against the plaintiff. On 9‑2‑53, the Superintendent of Police, Dacca, granted a personal hearing to plaintiff, and on 10‑3‑53 directed the Additional Superintendent of Police (city), Dacca to clarify certain points relating to the enquiry. In view of this direction, Mr. Anwar re‑examined two witnesses and also examined one new witness. Then on transfer of Mr. S. M. Anwar, his successor, Mr. Ahmed Ibrahim took up the inquiry, examined one witness on the side of the defence and submitted his report to the Superintendent of Police on 1‑6‑

53. On 4‑6‑53 the Superintendent of Police gave the plaintiff a second personal hearing and on 30‑6‑53 passed the final order of dismissal of the plaintiff from service with effect from 1‑7‑

53. Against the order of dismissal, plaintiff filed an appeal to the Deputy Inspector General of Police, Dacca Range, which was rejected by an order dated 11‑8‑

53. As against that order, the plaintiff filed a memorandum before the Inspector General of Police, which was rejected. Thereafter a memoran dum was submitted to the Government, which was also rejected. So the present suit was filed on 25‑7‑56 challenging the validity of the order of dismissal passed by the Superintendent of Police.

3. The case of the plaintiff is that the order of dismissal passed by the Superintendent of Police is illegal, void and inopera tive, as the inquiry was not held according to law and provisions of Police Regulations, and by a competent authority and as the order of dismissal was passed without giving the plaintiff the second opportunity of showing cause in compliance with the provision of subsection (3) of section 240 of the Government of India Act.

4. Defence is that there was no irregularity or illegality in the proceedings conducted against the plaintiff, the inquiry was held by a competent authority and that the order of dismissal was quite legal. The defendant also raised the objection that the suit was bad for want of proper notice under section 80 of the Code of Civil Procedure and that it was hit by the proviso to section 42 of the Specific Relief Act. There was also the further plea that the suit was not maintainable as it was not filed within 3 years from the date of order of dismissal.

5. On the pleadings, the learned Subordinate Judge framed the following issues: ‑ (1) Was there any valid notice under section 80, C. P. C. upon the Government and was it duly served upon the Government ? (2) Is the suit liable to be defeated because of the delay caused by the plaintiff in bringing an action like this ? (3) Is the order dated 30th of June 1953, dismissing the plaintiff from his service as a Sub‑Inspector of Police illegal, void, inoperative, ultra vires and without jurisdiction ; and is the plaintiff entitled to get a further declaration that he still holds his office as Sub‑Inspector of Police, under the Govern ment with all rights and privileges attached to such office ? (4) To what relief, if any, is the plaintiff entitled ? (5) Is the suit for mere declaration barred under section 42 of the Specific Relief Act ?

6. The learned Subordinate Judge held that notice under section 80 of the Code of Civil Procedure was duly served, that there was no delay in the institution of the suit and that the suit was not hit by section 42 of the Specific Relief Act. The learned Subordinate Judge also held that charges were framed in compli ance with Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and Rule, 861 of the Police Regulations, Bengal, and that the proceedings were conducted according to law and by competent authority. But the learned Subordinate Judge in the end decreed the suit, as according to him, no notice of the punishment proposed to be inflicted was given before passing the final order of dismissal, and consequently the order was illegal and inoperative. So this appeal by the defendant.

7. A cross‑objection was filed by tic respondent against the landings of the learned Subordinate Judge that proceedings were conducted according to rules and regulations and by the com petent authority. .

8. On behalf of the appellant, Mr. Jani Alam, the learned Assistant Government Pleader contended that non‑service of notice upon the plaintiff to show cause against the proposed punishment before the final order of dismissal was not fatal in this case. In support of this contention, reference was made to tiara. 2 of clause (e) of Rule 861 of Police Regulations Bengal, 1943, which is as follows: ‑ " The authority empowered to pass the order of punishment shall grant a personal hearing to the person charged and then pass the final orders. When the enquiring officer himself passes the final order, no personal hearing is necessary, as the person charged is present, throughout the enquiry,"

9. It was contended by Mr. Jani Alam that the provision contained in this para. is contrary to that under subsection (3) of section 240 of the Government of India Act and that in view of this provision all that was required before passing the final order of dismissal was to grant the plaintiff a personal hearing, and as that has been done in this case, the order of dismissal was not illegal. The order‑sheet, Exh. A, of the proceeding No. 63 of 1952, which was started against the plaintiff, shows that after the enquiry was completed, he was granted a personal hearing by the Superintendent of Police on 4‑6‑53 The order is as follows: ‑ " Gave personal hearing to the accd. S. I. today. He states that he has nothing to add what he said in his written defence. Adjourned for orders ". The order of dismissal was passed on 30‑6‑53, which is to the following effect: ‑ " Passed final order to‑day. Accd. S. I. is dismissed from service with effect from 1‑7‑

53. An extra copy of the order is attached herewith passing it on to the delinquent after entering it in D. O. ". Mr. Jani Alam also referred to the cases of Ghulam Rasul Khan v. The Province of East Bengal in Second Appeal No. 626 of 1955 and of Atharul Haque v. The Province of East Pakistan in F. A. No. 131 of 1956 (both unreported) of this Court, in support of the contention that plaintiff was not entitled to a second opportunity of showing cause against the punishment proposed. It was held in these two cases that provision of sub section (3) of section 240 of the Government of India Act would not apply to an officer of the subordinate rank of the Police force in view of the conflict between the rule passed under the Police Act and subsection (3) of section 240 of the Government of India Act. The judgment in the case of Atharul Haque v. The Province of East Pakistan in F. A. No. 131 of 1956, which was passed on 7‑7‑58, of a Division Bench of this Court. In the case of Golam Basul Khan v. The Province of East Bengal, the following observation was made by Akbar J., as he then was: " We are, therefore, of opinion that there is a conflict between this rule framed under the Police Act and subsection (3) of section 240 of the Government of India Act. It has been held that in case of such conflict, Police Act shall prevail. In this case the Superintendent of Police who held the enquiry dismissed the officer concerned. Hence in view of the provisions of rule 861 the Superintendent of Police was not bound to give a second opportunity to the delinquent to show cause why upon proved charges he should not be dismissed. We therefore, agree with the Courts below that subsection (3) of section 240 of the Government of India Act was not applicable to this case and that the plaintiff was rightly dismissed in accordance with the procedure as laid down in rule 861 of the Police Regulation ". It also appears from the judgment in First Appeal No. 131 of 1956 that Golam Rasul Khan's application for special leave to appeal to the Supreme Court was dismissed by that Court.

10. In the case of Noorul Hasan and others v. The Federa tion of Pakistan (P L D 1956 S C (Pak.) 331) the Supreme Court made the following ob servation at page 77: " . . . . . Section 243, however, is of importance in this sense that, as has been seen already, it lays down that with special reference to members of the subordinate ranks of the Police forces in Pakistan, the provisions of sections 240 and 241 shall have no application where there is in existence a contrary or repugnant rule made applicable to such persons by or under the Acts relating to the forces to which they belong". So, we are of opinion that subsection (3) of section 240 of the Government of India Act will not apply to the case of the plaintiff, para. 2 of clause (e) of rule 861 of the Police Regulations empowers the competent authority to pass the final order of dismissal after giving the delinquent a personal hearing.

11. The learned Subordinate Judge referred to the cases of Federation of Pakistan v. Khadim Hussain (P L D 1956 Sind 93), Serajul Islam v. Federation of Pakistan and others (P L D 1956 Kar. 354) and Muhammad Wafati v. The Federation of Pakistan (P L D 1956 Kar. 464) respectively, in support of his view that the order of dismissal of the plaintiff was illegal as there was no compliance with the provisions of subsection (3) of section 240 of the Government of India Act. Mr. Jani Alam contended that the principles laid down in the above‑mentioned cases would not apply to the facts of the present case. In the case of Federation of Pakistan v. Khadim Hossain the order of removal of respondent Khadim Hussain was held to be void, as reasonable opportunity to show cause against the order of dismissal prescribed by sub‑rule 12 of rule 1284 of Bombay Police Manual, Vol. 111, was not given. Mr. Jani Alam contended that rule 1284 of Bombay Police Regulations would not apply to the case of the plaintiff. The principle laid down in the case of Serajul Islam v. The Federation of Pakistan and others and Muhammad Wafati v. The Federation of Pakistan would not apply to the present case as those cases were not concerning any subordinate members of the Police forces in Pakistan. Serajul Islam was a technical assistant under the Controller of Broad casting and Wafati was a driver in the North Western Railway.

12. Mr. Hamidul Huq Chowdhury, the learned Advocate for the respondent, contended that para. 2 of clause (e) of Rule 861 of the Police Regulations provides safeguards in addition to those provided by subsections (2) and (3) of section 240 of the Government of India Act and that this provision does not necessarily lead to the conclusion that ‑the right of second opportunity of showing cause against the proposed punishment as given under subsection (3) of section 240 of the Government of India Act was by implication taken away. But this contention cannot be accepted in view of the decisions of this Court to which we have already referred. Mr. Hamidul Huq Chowdhury also contended that rule 861 of the Police Regulations Bengal,, itself makes the provision for giving a second opportunity to the delinquent to show cause against the punishment proposed to be inflicted, has referred to para. 3 of clause (e) of rule 861 of Police Regulations, which is as follows: ‑ " When the authority competent to pass the final order in the proceedings has come to a provisional decision as to the nature of the penalty to be imposed he must first ascertain that the delinquent has been given copies of all matter incorporated in the proceedings, and then order the delinquent to show cause why the particular penalty proposed to be inflicted should not be imposed upon him. This may be done either orally or in writing, but if done orally the reply of the officer being proceeded against must be recorded in the proceeding ". But there is no mention in it that this opportunity to show cause is to be given after the inquiry has been completed and before the final order has been passed. The use of the words " provisional decision " and " being proceeded against " in this para. goes to show that this refers to the opportunity to show cause before the inquiry is completed and final order is passed. The provision contained in para. 3 would be in direct conflict with the pro vision of para. 2, if it be held that the opportunity to show cause as provided in para. 3, is to be given before the final order is passed. This opportunity to show cause against punishment as provided in para. 3 be appropriately given at the time when the officer was called upon to offer his defence in respect of the charges against him, and this has been done in this case, as will appear in Exh. B. In last portion of Exh. B it is slated " You are therefore, to show cause why you should not be dismissed; reduced or otherwise severely dealt with if found guilty of any of the above charges ". It appears to us that there has been substantial compliance with the provision contained in para. 3, clause (e) of rule 861 of the Police Regulations.

13. Mr. Hamidul Haq Chowdhury next contended that the inquiry against the plaintiff was not conducted in accordance with rule 861 of the Police Regulations, as plaintiff was not given the opportunity to examine A. S. I. Abdul Hye, though he wanted to examine him. It was contended that as the allegation was that Abdul Hye procured‑ the money for the plaintiff and paid it to him, he would be an important witness for the defence, especially in view of the fact that Abdul Hye was discharged from the proceeding, which was started against him. Mr. Hamidul Huq Chowdhury contended that plaintiff was highly prejudiced as the opportunity to examine Abdul Hye was not given. This conten tion has no substance as there is nothing in the order‑sheet of proceeding No. 63 to show that plaintiff wanted to examine Abdul Hye. The order dated 6‑12‑52 shows that plaintiff was directed to produce his witnesses on 12‑12‑

52. It appears on 23‑12‑52 two D. Ws. were examined. Subsequently on 26‑3‑53 plaintiff examined one more D. W. There was no prayer for examining any more witness. In the circumstances, it cannot be held that plaintiff was not given the opportunity to examine Abdul Hye or that he was in any way prejudiced.

14. Mr. Hamidul Huq Chowdhury finally contended that there was a great departure from rule 861 of the Police Regula tions and that the entire proceeding was vitiated as the Superintendent of Police by his‑ order dated 10‑3‑53 directed further inquiry after the evidence on the side of the prosecution was closed on 6‑12‑

52. It was argued that this direction was in violation of the provisions of rule 861 of the Police Regulations and was intended to fill up the lacuna in the prosecution case. It appears on 26‑3‑53 Mr. S. M. Anwar re‑examined 2 P. Ws. and examined one new witness, namely; Fatick Chandra Das. But this was done to clarify certain points with regard to the inquiry and no new matter was introduced. It was practically in continuation of the inquiry already started against the plaintiff. Morever the plaintiff was not in any way prejudiced, as he was also given the opportunity to examine witnesses and file further statement. On 16‑5‑53 plaintiff examined Mr. A. Bari, Deputy Superintendent of Police, D. A. B., as his witness and on 26‑5‑53 he filed a further statement. He was then given a second personal hearing by the Superintendent of Police on 4‑6‑

53. In the circum stances, it cannot be held that the inquiry was not in accordance with the provisions of rule

861. We are of opinion that the order of dismissal passed again if the plaintiff is not illegal, void or inoperative.

15. Mr. Jani Alam also raised' the point that the suit was hit by the proviso to section 4'2 of the Specific Relief Act as the suit ways for a mere declaration without a prayer for consequential relief. This contention has no force as from the cases of High Commissioner for India and another v. I. M. Lal (P L D 1948 P C 150) and Habib Khan v. The Federation of Pakistan (P L D 1954 Sind 199) it appears that such a suit for a mere declaration is maintainable.

16. Mr. Jani Alam also contended that the plaintiff should not be allowed the declaration prayed for in any case. The service records of this plaintiff are far from satisfactory. The order dated 31‑5‑53 in Exh. A shows that during the total period of his service for 9 years, he was awarded 18 punishments of which 3 Were major, against only one reward. There is no challenge to this on the side of the plaintiff.

17. We are also of the view that grant of a declaration being discretionary, it should not be exercised in favour of such a person.

18. In the result, the appeal is allowed and the judgment and decree passed by the learned Subordinate Judge are set aside, and the cross‑objection is dismissed. The suit is dismissed. In the circumstances 'of the case, we do not pass any order as to costs. Appeal allowed.