P L D 1962 (W (PLP)

WAHIDUDDIN AHMED, J.‑This writ petition is directed against the order of the Inspector‑General of Police, Karachi, dated the 22nd of September 1959, dismissing the petitioner from the service of the Police Department and the order of the Administrator of Karachi in appeal upholding the petitioner's dismissal from service. On the 5th of December 1958, Mr. Khundkar, the then Inspector‑General of Police, Karachi, issued a charge‑sheet to Syed Tathir Hussain, a S. I. P. at the material time, for gross misconduct in concocting a false case against three persons: Nasiruddin, Alimuddin and Noor Muhammad and arresting them under section 151 Cr. P. C. The conduct of the inquiry was entrusted to Dy. S. P. 11, Central Division, who was directed to hold departmental proceedings against the petitioner. At first, the inquiry was held by Mr. Nizamuddin the then Dy. S. P., and thereafter it was concluded by his successor‑in‑office Mr. Harald Hussain. Most of the evidence was examined before Mr. Hamid Hussain. The petitioner also led his defence before him. It appears that Mr. Hamid Hussain who was conducting the said inquiry relinquished charge on the 20th of May 1960, before he could record his findings for the consideration of the Inspector -General of Police. It is alleged, and this fact is not denied by tire opponents, that the papers of the inquiry without the knowledge of the petitioner were entrusted to P. I. Muhammad Ayub Qureshi. This officer without notice to the petitioner con sidered the matter and recorded his findings on the evidence produced before the above‑mentioned two officers and for warded it for the consideration of the Inspector‑General of Police. The Inspector‑General of Police, after perusing the record and the findings of Mr. Muhammad Ayub Qureshi, issued on 1st September 1959 a notice calling upon the petitioner to show cause why he should not be dismissed. Copy of the finding of the Inquiry Officer was also forwarded to him for sub mitting his explanation within seven days of the receipt of the notice. The petitioner, however, on the 5th of September 1959 applied to the Inspector‑General of Police on personal grounds for fifteen days' time for submitting his explanation. On the 10th of September 1959 this request was turned down and one Mr. Siddiqui from the office of the Inspector‑General of Police, Karachi informed him to submit his explanation immediately. 11th of September 1959 being a holiday on account of the death anniversary of the Quaid‑e‑Azam the offices of the Inspector -General of Police were closed, therefore on the next day namely the 12th of September 1959 he submitted his explanation to the Inspector‑General of Police and obtained the initials about the delivery of this explanation from Mr. Siddiqui, the minis terial officer in the Department concerned. The Inspector- General of Police, Karachi passed dismissal order on the charges levelled against the petitioner on the 22nd of September 1959 holding that he had falsely conducted the case against the three persons referred to above. This order was challenged before the learned Administrator, Karachi, in appeal, who also upheld the petitioner's dismissal. The petitioner has challenged the orders of the Inspector -General of Police dated the 22nd of September 1959 Inter alia on the grounds (1) that the Inspector‑General of Police was not competent to pass any order on the charges levelled against the petitioner as the Inquiry Officer who conducted the inquiry against the petitioner did not submit before him his report as required under relevant rules of the Department, and (2) that the order of the Inspector‑General of Police violates the principles of natural justice as he did not afford the petitioner reasonable opportunity to submit his explanation as required under Article 181 (2) of the late Constitution of Pakistan. The opponents have resisted this application. They contend that the impugned order do not suffer from any legal infirmity and that there are no grounds to interfere in this matter. Mr. Manzoor Ali, the learned counsel for the petitioner has taken us through the entire record. On the first question, namely that the Inspector‑General of Police was not competent to consider the report submitted by Mr. Muhammad Ayoob Qureshi as he did not conduct the inquiry against the petitioner, he urged that this officer did not hold or conduct any inquiry against the petitioner. He referred us to the record to show that the inquiry was conducted by Mr. Hamid Hussain, Dy. S. P. II, Central, all the evidence was recorded by this officer and the defence of the petitioner was also closed before him. He also received the signed explanation of the petitioner on the charges levelled against him and under the rules this officer should have given the findings and forwarded them for the consideration of the Inspector‑General of Police. According to the learned counsel, in the absence of any finding of this officer, the Inspector‑General of Police was not competent to proceed in the matter. On the other hand, Mr. Muhammad Ali Sayed, the learned counsel for the opponents, has urged before us that under the rules it is not at all necessary that the finding should be recorded by the officer who held the inquiry. This duty can be performed by any officer entrusted by the punishing authority and as Mr. Muhammad Ayoob Qureshi was entrusted with this duty and submitted his finding on the orders of the Inspector‑General of Police, the punishing authority was fully competent to take into consideration the report submitted to him for taking further action against the petitioner. After hearing the learned counsel for the parties on this question, it appears to us that in case any officer holding the inquiry relinquishes the charge of his office or for any other sufficient reason is unable to perform his duties in this respect, it is open to the punishing authority to appoint any other officer to conclude the inquiry held by his predecessor. We have no doubt so far as this goes. But the next question is whether the other officer appointed in place of the person, who originally conducted the inquiry, can be considered to be an officer conducting the inquiry if information about it has not been conveyed to the person against whom the inquiry is being made. Thus the real question is whether the person who has taken the place of the person holding the inquiry in the absence of any notice to the petitioner can be taken to be an officer conducting the inquiry against him. The learned counsel for the parties have referred us to rule 1284 (11) of the Bombay District Police Manual, 1927, which is in the following terms:‑ "After the completion of the defence, the officer conducting the inquiry should, if competent to do so, have a note of the proceedings drawn up and pass his orders on the case. If he is not, he should send the papers, with an expression of his opinion and any recommendations he may think fit to make, to the officer competent to do so." It will thus be seen that it is only the officer conducting the inquiry who has to send the papers to the punishing authority with an expression of his opinion and recommendation and nobody else. It is quite clear to us that on the admitted position in this case that the petitioner was never informed at any time by the Department that Mr. Muhammad Ayoob Qureshi has replaced Mr. Hamid Hussain and that he was holding and conducting the inquiry against him In respect of the charges, Mr. Muhammad Ayoob Qureshi cannot be considered to be an officer conducting the inquiry contemplated in the above‑men tioned rule. Mr. Muhammad Ali Sayed argued that these are Departmental inquiries and the question of de novo trial is not involved in these matters. We quite agree with him anal perhaps he is right that in those cases where another officer has replaced the person holding or conducting inquiries against' Government servants, the question that such officer should hold a de novo trial does not arise, but we are not prepared to accept his contention that the replacing officer is entitled to conduct the inquiry against the servant concerned withou5 informing him of this fact and in his absence. If we accept this contention it would be nothing else but holding that‑‑‑the Departmental inquiry the principles of natural justice can be violated. In our opinion, therefore, the opponents in this case have not only violated the provisions of the above‑mentioned rules but have also violated the principles of natural justice inasmuch as the punishing authority had acted on a report which had no validity in the eye of law. On the second point taken by the petitioner that the Inspector‑General of Police did not afford him reasonable oppor tunity to submit his explanation under Article 181 (2) we are also of the opinion that the impugned order of the Inspector --General of Police suffers from legal infirmity. It would be observed that the Inspector‑General of Police after perusing the record and the report of Mr. Muhammad Ayoob Qureshi on the 2nd of September 1959, called upon the petitioner to submit his explanation in respect of the show‑cause notice issued to him on that day. On the 5th of September 1959 the petitioner submitted an application that he should be given fifteen days' time. It was on the 10th of September 1959 that the petitioner was informed that his request was turned down and that be should submit his explanation immediately. The 11th of September 1959 being a holiday on account of the death anniver sary of the Quaid‑e‑Azam, the petitioner submitted his explana tion on the 12th of September 1959. It is not disputed before us that this explanation was not received in the office of the Inspector‑General of Police but on a perusal of the order of the Inspector‑General of Police dated the 22nd of September 1959, we find the following observation in the impugned order:‑ "He has failed to submit his reply so far. I am, therefore, passing final order against him. The defaulter is dismissed from service with effect from the date this order is communicated to him." The observation of the Inspector‑General of Police that the petitioner has failed to submit his reply so far on the facts of this case is not borne out by the record. The explanation of the petitioner had already been submitted on the 12th of September 1959 and it was the bounden duty of the punishing authority to consider his explanation before taking any action C against the petitioner. In our opinion the failure of the punishing officer to take into consideration the explanation of the petitioner dated the 12th September 1959, tantamounts to the infringement and violation of the mandatory provisions of Article 181 (2) of the late Constitution of Pakistan. On the facts of this case we are satisfied that the impugned order of the Inspector‑General is based on gross irregularities and is in clear violation of the principles of natural justice and the mandatory provisions of the service rules applicable to the petitioner. On this view of the matter the impugned order suffers from legal infirmities and must be quashed. As stated above, the petitioner challenged the order of the Inspector‑General of Police before the Administrator of Karachi in appeal, but the order dispensing with his services was upheld. As the order passed in appeal is based on an illegal order we hereby quash the order of the Inspector‑General of Police dated the 22nd of September 1959 and the order passed in appeal by the Administrator of Karachi. On this view of the matter the inquiry against the petitioner will start again from the stage where Mr. Hamid Hussain left it. The Inspector‑General of Police is directed to appoint some other officer to hold further inquiry against the petitioner from this stage. The newly‑appointed officer, after giving notice to the parties and hearing the petitioner, will submit his report to the Inspector‑General of Police and thereafter further action and steps will be taken against the petitioner as laid down under Article 131 (2) of the late Constitution of Pakistan. For the reasons given above and subject to the above remarks, the writ petition is allowed with no order as to costs. K. S. A. Petition accepted.