P L D 1962 (W (PLP)

WAHIDUDDIN, J.‑This writ petition is directed against the order of dismissal of the petitioner dated the 21st of July 1958 from the post of peon in the Chief Commissioner's Secretariat, Karachi. The facts giving rise to this petition are that in March 1953 the petitioner was appointed as a peon in the Chief Commissioner's Secretariat, Karachi and was attached as an orderly peon to Mr. Zaidi, Assistant Secretary No. 1 to the Chief Commissioner, Karachi. On the 28th of August 1957 Mr. H. H. Zaidi, Assistant Secretary to the Chief Commissioner, Karachi, found the wall clock of his room missing. The petitioner Imtiaz Ali Khan on inquiry stated that on the previous day when he left office at 5 p.m. the clock was at its usual place and that when he attended the office the next day at 11 a.m. the clock was found missing. Inquiries were also made from other personnel of the staff of the Assistant Secretary concerned. The matter was ultimately reported on the 29th of August 1957 to the police at the Civil Lines Police Station, Karachi. On investigation, the Police Officer found no proof against the petitioner or anybody else and being unable to trace out the real culprit, the police disposed of the case with "A" Class summary, namely as untraced. In spite of this on the 30th of August 1957 the petitioner was placed under suspension and departmental inquiry was ordered to be held against him. Mr. Shaikh Mahmood, Assistant Secretary to the Chief Commissioner, on the 15th of October 1957 served the charge‑sheet No. 8 (33)/57‑Public for explanation. The petitioner submitted his explanation denying and refuting all the charges. After inquiry, the learned Inquiry Officer by an order dated the 31st of December 1957 reinstated the petitioner with immediate effect on the condition that he executes an agreement in writing to pay the cost of the clock (Rs. 120) in two instalments, and further punishing the petitioner with loss of three increments with cumulative effect. The petitioner represented that this punishment was illegal and amounted to coercion, and further submitted that if the department believed that the petitioner had stolen the clock, the proper course for the department was to resort to Civil Court to recover the price of the clock from him. Eventually the petitioner did not comply with the alleged demand of the depart ment to execute an agreement to pay the price of the clock. The order of the Inquiry Officer was challenged by the petitioner before the then Chief Commissioner of Karachi on the 15th of February 1958. His appeal was dismissed on the 24th of June 1958. On the 17th of July 1958 the petitioner was called upon to accept the conditions of his reinstatement in writing, otherwise he was informed that his services would be terminated. On the 18th of July 1958 the petitioner finally refused to execute any agreement in writing to pay the price of the stolen clock on the ground that the demand of the department in this respect was illegal. Thereupon on the 21st of July 1958 the petitioner was dismissed from service. The petitioner has attacked the validity of the dismissal order inter alia on the grounds: (1) that it suffers from illegality as the petitioner was not given an opportunity to show cause why he should not be dismissed from service in accordance with clause (2) of Article 181 of the defunct Constitution of Pakistan ; and (2) because the dismissal order was for non compliance with the illegal order of executing an agreement to pay the price of the stolen clock in two instalments. The petition is contested by the opponent but they have not filed any reply to the allegations made in the petition. After hearing the learned counsel for the parties, there is no doubt that the impugned order is clearly in violation of clause (2) of Article 181 of the defunct Constitution of Pakistan. It Is now well settled that the compliance of this constitutional provision is mandatory and in case it is not complied with, the order of dismissal cannot be sustained. Mr. Muhammad Ali Sayeed, the learned counsel for the opponents, conceded that no second show‑cause notice before passing the dismissal order was given to the petitioner. Accord ing to clause (2) of Article 181 of the defunct Constitution of Pakistan no Government servant shall be dismissed or removed from service, or reduced in rank, until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Admittedly no such opportunity of showing cause was provided to the petitioner. In the High Commissioner for India and High Commissioner for Pakistan v. I. M. Lall (P L D 1948 P C 150), the Judicial Committee held that the purported removal of the respondent did not conform to the mandatory requirements of subsection (3) of section 240 of the Government of India Act and was void and inoperative. It is unnecessary to mention that section 240 (3) of the Government of India Act is almost in identical terms as the provisions of Article 181 (2) of the defunct Constitution of Pakistan, which applies to the facts of this case. In these circumstances the dismissal of the petitioner from service is void and inoperative and he is still in the service of the department concerned. On this view of the matter it is unnecessary for us to consider the next point raised by the petitioner namely that the dismissal order is bad because it is a penalty for non compliance of the illegal condition laid down for his reinstate ment. In the result the petition is allowed with no order as to costs. ABDUL RAHIM KHRAL, J.‑I agree. K. B. A. Petition accepted.