P L D 1958 (W (PLP)

WAHIDUDDIN, J.‑-- This writ petition is directed against the order of the Inspector General of Police, dated 24th December 1954. Briefly stated, the facts leading to the present petition are that the petitioner is a permanent Head Constable and acted for some years as a Sub‑Inspector of Police in a "clear vacancy". On 2nd November 1953, the petitioner was charge sheeted by the Superintendent of Police, West Division, as under :‑ "S. I. Muhammad Khan is hereby charged that on 24th October 1953, he called Mr. Ali Muhammad Dada at the City Police Station on a false pretext that he was accused of molesting a woman, and thereby tried to extort money from him on the basis of a bogus application". An inquiry was held by the Deputy Superintendent of Police and on submission of his findings, the Superintendent of Police, West Division, on 14th/16th January 1954 held that the petitioner was found guilty of departmental irregularities only and consequently stopped his due increment for a period of one year, and further held that this stoppage will have no effect on the petitioner's future increments. On 24th Decem ber 1954, the then Inspector General of Police, Karachi, passed the following order in supersession of the order passed by the Superintendent of Police, West Division, Karachi "I have just received a further complaint against offg. S.

1. P. Muhammad Khan and recollected that there was a previous file against him. I, therefore, called for the papers and they were put up by my confidential office. I am not clear why, in spite of my orders of 4th February 1954, ‑the file was not put up to me before. In view of his past record and the fact that the Dy. S. P. Crime `B', who held the enquiry found him guilty of grave misconduct and his ignorance of Police working as shown by his proceedings against Mr. Ali Muhammad Dada, I order this S. I. P.'s immediate reversion to the rank of Head Constable and his permanent posting to Armed Police, in supersession of the orders passed by the Superintendent of Police in his No. 36/SWC/F. 127 (A)/ 53/905, dated 15/16‑1‑1954. (Sd.) O. G. GRACE, INSPECTOR GENERAL OF POLICE, KARACHI. 24‑12‑1954." The petitioner was consequently reverted to the rank of Head Constable and was permanently posted to the Armed Police in supersession of the orders passed by the Superinten dent of Police on 16th January 1954. Being aggrieved by this order the petitioner preferred an appeal to the Chief Commissioner of Karachi on 30th June 1955 but without any success. On 11th of April 1956 the present Writ Petition was filed and it was summarily dismissed by a Bench of this Court consisting of Sir George Constantine and Mr. Justice Bachal. On 25th April 1956, an application for review of the said order was filed under Order XLVII, rule 1, Civil P. C., and the Bench consisting of Sir George Constantine and Mr. Justice Bachal on 11th April 1957 set aside the dismissal order and admitted the petition to regular hearing. The learned judges' order is reproduced below :‑ "In this case the petitioner had been a permanent Head Constable and bad acted for some years as a Sub‑Inspector of Police in a clear vacancy for an indefinite period. He was then charge‑sheeted by the Superintendent of Police, who passed an order in January 1954 as a punishment stopping his increment for one year. This matter came up before the Inspector General of Police, who, in supersession of the order of the Superintendent of Police, ordered that he should immediately revert to the rank of Head Constable and that he should be permanently posted to the Armed Police. These facts were given in the writ petition filed on the 11th April 1956. The petition then proceeded to set out legal reasons showing that the order was unsustainable. One of these reasons was that the Bombay District Police Manual contained a rule to the effect that an opportunity to show cause against the penalty proposed to be inflicted must be given to the person against whom disciplinary action is taken. It stated that this mandatory provision corresponded to section 181 of the Constitution of the Islamic Republic of Pakistan. This writ petition was summarily dismissed on the 12th April 1956. On 25th April 1956 an application was made for review of our order, and on the 16th July we allowed the application to be amended. The amended application relies upon Article 181 of the Constitution. After our order summarily dismissing the writ petition the judgment of the Supreme Court in Nurul Hasan v. The Federation of Pakistan P L D 1956 S C 331 was announced. For the purposes of this case it is sufficient to say that that case laid down that the provisions of Article 181 must prevail unless there is actual repugnancy in the particular law relating to the police. In this case there was no such repugnancy and therefore Mr. Nasiruddin argues that we should have set aside the order of the Inspector General of Police on the ground that he had not given notice to show cause against the penalty proposed to be inflicted upon the petitioner. Mr. Raymond has argued that the judgment of the Supreme Court is an event which has supervened and should not be taken into consideration. But we think it is too well‑established a principle, namely, that Courts of law do not make law but merely declare the law, for us to consider that a judgment of the Supreme Court has altered the law. What has happened is that we proceeded upon a mistaken view of the law and this appears to be apparent on the face of the record. It is true that our order is not what might be called a 'speaking' order, but we think we can look at the contents of the petition in order to see whether we were justified in summarily dismissing the petition. We therefore set aside our order of dismissal and admit the main application to regular hearing. Mr. Nasiruddin does not claim costs of this petition". It was urged by the learned counsel for the petitioner that the order of reversion dated 24th December 1954 is contrary to the provisions of sections 240 (2) (3), 241 and 243 of the Government of India Act and also against the rules of the Bombay District Police Manual as applicable to Karachi. The learned counsel contended that the

1. G. P., before imposing any penalty on the petitioner, was bound to afford an opportunity to the petitioner to show cause. No such opportunity was given to the petitioner and this was a clear violation of rule 1284 (12) of the Bombay District Police Manual and section 240 (3) of the Government of India Act, and therefore the order in question is void, illegal and cannot be sustained. It was further contended that according to the rules the permanent posting of the petitioner to the Armed Police militates against rule 1270 footnote 8, Bombay District Police Manual, and therefore the impugned order is illegal, ultra vices, without jurisdiction and inoperative. Footnote 8 of rule 1270 reads as under :‑ "Transfers from the unarmed to the armed branch as a punishment should not be made as this tends to make the armed branch a penal force. Moreover, a man should be in the armed or unarmed branch solely by reason of his fitness for that branch". There was a conflict of opinion on the question whether the provisions of the Government of India Act and the Rules contained in the Bombay District Police Manual were applicable to the holders of temporary posts in the Police Department at Karachi, but this controversy was finally set at rest by the decision of their Lordships of the Supreme Court of Pakistan in the case of Noorul Hassan and others v. The Federation of Pakistan (P L D 1956 S C (Pak.)331.). Their Lordships in that case held : "The constitutional safeguards in subsections (2) and (3), of section 240, Government of India Act, 1935, are available to Police Officers of subordinate ranks unless those safeguards have been taken away by or under a Police Act. This result is consistent with the words of section 243 because if the intention had been that sections 240 and 241 were not at all to apply to subordinate police, nothing would have been easier than plainly to say so. The case of Suraj Narain Anand P I. D 1949 P C 1, is an instance of the application to a member of the subordinate police force of certain provisions contained in section 240, in the absence of any provision on that point under section

243. The language of section 243 is designed to operate on the basis of repugnancy between section 240 (2) (3) on one hand and the Rules under the Police Acts on the other. Therefore the provisions of sections 240 and 241 have no application where there is in existence a contrary or repugnant rule made applicable to subordinate ranks of the Police forces by or under the Acts relating to such forces. The opening words of section 243 'Notwithstanding any thing in the foregoing provisions of this chapter' are significant. They mean that the constitutional guarantees contained in the foregoing sections, viz : sections 240, 241 and 242, can be destroyed or diminished in the case of the police forces by making rules under Police Acts contrary to the statutory provisions contained in the above sections. If no such rules exist, the statutory guarantees must have their full force and play". The majority view as expressed by Cornelius, J. in respect of the temporary servants is "The Government of India Act, 1935, contains in sections 240 to 243, self‑contained provisions of a general nature, affecting all public servants, both permanent as well as temporary. It is possible to construe out of these pro visions, the law applicable to the cases of the present appellants, and it is not necessary for this purpose to draw on the general law of master and servant, or of contract, for the purpose of resolving the questions which here arise for decision. It follows that the right conferred by section 240 (3) upon public servants should be available to temporary police officers in the subordinate ranks of the force, in the absence of anything to the contrary contained in any other Act or statutory rule applicable to such personnel". The learned counsel for the respondent conceded that as the petitioner was a temporary Sub‑Inspector, in accordance with the view then prevailing, it was felt that no regular proceedings were required to be drawn up against him by the I. G. P., and hence the order in question was passed against him, but after the recent decision of the Supreme Court this view has been found to be wrong and therefore the order of the I. G. P., dated 24th December 1954, cannot be defended. It was however, urged that on 13th April 1956 the petitioner in his own handwriting submitted his resignation to the Superintendent of Police, Headquarters, Karachi and in this letter it was prayed that his resignation may be accepted with immediate effect and that in lieu of the notice of sixty days, which he was required to give, his two months basic salary may be deducted from his dues. He further pointed out that on 17th April 1956, orders were passed accepting the petitioner's resignation with effect from 17th April 1956 and the deduction of two months salary was also condoned. He therefore contended that the petitioner having voluntarily resigned from the Police Force the day after the writ petition was summarily rejected by this Hon'ble Court, has no legal right and therefore this writ petition was infructuous and should be dismissed. The petitioner submitted his resignation on 13th April 1956, which is reproduced below :‑ "The Superintendent of Police, Police Headquarters, Karachi. Sir, Most humbly and respectfully I beg to submit that Recently I had submitted a representation to the I. G. P., Karachi requesting him to cure the legal defects in the order passed by him on 24th December 1954, regarding my reversion and posting to the Armed Branch. I had great hopes of justice from the I. G. P., Karachi but to my misfortune he has summarily rejected my representation, without assigning any reasons. Under the circumstances, my conscience feels that it would be too difficult for me to continue in the illiterate constabulary staff of the Armed Branch with a broken heart, coupled with the fact that in the recent past I had enjoyed the rank of Station House Officer. I, therefore, humbly and respectfully tender my resignation under protest which may kindly be accepted with immediate effect and I have every hope that your honour would be kind enough to grant my last request. Sir, since I have already suffered a lot physically, mentally and monetarily, but still it is necessary, (I presume that it is discretionary to your honour) my two months' basic salary may be deducted from my hard earned pay and increment dues and provident fund which amount to about Rs.1,000." . This was accepted by Mr. Qamar Raza, Superintendent of Police, Headquarters, Karachi on 17th April 1956, and the following order was communicated to the petitioner No. SSC/HQ/P‑6/2189 Karachi, dated 17‑4‑1956. Order " APHC 6808 Muhammad Khan has tendered his resigna tion with immediate effect. Side by side he has volunteered to surrender his two months salary in view of the fact that a notice of sixty days has to be given before the resignation is accepted. Since this officer has suffered a monetary loss due to the prolonged illness of his wife and himself, I take a lenient view and order that his resignation be accepted we from 17th April 1956, without, inflicting any financial punishment," On the other hand it was urged on behalf of the petitioner that the said resignation was not a volunary act and it was given under pressure and constant harassment by the Department. It was pointed out that the resignation clearly mentions that it was given under protest and the summary dismissal of this application on 12th of April 1956 com pletely upset the petitioner and therefore the resignation was not a resignation in law. It was further urged that the resignation in question was submitted tot he Superintendent of Police and was accepted by him but, if this Court comes to the conclusion that the order of reversion of the

1. G. P. was illegal and void, then the resignation should have been submitted to the

1. G. P. and should have been accepted by him. The resignation in question having not been accepted by the I. G. P., the petitioner was entitled to recall and with draw it. It was further argued that the very fact that the petitioner made an application on 25th April 1956 for a review of the order of this Court dated 12th April clearly establishes that the resignation was withdrawn and lie still considered himself in the service of the Police Department. The short question for determination in this matter ;s (1) whether the resignation dated 13th April 1956, is a resigna tion in law and (2) whether the said resignation was properly accepted and became effectual. The learned counsel for the petitioner in support of his contention has relied on a Single judge ruling of the Sind Judicial Commissioner s Court reported in Abraham Reuben v. The Karachi Municipality (A I R 1929 Sind 69) and particularly on the following passage. Lobo, A. J. C. observed " Now, in these circumstances and in this state of facts, the question is, whether the acts of the plaintiff, especially the act of handing over charge oil 27th December are to be interpreted as a voluntary resignation by him or whether the action of the Managing Committee considered as a whole, amounts to a dismissal of the plaintiff from municipal service. The case of Stephenson v. London Joint Stock Bank Ltd. bears considerably on the point. In that case, the plaintiff, a clerk, in the defendant Bank had endorsed a promissory note made by one Mr. Sedger. On the Bank coming to know of this, the plaintiff was called upon for an explanation. On receipt of it the Secretary to the Bank wrote a letter to the plaintiff containing the words " You are required to resign your appointment in the Bank forthwith." The plaintiff then wrote to the Bank resigning his appointment. The question was, whether the plaintiff had retired with the consent of the Directors or had been dismissed. The Lord Chancellor in delivering the judg ment of the Court of Appeal said he entertained no doubt upon the point. They had to look at the whole of the facts, and doing so there could be no doubt but that the plaintiff had been dismissed. The use of polite instead of peremptory language did not alter the fact. In General Bill Posting Co. v. Atkinson 1909 A C 118 the House of Lords held, approving the earlier authorities that the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract. In re Rubel Bronze & Metal Co., and Vos 1918 1 K B 315 McCardie, J., states ' It has been authoritatively stated that the question to be asked in cases of alleged repudiation is whether the acts and conduct of the party evince an intention no to be bound by the contract '; and again at p. 323 of the report ' If the conduct of the employer amounts to a basic refusal to continue the servant oil the agreed terms of the employment, then there is at once a wrongful dismissal and repudiation of the contract.' Applying these rulings to the facts in the case before me as I have set them out, I am of opinion that the only inference to be drawn is, that the plaintiff did not resign his appointment but was dismissed by the Managing Committee of the Municipality. It has been argued that the plaintiff's letter Exh. 13 amounts to a voluntary resignation, that the Managing Committee gave the plaintiff an opportunity to resign and the plaintiff availed himself of that opportunity. I think the argument is unsubstantial ; Exh. 18 is surely not to be read by itself but in the light of the fact and circumstances immediately preceding and following it, and so read cannot by any stretch of imagination be regarded as evidencing a voluntary resignation. I, therefore, hold on issue 1 that the plaintiff did not resign his service." The facts in that case were entirely different and the principles of law enunciated therein cannot be applied to the facts of the present case. In that case the Karachi Municipal Corporation called upon the employee concerned to resign and thereupon under protest the resignation was tendered. In this case at no stage the petitioner was called upon to resign and certainly it would be too much to say that he was compelled to resign. The true test in such cases is that which was laid down by Lord Coleridge, C, J., in Freeth and another v. Burr (1874 L R 9 C P 208 at 213) and approved in Mersey Steel and Iron Co. v. Naylor Benzon & Co. (1884 L R 9 (434)) and also in General Bill Posting Co. v. Atkinson (1909 A C 118) in the House of Lords " That the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract." Moreover, as contended by the learned counsel in such cases the Courts have only to consider whether the petitioner relinquished, surrendered and gave up his right to remain in service. "Resignation is the act of giving up. It is the act of an officer by which he declines his office and renounces the further right to use it. To constitute a resignation it must be unconditional, addressed to the prescribed officer and there must be an intention to relinquish the remaining portion of the term of his office. This is really what is meant by resignation. There is no doubt in our mind that the petitioner for the reasons stated in the resignation evinced an intention no longer to be bound by the contract of service and relinquished and surrendered his right to remain in service. The words "under protest" only show that he was resigning on account of the objectionable treatment of his superiors, but that does not mean that he was not renouncing his further right to remain in office. Peti tioner's intention to no longer remain in service is very clear and this intention is further made clear in requesting the authorities to deduct two months' salary in lieu of notice. The contention of the learned counsel for the petitioner that if any employee resigns from his post under protest, on account of bad treatment and harassment at the hand of his superior officer, it is not a resignation and does not evince an intention to be no longer bound by the contract of service is devoid of all force. There is no evidence in this case, of compulsion and coercion as contemplated under the provisions of the Contract Act, to make the resignation ineffective. The petitioner was very much upset by the summary dismissal of his writ petition on 12th April 1956, and had lost his equilibrium and in that stess resigned from his post on 13th April 1956, but he later on realised his foolishness and made an application on 25th April 1956 for the review of the summary dismissal of the writ petition and thus tried to rectify the mistake committed by him. This, however, does not mean that any pressure was put on him to resign and there is no material on the record to persuade us to come to the conclusion. The next contention of the learned counsel for the petitioner that if this Court comes to the conclusion that the petitioner was wrongly reverted to the post of Head Constable and his order of reversion is held to be ultra vires, the resigna tion in question was not accepted by a competent‑authority and did not come into effect is not without force. It is a well established rule of law that a resignation can be withdrawn or recalled before its acceptance by the competent authority. This view is indirectly supported by the observations of their Lordships of the Indian Supreme Court in a decision reported in Jai Ram v. Union of India. (A I R 1954 S C 584). The relevant portion of the observations of their Lordships of the Supreme Court of India appears at page

586. Their Lordships observed :‑ It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained ; but he can be allowed to do so long as he continues in service and not after it has terminated. This authority was followed in decision reported in Shanker Dutt Shukla v. President, Municipal Board, Auraiya and another (A I R 1956 All. 70) Mehrotra, J., to considering a case of resignation observed :‑ " Where an application for resignation by a Municipal servant sent to the President was to come into existence from 1st April 1955 till that date there was no resignation at all and the applicant had the right to intimate to the President before that date that he no longer wished that his application should be considered as effective." The learned Judges of the appellate Court in Reichel v. Biship of Oxford ((LVI) L T R (N. S.) 539), emphasised the same principle. Cotton, L, J. while considering a case of resignation observed :‑ " Undoubtedly no resignation is effectual until it has been assented to‑approved‑by the bishop." And further observed. " As long as the resignation has not become binding by the assent of the bishop or ordinary so long can there be a revocation of the complete act ; but, as soon as the resignation is complete by the assent of the bishop, then there is no locus paenitentiae ; there is power to recall." Lindley, L. J., while considering a similar question, ob served :‑ " Speaking generally, a resignation is revocable until it has been accepted by the bishop, and when it is accepted by him the living becomes void." The documents produced on the record clearly establish the fact that the resignation in question was given under protest, was addressee to the Superintendent of Police and was accepted by him, on 17th April 1956. It is conceded before us that the order of the petitioner's reversion dated 24th December 1954, was improper and in violation of the pro visions of the Government of India Act and the rules of the Bombay District Police Manual. As such, the status of the petitioner at the time of the submission of the aforesaid resignation was that of a Sub‑Inspector of Police, and accord ing to the admission made by the learned counsel for the respondent it should have been submitted to the I. G. P. and accepted by him, This procedure was not followed in the present case and therefore the resignation of the peti tioner was not accepted by a competent authority. It seems to us that under these circumstances the petitioner was entitled to withdraw his resignation and by his subsequent conduct had sufficiently indicated his intention to withdraw the same. In these circumstances the resignation did not become effectual and in law the petitioner is entitled to be treated as a member of the Karachi Police Force. This petition was bound to succeed even on other grounds. The prayer claimed in the petition is merely for a declaration that the order of reversion dated 24th December 1954 is against law. This relief is necessary to determine the status of the petitioner in the respondent department with a view to find out whether, from 24th December 1954 to 13th April 1956, he was entitled to claim pay as S. I. P., or Head Constable. The contention of the learned counsel that the petitioner is H entitled to receive pay during the period of reversion as S. I. P, is not without foundation. It is admitted before us that the order of his reversion is bad in view of the decision in Noorul Hassan's appeal by their Lordships of the Supreme Court in the above‑noted case and therefore we are of the opinion that the petitioner is entitled to claim his pay during the period of reversion as S. I. P. For the reasons given above, the writ petition is accepted and it is ordered that the order of reversion of the I. G. P, dated 24th December 1954 is illegal, ultra vires and inopera tive in law, and it is further ordered that the petitioner will be treated to be on leave without pay from 13th April 1956, till the date of this judgment. A writ containing the above directions will be issued. In the circumstances of the case it is further ordered that the parties will bear their own costs. A. H. Petition accepted.