P L D 1962 Dacca 132 (PLP)

MURSHED, J.‑This is an application for the issue of a writ of mandamus or an appropriate order, directing the respondents to cancel the order of dismissal of theca petitioner passed by the Superintendent of Police of Rangpur, being Order No. 1195, dated the 14th of March 1957, in Rangpur District Proceedings No. 14 of 1956. The petitioner, at the relevant time, was holding a permanent post of a police officer of the rank of Sub‑Inspector of Police. He was appointed to the said post on the 1st of February 1946, and after serving at various police stations he was posted as officer‑in‑charge of Jaldhaka Police Station in the District of Rangpur where he joined on the 6th of August 1954. Prior to his posting at Jaldhaka Police Station he served as officer‑in‑charge of Gangachara Police Station of the same district. The case of the petitioner is that several complaints were made against him by the villagers of Jaldhaka and Gangachara Police Stations and Mr. Nuruddin Ahmed, who was then Superintendent of Police of Rangpur, enquired into such allegations and inasmuch as he found that there was no substance in them, he did not take any action against him. Thereafter the said villagers made several complaints In respect of the same matters to Mr. Y. A. Sayeed, Deputy Inspector -General of Police, Rajshahi Range (hereinafter referred to as the D. I. G.) who personally enquired into the said allegations. As a result of such enquiry the D. I. G. directed that the petitioner be placed under suspension and transferred him to Rangpur Police Line where he joined on the 30th of March 1956. The D. I. G. by a confidential memorandum, being Memo. No. 117‑C, dated the 8th of April 1956, directed Mr. A. F. M. Mannan, who was then Additional Superintendent of Police (Border), to draw proceedings against the petitioner on the basis of the inquiry held by him (D. I. G.) and also to institute the criminal proceedings against the petitioners under various sections. In pursuance of the said order passed by the D. I. G., Mr. A. F. M. Mannan, Additional Superintendent of Police, Border, placed the petitioner under suspension and also initiated an enquiry against him in which thirteen charges were framed. The approval of the Superintendent of Police of the district concerned was not obtained in respect of the said charges. Criminal proceedings were also Instituted against the petitioner under section 161 of the Pakistan Penal Code and also under some other sections of the said Code but he was acquitted in all the cases filed against him. On the 9th of June 1956, the enquiring officer, Mr. Mannan found the petitioner guilty of nine out of thirteen charges that were framed against him, namely, charges Nos. 1, 3, 5, 6, 7, 10 to

13. On the 10th of dune 1956, Mr. Mannan sent the record of the entire proceedings along with his findings to the D. I. G. who eventually sent the same to Mr. A. R. Talukdar who had then joined Rangpur as Superintendent of Police of that district. The entire file of the proceedings against the petitioner and the result of the enquiry and findings of the Additional Superintendent of Police were put up before Mr. Talukdar who entertained some doubt as to whether the pro ceedings drawn against the petitioner and the enquiry made by the said Additional Superintendent of Police were regular. On a cursory perusal of the file he further felt that the petitioner was not given adequate opportunity to put up defence witnesses. He wanted clarification and direction from the D. I. G., on this point and also on several other questions relating to the said proceedings. The D. I. G. by an order, dated the 19th of September 1956, returned the file of the proceedings back to the Superintendent of Police, namely, Mr. Talukdar, after overruling the objections raised by the Superintendent of Police. According to him an Additional Superintendent of Police was competent to make an enquiry against the petitioner subject to the limitation that he could not award a major punishment against the petitioner. D. I. G. also stated that the petitioner was placed under suspen sion under his orders. He, however, directed that if the Superintendent of Police was of opinion that further opportunities should be given to the petitioner to adduce defence evidence, he may do so. On the 25th of September 1956, the Superintendent of Police Mr. Talukdar, recorded the following orders "Received back the proceedings from the D. I. G., Rajshahi Range, with the following orders "(1) That the D. I. G. Rajshahi Range placed the petitioner under suspension and directed the Additional S. P. (Border), Rangpur to start proceedings against him. The Additional S. P. accordingly initiated the proceedings and enquired into them. As Additional S. P. he had all the powers of the S. P. except to pass final orders . . . . . . . . . . . ." The Superintendent of Police, on a careful perusal of the records, held that the petitioner was given full opportunity to adduce defence evidence. He, however, directed that the petitioner may put in his case in writing to him on the findings of the Additional Superintendent of Police. On the records of the proceedings drawn against the petitioner and the enquiry made by the Additional Superintendent of Police, Border, the Superintendent of Police came to the conclusion that the petitioner was guilty only of three charges out of thirteen that were levelled against him. He thereupon by an order, dated the 14th of March 1957, dismissed the petitioner from service, that is, from the post of Sub‑Inspector of Police, East Pakistan. It is against this order that present application is directed. Petitioner preferred an appeal against the aforesaid order of dismissal to the D. I. G., who dismissed the appeal and confirmed the order of dismissal passed by the Superintendent of Police. The D. I. G. however, held that only two charges were proved against the petitioner. Thereafter the petitioner submitted a revision petition to Government, which was also eventually rejected by the Inspector‑General of Police, East Pakistan. The grievance of the petitioner is (1) that the proceedings against him and the enquiry made by the Additional Superinten dent of Police are illegal and void as being against the provisions of the Police Regulations, Bengal, which apply to Police Officers in East Pakistan; and (2) that the impugned order of dismissal against him was made in contravention of clause (2) of Article 181 of the late Constitution inasmuch as he was not given a reasonable opportunity of showing cause against the order of dismissal that was proposed to be made against him. In fact, in the petition that was filed in this Court the grievence of the petitioner was that he was denied such opportunity in violation of the provisions of the Police Regulations, Bengal. But the substance of the petitioner's contention is that he was denied a reasonable oppor tunity of showing cause against the punishment that was proposed to be inflicted on him. There was further allegation to the effect that the action taken by the D. I. G. is mala fide. This has been refuted in the affidavit‑in‑opposition that has been filed on behalf of the respondents and we do not think that the petitioner has succeeded in establishing that proceedings were drawn against him because of any malice, which the D. I. G., bore against him. The irregularity complained of in the petition is that the charge against the petitioner did not receive the approval of the Superintendent of Police of the district concerned. However, at the hearing of the present Rule Mr. Ghulam Hafez, who appeared for the petitioner before us, drew our attention to various provisions of the Police Regulations, Bengal, and has contended that the proceedings drawn against the petitioner and the enquiry made by the Additional Superintendent of Police, Border, were irregular and not authorised by the said rules. Regulation 1 defines "Superintendent" as follows: "the word `Superintendent' means Superintendent of Police and includes an Additional Superintendent and any officer, not below the rank of Inspector, temporarily discharging the duties of the Superintendent of Police when the latter is incapacitated or absent from headquarters." Mr. Ghulam Hafez has submitted that the words "Superintendent of Police" include an Additional Superintendent of Police only when the Superintendent of Police is incapacitated or is absent from headquarters and the former, in fact, remains in charge of the district. On behalf of the respondents it was contended that for all purposes the term "Superintendent of Police" includes an Additional Superintendent of Police. We do not think that the construction, which is sought to be put on behalf of the respondents is applicable to all the provisions of the said Regulations. We cannot invariably substitute the term: " Additional Superintendent of Police" wherever the term "Superintendent of Police" occurs, Regulation 39 defines the position of an Additional Superin tendent of Police and also enumerates the duties, which may be delegated to him. Regulation 40 imposes certain restrictions on delegation of duties to Additional Superintendent of Police. That Regulation reads as follows "(a) Although the Superintendent may delegate to the Additional Superintendent the maintenance of the cash balance certificate he shall satisfy himself that the Additional Superin tendent is exercising a careful scrutiny. (b) * * * * * * * (c) The Superintendent may not delegate to an Additional Superintendent responsibility for any of the following . . . . ." It is quite clear that in the aforesaid Regulation the term "Superintendent of Police" does not mean and include an Additional Superintendent of Police. Regulation 41 deals with the matters, which Superintendent of Police should deal personally, and reads as follows: "(a) The Superintendent shall personally deal with the following matters: ‑ (i) Proceedings against Inspectors ; * * * * * * * * (b) The Superintendent shall himself pass orders about the major punishment of Sub‑Inspectors. (c) The Superintendent shall personally, as often as possible‑ (i) supervise important cases . . . . . . . . ." It is also clear that the word "Superintendent" as used in the aforesaid Regulation means and includes Additional Superinten dent. It is, therefore, patent that the term "Superintendent of Police" is not always and invariably inter‑changeable with the term "Additional Superintendent of Police." Mr. Hafez has relied on the provisions of Regulation 861 (o) in support of his contention that the proceedings drawn against the petitioner and the enquiry made by the Additional Superin tendent of Police, Border, are illegal. Regulation 86' (o) runs as follows:‑ "(o) Proceedings against Inspectors and in cases of serious misconduct against officers of and below the rank of Sub -Inspector, shall be drawn up by the Superintendent. In other cases proceedings may be drawn up and evidence recorded by an officer not below the rank of Inspector (excluding Armed Inspectors) who will then submit the record to the Superinten dent for perusal, examination and issue of orders." It was submitted on behalf of the respondents that the word "Superintendent" in Regulation 861 (o) includes the expression "Additional Superintendent of Police", as such a construction will not militate against the provisions of the rule. Learned Advocate‑General, therefore, modified his argument to this extent that the expression "Superintendent of Police" will always include an Additional Superintendent of Police unless the text of the Regulation itself militates against such a construction. He has, furthermore, drawn our attention to the provisions of Regulation 858 (a) (5) which runs as follows: "(5) Assistant and Deputy Superintendents in charge of sub -divisions and also those Assistant and Deputy Superintendents at whom the power may be delegated by Superintendent in writing, are empowered to inflict minor punishments on Sub‑Inspectors and Officers subordinate to them, and in the case of major punishments, to initiate proceedings and to complete them, except so far as the final order is concerned." It has been argued that it would be absurd to suggest that whereas in specific cases powers to Initiate proceedings against Sub -Inspectors may be delegated to an Assistant Superintendent or a Deputy Superintendent of Police, such powers may not be delegated to an Additional Superintendent of Police. We, however, do not propose to go into the question any further because of the following reasons In the first place, it has not been shown in the petition before us that the Additional Superintendent of Police, Border, was not at the relevant time, in fact, in charge of the district concerned and the petitioner has not placed full materials before us upon which we could come to a definite finding that the proceedings drawn by the Additional Superintendent of Police, Border, was irregular; on the contrary, from the affidavits filed before us it is clear that it was at the direction of the D. I. G. that, in fact, proceedings were drawn against the petitioner by the said Additional Superintendent of Police, Border. Secondly, we hold that the petitioner is not entitled to get any relief from us merely on the ground of some breach of rules and irregularities com mitted in the course of the proceedings according to the Police, Regulations, Bengal. The petitioner's remedy before us is confined to the terms of Article 181 (2) of the late Constitution. Article 181 runs thus "(1) No person who is a member of a Civil Service of the Federation or of a Province, or of an All‑Pakistan Service, or holds a civil post in connection with the affairs of the Federa tion, or of a Province, shall be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid 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 fn regard to him." In this case we are not concerned with clause (1) of Article 181 inasmuch as it has not been contended before us that the petitioner was dismissed by an authority subordinate to that by which he was appointed. The grievance of the petitioner is that he was denied a reasonable opportunity of showing cause against the action proposed to be taken against him, namely, dismissal from service. In this connection, we may also quote the corresponding provisions in the Government of India Act, 1935. Section 240 thereof reads as follows: "(1) Except its expressly provided by this Act, every person who is a member of a Civil Service of the Crown in India, or holds any civil post under the Crown in India, hold office during His Majesty's pleasure. (2) No such person as aforesaid who having been appointed by the Secretary of State or the Secretary of State‑in‑Council continues after the establishment of the Dominion to serve under the Crown in India shall be dismissed from the service of his Majesty by any authority subordinate to the Governor- General or the Governor according as that person is serving in connection with the affairs of the Dominion or of a Province and no other such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. (3) No such person as aforesaid shall be dismissed 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. Provided that this subsection shall not apply‑ (a) where a person is dismissed or reduced In rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where an authority empowered to dismiss a person or reduce him In rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause. (4) * * * * * * * *. The corresponding provisions in the late Constitution of Pakistan are to be found in Articles 180 and 181, which are as follows: "

180. Except as expressly provided by the Constitution‑ (a) every person who is a member of Defence Service, or of a Civil Service of the Federation, or of an All‑Pakistan Service, or holds any post connected with Defence, or a civil post In connection with the affairs of the Federation, shall hold office during the pleasure of the President, and (b) every person who is a member of a Civil Service of a Province or holds any civil post in connection with the affairs of a Province, other than a person mentioned in paragraph (a) of this Article, shall hold office during the pleasure of the Governor. 181. (1) No person who is a member of a Civil Service of the Federation or of a Province, or of an All‑Pakistan Service, or holds a civil post in connection, with the affairs of the Federa tion, or of a Province, shall be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed from service, or reduced in rank, until he has been given a reason able opportunity of showing cause against the action proposed to be taken in regard to him Provided that this clause shall not apply‑ (a) where a person is dismissed or removed from service or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge ; or (b) where an authority empowered to dismiss or remove from service a person, or to reduce him in rank, is satisfied that for some reason, to be recorded by that authority, it is not reason ably practicable to give that person an opportunity of showing cause; or (c) where the President or the Governor, as the case may be, is satisfied, for reasons to be recorded by him, that in the interest of the security of Pakistan or any part thereof, it is not expedient to give to that person such an opportunity." We may add that the provisions of section 243 of the Government of India Act, 1935, had not been re‑enacted in the late Constitution of Pakistan. The said section 243 runs thus: "Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the subordinate ranks of the various police forces in India shall be such as may be determined by or under the Acts relating to those forces respectively." The aforesaid provisions have been totally omitted in the late Constitution. Therefore, the Police Regulations, Bengal, cannot prevail over the provisions of the Constitution. Thus Article 180 of the Constitution expressly provides that public servants, as mentioned in the said Article, "hold office during the pleasure" of the President or the Governor, as the case may be, except as expressly provided by the Constitution, and the only limitation to Article 180 is confined to what has been provided in Article

181. Thus the only ground on which a public servant, aggrieved by an order of dismissal, removal or reduction in rank, can apply to this Court for the issue of a prerogative writ, is confined to a violation of the provisions of Article 181 of the Constitution. The result of the aforesaid provisions is that every public servant under the President of Pakistan or the Governor of a Province, as the case may be, holds his office during the pleasure of the President or Governor and his dismissal from such service or removal or reduction in rank cannot be justiciable in a Court of law unless he can bring his case within the provisions of Article 181 of the late Constitution. In other words, a public servant can seek relief from a law Court on two grounds only, namely, (a) on the ground that he was dismissed or removed from service or reduced in rank by an authority subordinate to that by which he was appointed, and/or (b) that he was not given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It is therefore, clear that in the matter of dismissal, removal or reduction in rank a mere breach of rules governing the service of public servants under the President or the Governor, as the case may be, would not become justiciable unless such breach of rules has led to his dismissal or removal from service or reduction in rank by an authority subordinate to that by which he was appointed, and/or unless he can show that he was not given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Thus, it is only in case of dismissal or removal from service or reduction in rank by an authority subordinate to that by which he was appointed, or, in case of a denial of a reasonable opportunity of showing cause against the proposed action in regard to him, that an aggrieved public servant can approach a Court of law for an appropriate remedy. Our conclusion in this respect finds support from the obser vations of Munir, C. J., in the case of Noorul Hassan v. Federation of Pakistan (P L D 1956 S C (Pak.) 331) which runs thus: "I am perfectly clear in my mind that a breach of the rules as distinguished from the violation of a constitutional provision would not have given them a cause of action and that such breach would not have been cognizable by a Court. The basic authority in support of this proposition is the Privy Council decision In Ventaka Rao's case 64 I A 55." We may add that none of the learned Judges of the Supreme Court in that case expressly dissented from the dictum of Munir, C. J., as quoted above, although the majority of the learned Judges expressed different views on another point upon an interpretation of section 243 of the Government of India Act, 1935. We have seen that the provisions of the said section have not been incorpo rated in our Constitution. We are, therefore, not concerned with the same here. Having regard to the context in which Munir, C. J., made the aforesaid observations, we would re‑state the same in the following manner. A mere breach of rules in conducting departmental proceed ings and enquiries against a public servant, with a view to dismiss, remove or reduce him in rank, would not of itself, give rise to a cause of action which will be justiciable in a Court unless such breach of the rules would amount to either an order of dismissal or removal from service or reduction in rank by an authority inferior to that which appointed the officer concerned, or, unless such breach would amount to a denial of a reasonable oppor tunity to show cause against the action proposed to be taken. An aggrieved public servant in the aforesaid circumstances would be entitled to relief because the Constitution itself provides that holding of office during the pleasure of the President or the Governor Is subject to restrictions specified in Article

181. The Police Regulations, Bengal, are directions to the police depart ment or directorate with regard to principles, which should govern the service of police officers and they do not, in any sense, impose any limitation upon the pleasure of the President or the Governor to dismiss, remove or reduce them in rank. We have already stated that the only limitations are those imposed by Article 181 of the late Constitution. This will also receive support from the decisions of the Judicial Committee of the Privy Council, which have been discussed by the Supreme Court of Pakistan in the aforesaid case of Noorul Hassan. Amongst the cases discussed is the case of Shenton v. Smith (1895 A C 229). It was held that, except in cases where it was otherwise provided, servants of the Crown held their offices during the pleasure of the Crown and that the Colonial Office Regulations were not a part of the service contract of a servant of the Crown. It was further held that a breach of the said regulations was not actionable. In the case of Gould v. Stuart (1896 A C 575), the Judicial Committee re‑armed the principle that a servant of the Clown held office during the pleasure of the Crown, but, on a construction of the provisions of the New South Wales Civil Service Act of 1884, the Board held that the express provi sions of the said statute negatived the principle that the Crown could terminate, at its pleasure, the service of an officer whose conditions of service were governed by the said Act. The ratio decidendi in this case is that the common law principle of an Implied term in the contract of service under the Crown, of dismissal at the pleasure of the Crown, was subject to statutory provisions to the contrary. In the case of Rangachari v. Secretary of State for India (64 I A 40), the Board had to deal with the provisions of section 96‑B of the Government of India Act, 1919, which runs thus: "(1) Subject to the provisions of this Act and of rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty's pleasure . . .but no person in that service may be dismissed by an authority subordinate to that by which he was appointed " It was held that the dismissal of the appellant by an authority subordinate to that, which appointed him was, by reason of its origin, bad and inoperative, but the Board declined to give a declaration to that effect. In the case of Venkata Rao v. Secretary of State for India (64 I A 55), the appellant, who was a reader in the Government Press, Madras, was dismissed from service. Although at the official enquiry which preceded his dismissal, Important provisions of the Civil Services Classification Rules were not followed, it was held that by express terms of sec tion 96‑B of the Government of India Act, 1919, the appellant held office "during His Majesty's pleasure" and that no right of action as claimed by the appellant existed. Furthermore, it was held that there was no right in the appellant enforceable by action, to hold his office in accordance with the said rules ; he could, therefore, be dismissed notwithstanding the failure to observe the procedure prescribed by the rules. In the case of High Commissioner for India and High Commissioner for Pakistan v. I. M. Lall (P L D 1948 E C 150) the Board had to consider the effect of subsec tions (1) and (3) of section 240 of the Government of India Act, 1935. It was held that power of the Crown to dismiss a civil servant at pleasure under subsection (1) was controlled by subsection (3) which provided as follows: "No such person as aforesaid shall be dismissed ..until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." The ratio decidendi was that the constitutional provision quoted above must prevail. The declaration, which the aggrieved civil servant obtained was upheld. We may add that, so far as we are concerned, in the case before us the holding of office "during the pleasure" of the President or the Governor, as the case may be, is a constitutional provision embodied in Article 180 of our Constitution. The power of dismissing an officer at the pleasure of the President or the Governor cannot be restricted by statutory provisions or rules framed under them. Thus the dismissal of the petitioner cannot be challenged on the ground that the Police Regulations, Bengal, were not followed in the enquiry which was held against him. The restrictions to the power of dismissing at pleasure under Article 180 are strictly confined to the provisions of clauses (1) and (2) of Article 181 of the Constitution inasmuch as Article 180 begins with the following qualifying phrase, namely, "Except as expressly provided by the Constitution." In construing Articles 180 and 181 of the late Constitution the fundamental distinction between constitutional provisions and mere statutory provisions or the provisions of rules under a statute should be borne in mind. Statutory provisions or rules made thereunder cannot override constitutional provisions unless the constitution itself concedes that they will have that effect. The Articles of the late Constitution, in so far as they are appli cable to‑day, do not lose their character as fundamental law by reason of the fact that they can now be altered by a Presiden tial decree or order. Until so altered, they have, to the extent of their express Continuance, the same effect as they would have had if the Constitution was not abrogated. In this context, it will be seen that the provision of Article 181 to the effect that public servants hold office during the pleasure of the President or Governor, as the case may be, do not any longer derive their legal efficiency from the common law principle of an implied term of contract of service of servants under the Crown. The said provision derives its validity from the Constitution or the fundamental law of this country. The power of dismissal at pleasure is our fundamental law and is only controlled by the provisions of the same fundamental law, namely, Article

181. The result, therefore, is that whenever a public servant as specified in Article 180 is dismissed, removed or reduced in rank he can only agitate the questions, namely: (i) Has he been dismissed, removed or reduced in rank by an authority subordinate to that which appointed him ? and (ii) In so dismissing, removing or reducing him in rank, has he been given "a reasonable opportunity to show cause against the action proposed to be taken against him"? In these circumstances, we hold that the petitioner is not entitled to any relief on the first ground that was pressed before us. We now turn to the only other and most important ground on which the petition before us was pressed by the learned Advocate for the petitioner. Our attention was drawn to para graph 26 of the petition which is to the following effect "

26. Your petitioner submits that he was not given personal hearing by the S. P. who did not ascertain that your petitioner was not given copies of all matters incorpo rated in the impugned proceedings and who did not order your petitioner to show cause why particular penalty viz., dismissal should not be imposed upon him. Nor did the S. P. record why such show‑cause notice was not served upon him. This contravenes the mandatory provisions of rule 861 of P. R. B. Volume I and procedures for holding departmental enquiries contained In Rule 55 of the Civil Service (Classification, Control and Appeal) Rules hereinafter referred to as C. S. Rules as mentioned in Memo. No. 446 F., dated 29‑1‑55 of Finance Department, Government of East Bengal. Your petitioner has been seriously prejudiced thereby." It was argued before us that the contravention of the aforesaid provisions of rule 861 of the Police Regulations, Bengal, also amounted to a contravention of clause (2) of Article 181 of the late Constitution, On behalf of the respondents the reply to the aforesaid statement made by the petitioner really tantamounts to this that the said statement is not admitted. From what we have stated above, it transpires that the enquiry made against the petitioner was conducted by the Additional Superintendent of Police, Border, in the aforesaid circumstances. The records of his enquiry as well as his findings were transmitted to the Superin tendent of Police concerned through the D. I. G. The Superin tendent of Police on receipt of such records and on a casual perusal thereof was of opinion that the proceedings against the petitioner were probably irregular. He, however, revised that opinion on receipt of further light from the D. I. G., and on a careful examination of the records he came to the conclusion that the petitioner was given the fullest opportunity to examine witnesses on his behalf and to cross‑examine those that gave evidence against hire. It further transpires from the records of the proceedings that he had, in fact, availed himself of the opportunity that was given to him to cross‑examine witnesses. It is also clear from the records that he was given sufficient oppor tunity to examine witnesses on his behalf if he wanted to do so. In these circumstances, the Superintendent of Police also recorded a finding to the effect that the petitioner was, In fact, given the fullest opportunity to represent his case, namely, to examine witnesses on his behalf and to cross‑examine those who appeared to give evidence against him. It transpires from the records, which were placed before us by the learned Advocate‑General, that on the 3rd of Novem ber 1956, the Superintendent of Police passed the following order: "The order‑sheet clearly indicates that the delinquent was given to an opportunity to examine D. Ws. So, the question of giving him further opportunity to examine D. Ws. does not arise at this stage. Direct him to submit his second defence in writing in reply to the findings of the enquiring officer, if he so desires by 20‑11‑

56. If he wants to produce any docu ment in his defence he can submit them along with his second defence." On the 22nd of January 1957, he recorded the following order: "The delinquent submits) his second written defence. It is a very complicated proceedings and will take a little time and individual concentration for its disposal. I am very busy now with the implementation of various anti‑smuggling measure, and cannot, therefore, take up the disposal of this voluminous proceedings. Put up next month when I got to the Mobiliza tion Camp." Eventually, on the 10th of March 1957, he passed the following order which is recorded in the order‑sheet : "Orders passed. Out of 13 charges, only 3, vide Charge Nos. 1, 11 and 12 have been proved against the delinquent, one charge has been dropped due to some legal complications while the rest have not been proved. All the 3 charges proved against the delinquent are of very serious nature involving a question of moral turpitude. The delinquent has, therefore, been ordered to be dismissed from the Police Department with effect from the date of communication of these orders. He is under suspension from 9‑4‑

56. He will not draw anything more than what he has already drawn during the period of suspension." The order of dismissal has been recorded thus " I, therefore, order that the delinquent is dismissed from the Police Department with effect from the date of communication of these orders. He is wider suspension and he will not draw anything more than what he has already drawn during this period of suspension." The grievance of the petitioner before us is that at no point of time he was given an opportunity to show cause against the order that has been passed against ‑ him, namely, the order of dismissal mentioned above. It is clear from the records that have been placed before us that the proceedings before the Superintendent of Police subse quent to the time when a record of the proceedings drawn by the Additional Superintendent of Police, Border was transmitted to him, were in the nature of a continuance of a formal pro ceeding conducted by the said Additional Superintendent of Police. All that the Superintendent of Police did was to give to the petitioner a second opportunity to put his case in reply to the findings of the enquiring officer, t'i.; t is to say, he was given a chance of making his defence in writing and by the production of documents against the findings recorded by the Additional Superintendent o' Police. Thereafter the Superintendent of Police straightway proceeded to pass an order of dismissal against him. It is, therefore, clear that he was not given any opportunity to show cause against the proposed action taken against him namely, an order of dismissal. At no point of time the peti tioner was told that dismissal from service was the action which was proposed to be taken against him with a view to give him an opportunity to show cause as to why such order should not be made. This is a clear violation of the provisions of Article 181 (2) of the late Constitution, that is to say, it is a denial of "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." The require ment of this clause is that the public servant concerned must be furnished with a reasonable opportunity to show cause why a particular punishment, namely, order of dismissal or removal from service or reduction in rank, as the case may be, should not be made against him. This right has to be distinguished from an opportunity to show cause against the charges that were levelled against him which might furnish grounds for his dismissal from service. Therefore, the requirement of this clause of Article 181 is that the petitioner's attention has to be drawn to the proposed action to be taken against him and he must be given a reason able opportunity to show cause against such proposed action, after a finding to the effect that the charges, or some of them, as would justify the proposed action, have been established. This proposition finds support from the decision of the Judicial Committee of the Privy Council in the case of High Commissioner for India v. I. M. Lall (P L D 1948 P C 150) At page 159 of the report Lord Thankerton quotes with approval the observations of the learned Chief Justice of the Federal Court of India, which are as follows: "It does however seem to us that the subsection requires that as and when an authority is definitely proposing to dismiss or reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reason able opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person concerned must then be given a reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken. It is suggested that in some cases it will be sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved, dismissal or reduction in rank will follow. This may indeed be sufficient in some cases. In our judgment each case will have to turn on its own facts, but the real point of the subsection is in our Judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed." Thereafter Lord Thankerton proceeds to observe as follows :‑ "Their Lordships agree with the view taken by the majority of the Federal Court. In their opinion, subsection (3) of section 240 was not intended to be, and was not, a reproduction of Rule 55 which was left unaffected as an administrative rule. Rule 55 is concerned that the civil servant shall be informed "of the grounds on which it is proposed to take action", and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing; this is in marked contrast to the statutory provision of "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him". In the opinion of their Lordships, no action is proposed within the meaning of the subsection until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punish ments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which subsection (3) makes provisions. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under R. SS, it would not be reason able that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment pro posed as the result of the findings of the enquiry." In the case of State of Bombay v. Gajanan Mahadev (A I R 1954 Bom. 351) a Division Bench of the Bombay High Court bad to consider the same question. Chagla, C. J., at page 355 of the report, has observed as follows: ‑ "The Advocate‑General has attempted to argue that it is necessary for the servant to make a grievance that he has been deprived of a certain opportunity and it is only if he makes such a grievance and that grievance has not been removed that it would be open to the dismissed servant to complain in Court that reasonable opportunity was not given to him. That seems to us not to be the true view of the law. If a Government servant comes to Court and complains that his dismissal was wrongful and that reasonable opportunity was not given to him as required by the statute, it is for the State then to satisfy the Court that in fact reasonable opportunity was given to him. The requirement of the Government of India Act that reasonable opportunity should be given to the Government servant does not depend upon the Government servant asking for it. It is a statutory protection that is afforded to the servant and a statutory obligation cast upon the State and the State has got to discharge that obligation irrespective of whether the protection is claimed or not claimed by the servant. If the Court holds that reasonable opportunity was not given, the order of dismissal must be set aside and the Court cannot be influenced by the consideration that the dismissed servant did not ask for a reasonable opportunity. It is also important to bear in mind, as pointed out by the Privy Council, that the Endings given by the officer holding the departmental inquiry are at that stage merely tentative. It is only when the authority who has a right to dismiss the servant comes to a definite conclusion on the charges which have been preferred against the servant and the actual punishment to follow is provisionally determined that the stage arises when a reasonable opportunity should be given to the servant to show cause against the action proposed to be taken. It is only at that stage, as the Privy Council points out, that the action is proposed within the meaning of section 240 (3) of the Govern ment of India Act." We would only add that the constitutional provisions of Article 181 of the late Constitution ate similar to those of section 240 (3) of the Government of India Act, 1935. They are couched in identical terms. The ratio decidendi of the cases cited above will apply to the facts of this case having regard to the terms of Articles 180 and 181 of the Constitution. From the records it is patent that the petitioner was given no opportunity to show cause against the action proposed to be taken against him. The Superintendent of Police at no stage apprised the petitioner that it was proposed that he should be dismissed from service and, furthermore, the petitioner was never asked to make his representation with regard to the proposed action. We would also make it clear that the question whether a public servant has been dismissed without being given a reasonable opportunity to show cause against the action proposed to be taken against him, will have to be answered in the light of the facts and circumstances of each case, as has been rightly emphasised by Chagla, C. J., in the decision quoted above and reported in A I R 1954 Bom.

351. The expression "reasonable opportunity" cannot be defined in precise terms, applicable to every case. It has' to be construed in the background of the facts and circumstances of each case. To define the expression would be like defining the indefinable or measuring the immeasurable. In this case our attention was drawn to the fact that the petitioner had preferred an appeal in which the order of dismissal was confirmed and also a revisional application which was also rejected. We do not propose to give any decision on the point as to whether, an opportunity given to a dismissed Government servant to make a representation against the action taken against him, even if such opportunity is given at an appellate stage, would satisfy the requirements of clause (2) of Article 181 of the Constitution, inasmuch as, in this case it is clear that no such opportunity was, in fact, given to him. The appeal that was preferred by the petitioner was disposed of by the D. I. G., and it is clear from the order passed by the D. I. G. that the appeal was confined to the merits of the case, namely, to the question as to whether the charges against the petitioner were established or not. The appel late authority, i.e., the D. I. G., came to the conclusion that two out of thirteen charges levelled against the petitioner had been established and, in the aforesaid circumstances, he dismissed the appeal confirming the order passed by the Superintendent of Police. To the representation made by the petitioner in revision to the Government of East Pakistan the Inspector‑General of Police merely recorded the order that he could find no reason to interfere with the orders passed in this case. In these circum stances, it is clear that, even at the appellate or revisional stage he was given no opportunity to make his representation with regard to the punishment proposed to be inflicted on him, as distinguished from his defence in respect of the charges that were levelled against him. We would like to emphasise that clause (2) of Article 181 of the late Constitution affords a valuable right to a public servant. This Article specifically relates to the furnishing a reasonable opportunity to a public servant to make his representation with regard to the proposed punishment which is about to be inflicted on him. Such representation by the officer concerned might be based on grounds irrelevant to the adjudication of the charges that were framed against him. To illustrate this point, we may take the case of an officer like the petitioner against whom an order of dismissal was made on the strength of charges involving moral turpitude, which were held to be proved against him. The officer concerned could take recourse to two distinct methods to show cause as to why the particular action should not be taken against him. In the first place, be might make representations, which would disprove the charges framed against him. If he succeeds in doing so, he would 5e completely out of the wood there and no question of any such punishment would arise. Secondly, circum stances may arise when the charges against the officer may be proved and he may be asked as to why he would not be dismissed on that account. He might not be able to refute the charges framed against him ; but he may be able to point to a continu ously brilliant and meritorious service on the basis of which he might obtain a lesser punishment than dismissal from service. On such representation he might succeed in convincing the appro priate authority that a reduction in rank would be sufficient punishment in the circumstances of the case. Similarly, he might make a representation on various other grounds upon which he may succeed in showing that, although he has been found guilty of the charges levelled against him, no action against him need be taken. This is why the decision or the Privy Council in I. M. Lall's case has been interpreted to imply that the public servant concerned, as a measure of "reasonable opportunity", should be given two opportunities to make his defence, one during the enquiry stage when charge against him is being investigated upon and another when it has been tentatively decided on the findings against him that a particular action should be taken. We do not intend to lay down that invariably in every case such opportunities must be given on two separate and distinct occasions in the sense that the same cannot be given in the course of a single enquiry by an enquiring officer competent to take the proposed action against the public servant concerned. But the right to make his defence in respect of the charges which might become the basis of tae proposed action is distinct from the right to show cause in respect of the action intended to be taken when it has been tentatively decided that such action would be taken. As a measure of "reasonable opportunity" as mentioned in Article 181 he must be given proper opportunities to defend himself both in respect of the charges as well as in respect of the punishment proposed to be inflicted against hint. This right to make representation against the proposed punishment intended to be imposed upon a public servant can take the shape of a two‑fold defence against the said action. The importance of this should be realised by officers who draw depart mental proceedings against subordinate officials because unfortu nately our experience shows that import of the provisions of clause (2) of Article 181 of the late Constitution is often lost sight of by Government servants in disposing of proceedings against subordinate officials. The result, therefore, is that the Rule is made absolute and the order of dismissal being Order No. 1195 dated 14‑3‑57, passed against the petitioner Abdul Majid by Mr. A. R. Talukdar, Superintendent of Police, Rangpur, in Rangpur District Proceed ings No. 14 of 1956 is hereby cancelled. In view of the circum stances of this case, we make no order as to costs. SALAHUDDIN AHMED, J.‑I agree. A. H. Rule made absolute.