1989 PLP 1837 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted under Article 212(3) of the Constitution to the appellants who were Police Officers, to examine what was the effect of non‑compliance of the Rule 9 of the Punjab Police A (Efficiency and Discipline) Rules, 1975 (hereinafter referred to as the 1975 Rules), and whether punishment other than dismissal from service would have adequately met the ends of justice.

2. On the 4th of May, 1981, the then Superintendent of Police Gujranwala noticed that the conduct of Raja Javed Ahmad appellant No.1 was remiss in handling his subordinates. He took serious notice of it and orally reprimanded him. According to this appellant, the reprimand amounted to abusive language. Failing to get an interview with the D.I.G., he, his associates and subordinates went on strike as from 5th of May, 1981. The number of striking personnel swelled from forty to sixty in all. On certain assurances extended by the superior officers, the strike was brought to an end. The Superintendent of Police who was the competent authority proceeded against the appellants and others professedly under the 1975 Rules and after giving them oral personal hearing in the orderly room, dismissed them from service. Their departmental appeal to the next superior officer, the Deputy Inspector‑General of Police, was rejected on 2‑3‑1982. The matter was taken to the Service Tribunal where it was urged that a show‑cause notice should have been given in writing and reasonable opportunity to show cause against the action to be taken should have been afforded to the appellants as provided in Rule

9. The Tribunal held as a fact that no notice in writing as required by Rule 9 of the 1975 Rules had been given to the appellants but proceeded to protect the action taken against them on two grounds. The first was that the Proviso to Rule 9 gave the power to authority on being satisfied that in the interest of security of Pakistan or any part thereof it was not expedient to give such opportunity, it could dispense with it and this power though not expressly invoked by the competent authority was available to it. As regards the second ground, for defending the order the following observations were made:‑ "Besides the statements of four of the appellants, the D.I.G. Police has recorded voluminous evidence consisting of persons from various walks of life, numbering 24 in all including the four appellants so mentioned above, and all of them by their evidence, have fully established on the record that this incident was nothing but an act of mutiny by the disciplined force."

3. Considering that proviso to rule 9 had not been invoked by the competent authority and also that it was not shown that the disclosure of the ground would have compromised the security of Pakistan or any part of it and there had taken place a manifest breach of a salutary provision of Rules of 1975 we allowed an opportunity to the learned Assistant Advocate‑General after hearing him to go through the records in order to find out whether there has been any substantial compliance with the requirements of the Rules in the case. The learned Assistant Advocate‑General has reported to us today that no further record is available to show that any show‑cause notice in writing was given to the appellants. An examination of the Disciplinary Rules shows that the competent authority in this case proceeded to adopt summary police proceedings provided in Rule 6(2) of 1975 Rules. But then this Rule has a limitation that though the charges may be communicated orally the explanation or the substance of it has to be recorded and only minor punishment could be imposed and dismissal is not a minor punishment. On the facts of the case, however, Rule 9 was the more appropriate rule because it deals with a striking Police Officer. The requirement of the Rule is as hereunder:‑ "

9. Special Police Proceedines‑‑Where an enrolled Police Officer goes on strike, hungerstrike, protest or demonstration or by use or threat of criminal force or in any other manner whatsoever, induces or incites any other Police Officer to go on or participate in such strike, demonstration or protest, notwithstanding anything contained in these rules, the authority, shall (a) by order, in writing, inform the accused officer of the action proposed to be taken in regard to him and grounds of the action and require him to submit his explanation within a specified period; (b) consider the explanation of the accused, if any, and after giving him a reasonable opportunity of showing cause against the proposed action, may award any of the punishments specified in section 7 of the Police Act, 1861: Provided that no such opportunity shall be given where the authority is satisfied that in the interest of security of Pakistan or any part thereof it is not expedient to give such opportunity." It was incumbent under clause (a) to inform the appellants in writing of the action proposed to be taken in regard to them and grounds of action and require them to submit their explanation within a specified period. The explanation so submitted had to be considered and they had to be given an opportunity to show cause against the proposed action and then alone the punishment could be inflicted. The proviso does not displace the whole of the Rule but only displaces or excludes in a given situation "opportunity of showing cause against the proposed action". The Police Officer charged under this Rule cannot be denied notice in writing of the proposed action against him nor can he be prevented from submitting his explanation on the strength of this proviso even where it is available. Proviso being an Exception has to be given a restricted meaning and it extends only to denial of a reasonable opportunity to show cause against the p proposed action and not in respect of communication of charges and their grounds and obtaining of his explanation thereto. Besides, the competent authority has not claimed nor exercised the power reserved for it under the proviso and it having not done so no other authority could have extended the benefit of it.

4. We find that the proceedings being in violation of the law the dismissal order cannot be sustained. The appeal is allowed. The order of their dismissal is set aside. However, this will not preclude the departmental authorities from prosecuting the appellants in accordance with law. M.A.K./J‑51/K Appeal allowed.