P L D 1961 (W (PLP)

(iii) that he was not given an opportunity to cross‑examine the Assistant Mechanical Engineer No. 1; (iv) that the show cause notice, viz. Exh. 3, was not signed by the Divisional Superintendent, North‑Western Railway, Karachi and (v) that the Divisional Superintendent, in whose name the penalty was imposed, was not competent to impose the penalty. The second and third objections were given up during the trial according to the judgment of the trial Court, and have not been raised before us. The remaining three objections are embodied in issues Nos. 4, 5, 6 and 8: The first objection that a copy of the enquiry report was not supplied to the respondent has been treated by his counsel as an independent objection, and not as a part of the general objection that adequate opportunity to defend was not afforded.

7. Paragraph 1 I of the plaint shows that the order of suspen sion has been questioned by the respondent on the grounds‑ (a) that the Assistant Mechanical Engineer No. 1 and the Divisional Mechanical Engineer were not authorised to suspend him; (b) that the order of suspension was given without first intimating the respondent of any charge against him without the existence of extraordinary circumstances to justify this omission; (c) that suspension was not justified because dismissal or discharge was not warranted in the circumstances of this case; and (d) that he was kept suspended for more than four months which was the maximum allowable period of suspension. These objections are embodied in issues Nos. 1 and 7.

8. In all nine issues had been framed on the pleadings of the parties out of which issues Nos. 1 and 3 related to the allega tions that the respondent was not given full opportunity to defend himself and to cross‑examine the Assistant Mechanical Engineer No.

1. They having been dropped; issues Nos. 1 and 4 to 8 were tried and decided in favour of the respondent, and two decla rations mentioned first above were granted under the general issue No. 9.

9. Mirza Mukhtar Ahmad appearing for the State has contended that both declarations have been given erroneously. We take up the declaration regarding suspension first. As to it, counsel contended that the respondent had been rightly suspended and that the period of suspension should not be treated as on duty. He argued that the Assistant Mechanical Engineer No. 1 was authorised to suspend the respondent and that the Divisional Mechanical Engineer was authorised to confirm the order of suspension in terms of the schedule of powers which is Appendix `G' attached to the Advance Chapter No. 5 of Personnel Manual. We find that the contention of counsel that the officers were properly authorised is correct. It is noteworthy that the powers of various grades of officers are mentioned in the schedule in a negative form by mentioning those powers which they cannot exercise; all others are exerciseable by them. The power to suspend, which is penalty No. 7 in the penalties enumerated in rule. 2 of the Manual, has not been mentioned in the relevant parts of the Schedule. Counsel next contended that there was an allegation against the respondent that he had repeatedly misbe haved and was repeatedly found to have been wasting time; as repeated commission of minor offences could result to the removal from service of the respondent under rule 8 (iii) of the Manual, his suspension was initially justified under sub‑rule (viii) of rule

11. Moreover, the situation was not ordinary, according to counsel, because the rudeness of the respondent was of such a character that its tolerance would have destroyed discipline of the employees. This aspect, we think, justified the action of the Assistant Mecha nical Engineer No. 1 in suspending the respondent at the spot B under sub‑rule (iv) of rule

11. Counsel next pointed out that the enquiry officer eventually found that lesser punishment than dismissal or discharge from service was the appropriate penalty. This finding attracted the application of sub‑rule (a) of subsidiary rule (viii) of rule 11 of the Manual making it necessary that the officers concerned should consider whether the respondent had not been suspended hastily. They decided to adopt the safer course and terminated his suspension, which according to counsel, did not amount to a recognition that the suspension was illegal. He was kept suspended for more than four months, but this period was not inflexible and could be extended under rule 11 (b) of the Manual with the approval of the authority next above that imposing the penalty. There was no need, according to counsel, for obtaining the approval of that authority because suspension of the respondent had not been ordered as a `penalty' but as a preliminary step to charge‑sheeting him and finally deciding the complaint that was made against him. We find that approval envisaged in rule 11 (b) of the Manual is not related to suspension as a penalty, but toy those orders of suspension which are made during the investigation of a charge. The consequence is that approval of more than four months suspension was needed. Moreover, even if the enquiry officer could in the circumstances of this case, suspend the respon dent at the spot without the intimation of any charge to him, his judgment was subject to review in terms of rule 11 (b) of the Manual when it became clear that the penalty proposed to be imposed on him was not of dismissal or discharge. The officers realised this and terminated his suspension. We think that they have acted wisely and in recognition of the hasty character of the order which deserved to be terminated. We accordingly uphold the decision of the trial Court that the suspension of the respon dent was not valid. The necessary consequence of this finding is that the period during which the respondent was under suspension should be treated to be as that spent on duty.

10. Counsel for the State next criticised the correctness of the decision of the lower Court that the penalty of demotion was not rightly imposed. He argued that the Divisional Superintendent had the authority to impose the penalty in terms of the schedule, of powers which forms Appendix `G' to the Manual. We agree with this contention. He further argued that the objection of the respondent was merely that the show‑cause notice, Exh. 3, was not signed by the Divisional Superintendent personally. This objection did not amount to an allegation that the Divisional Superintendent had not made the order himself. As the existence of 'that order was not questioned, there was no need to prove it in Court: He showed to us the original order of the Divisional Superintendent and completed his argument by pointing out that it could be com municated by lower officers under their signatures. This contention of counsel is valid.

11. Counsel lastly argued that there was no provision which made it necessary that a copy of the report of the enquiry officer should be supplied to the respondent. This is an important argu ment and needs close examination.

12. Mr. Shamsul Ghani, counsel for the respondent, referred 2o rule 55 of the Civil Services (Classification, Control and Appeal) Rules which are applicable to State employees. According to this rule, an order of reduction in rank cannot be made unless the employee proposed to be so penalised "has been informed ' in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself". Mr. Shamsul Ghani also drew our attention to the decision of the Government of India made on the 24th of July 1945, which has been reproduced after rule 55 of the above‑mentioned rules. Its relevant part is as follows:‑ "After the enquiry against a Government servant has been completed and after the punishing authority has arrived at pro visional conclusions in regard to the penalty he imposed, the accused officer should, if the penalty proposed is dismissal, removal or reduction, be supplied with a copy of the report of the enquiring authority and be called upon to show cause, within a reasonable time not ordinarily exceeding one month, against the particular penalty proposed to be inflicted." This decision, according to counsel, was in conformity with sub section (3) of section 240 of the Government of India Act, 1935, which was applicable to the respondent at the time when he was penalised.

13. It appears to us that the decision of the Government of India was made in pursuance of the judgment of Spens, C. J. of the Federal Court in

1. M. Lal's case, which was delivered shortly before that decision on the 4th of May 1945, and has become a leading judgment on wrongful dismissal of Government employees. It is reported in A I R 1945 F C 47, and that part of the judgment in view of which the decision of the Government was apparently made, is at page 58, as follows:‑ "It does however seem to us that the subsection requires that as and when an authority is definitely proposing to dismiss or to 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 reasonable time to make his representations against the proposed action and the ground 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 informa tion 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. That in our judgment involves in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or adequately summa rised form, the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that information why he should not suffer the proposed dismissal or reduction of rank." These observations have made it clear that the results of a depart mental enquiry either in full or in an adequately summarised form, together with the findings of the enquiring officer should be com municated to the employee on whom the penalty is proposed to be imposed. They do not make it necessary that a copy of the enquiry report should be supplied. It is to be noted that I. M. Lal was neither granted access to the reports of the enquiring officers: nor was he informed that a definite punishment had been proposed to be inflicted on him on the basis of those reports. He was invited generally to show cause against his possible dismissal with out at any time giving to him an opportunity to make representa tions against the accuracy of the facts found by the enquiring officers, or against the adverse deductions drawn by them against him. These omissions have been noted with emphasise by Spens, C. J., and the portion of his judgment in which he has empha sised these omissions has been reproduced by the Privy Council at page 124 in its judgment reported as High Commissioner for India v. I. M. Lall (A I R 1948 P C121: P L D 1948 P C 150 "). Their Lordship of the Privy Council have also reproduced that portion of the judgment of Spens, C. J. which has been reproduced above by us, excepting the last sentence in which the necessity of supplying the result of the departmental enquiry in full or in an adequately summarised form and the finding of the enquiring officer has been pointed out by the learned Judge. The reason, it appears to us, was that the essential principle of the judgment was not that the results of the enquiry or findings of enquiring officers should be supplied but that, in the language of subsection (3) of section 240 of the Government of India Act, 1935, "a reasonable opportunity of showing cause against the action proposed to be taken" was to be provided. The decision of the Government of India, referred to above, was obviously meant to adopt the safest method of supplying the information was to supply copies of the reports of enquiring authorities so that there may be left no chance of dispute that summaries of the findings have not been made adequately. The judgments of the Federal Court and Privy Council in I. M. Lall's case have been repeatedly quoted; analysed and interpreted in a large number of judgments of superior Courts of India as well as Pakistan. We shall be going out of our way if we attempted to refer to them or to point out how they have been understood by learned Judges. We feel that the purport of the decision can be simply reproduced in the language of S. Chakravarti in the "Law of Wrongful Dismissals" (1I Edn. 1955) at pp. 56‑57, as follows:‑ "In fact, in Mr. Lall's case he defended himself before Mr. Anderson, then before, Mr. Brayne, then after the punish ment had been proposed, he had a further opportunity to submit his case before the Federal Public Service Commission, even then their Lordships held that Mr. Lall had not been given the opportunity contemplated by the statute, as he had not been granted the copy of the report of enquiry and he had also not been heard by the Secretary of State, the dismissing authority in that case. The stress on the number of opportunities should be withdrawn and it should be laid on the quality of its ade quacy, fairness and comprehensiveness‑namely, guilt and punishment both."

14. Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and section 240 of the Government of India Act; 1935 read together indirectly make it necessary that there should be two enquiries one to decide what punishment, if any, should be proposed and another to decide whether punishment should be inflicted or not‑but as pointed out at page 308 by the Supreme Court of India in Khem Chand v. Union of India (A I R 1958 S C 300):‑ "This clearly proceeds on the basis that the right to defend himself in the enquiry and the right to make representation against the proposed punishment are all parts of his `statutory right' and are implicit in the reasonable opportunity provided by the statute itself for the protection of the Government servant." The principle is that he should get adequate opportunity to defend himself at the time "when the enquiring authority decides" whether he is guilty or not, so that he may decide as to what punishment should be proposed as well as at the time when a decision is made whether punishment should be inflicted or not. Supplying copies of reports is not the criterion. He must know; otherwise he cannot properly defend himself, what punishment has been pro posed for him and why. This information is normally contained in the report of the enquiring authority but it is conceivable than references to some important documents, which have influenced the mind of enquiring authority for proposing a punishment, are not adequately made in the report, or that there are other serious omissions in the report in this respect. If it is so, then furnishing a copy of the report alone would not amount to giving a reason able opportunity to the person who is accused of misconduct to defend himself. In such cases copies of the documents which really form the basis of the report would also be necessary for his defence. Conversely, there can be cases in which the enquiry report is not made the basis for awarding punishment and full inquiry is held after it. In such cases it may be of no consequence whether a copy of the enquiry report was supplied or not. This distinction has been brought out in Sisir Kumar v. State of West Bengal (A I R 1955 Cal. 183) as follows:‑ "Thus, where the proposed action is based upon a report or the findings therein, or if such a report has been considered or relied on at any stage of the enquiry, then the delinquent must have an opportunity of looking into it and of meeting its con tents. In this case none of the alleged reports of which disclo sure was sought, was ever used for the purposes of the enquiry, nor was the proposed action based on any finding in any such report." If the second part of the enquiry is virtually independent and com plete, it may be enough by itself in suitable cases. 'The reason is that the punishing authority is not bound by the report of subordi nate officers and can hold an enquiry afresh after the punishment is proposed and the proposal is communicated to the person for whom it is proposed. The punishing authority may equally well proceed entirely on the foundation laid by the enquiry report. If it adopts the latter course and it is found that the report was made after satisfactory enquiry; then it is not necessary that the proce dure should be repeated by the punishing authority over again Chagla, C. J. has pointed this out in State of Bombay v. Gajanan Mahadev (A I R 1954 Born. 351), as follows:‑ "When an enquiry against a dismissed servant is, as it were, in two parts, where there is, first, a departmental enquiry and then a notice to show cause is served upon him by the authority which proposes to dismiss him, the Court has got to look at both parts of the enquiry in order to come to the conclusion whether a reasonable opportunity was afforded to the servant to show cause against the action proposed to be taken against him. It may not be necessary to duplicate what has already been done in the departmental enquiry. It may be said that if in fact the dismissed servant has been given a full and proper oppor tunity to show cause against the allegations made against him, then it may not be necessary again to require from him parti cularly the same explanation. It may also be said that it may not be necessary in every case to issue a notice in terms calling upon the servant to show cause not only against the quantum of punishment but also against the grounds on which the proposed action is based. Even though, as in this case, the notice may be defective, if in fact the servant has been given the opportunity and has availed himself of the opportunity of the showing cause against the grounds then .the mere fact that there is an irregularity about the notice may not lead to the Court holding that the Government servant did not have the opportunity required under section 240 (3). But we think that there can be no doubt that the Court must be satisfied on a review of all the facts of a particular case that the statutory obligation cast upon the State has been properly discharged by the State and statutory obligation is to afford reasonable opportunity to the dismissed servant."

15. We have pointed out above that in this case the show -cause notice, namely Exh. 3, contains the following significant words:- "Why you should not be reduced to ‑next lower grade for three months as a result of the finding of the enquiry." These words unmistakeably show that the punishment was proposed to be inflicted entirely as a result of the findings contained in the enquiry report. The enquiry report was the foundation on which the superstructure of punishment stood. The respondent, there fore, could not defend himself without adequately knowing the essential contents of the report. This is therefore, a typical case in which the necessity of adequately communicating the results and findings of the enquiry was patent.

16. Mr. Shamsul Ghani has been true to his stand taken by him in the trial Court that opportunity to defend is separate from the necessity of furnishing copies of enquiry reports. He has cited two judgments of the Sind Chief Court in support of his contention that nothing less than supplying a copy of the enquiry report could be satisfactory. In the first case, namely, Khadim Hussain v. Federation of Pakistan (P L D 1955 Sind 250), Munshi, J. has observed: "The wording of the section 240 (3) makes it quite plain that the opportunity is to be given after the enquiry is completed and after the punishing officer has made up his mind to impose a particular kind of punishment. It is only then that the Civil servant is asked to show cause against the punishment which the punishing‑ authority proposes to impose. This question came up before the Federal Court of India in the year 1945 in the case of Secretary of State for India v.

1. M. Loll and it was decided that the opportunity to show cause is to be given to the officer concerned after he is found guilty and before the punishment is imposed." These observations do not fully support counsel's contention, but in Federation of Pakistan v. Khadim Hussain (P L D 1956 Sind 93), Vellani and Muhammad Bakhsh, JJ. have gone further and observed as follows:- " . . . after the enquiry against a Government servant has been completed and after the punishing authority has arrived at provisional conclusion in regard to the penalty to be imposed, the enquiry officer should, where the penalty proposed is dismissal, removal or reduction, supply to the servant a copy, of the report of the enquiring authority and call upon him to show cause within a reasonable time ... against the penalty propposed to be inflicted . . . . . . " On the basis of these judgments, Mr. Shamsul Ghani has argued that the show‑cause notice, Exh. 3, was invalid because the report of the enquiring officer w is not supplied to the respondent along with it. As against this proposition, there is a judgment of the Patna High Court in which a different view was taken by a Division Bench; it is Kartick Chandra Dutta v. District Traffic Superinten dent (A I R 1957 Pat. 676). It was a case of the dismissal of a railway employee; and the learned Judges have observed as follows:‑ "There is no rule making it obligatory upon the punishing authority to furnish the petitioner with a copy of the report of the enquiring officer. In the second place, there is no foundation in fact for this contention. The enquiry was conducted in the presence of the petitioner, and he was fully conversant with what transpired in course of the enquiry. There was nothing which was kept secret from him, and he cannot legitimately complain that there was infraction of the principle of natural justice."

17. It is unnecessary for us to attempt here to see whether the latter two judgments are reconcilable, because the above discussion of law is sufficient, we believe, to conclude that there is no law which makes it specifically necessary that copies of enquiry reports should be supplied but that it is almost a corollary to the broader principle of providing reasonable opportunity to defend that in a large majority of cases adequate information of the contents of enquiry reports must be supplied. To say that copies of such reports should be supplied is to reduce the corollary to a safe working formula for departmental use.

18. In this case, it was necessary for affording reasonable opportunity of defence that adequate information of the contents of the enquiry report should have been supplied to the respondent. Exh. 3 did not satisfy this requirement. The respondent therefore, did not get reasonable opportunity of showing cause against the action that was proposed to be taken as a result of the enquiry report. We accordingly uphold the decision of the trial Court that to the punishment of reduction in rank was not inflicted validly.

19. The appeal is dismissed with costs. A. H Appeal dismissed.