P L D 1966 Supreme Court 253 (PLP)

The appellant who was holding the rank of a Captain in the Pakistan Army was appointed by the Administrator of Karachi as a Development Officer of Basic Democracies on2‑2‑1960. According to the allegations of the appellant on 20‑10‑1961 he sent a complaint to the Commissioner in respect of certain irregularities, illegalities, misappropriations and frauds com mitted by Lt.Col. Muhammad Salim Khan, the Director of Basic Democracies and Lt: Col. Muhammad Salim Khan as a reprisal got. Some baseless complaints filed against the appellant as a result of which on the 20th November 1961, the appellant was served with a charge‑sheet for misconduct. The charge‑sheet through proceed ing from the Commissioner of Karachi was in fact signed by Lt- Col. Muhammad Salim Khan on behalf of the Commissioner. An amended charge‑sheet was served on the appellant on the 4th December 1961, Mr. S. A. Raza, C. S. P., was appointed as an Inquiry Officer and he completed his inquiry on the 6th of January 1962. On the 28th December 1962, a notice was served upon the appellant by the Commissioner calling upon the appellant to show cause why he should not be removed from service. On the 19th January 1963, the appellant replied to the notice contending inter alia that the inquiry against him was illegal because it had been conducted under the rules applicable to employees of the Central Government while the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, had been applied to those working under the West Pakistan Government in Karachi and he was entitled to the benefit of the new rules. On the 14th May 1963, the appellant received an order from the Commissioner of Karachi saying that the Commissioner had gone through the findings of the Inquiry officer as well as the explanation of the appellant and being satisfied that the appellant had been guilty of misconduct had been pleased to order the appellant's removal. In the writ petition which the appellant filed in the High Court on the 25th May 1963, he challenged the order of removal mainly on the pleas that the Commissioner had no jurisdiction in law to remove him as such jurisdiction vested in accordance with the rules applicable to the appellant only in the West Pakistan Government and that the inquiry had been conducted under rules which had been superseded. The learned Judges of the High Court refused to give effect to either of these contentions on the ground that the appellant was by the terms of his appointment only a temporary employee whose services could be terminated by a fifteen days' notice. It may be stated here that the order of removal by the Commissioner though it was an order of removal for misconduct also made reference to clause 1 of the appointment letter of the appellant which provided for termination of the services of the appellant by fifteen days' notice. Before us it has been urged that this was a removal as a result of disciplinary proceedings on a finding of misconduct and the reference to the clause providing for fifteen days' notice could not validate the order of removal. It is also urged that the inquiry was illegal having been conducted sunder superseded rules. A further point has been taken that consultation of the Public Service Commission was essential before an order of dismissal could be passed. A brief reference to the history of laws applicable to Karachi will not here be out of place. Under section 290‑A of the Govern ment of India Act, 1935, the Governor‑General had the authority to demarcate for the purpose of the Capital of the Federation an area forming part of a province to be the Capital of the Federation and on such demarcation the area was to cease to be part of that .4 province and the Governor‑General was to have authority to make such provision as he deemed necessary or proper as to the laws which were to be in force in that area. The Constituent Assembly of Pakistan having passed a resolution to that effect the Governor -General by his Order No. 15 of 1948 promulgated in exercise of his powers under the Independence Act provided that the Capital of Pakistan would be located at Karachi and that the adminis tration of Karachi was to vest in the Governor‑General who could act either directly or to such an extent as he thought fit through an Administrator. By Governor General's Order No. 4 of 1952 Karachi was made a Chief Commissioner's Province and Order 15 of 1948; was amended so that "Chief Commissioner" was substi tuted for "Administrator". By a notification of 23rd July 1948, all powers of the Government of Sind has been conferred on the Administrator of Karachi being Notification No. 1/2448‑KAR and by Notification No: 3/4/52‑KAR 11 of 21st October 1952, the powers of the Governor of Sind were conferred henceforth on the Chief Commissioner. In. 1955 came into force the establishment of West Pakistan Act, but whereas the whole of Nest Pakistan including the Chief Commissioner's Province was by this Act integrated as one province a provision was made in station 2(2) of the Act that the Capital of the Federation would continue to be administered in accordance with section 290‑A of the Government of India Act, 1935. By Governor‑General's Order No. 22 of 1955 it was provided that the executive authority of tie Capital of the Federation would vest in the Governor‑General tote exercised to such an extent as he thought fit through a ComIZBS10neI or a Chief Commissioner to be appointed by him. The constitution of 1956 continued the authority of the Governor‑General in respect of the Capital of the Federation. By President's order No. 11 of 11‑7‑1959 it was provided that the Governor‑General's authority could be exercised through a Commissioner or Chief Commissioner or an Administrator. By President's Order No. 20 of 1960, dated the 1st August 1960, called the Seat of 4overnment Order, 1960, Karachi ceased to be the Federal Capital. It was henceforth to be known as the Federal territory of Karachi and was to be administered by the President acting to such tent as he may deem fit through an "agent". On the 1st July 1961 by President's Order 9 of 1961, Karachi was merged in Province of West Pakistan. With respect to the applicability of laws it my be stated that by Article 6 of the G.G's. Order No. 15 0 1948, all laws in force were to continue in force in Karachi till other provision was made. When Karachi was merged in West Pakistan by President's Order No. 9 of 1961, a similar provision was not only with respect to the applicability of laws, but also with respect t to persons exercising powers or discharging functions in Karachi before the 1st July 1961, who were to continue to discharge those functions till the repeal or amendment the laws under which they exercised their functions, but who were henceforth to be under the control of the Government of West Pakistan instead of the President. The rules applicable to the Government servants remained applicable to them in spite of the merger of Karachi in West Pakistan till the 26th April 1964, when by a notification of the West Pakistan Government the rules made applicable to those who were previously employees of the Central Government, but were now serving under the West Pakistan Government in Karachi. We proceed now to consider the legality of the inquiry and the order of removal. The inquiry had in this case been ordered by the Commissioner who was the appointing authority on 4th December 1961, and had been completed on the 6th of January 1962, by which date as yet the previous rule were in force. It was, therefore, an inquiry validly conducted. The show‑cause notice was served on the appellant on the 28th December 1962, that is, after the new rules had been applied. It has been contended by the appellant that the show‑cause notice was served by person who had no jurisdiction to do so. A reference to the West Pakistan Basic Democracies Department Delegation of Power Rules, 1962, which came into force on 5th April 1962, will show that in the case of a Development Officer the authority that could pass an order of removal was the Provincial Government itself. In' fact learned counsel for the respondent is unable to contend that the Commissioner had jurisdiction on 28th December 1962, to pass an order of removal A question arises as to whether the fact that the notice was served by the Commissioner could be ignored on the ground that it was just a formal act and if the final decision as to removal was taken by the appropriate authority the serving of notice by a subordinate authority would not invalidate the proceedings. We find on a reference to the relevant rule that the authority that serves a show‑cause notice has to consider the report of the Inquiry Officer and to make up its mind before it orders issue of notice. Following is the relevant rule: "

9. Notice of proposed penalty to be given to accused.‑(1) The authority shall consider the report of the Inquiry Officer, and if upon such consideration it is of the opinion that a B penalty should be imposed upon the accused, it shall provision ally determine the penalty to be imposed and shall so inform the accused and supply him with a copy of the report and call upon him to show cause within a reasonable time, which shall not be less than seven days, nor more than fourteen days, why the penalty proposed should not be imposed. (2) The authority shall take into consideration any cause shown by the accused before passing final orders." It will be observed that the authority, issuing notice has to come to a conclusion of guilt and to provisionally determine the penalty before it issues a show‑cause notice. The show‑cause notice served by the Commissioner was therefore void and from this point onwards the proceedings were without jurisdiction. The order of removal was passed by the Commissioner and was of no legal effect. In view of the fact that the notice and subsequent proceedings were illegal it is unnecessary to consider the question whether an inquiry which had been held under rules applicable to the employees of the Central Government could be the basis of a show‑cause notice and an order of removal when those rules were no longer in force. The main argument put forward on behalf of the respondent is that this was not a case of removal but a case of discharge of the appellant on fifteen days notice in accordance with the terms of his appointment. The appellant concedes that his appoint ment which was a temporary one and for an indefinite period was terminable on fifteen days' notice. The contention, however, on his behalf is that this was a case of a removal as a result of disciplinary proceedings and the clause for termination of service by fifteen days' notice is irrelevant for the decision of the legality of his removal. Before proceeding further it will be proper to reproduce here the whole of the impugned order. It runs: "Reference your letter No. F. 8/60‑BD/Dev‑Offr., dated 19th January 1963, on the subject noted above. The Commissioner of Karachi has gone through the findings of the Enquiry Officer and the explanation put forward by you in response to the show‑cause notice No. F. 8(3)/60‑BD., dated the 28th December 1962, and has been satisfied that you are guilty of misconduct and conduct unbecoming of an officer and have thus rendered yourself liable to be removed from service in terms of clause (f) of sub‑rule (1) of rule 4 of the Government Servants (Efficiency and Discipline) Rules, 1960. Therefore, in exercise of the powers conferred upon him by sub‑rule (4) of rule 4 of the Government Servants (Effici ency and Discipline) Rules, 1960, the Commissioner of Karachi has been pleased to order your removal from Government service with effect from 31st May 1963 (afternoon). This may please be treated as 15 days' notice in accordance with clause (l) of your appointment letter No. 1(6)/59‑B.D., dated the 1st February 1960." It is clear that the Commissioner had come to a finding the appellant was guilty of misconduct and had on that ground passed an order of removal under sub‑rule (4) of rule 4 of Gov ernment Servants (Efficiency and Discipline) Rules. The mere fact that he added at the end of his order a reference to clause 1 of the appointment letter of the appellant cannot convert an order passed in the exercise of disciplinary authority into an order of ‑discharge on fifteen days' notice. Removal which is, based on a finding of misconduct carries with it a stigma and is quite different in its effects from a simple order of termination of service. If charges are framed, an inquiry is conducted, findings are recorded, and an order of removal passed, an illegality committed in such disciplinary proceedings cannot be cured by a mention of the terms of employment of the civil servant concerned. The order of removal has to stand on its Before the High Court the appellant had relied on the case of Raja Muhammad Afzal v. Federation of Pakistan (1) P L D 1957 Lah.17. In that case the services of the employee had been terminated by a simple notice in terms of his conditions of employments, but the learned Judges found' the true reason for the discharge of the employee to be that he was regarded as an undesirable person and they held that this amounted to removal or dismissal within the mean ing of Article 181 of the Constitution of 1956. The learned Judges of the High Court who decided the present case pointed out to learned counsel for the appellant that the judgment in Raja Muhammad Afzal v. Federation of Pakistan(2) P L D 1958 S C (Pak.) 258 had been reversed by the Supreme Court Pakistan in Federation of Pakistan v. Raja Muhammad Afzal. Another case, however, of the Supreme Court of Pakistan which was similar to the present case does not appear to have been brought to the notice of the learned Judges. In that case which is reported as Federation of Pakistan v. Mrs. A. v. Issacs(1) P L D 1956 S C (Pak.) 431 there had been a charge framed and some inquiry made, but‑ultimately a notice had been served terminating the services of the employee in accordance with the conditions of her employment. In the High Court Mrs. Isaacs succeeded in getting the order of the termination of service set aside on the ground that she being a permanent employee the clause in her agreement pro viding for termination of service by notice was void as being inconsistent with section 240 of the Government of India Act. When the Government filed an appeal the Supreme‑Court did not decide the question whether this clause was void, but dismissed the Government's appeal on the ground that a charge having been framed and an inquiry, held the termination of service would be a removal in spite of the service of a notice in accordance with the terms of employment. Following is the relevant passage in the judgment:‑ "The short issue to be determined in this case is whether the provisions of section 240 were or were not complied with. We have mentioned that the respondent received notice of enquiry with a formal charge‑sheet on the 12th January 1949, that against this charge she made a representation and that she was discharged from service on the 18th March 1949. It is true that the word used in the order dispensing with her services is ` discharged ' and not ` dismissed ' or `removed' but that, in the circumstances of the case, the order .did amount to an order of dismissal cannot be dis puted. A regular charge‑sheet was served on her on the 12th January 1949, and she having failed to defend herself at the enquiry, the order of discharge was passed on the 18th March 1949. In the written statement filed by the appellant it was admitted that by her conduct the respondent had rendered herself liable to disciplinary action, that her written defence dated the 17th January 1949, was considered and rightly rejected by the Divisional Superin tendent, Karachi, and that she was discharged from service under the powers vested in the Divisional Superintendent by paragraph 1705 of the S. R. E. Code. This paragraph specifies the officers who are competent to impose penalties after taking disciplinary proceedings against delinquent employees. If the order had been one of termination of services in accordance with the respondent's conditions of service on the ground that she was a temporary servant, she could have had no right of appeal against that order. We find, however, that she not only appealed from the order but the appellate authority entertained the appeal and dis missed it on the merits describing the order of discharge as an order of removal from service. It is not the Federation's case that the proceedings started against her under the charge‑sheet served on her on the 12th January 19.19, were dropped and that the department decided to adopt the alternative mode of dispensing with the respondent's services in accordance with the conditions of her service by giving her notice. We are, therefore, quite clear that the order of discharge was an order of dismissal within the meaning of section 240 of the Government of India Act and that if the opportunity required by that section was not given to the respondent in the manner laid down by the Privy Council in Lall's case (1) 751 A 225=P L D 1948 P C 150 the order of dismissal would be void, irrespective of whether the respondent was a permanent or a temporary employee. Accordingly, we dismiss the appeal with costs and maintain the order of the High Court remanding the case for decision of the question whether the provisions of section 240 of the Government of India Act were or were not complied with, and for determining the respondent's claim for arrears of salary from August 1948 to 15th November 1949." The present case is stronger than that case because here the order passed is one of removal. It records a finding of guilty and specifically refers to the rule under which disciplinary action is being taken, but at the end also makes mention of the clause in the letter of appointment providing for a notice. It is proper to mention here that even a notice of termi nation of service simpliciter without enquiry can be issue only by a competent authority. In the absence of a different provision in some rule the competent authority would be the authority that can make the appointment. The objection as to the order being illegal on the ground of failure to consult the Public Service Commission also has force. Under Article 186(2)(c) of the Constitution the Pro vincial Public Service Commission has to be consulted in all disciplinary matters relating to members of civil services and holders of civil posts serving in connection with the affairs of a Province except to the extent that the Governor of the Province after consulting the Public Service Commission may by order provide. It is not contended on behalf of the respon dents that the Governor has promulgated any order dispensing with consultation of the Public Service Commission in cases like the one with which we are concerned. The only conten tion raised in this connection is that the appellant is a temporary employee whose services are terminable by fifteen days' notice and therefore Article 186 would not apply to his case. There is nothing however in Article 186 which would take temporary employees out of its purview. The Article F applies to all members of civil services and holders of civil, posts and surely even a temporary employee either belongs to al service or is the holder of a civil post. We find the order of removal was void because it wav passed by an authority which had no jurisdiction to pass it and because the Public Service Commission was not consulted, This appeal is allowed and the order of the High Court is set aside. It is declared that the dismissal of the appellant is void and he continues to hold the post of a Development Officer. The appellant shall have his costs in both Courts. A. H. Appeal allowed.