P L D 1963 Supreme Court 460 (PLP)

The appellant took up his appointment under the Provincial Government. In the meantime, the West Pakistan Civil Service (Applications for Posts) Rules, 1957, were promulgated, regulat ing the procedure for allowing Government servants to apply for other posts and services. Taking advantage of these rules, the appellant sought the permission of the Provincial Government to apply for a post in the Central Engineering Services. His application was duly forwarded by the Provincial Government on 2‑10‑58, to the Central authorities concerned. The appellant sat in the competitive examination for the Central Service and it is stated that he qualified for appointment and was actually selected in the Pakistan Western Railway Service of Engineers in November 1960. In spite of his having made a request for release from the Provincial Government Service in order that he might join the Central Service, he was not allowed to go but was subjected to a departmental inquiry on certain charges. Even tually, he was ordered to be removed from service. The grounds on which the writ petition in the High Court was founded were mainly that he had terminated his contract of service by a three months' notice, that proper opportunity to show cause against removal had not been afforded to him during the departmental inquiry and that his removal was not ordered by the competent authority who had originally appointed him. The High Court took the view that even though there was a clause in the contract of service enabling its termination by a three months' notice, it did not preclude Government from declining to accept such a notice when an inquiry into allega tions of misconduct was proceeding against him. It was further found that as in the explanation to the charge‑sheet served on him, the appellant had not desired to examine any witnesses in his defence and the prosecution too had not examined any witnesses, there was no occasion for the complainant that he had been given no opportunity to cross‑examine such witnesses. With regard to the third point of the competency of the authority who removed him from service, it was observed that the appel lant was a Class 11 officer and it was not necessary therefore that the order of his removal should have been put up to the Governor for approval. The appellant's plea that before the Public Service Commission to whom his case was referred for opinion, could make a report to the Government, he should have been heard by the Commission, was also not accepted as involving any contra vention of a rule of natural justice. The petition in the High Court was therefore summarily dismissed after calling for a report from the department. The first point urged for our consideration by Mr. Karam Elahi Chauhan on behalf of the appellant is that the Govern ment could not continue the departmental inquiry against him, after the period prescribed for the notice he had given for termination of his contract of service, had expired. The question, however, is whether he had in fact given such a notice. The position is not at all clear in this regard. The appellant relied on his request made on 10‑11‑60, to the Provincial Government, in the form of an application, in which he pointed out that he had been selected for appointment to the Central Service and was required to report to the General Manager, North‑Western Railway immediately. He therefore requested that he may be released from his present appointment under the Provincial Government, in accordance with the provisions of rule 4 of the West Pakistan Civil Service (Applications for Posts) Rules, 1957. This was really not a notice of termination of the contract of service. Rule 4 which had been invoked in this application applied even to permanent Government servants. This rule is in A the following terms :‑ "

4. When a person whose application has been forwarded to the appointing authority or a Public Service Commission in accordance with these rules, is selected for appointment, he shall ordinarily be released," A request based on this rule could not be interpreted as mean in that the person making the request was availing himself of a condition of the contract of service to terminate it, by a three months' notice. It is, however, contended that on 11‑1‑61, he reiterated that he could terminate his contract of service by a notice and that he had in fact done so, by his application dated 10‑11‑

60. A copy of his application dated 11‑1‑61, has now been placed before us. In paragraph 8 thereof, no doubt, the appellant did state, after referring to the relevant condition in the contract of ser vice, that he had given formal notice of quitting service in his previous application dated 10‑11‑60, that two months' period had already elapsed and that he was at liberty to quit service at once by depositing another month's salary. The position however still remains equivocal if paragraph 7 of this second application is read with paragraph

8. In the former paragraph the appellant requested for a favourable and sympathetic view being taken of his alleged malfeasance and asked to be relieved to join his new appointment by transfer of service from the Provincial to the Central Government. He held out an assurance that he would be bound and undertook to abide by the result of the inquiry that may be held thereafter. He pleaded that his reten tion in the post under the Provincial Government, simply for the sake of the inquiry, was not necessary or justified. It is therefore difficult to spell out of this second application a clear intention to notify the Provincial Government that the appellant was exercising his right under his contract of service to termi nate the contract. At the most it could perhaps be pleaded that from the date of the second application, by virtue of para. 8 thereof, a fresh notice may be deemed to have been given to the Provincial Government for terminating the contract of service. This, however, would not advance the case for the appellant materially. The High Court seems to have assumed without going into the nature of the applications made from time to time by the appellant to the Provincial Government, that he did give such a notice, but even if it may be presumed that a notice of this character was duly given, it is argued on behalf of the respondent, that rule 1.35 of Public Works Department Code would stand in the way of the appellant. This rule reads as follows :‑ "Except with the sanction of Government no person shall be allowed to resign his situation or be transferred from the Province or Branch in which he is serving, while his conduct e is under investigation. In forwarding to superior authority any application to resign departmental employment or for transfer, it should be stated whether anything has occurred to affect the character of the applicant. Where no special rule is laid down, the authority by which a person was appointed is alone competent to accept his resignation." In terms, the rule applies to a case of "resignation" under the ordinary conditions of service and prima facie would not be attracted in the case of a specific service contract, which under its own conditions, could be terminated by a notice. However Mr: Ataullah Sajjad was on stronger ground in this respect when he referred us to the provisions of the West Pakistan Essential Services Maintenance Act, 1958. Section 3 of this Act provides that the Act would be applicable to all employment under the Government or any agency set up by it or a local authority or any service relating to transport or civil defence. Under section 5(b) of this Act, a person engaged in any employment or class of employment to which the Act applies, would be guilty of and offence under the Act, if he, without reasonable excuse, abandons such employment or absents himself from work. Explanation 21 appended to this section declares that a person abandons his employment within the meaning of clause (b) of section 5, who, notwithstanding that it is an express or implied term of his contract of employment that he may terminate his employment on giving notice to his employer of his intention to do so, so terminates his employment, without the previous consent of his employer. It appears therefore to be the policy of the law that notwithstanding a term in a contract providing for its termination by a notice, the giving of such a notice would not be legal unless the employer consents to its acceptance. In the, circumstances, the contention raised on behalf of the appellant; that he had terminated effectually his service by a notice, cannot be acceded to. The second ground urged on behalf of the appellant is that no reasonable opportunity for showing cause against his removal, had been afforded to him during the departmental inquiry. It appears that four preliminary inquiries were held by departmental officers, ex parte, in order to determine whether any regular inquiry would be justified or not. Some of these officers not only o referred to documentary evidence, in their reports, but also to statements of witnesses whom they bad examined. The depart mental authorities then decided to have a regular inquiry made against the appellant and an officer, Mr. Aslam, was appointed to conduct it. A charge‑sheet was served on the appellant, incorporating several allegations of misconduct relating to his official duties. He was required to send his reply in writing by a specified date and to say whether he wished to be personally beard. The appellant put in a long explanation and at the end he appended the following paragraph :‑ "

3. The truth of all the above charges is denied as explained above and the explanation is being submitted within the stipulated time. Necessary record may be called for perusal, which will establish the truth of my assertions and satisfy the authorities as to my innocence. I may be given a chance of being heard if any point still remains unexplained. A list of witnesses to be examined will be given later on, if the circumstances so require. But it is hoped that no such eventuality would arise by the grace of God Almighty." Despite these words it was held by the inquiry officer, Mr. Aslam, that the appellant did not wish to be heard personally and this view appears to have been endorsed by the ‑High Court in the present case. With respect, it must be pointed out, that the inference drawn from the words used, by no means follows. The appellant was clearly at pains to say that he was submitting a detailed explanation in respect of the allegations made against him, in the hope that his explanation would be accepted as satisfactory. In that case, of course, he would be completely exonerated of all blame He made it clear however that if any point still remained "unexplained", by which he obviously meant that if his explanation did not carry conviction, then he should be given a chance of being heard personally and in that case he would call witnesses in his defence. By no stretch of interpre tation could these words be construed to mean that the appel lant was content to confine himself to the explanation he had rendered, without an opportunity of contesting the allegations, if his explanation was not accepted. It is pointed out that the regular inquiry officer eventually used, not merely the material placed before him in the shape of explanations rendered by the appellant, in answer to the allegations incorporated in the charge‑sheet, but also relied on the reports made by the four inquiry officers who had held preliminary inquiries. Though the earlier reports were based partly on documentary evidence and partly on oral evidence which had been recorded by them ex parse against the appellant, at no stage was the appellant associated with any such inquiry and clearly he was given no opportunity to cross‑examine any witness or officer who might have produced any relevant document. It was only the report of the regular inquiry officer that was made available to the appellant finally and he was asked to show cause against his removal on the basis of the findings recorded therein. The Government, it seems, also consulted the Public Service Commission as to the punishment to be awarded in this case. The Public Service Commission also returned an adverse report, apparently presum ing that the findings forwarded to them had been arrived at after a full inquiry. The appellant had no opportunity of representing his case before the Public Service Commission either. In these circumstances, the view cannot be sustained that the appellant was afforded reasonable opportunity to show cause against the action proposed to be taken, within the meaning of that term as used in the Civil Service Rules (Punjab), Vol. 1, or in accordance with the relevant provisions embodied in Article 181 of the 1956 Constitution., which was in force at the time of his removal and which corresponds to section 240 of the Government of India Act, 1935. This infirmity vitiates the order of removal, passed subsequently. The further point was raised that the removal order itself suffered from illegality as it was not passed by the Governor of the Province who was the original appointing authority. It is not necessary for us to go into this question because of the finding on the objection that no proper opportunity to show cause against the, action proposed had been afforded to the appellant and therefore the final order passed against him was void in law. We therefore quash the order of removal from service passed against the appellant. As to the desirability or otherwise of continuing the proceedings against the appellant from the stage at which the illegality crept into the inquiry, we express no opinion and leave the matter to be decided by the Government itself. The appellant will be entitled to his costs incurred in this Court. A.H. Order of removal quashed.