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Suit No. 1255 of 1953, decided on 4th December 1954.

Civil Servant‑Temporary Member of police force‑Dis missal‑Copy of findings of Enquiring Officer not supplied--- Rule 1284 (12) of Bombay District Police Manual Vol. 3 not complied with‑Order of dismissal vitiated‑Government of India Act, 1935, S. 240 (3) Sub‑rule 12 of Rule 1278 Bombay District Police Manual, Volume 3 requires that a copy of the findings shall be supplied and a further opportunity given. That is also the effect of section 240 (3) of the Constitution Act. The provisions of Sub‑rule 12 are mandatory and a disregard thereof vitiates the order of dismissal passed against a temporary constable of police.

Shamsul Ghani Khan, for Plaintiff.

S. Nasiruddin, for the Crown.

--‑The plaintiff Suleman was an unarmed Police Constable in Karachi Police and was dismissed by an order of the Superintendent of Police dated 16th September 1952. He has filed the suit with the allegations that a departmental enquiry was held against him but he was not given an opportunity to cross‑examine the witnesses nor allowed to produce defence witnesses as contemplated by Rule 1284 of the Bombay District Police Manual Volume 3 and that he was not supplied a copy of the findings recorded by the Enquiring Authority nor was called upon to show cause why he should not be dismissed on the basis of charges held proved against him. The plaintiff contended that the above procedure was against the mandatory provisions of Rule 1284 mentioned above and consequently the order of dismissal was invalid, void and inoperative.

The defendants, the Federation of Pakistan, filed a written statement in which they alleged that provisions of Rule 12E.4 of the Bombay District Police Manual did not apply to the plaintiff, in case they applied they had been fully complied with and that the suit was bad for absence of legal notice under section 80 C. P. C. The defendants further alleged want of jurisdiction in this Court.

The following issues were framed :‑

(1) Whether the Police force in Karachi has been on a temporary basis since the 23rd July 1948, and all posts since they have been sanctioned from year to year If so, what is the effect

(2) Whether the provisions of section 240 (3) of the Government of India Act, 1935 read with Rule 1284 (12) of the Bombay District Police Manual Volum 3, as amended by correction item No. 272, applied to the plaitiff If so, were the said provisions contravened in dismissing the plaintiff from service, and is the order of the plaintiff's dismissal from service void and inoperative on that ground

(3) Did the plaintiff serve the defendants with a valid notice under section 80 C. P. C.

(4) Is the jurisdiction of this Honourable Court barred

(5) Is the suit for declaration as prayed not maintain able

(6) Have the defendants been wrongly impleaded and is the suit had for misjoinder and non‑joinder of necessary parties

(7) To what relief, if any, is the plaintiff entitled

Issue No. 1.‑--Whether the police force in Karachi has been on a temporary basis since the 23rd July 1948, and all posts since then have been sanctioned from year to year If so, what is the effect

No oral or documentary evidence has been filed by either party ire regard to this issue and it is not possible for me to decide the point involved one way or the other. It was, however, for the plaintiff to show that he was a permanent employee of the Federation of Pakistan. But he has failed to do so and the case has to be decided on the basis that the plaintiff was a temporary employee of the Federation of Pakistan.

Issue No. 2.--‑Whether the provisions of section 240 (3) of the Government of India Act, 1935, read with Rule 1284 (12) of the Bombay District Police Manual Volume 3, amended by correction item No. 272, applied to the plaintiff If so, were the said provisions contravened in dismissing the plaintiff from service, and is the order of the plaintiff's dismissal from service void and inoperative on that ground

The question of applicability of section 240 (3) of the Constitution Act and Rule‑1284 (12) of the Bombay District Police Manual Volume 3 to temporary Police Officers has been exhaustively dealt with by me in the case of Noorul Hasan and others v. The Federation of Pakistan "in Suit No. 882 of 1953 decided to‑day. I have held that rule 1284(12) of the Bombay District Police Manual Volume 3 does apply to temporary officers of Karachi Police. To the same effect is the decision of the Bombay High Court in the case Province of Bombay v. Ganpat Nerlekar (A I R (39) Bom, 37.) and that of my brother Munshi, J. in an unreported case Khadim Hussain v. The Federation of Pakistan decided on 17th November 1954.

Rule 1284 (12) runs thus

"In accordance with section 240 (3) of the Government of India Act, 1935, no Government servants can be dismissed, removed, discharged 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, except in case :‑

(a) Where a person is dismissed, discharged, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge ;

(b) Where an authority empowered to dismiss, discharge, remove or reduce him in rank is satisfied that for some reasons, to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause".

It is, therefore necessary that after the enquiry against a Government servant has been completed and after the punishing authority has arrived at provisional conclusions in regard to the penalty to be imposed the defaulter 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. Any representation submitted by the defaulter in this behalf should be duly "taken into consideration before final orders are passed".

It would be seen that once departmental enquiry had been completed and findings recorded the employee concerned should be furnished a copy of the findings and be given an opportunity to show cause why the particular penalty proposed to be inflicted should not be imposed on him. In this case a departmental enquiry was held and findings were recorded on the three charges framed against him on 20th and 21st August 1952 vide Exhs. 5/14, 5/15 and 5/16, There after the plaintiff is examined by the Superintendent of Police on 19th September 1952.

Qustion No. 5 runs thus:

Q.--‑"Please show cause why you should not be dismissed from service in case the charge is proved against you"

A.‑--"If I am at fault I may be dismissed".

The above would show that no copy of the findings had been supplied to the plaintiff nor he was told anything about the nature of the findings recorded by the enquiring authority. It was conceded in the course of arguments by the learned counsel for the Federation of Pakistan that a copy of the findings Exhs. 5/14, 5/15 and 5/16 had not been supplied to the plaintiff. Sub‑rule 12 of rule 1278 requires that a copy of the findings shall be supplied and a further opportunity given. That is also the effect of section 240 (3) of the Constitution Act and the decision of the Privy Council in case The High Commissioner v. I. M. Lal (1948 PC 121= P L D 1948 Lah. 50). The provisions of sub‑rule 12 are mandatory and a disregard thereof vitiates the order of dismissal in question. I, therefore, hold that provisions of rule 1284 (12) were not complied with and the impugned order of dismissal is void and inoperative.

Issues No. 3, 4, 5 and 6.‑(3) Did the plaintiff serve the defendants with a valid notice under section 80 C. P. C.

(4) Is the jurisdiction of this Honourable Court barred

(5) Is the suit for declaration as prayed not maintainable

(6) Have the defendants been wrongly impleaded and is the suit bad for mis‑joinder and non‑joinder of necessary parties

These were not pressed. The issues are decided in favour of the plaintiff and against the defendants.

Issue No. 7.‑To what relief, if any, is the plaintiff entitled

In view of my decision under issue No. 2 the plaintiff is entitled to the relief that he claims. The suit is accordingly decreed with costs.

A. H. Suit decreed.

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