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Writ Petition No. 99 of 1955, decided on 8th August 1956.
, Ss. 240 and 243‑Pro tections of S. 240 (2) (3) available to subordinate ranks of police except. to extent of repugnancy between these subsections on the one hand and Police Acts and Rules on the other‑Bombay District Police Act (IV of 1890), S. 29‑Rule 1284 (12) framed under Bombay District Police Act‑Proper opportunity to show cause against dismissal not given‑Dismissal, held, invalid‑Form of relief.
The protections provided to servants of the Crown by subsections (2) and (3) of section 240, Government of India Act, 1935 apply to all such servants including subordinate ranks of police, except, as provided by section 243 of the same Act, to the extent of repugnancy between these subsections and the Police Acts referred to in the latter section.
Where, therefore, a proper opportunity to show cause against dismissal, as provided by section 240 (3), Government of India Act, 1935, was not given to petitioners who belonged to subordinate ranks of police, the petitioners having been denied the right of cross‑examination in respect of a deposi tion of a certain witness recorded in the preliminary inquiry in the petitioner's absence : ,
Held, that in view of section 240 of the Government of India Act and in any case on account of Rule 1284 (12) of the Rules framed under the Bombay District Police Act, which qualify the power of dismissal contained in section 29 of that Act, the petitioners were entitled to an opportunity to show cause and having been denied the right to cross‑examine, absence of such opportunity gave them a right to relief.
For form of relief please refer to.
Noorul Hassan v. Federation of Pakistan P L D 1956 S C (Pak.) 331, North‑West Frontier Province v. Suraj Narain Anand P L D 1949 P C 1, R. Venkata Rao v. Secretary of State A I R 1937 P C 31 and Punjab State v. Bhagat Singh A I R 1955 Pb. 118 ref.
Province of Bombay v. Madhukar Ganpat Narlekar A I R 1952 Bom. 37 and North‑West Frontier Province v. Suraj Narain Anand P L D 1949 P C 1 not approved.
Gulzar Ahmad Jafri v. Government of United Provinces A I R 1950 All. 212 partly dissented from.
, S. 79‑Rules framed under Act‑Whether have statutory force.
Rules framed under the Bombay District Police Act being intended to be adaptable, every breach of such rules is not actionable, such breaches being curable under section 79 of the Act. In cases of intended dismissal of police officers, however, the intention of the Rules is to grant an opportunity to defend in terms of subsection (3) of section 240, Govern ment of India Act, 1935. Such opportunity, therefore, can be claimed as of right.
Art. 170‑Certiorari, writ of‑ When lies‑Judicial and quasi‑judicial acts‑Administrative acts‑Subjective and Objective determinations‑Right of appeal against dismissal of Government servant‑Whether excludes relief by writ‑Article 170 of wider import than writs of English Courts.
Certiorari lies in all cases where there is a duty to act judicially or where there is a judicial act or order or when the proceedings are judicial or quasi‑judicial. The words "judicial" and quasi‑judicial are, in this connection, some times used in the same sense. What is needed is a judicial element in the proceedings. The only question, therefore, for decision is whether there was a duty to act judicially or whether the proceedings are quasi‑judicial, but the following observations based on study of reported cases may help
(i) If an order is to affect rights and the order is to be based on a determination in which the officer who passes the order is to act like a Judge, the elements requisite for the issue of a writ of certiorari are there.
(ii) If an inquiry be judicial at one stage of the proceed ings, that part of the proceedings will be subject to an issue of certiorari even though the rest of the enquiry is adminis trative in character.
(iii) It is the nature of the process by which a determina tion is reached that distinguishes it from an administrative act. If the, process is analogous to the judicial process, certiorari lies. This is the crux of the matter. It is the judicial approach, the need of acting analogous to a judge that makes the proceeding quasi‑judicial.
(iv) A quasi‑judicial proceeding is one in which a determi nation is reached on evidence only and after a proper opportunity to the party affected of showing cause, and the determination by itself or along with other circumstances which may or may not have been determined judicially forms the basis of an order which involves civil consequences to a party.
(v) The mere fact that a determination is subjective does not rob it of its judicial quality.
(vi) The distinction between subjective and objective decisions is to a great extent a matter of degree.
Harnamsingh Indarsingh v. State of Madhya Pradesh and another A 1 R 1952 Nag. 172, Babu Ram v. Dominion of India A I R 1952 Pb. 337, Regina v. Dublin Corporation (1878) 2 L R Ir. 371, Frome United Breweries Co., Ltd. v. Bath justices 1926 A C 586, The King v. The Electricity Commissioners (1924) 1 K B 171, The King v. London County Council (1931) 2 K B 215, Rex v. Manchester Legal Aid Committee 1952 A E R 480 p. 489, Errington and others v. Minister of Health (1935)1 KB 249, Board of Education v. Rice 1911 A C 179, Nakhuda Ali v. M. D. De S. dayartne P L D 1950 P C 102, Province of Bombay v. Khushaldas A I R 1950 S C 222 (228), Minister of Health v. The King 1931 A C 494, R. v. Rent Tribunal for Paddington (1947) 1 A ‑E R 448 Muhammad Bux v. Government U. P. State‑A I R 1953 All. 739, Franklin v. Minister of Town Planning (1947) 2 A E R 289 and The King v. North (1927) 1 K B 491 (506) ref.
Held, that if the proceedings by which dismissal of a public servant was ordered be illegal or in excess of jurisdiction, the competency or pendency of an appeal can not bar an applica tion for a writ of certiorari.
Held (per Kaikaus, J.) It is not necessary to bring an order within a particular category of writs issued by the English Courts, to warrant its issue under Article 170.‑ The Article is intended to enable the High Court to control so as to bring it in conformity with the law. Whenever the executive action executive acts in violation of the law, an appropriate order can be granted which will relieve the citizen of the effects of illegal action.
Per Akhlaque Hussain, J.‑Upon the language used in the Constitution it is open to a High Court to issue, besides writs in the nature of . . . . certiorari,' directions, orders or writs for any purpose. The High Court ha' not been tied down to any particular procedure to be followed, or the nature of the orders to be passed in the exercise of the special juris diction conferred upon it by the Constitution. Nor has its jurisdiction been limited or confined to any particular circum stances or conditions.
S. 29 (1) shall think"‑Means "shall be of opinion" or shall be satisfied" ‑‑Such opinion to be based on some material and not on intuition.
The words "shall think" in section 29 (1), Bombay District Police, Act do not mean anything mote than "shall be of opinion" or shall be satisfied".
This opinion must be held on some material and not merely on account of some intuition.
H. S. Suharwardy, Sadiq and Ghulamali for Petitioner.
A. K. Brohi and H. T . Raymond for Respondents.
Dates of hearing : 5th, 6th, 7th, 8th and 9th March 1956.
‑This judgment will dispose Of writ petitions Nos. 99 and 106 to 109 of 1955 which have beet, filed by five police officers of the Karachi Police Force, who, as a result of a joint departmental enquiry against them were dismissed by an order of the Inspector‑General of Police, Karachi, dated the 21st of July 1955.
In the beginning of November 1954, a lengthy anonymous letter containing scandalous allegations against the Inspector -General of Police, Karachi, and Mian Ghulam Rasul, a Sub -Inspector of Police, was sent to the Governor‑General, the Prime Minister and to various other high officials. On coming to know of this, the Inspector‑General of Police ordered Mr. Iqbal Shah, Inspector of Police, Local Intelligence Branch, to investigate as to who was responsible for the anonymous letter. During the investigation it came to light that the person who dispatched the letter was one Maqsood Ahmad. Efforts were then made to elicit from Maqsood Ahmed the names of persons who incited him to write the letter and provided material for it, for Maqsood Ahmed had no personal interest against the Inspector‑General or Mian Ghulam Rasul and the information contained in the ‑letter could only come from persons in the police department. In the words of Mr. Ghulam‑Mohy‑ud‑Din who conducted the departmental inquiry, "he, (Maqsood Ahmed) was, therefore, arrested under the security of Pakistan Act and interrogated." Maqsood disclosed that some police officers of the Karachi Police Force had urged him to send the letter and had supplied him with the information which it contained. On the basis of this statement a charge‑sheet was served on 19 police officers, and Mr. Ghulam Mohy‑ud‑Din, a Deputy Superintendent of Police, was appointed by the Inspector‑General of Police to hold an inquiry into the charge. Mr. Ghulam Mohy‑ud‑Din found the charge proved and the Inspector‑General of Police served notices on the persons proceeded against to show cause why they should not be dismisses from service. On the 21st of July, the Inspector‑General of Police passed orders which, in respect of Amir Ali who is admitted to be a perma nent employee purport to be of dismissal, and in respect of fourteen others who are described either as probationer or as temporary, purport to be of discharge. All orders however contain a finding that misconduct has been established against the person dismissed or discharged. Four of those proceeded against had been re‑instated. The petitioners filed appeals against the order of discharge (or dismissal). Their appeals were not forwarded by the Inspector‑General of Police to the Chief Commissioner (with the exception of that of Amir Ali) on the ground that being temporary employees, they had got no right of appeal. The appeal of Amir Ali is now stated to be pending with the Chief Commissioner, though Amir Ali alleges that it was never forwarded to tie Chief Commissioner before he filed this petition. He as well as the other peti tioners have made statements that the verbal information they received from the department was that their appeals would not be forwarded to the Chief Commissioner.
Out of the five petitioners, Amir Al, as stated above, is admittedly a permanent employee. The order of the Inspec tor‑General of Police states that one of the remaining four, i.e., Rahim Bakhsh, is a probationer and the other three are temporary employees. It is a matter of dispute between the petitioners and the respondent as to whether the petitioners other than Amir Ali are permanent employees. Both parties have made a request to us that in this judgment we should express no opinion as to whether they have acquired the status of permanent employees or not. Mr. Brohi who appears for the respondents has conceded that a, regards the validity of the order of discharge or the competency of the present application, it would make no difference whether the peti tioners are permanent or non‑permanent employees, with this exception that only Amir Ali has got a right of appeal against the order of dismissal to the Chief Commissioner. As would appear later, the order which we are going to make is not affected by the competency of appeal and, therefore, we have decided not to enter into the questions to the nature of the tenure of service of the petitioners.
In order that the grievances of the petitioners and the grounds of attack on the order of dismissal (or discharge) be appreciated, it is necessary to state some of the details of what happened during the inquiry. Mr. Ghulam Mohy‑ud‑Din, who was the inquiry officer, had been associated during the investigation that was made by Iqbal Shah. He had himself checked the statement made by Maqsood Ahmed. In fact it is not denied by the respondents that he was so associated. On the other hand, a plea has been taken on behalf of the respon dents that he was already satisfied during the ex‑parse investi gation that the petitioners were guilty and on this plea an argument has been based reference to which will be made later.
It has already been stated that Maqsood Ahmed had been arrested under the Security of Pakistan Act and interrogated. While he was in custody, his wife put in a habeas corpus peti tion making allegations of torture. He had been arrested on the 10th of November 1954, and on the 22nd February 1955 he was released by the orders of the Chief Court of Sind. After his release, he filed complaints against Mian Ghulam Rasul and Mr. Iqbal Shah in respect of his detention. On the 9th of April 1955, an order of externment under the Security of Pakistan Act was served on him and he was sent outside the limits of the Federal Capital.
During the inquiry before Mr. Ghulam Mohy‑ud‑Din, the statement which Maqsood Ahmed had made before Mr. Iqbal Shah was produced in evidence (The petitioners do not even admit that it was properly proved). When the petitioners found that the statement of Maqsood Ahmed was going to be used against them, they, according to the inquiry officer, raised a hue and cry and demanded that if the statement of Maqsood was to be used against them, he should be produced as a witness in the inquiry and they should be allowed to cross-examine him. The inquiry officer granted this request and passed orders that he should be produced. However, the prosecution refused to produce him on the ground that he was hostile witness.
The grievances of the petitioner in respect of this inquiry are (1) that Mian Ghulam Mohy‑ud‑Din had himself been associated in the investigation and having a bias he was dis qualified from holding the inquiry; (2) that the statement of Maqsood Ahmed was used against them without an opportunity being afforded to them of cross‑examination; and (3) that a number of rules framed under the Bombay District Police Act, which applied to the present inquiry were violated. The last objection includes a plea as to the charge being vague. It is said that the charge does not mention any date and this has prejudiced the petitioners in their defence because they could have met the prosecution case by proving that they were not at Karachi at all on the date on which the incident is said to have taken place. It is said that while the charge does not mention any date, one of the witnesses has mentioned a date and they succeeded in proving that one of the persons pro ceeded against had not returned from India up to that date at all.
The case for the petitioners is that they are entitled under section 240 (3) of the Government of India Act to a reason able opportunity to show cause which opportunity in this case has been denied to them and that the order of dismissal is also defective as the rules relating to the inquiry framed under the Bombay District Police Act were not complied with. These rules they say have statutory force in view of section 243 of the Government of India Act. On these grounds the peti tioners pray for a writ of certiorari for quashing the proceedings in the inquiry and the order of discharge (or dismissal), and for a writ of mandamus ordering the respondents to reinstate the petitioners in their posts. The respondents to these petitions are the Federation of Pakistan and the Inspector General of Police, Karachi.
On behalf of the respondents, it is contended that section 240 (3) is not applicable to the present case which is governed, in view of section 243 of the Government of India Act, by section 29 of the Bombay District Police Act and the rules framed there under, and that section 29 and the rules do not give the petitioners a cause of action at all. 1t is also urged that the order of the Inspector‑General of Police is administrative in character and not a judicial order, and there fore cannot be subject of a writ of certiorari. The writ of mandamus to which reference has been made above is dependent upon the proceedings being quashed by a writ of certiorari.
It may be stated here that the Bombay District Police Act admittedly, applies to the Karachi Police Force. As to whether it will deprive the petitioner of the right under section 240 (3) of the Government of India Act or whether its rules can be the foundation of a cause of action are matters of contest between the parties.
Before I proceed to elaborate and discuss the contentions that have been raised, I will quote the relevant provisions of the Government of India Act, the Bombay District Police Act and the rules framed under the latter Act.
Government of India Act.
Section 240. Tenure of office of persons employed in civil capacities in Pakistan.‑(1) Except as expressly provided by this Act, every person who is a member of civil service of the Crown in Pakistan or holds any civil post under the Crown in Pakistan, holds office during His Majesty's pleasure.
(2) No such persons, as aforesaid who having been appointed by the Secretary of State or the Secretary of State in Council continues after the establishment of the Federation to serve under the Crown in Pakistan shall be dismissed from the service of His Majesty by any authority subordinate to the Governor‑General or the Governor according as that person is serving in connection with the affairs of the Federation or a Province, and no other such person as aforesaid shall be dis missed from the service of His Majesty by any authority subordinate to that by which he was appointed.
(3) No such person as aforesaid shall be dismissed or reduced in rank until he Chas been given a reasonable oppor tunity of showing cause against the action proposed to be taken in regard to him
Provided that this subsection shall not apply----
(a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge or
(b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause.
(4) Notwithstanding that a person holding a civil post under the Crown in Pakistan holds office during His Majesty's pleasure, any contract under which a person not being a member of the civil service of the Crown in Pakistan, is appointed under this Act to hold such a post may, if the Governor‑General or as the case may be, the Governor, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of com pensation, if before the expiration of an agreed period that post is abolished or he is for reasons not connected with any misconduct on his part, required to vacate that post.
Section 243. Special provisions as to police.‑ Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the subordinate ranks .of . the various police forces in Pakistan shall be such as may be determined by or under the Acts relating to those forces respectively.
Bombay District Police Act, 1890.
Section 29. (1) The Provincial Government, or any officer authorised by subsection (3) in that behalf, may suspend, reduce or dismiss any member of the subordinate ranks of the police force whom he shall think cruel, perverse, remiss or negligent in the discharge of his duty or unfit for the same, and may fine, to an amount not exceeding one month's pay, any member of the subordinate ranks of the police force, who is guilty of any breach of discipline or misconduct which does not require his suspension or dismissal or who, by .any act of his own, renders himself unfit for the discharge of his duty.
(2) Any punishment inflicted on a member of the subordi nate ranks of the police force under this section shall be in addition to the penalty to which such officer is liable under sections 36, 63 or 64 of this Act or any other law in force.
(3) The Inspector‑General and Deputy Inspector‑General shall have authority to punish any member of the subordinate ranks of the police force of, and below the grade of Inspector under subsection (1). A District Superintendent shall have the like authority in respect of any police officer subordinate to him below .the grade of Inspector and may suspend an Inspector who is subordinate to him, pending inquiry into a grave complaint against such Inspector and until an order of the Inspector‑General or Deputy Inspector‑General can be obtained. The Principal of the Central Police Training School Nasik shall also have the like authority in respect of any member of the subordinate ranks of the police force below the grade of Inspector serving under him, and in respect of head constables and constables belonging to the police force of the Nasik District or any other district attached to the said school for duty under him. He may also suspend an Inspector who is subordinate to him, pending inquiry into a grave complaint against such Inspector and until an order of the Inspector- General or Deputy Inspector‑General can be obtained. But the exercise of any power conferred by this subsection shall be subject always to such rules and orders as may be made by the Provincial Government, in that behalf.
Rules‑
1265.‑‑No police officer shall be departmentally punished otherwise than as provided in these rules and no police officer shall be dismissed from service by any authority subordinate to that by which he was appointed (Items Nos. 11,207 and 256).
1278.‑While no hard and fast rules can be laid down to cover all cases likely to require the holding of departmental inquiries into the misconduct of police officers and the drawing up of proceedings under section 30 of the Bombay District Police Act, 1890, the following general principles are enun ciated for the guidance of officers, who must use their discre tion and common sense in applying them to individual cases :‑
(1) Default proceedings may be divided into two classes on the analogy of the system in vogue in English Law of trying cases summarily or on indictment. In the former class would fall those defaults tried summarily, i.e., in orderly room, in the latter, all other defaults. From this, however, it must not be inferred that a default usually tried summarily cannot under certain circumstances be tried by the drawing up of proceedings.
(2) Summary cases might result in punishments (a), (b) and (c) of rule 1270. Cases decided by proceedings might result in punishments (b), (d), (e), (f), (g), (h), (i), (1) and (k) of the same rule.
(6) The charges must be complete, explicit and fully understood by the respondent before he is called upon to cross‑examine the witnesses against him and to enter upon his defence generally.
(7) Respondent must be given all reasonable facilities for his defence, e.g., be allowed to call witnesses, have access to or copies of documents used in evidence against him or be made to understand them thoroughly, have reasonable time to produce his witnesses or to submit his written defence if he so desires. Should any request of the respondent in this connection have to be refused, it is only fair that the request and the reasons for refusal should be clearly stated in the proceedings. Such requests may have to be refused when quite unreasonable or impossible of compliance, e.g., when he desires unnecessarily to call or recall witnesses merely to cause delay or to confuse the issue, when a wit ness cannot be found or the cost and trouble involved in finding him would be disproportionate to the advantage likely to be gained. As an instance may be quoted a default case in which the Government handwriting expert had certified certain writing to be that of the respondent and the latter demanded the expert's presence for cross‑examina tion. Such a demand could be reasonably refused without the proceedings being vitiated thereby.
1284.‑(12) In accordance with section 240 (3) of the Government of India Act, 1935, no Government servant can be dismissed, removed, discharged or reduced in rank until he has been given a reasonable opportunity for 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 ; or
(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 reasonable, practicable to give to that person an opportunity of showing cause.
During the course of discussion I may have to refer to other rules, but I will not reproduce them on account of their volume. It is sufficient to state here that there are exhaustive rules under the Bombay District Police Act regulating the conduct of inquiries.
The first objection raised by Mr. Brohi may now be elaborated. It would be observed that section 240 which expressly provides for the tenure of the Government servants being at pleasure of the Crown gives the servant two protec tions: (1) that he cannot be dismissed by an authority subor dinate to that which appointed him, and (2) that he must be given an opportunity to show cause. This is a general section relating to all servants of the Crown. Section 243, however, makes a provision that notwithstanding what is contained in the foregoing provisions of the Chapter (and both the provi sions are in the same Chapter) the conditions of service of the police officers should be such as are contained "and the Act or rules applicable to them. It is not contested, and in fact both parties have made it a basis for their arguments, that condi tions of service include a condition as to circumstances under which service, can be terminated. This proposition has been laid by their Lordships of the Privy Council in North‑West Frontier Province v. Sural Narain Anand (A I R 1949 P C 112 = P L D 1949 P C 1) and is not liable to be challenged. Now considering that two provisions (section 240 (3) and section 243) overlap, there can be two ways in which their effect can be regarded: (1) that sec tion 240 (3) applies to subordinate police officers except to the extent of inconsistency between it and the Act mentioned in section 243 or rules there under and (2) that section 240 does not apply to subordinate police officers at all and any remedy which may be available to such police officers is to be found only in the Police Act or rules. Mr. Brohi for the respondents concedes that the first approach is the correct one and that section 240 (3) will continue to apply to every police officer except to the extent of an inconsistency between section 240 (3) and the conditions of service which apply to police officers. I have no doubt that this is the correct interpretation of these two provisions. If there were no conditions of service of a police force under a particular Act or rules under the Act, section 240 (3) should apply, for it refers to all servants of the Crown. If section 240 did not apply to police officers even its first subsection would be excluded and that could not be the intention. The word "notwithstanding" in section 243 also points to the same conclusion. Once we accept that section 240 is applicable also to subordinate police officers, if there existed no term or conditions as envisaged by section 243, we will have to accept that till over‑ridden it continues to apply. In fact the point is concluded by North‑West Frontier Province v. Suraj Narain Anand to which full reference will be made later. I would not have referred to the arguments in support of the applicability of section 240 (3) but for the fact that Mr. Brohi while making this concession has put forward an argument about the remedy being only in the rules which argument I will presently explain.
While Mr. Brohi concedes that section 240 (3) applies to police officers he contends that the effect of section 29 of the Bombay District Police Act and the rules framed there under is to deprive the subordinate ranks of police officers of the protection of section 240 (3), for they are in effect inconsistent with section 240 (3). Section 29 gives power to the Inspector General of Police to dismiss any servant whom he thinks' cruel, perverse etc. This provision, learned counsel urges, excludes any right in the subordinate police officer to an opportunity to show cause or defend himself. It is just a matter of the satisfaction of the Inspector‑General of Police. Learned counsel also relies on the fact that the rules are intended to provide the whole of the conditions of service of subordinate police officers and contends that there is no room for the application of section 240 (3). He takes up also the position that once rules have been framed, the remedy of the subordinate police officers is only in the rules. Here he is not quite consistent, for he has already conceded that section 240 (3) applies except to the extent it is over‑ridden by the relevant Police Act and the rules: So far as the rules are concerned his contention is that their breach as held by their Lordships of the Privy Council in R. Venkata Rao v. Secretary of State (A I R 1937 P C 31) gives rise to no cause of action in a Court of law The fact that under the last part of section 29 of the Bombay District Police Act the observance of rules is condition prece dent for dismissal does not, according to learned counsel, make any difference. The upshot of the arguments of Mr. Brohi is that the protection given by section 240 (3) ceases to exist because there are rules, and the rules are of no avail because of ‑the judgment of their Lordships of the Privy Council.
The first question then to be decided on Mr. Brohi's argument is whether section 29 of the Bombay District Police Act read along with rules which have been framed under that section by the Provincial Government are inconsistent with section 240 (3) of the Government of India Act. Is it the intention of the Act and the rules that the subordinate ranks of police should not have the protection which has been given to them by section 240 (3). It is only if in their combined effect section 29 and the rules framed under it lead to that inference that the inconsistency can exist.
It is correct that section 29 makes the order of dismissal dependent merely on what the Inspector‑General 'thinks'. The word 'thinks' in this connection does not mean anything more than "is of opinion" or "is satisfied". It is, however, v urged that even with this interpretation it is only a matter off his personal satisfaction and absence of any provision in section 29 as to an opportunity to show cause points to an intention on the part of the Legislature that no such opportu nity was intended. But the exercise of this power is by the express words of section 29 conditioned on the observance of rules and, therefore, the section and the rules must be read together, I have already quoted the rules which refer expressly to section 240 (3) and recognizes that the subordinate police officer is entitled to an opportunity to show cause. In respect of these rules the contention put forward by the learned counsel for the respondents is that they are merely in the nature of directions as held by their Lordships of the Privy Council in R. Venkata Rao v. Secretary of State and have no statutory force inspire of what is contained in section 243 and the last part of section 29 of the Bombay District Police Act. Assuming for the present that the Privy Council judgment governs these rules, and overlooking for the moment section 243 which makes the rules, conditions of service, it is to be observed that the petitioners are not basing a right of action on a breach of the rules. They are basing it on section 240 (3)I and the only question is whether an intention to override section 240 (3) appears from the Bombay District Police Act and the rules. In view of the clear statement in rule 1284 (12) as to the applicability of section 240 (3) to a police officer, I am of the opinion that the contention that section 29 of the Bombay District Police Act and the rules framed there under are inconsistent with section 240 (J) of the Government of India Act has no force.
Apart from what has been said above, let us consider what will be the effect if we accept the arguments put forward by Mr. Brohi. He concedes that if his argument is accepted, we will be imputing to the Parliament: an intention, while enacting the Government of India Act, to deprive subordinate police officers of the protection mentioned in section 240, as long as Government of India Act remains in force. Even in respect of the Police Acts which are referred in section 243, his contention is (and for this contention he made a request that it should be noted down) that they are a sort of subordi nate legislation having been brought into force by means of section 243 and that such Acts too will be governed by the rule laid down by their Lordships of the Privy Council in R. Venkata Rao v. Secretary of State with regard to rules. When the Government of India Act was enacted, there existed a Central Police Act and some Provincial Acts. The provisions in all are similar and the rules framed thereunder are substantially the same. Now, as the Legislature knew very well (if we accept Mr. Brohi's arguments) that under the various Police Acts and the rules framed thereunder, the subordinate police officers can never have any protection, because they are kind of subordinate legislation and sub sections (2) and (3) of section 240 could not apply as the Acts and rules existed; therefore henceforth a police officer had no right of action if he was not granted an opportunity to show cause or was dismissed by an authority subordinate to that which appointed him. Can we impute such an intention to the Legislature If the Legislature intended that no police officer in future will have either of the protec tions mentioned in section 240, why could it not make this clear in section 240 itself. Even if we were to reject the argument of Mr. Brohi that Police Acts are also subordinate legislation and were to accept only this part of the argument that the rules could not confer any right or cause of action, the situation would not improve. The Police Acts were in existence in 1935 and by themselves they granted no relief. Rules existed with respect to all conditions of service and made provision for the procedure to be adopted in case of dismissal etc. If the rules could not be the basis of cause of action and subsections (2) and (3) of section 240 were excluded by the rules, the subordinate police officers could never have in future any right of action unless the Police Acts themselves were amended so as to make a provision similar to section 240 (3). As stated above, Mr. Brohi accepts that on his argument the protection of section 240 (3) had been com pletely taken away from subordinate police officers. The only question is whether the Parliament intended this and I have no doubt that it did not. The only intention was to make a provision that the protection given by section 240 (3) could be affected by an Act of a Legislature or by rules thereunder.
Assuming, however, that the subordinate police officer has, after conditions of service have been provided for under section 243, to depend upon them only for his protection, let us examine whether the rule which makes the provision of section 240 (3) applicable is of statutory force. Under sec tion 243 it would prima facie have statutory force and the only question is whether what their Lordships of the Privy Council said in R. Venkata Rao v. Secretary of State about the rules not affording a cause of action applies to the present case. In order to decide this question the judgment of their Lordships in that case has to be carefully considered.
R. Venkata Rao v. Secretary of State was a case decided under the Government of India Act, 1919. Section 96‑B of that Act runs:---
(1) Subject to the provisions of this Act and of the rules made thereunder, every person in Civil Service of the Crown in India holds office during His Majesty's pleasure and employed in any manner required by a proper authority within the scope of his but no person in that service may be dismissed by any authority subordinate to that by which he was appointed, and the Secretary of State in Council may (except so far as provide by rules to the contrary) reinstate any person in that service who has been ed. If any person appointed by the Secretary of State in Council thinks himself d by an order of an official superior in a Governor's Province and on due appli cation made to that superior does not receive the redress to which he may consider entitled, he may without prejudice to any other right of redress, complain to the or of the Province in order to obtain justice, and the Governor is hereby directed to examine such complaint and require such action to be taken thereon as may appear to e just and equitable.
(2) The Secretary of State in Council may make rules for regulating the classification of the Services in India, the methods of their recruitment, their conditions of service, d allowance, and discipline and conduct. Such rules may, to such extent and in of such matters as may be prescribed, delegate the power of making rules to the or General in Council or to Local Governments or authorize the Indian Legislature or Local Legislatures to make laws regulating the public services : Provided that every person appointed before the commencement of the Government of India Act y the Secretary of State in Council to the Civil Service of the Crown in India shall retain all his existing or accruing rights, or shall receive such compensation for the loss of hem as the Secretary of State in Council may consider just and equitable.
(3) The right to pensions and the scale and conditions of pensions of all persons in the Civil service of the Crown in India appointed by the Secretary of State in Council shall be regulated in accordance with the rules in force at the time of the passing of the Government of India Act, 1919. Any such rules may be varied or added to by the Secretary of State in Council and shall have effect as so varied or added to, but any such n or addition shall not adversely affect the pension of any member of the service ed before the date thereof‑ Nothing in this section or in any rule thereunder shall e the rights to which any person may or may have become entitled under the ns in relation to pensions contained in the East India Annuity Funds Act, 1874.
(4) For the removal of doubts, it is hereby declared that all rules or other provisions in operation at the time of passing of the Government of India Act, 1919, whether made by Secretary of State in Council or by any other autho rity, relating to the Civil Service of the Crown in India, were duly made in accordance with the powers in that behalf and are confirmed, but any such rules or provisions may be revoked, varied, or added to by rules or laws made under this section.
(5) No rules or other provisions made or confirmed under this section shall be construed to limit or abridge the power of the Secretary of State in Council to deal with the case of any person in the Civil Service of the Crown in India in such manner as may appear to him to be just and equitable, and any rules made by the Secretary of State in Council under subsection (2) of that section delegating the power of making rules may provide for dispensing with or relaxing the requirements of such rules to such extent and in such manner as may be prescribed : Provided that where any such rule or provision is applicable to the case of any person, the case shall not be dealt with in any manner less favour able to him than that provided by the rule or provision.
Rule 55 of the rules framed under section 96‑B was substan tially in the same terms as section 240 (3) of the Government of India Act, 1935. In that case, their Lordships held on the facts that no proper opportunity to show cause had been afforded to the appellant before them. Before their Lordships it was contended that the violation of rule 55 would give the Government servant concerned a right to approach the Civil Courts. Reliance was placed on the words "Subject to the rules framed thereunder . . . . ." which occur in the beginning of section 96‑B. Their Lordships rejected this contention. Their Lordships were of the opinion that the pleasure of the Crown to dismiss its servants, which had been expressly stated in section 96‑B, had not in any way been affected by the words "Subject to the rules framed . . . . . ."
Their Lordships said : "There is . . . . . no room for its exclu sion:" Their Lordships were not prepared to accept that employment which was at pleasure could yet be subject to the condition that the rules shall be observed. This is clear from the sentence : "The argument for a limited and special kind of employment during pleasure but with an added contractual term that the rules are to be observed is at once too artificial and too far‑reaching to commend itself for acceptance." The right of the Crown to dismiss the servant at pleasure was accepted by their Lordships as the fundamental concept and that which did not fit in with that concept was rejected. An obligation to dismiss only in accordance with the rules was found to be not consistent with the idea of the pleasure of the Crown. With respect to the words "Subject to the rules etc." occurring in the beginning of section 96‑B, their Lordships were of the opinion that this was only a statutory assurance, a kind of gentleman's word which did not give a right of redress in Courts. As it was merely an assurance, it was all the more the duty of the Government to see that the assurance was carried out and their Lordships trusted, in spite of the failure of the Government in the two cases before them, that it will in future be carried out. The rules their Lordships regarded no more than directions given by the Crown for guidance which could not constitute a contract between the and the servants. Their Lordships regarded the pleasure of the Crown as necessarily implied in every contract between the Crown and its servants (as will appear he quotation from Shenton v. Smith (1895 A C 229) which term can only be affected by a t by the Crown, and the rules which can be changed at any time did not constitute h contract.
Another important consideration which moved their Lordships was that the rules were voluminous and of infinite variety and great inconvenience and confusion would be if a right of action were to be given to the Government servant for breach of every this connection, their Lordships attached importance to the fact that the rules d a careful provision for redress of grievance by admi nistrative process. Their Lordships were of the opinion that there could not be an intention to confer a right of for breach of every rule. The argument which had been put forward before their Lordships by the appellant was that in view of the opening words of section 96‑B, the ad statutory force and therefore there would be a right of action on the breach of e of them.
From this brief summary of the judgment in A I R 1937 P C 31 it will appear that the considera tions which, influenced their Lordships were : (1) there was no reason to e exclusion of the term of contract, always implied in contracts between the and its servants, and expressly stated in section 96‑B, that servants of the Crown hold office at pleasure of the Crown, and that a tenure of office which was at pleasure and also subject to rules was unimaginable, and (2) if the rules were regarded as binding, there would be a right of recourse to Courts on the breach of every rule, and considering infinite variety and volume of the rules and the fact that there was careful provi sion the redress of grievances by administrative process, this could not be the intention. Their Lordships regarded the rules as intended only to be directions and explained the opening of section 96‑B by saying that they were intended merely as an assurance which had only a morally persuasive force. We have now to consider whether these rations are applicable to the present case.
There is no doubt, a great deal of similarity between the case before their Lordships and sent case, and I would concede that the rules other than those which provide the ions of section 240 should ordinarily be regarded merely as directions. If it were se, there would be a right to recourse to Civil Courts on the breach of all rules to leave, promotion, pay, allowance, etc. and this could not, as their Lordships out, be the intention. As regards the argument on behalf of the petitioners that 243 grants to the rules a statutory force, it is to be remembered that according to Venkata Rao v. Secretary of State, rules can be intended to be only for guidance even Act under which they purport to be framed grants a power to frame rules. It is appropriate to mention here that even provisions in a statute may be only directory and not mandatory and there can be no bar to the framing of rules the breach of which will not create a right of action. All depends on the intention of the rule making authority.
However, the considerations that influenced their Lordships would not be applicable to those rules (framed under the Bombay District Police Act) which provide for the two protections that are granted to servants of the Crown by section 240 of the Government of India Act. Under the lass part of section 29 of the Bombay District Police Act, it will appear that the exercise of the power of dismissal by the Inspector‑General is conditional on compliance with rules framed by the Provincial Government. This qualification of the power of dismissal cannot be regarded as a mere assurance. Although in view of the judgment of their Lordships of the Privy Council it is not impossible now to put forward an argument that words in a statute have only a morally persuasive and not a binding force, such argument has to be supported by exceptional and compelling considerations. The mere fact that their Lordships found the opening words of section 96‑B of this character is not a sufficient reason for holding that the qualification of the power of dismissal in section 29 falls in the same category. For one thing, the opening words of section 96 covered all conditions of service and the qualification in section 29 only affords a protection similar to that in section 240. Also it cannot be said that such rules are only for guidance. Rule 1284 (12) clearly says that the servant is entitled to the protection mentioned in section 240, Government of India Act. The intention is not one of mere guidance but of acknowledging the right of the servant. The rules also cannot be intended to be for guidance because they are intended to provide the qualification mentioned in the last part of section 29.
Mr. Brohi refers to rule 1278 which shows that the rules are adaptable and urges that this clearly points to the rules being for guidance. That the rules are adaptable does not, however, mean that the substance of the rules is not to be complied with. The intention of the rules is clearly to give a reasonable opportunity to defend, this being regarded as the right of the servant. The consideration that if breach of rules were to be the foundation of a cause of action general incon venience and confusion will be caused avid Courts will be flooded with suits, is also absent. Here we are concerned only with such rules as qualify the power of dismissal and reduction in rank. They afford the same cause of action as is by section 240.
Another and important point of distinction between A I R 1937 P C 31 and the present case is this. Here the rules must be such as over‑ride section 240 (3) and in order that a provision may over‑ride a statute, it must itself have statutory force.
As regards authorities on the point with which I am dealing I have first to refer to the judgment of their Lordships of the Privy Council in North‑blest Frontier Province v. Suraj Narain Anand. In that case a Sub‑Inspector of Police appointed by the Inspector‑General Police had been dismissed by the Deputy Inspector‑General of Police, and he filed a suit claiming that the order of dismissal was void in view of section 240 (2). At the date of the plaintiff's appointment there was a provision in the rules that he could be dismissed only by the Inspector‑General. There was a later amendment however providing that he could be dismissed by the Deputy Inspector‑General. It was a matter of dispute between the parties as to whether. the amending rule had been framed before the passing of the Government of India Act. If it had been enacted before the passing of the Act, the rule would be ultra vires in view of section 96‑B of the Government of India Act 1919, there being in that Act no provision similar to section 243. The plaintiff contended that a provision as to dismissal was not a provision relating to conditions of service and in any case the rule providing for his dismissal by the Deputy Inspector‑General was ultra vires, having been framed before the coming into force of the Government of India Act 1935. The Federal Court of pre‑partition India had held that a provision as to dismissal was not a condition of service and section 243 being in that view inapplicable, they declared the dismissal contrary to law. On appeal, their Lordships of the Privy Council held to the contrary. As regards the validity of rule, their Lordships held on the first hearing that the rule was intra vires, having come into force only when the Govern ment of India Act, 1935 came into force. In this view, their Lordships accepted the appeal and dismissed the suit. There was then an application for review and their Lordships, coming to the conclusion that the rule had come into force before the coming into operation of the Government of India Act, 1935 and was therefore void, dismissed the appeal and decreed the suit. It is remarkable that while the case was being very strenuously contested on behalf of the Government and section 243 was expressly relied upon no plea was ever put forward that as there existed rules relating to conditions of service, section 240 (2) would be excluded and the rules themselves could not afford a cause of action in view of A I R 1937 P C 31. Their Lordships too do not refer to this aspect of the matter and proceed on the assumption that the plaintiff had a right of recourse to the Civil Courts, If the argument of Mr. Brohi be accepted, the whole of the discussion in their Lordships' judgment would be unnecessary and the case should have been decided on a simple and short ground that section 240 (2) was excluded as rules existed and the rules could not be the foundation of an action. I am not prepared to accept that their Lordships overlooked that the rules could not form the basis of a claim in a Civil Court. If we accept Mr. Brohi's contention, the suit was wrongly decreed, for if section 240 (3) does not apply in the face, of rules, section 240 (2) also should not apply.
In Province of Bombay v. Madhukar Ganpat Nartebar (1), North‑Nest Frontier Province v. Suray Narain Anand has (1) A I R 1952 Bom. 37 been interpreted as if it held that section 240 did not apply to subordinate police officers, who were governed by section 243, and as if relief was granted to the plaintiff in that case on the basis of rules framed under the Police Act. I do not, with respect, regard this as a correct interpretation of the judgment of their Lordships. At page 114, their Lordships said after quoting section 240 :
The proper construction of this section has been fully dealt with in the judgment of this Board just delivered in the High Commissioner for India and the High Commissioner for Pakistan v. I. M. Lall (A I R 1948 P C 121 = P L D 1948 P C 150) to which reference may be made. In that case the question arose as to the effect of non‑comp liance with the provisions of subsection (3) of section 240, and it was held that subsection (3) was a statutory term of service of the Crown, which qualified the provisions of subsection (1) of section 240, and was mandatory and not permissive. On the principles of this decision, and the deci sion in Rangachari's case (A I R 1937 P C 27), it is equally clear that subsec tion (2) of section 240, though it obviously does not apply in the case of dismissal by the Crown itself is a statutory term of service of the Crown, and is mandatory and not permissive. It follows that the dismissal of the respondent by an authority subordinate to that by which he was appointed would be unlawful and inoperative under that section."
Here their Lordships clearly recognised the applicability of section 240 to every servant of the Crown, but any doubt on the subject is set at rest by a later reference in their Lordship's judgment to section 240 (1). Their Lordships say while explaining the reference in the words "Notwithstanding any thing in the foregoing provisions of this chapter":
The one exception is subsection (1) of section 240, but that provides for termination by His Majesty, and there can be no question of delegation of that power by virtue of section 243.
Their Lordships have stated here that the power of the Crown to dismiss its servant at pleasure has not been delegated in respect of police officers by section 243. So it would be clear that section 240 (1) does apply to all servants of the Crown including subordinate police officers and 240 (2) and 240 (3) would therefore apply except to the extent of the repugnancy between them and any provision referred to in section 243. However, if we were to accept the interpretation put upon the Privy Council judgment in the Province of Bombay v. Madhukar Ganpat Narlekar, the result would be even more favourable to the petitioners. The Privy Council judgment had been interpreted as granting relief to the plaintiff on the basis of rules and it was held that although section 240 did not apply, the rules framed under the relevant Police Act governed the conditions of service and a breach of the rules would afford the servant a cause of action. The case is almost on all fours with the present case, because there too a lack of a proper opportunity to defend himself and a breach of the rules were the basis of the cause of action. North‑West Frontier Province v. Suraj Narain Anand should on any interpretation be con clusive of the existence of a cause of action in this case. If section 240 had been held applicable, except to the extent of repugnancy, and a decree was granted on its basis, want of proper opportunity to show cause in the present case will give the petitioners a cause of action under section 240 (3). If, on the other hand, the decree had in that case been based on the breach of a rule relating to dismissal of a police Sub‑Inspector by the Inspector‑General, the case establishes that a breach of the rules can be the basis of a cause of action. It is to be noted that although R. Venkata Rao v. Secretary of State was not mentioned in that case R. T. Rangachari v. Secretary of State which was decided on the same day as R. Venkata Rao v. Secretary of State and in which too it had been held that breach of the rules could not be made the basis of a suit, had been quoted before their Lordships. Still their Lordships did not consider the observation relating to the rules in Rangachari v. Secretary of State applicable to the case before their Lordships.
In Gulzar Ahmad Jafri v. Government of United Provin ces (A I R 1950 All. 212), a Sub‑Inspector of Police appointed by the Inspector‑General had been dismissed by the Deputy Inspector‑General. It was held that the order of the Deputy Inspector‑General was void. Sections 240 (2) and 240 (3) were held to be not applicable to police officers as the words "no such person as aforesaid" in sections 240 (2) and (3) did not refer to a police officer. I have already referred to the relevant portion of their Lordships' judgment in North‑West Frontier Province v. Suraj Narain Anand from which it is apparent that section 240 (1) does apply to all servants of the Crown and, therefore, with this part of the judgment I do not, with all respect, agree. But the judgment is otherwise in favour of the petitioners. It regards the position of a police officer as being better protected than an ordinary servant of the Crown, for it holds that the police officer does not hold office at the pleasure of the Crown, but in accordance with the conditions of service provided in the relevant Act or rules. The judgment also regards the rules as binding and proceeds on the basis that their breach would afford a cause of action.
In Punjab State v. Bhagat Singh (A I R 1955 Pb. 118), Kapur, J., held that the case of a police officer was not governed by section 240. As regards the rules, the learned judge was of the opinion that there was a distinction between those rules which related to procedure and those which related to substantive rights. If a rule relating to mere procedure was violated, then that would be covered by what their Lordships said in R. Venkata Rao v. Secretary of State ; but the observation in that judgment would not apply to a case where a rule relating to substantive rights was involved. If I were to accept the interpretation put by Kapur, J. on the judgment in R. Venkata Rao v. Secre tary of State. I would still hold that there is a cause of action in this case because an opportunity to show cause is a matter of substantive right and not merely of procedure.
In Harnamsingh Indarsingh v. State of Madhya Pradesh and another (A I R 1952 Nag. 172), while it was held that to subordinate police officers section 243 applied, the police officer was regarded as entitled to an opportunity to show cause in view of the rules. In Babu Ram v. Dominion of India (A I R 1952 Pb. 337), a police officer claimed that under the rules he was entitled to a proper inquiry. No objection was taken on behalf of the Government that the absence of inquiry could not be the basis of a suit, though on facts it was found that there had been a proper inquiry.
I hold, therefore, that in view of section 240 of the Government of India Act and in any case on account of the rules framed under the Bombay District Police Act, which qualify the power of dismissal contained in section 29 of that Act, the petitioners are entitled to an opportunity to show cause and an absence of proper opportunity would give them a right to relief.
It would be proper at this stage to deal with the conten tion raised on behalf of the petitioners that the rules under the Bombay District Police Act relating to procedure at an enquiry have statutory force and that every breach of such rules can be a ground for the issue of a writ. It would be a p sufficient answer to this contention that the rules themselves are intended to be adaptable, and as I have already stated above, the intention of the rules is only to grant a proper opportunity to defend. Also section 79 of the Bombay District Police Act cures such irregularities. It runs :‑
79. No rule, order, direction, adjudication, inquiry or notification made or published, and no act done under any, provision herein contained or in substantial conformity to the same, shall be deemed illegal, void, invalid or insufficient for any defect of form or publication or any irregularity of procedure.
As a result the petitioners can rely only on their right to al proper opportunity to show cause.
I will now take up the question whether a writ of certiorari lies. This is an ancient prerogative writ, drawn up for enabling the Court of King's Bench to control the action of the inferior Courts and to prevent them from exceeding their powers. The writ was originally issued in respect of Courts, but has been extended to all bodies exercising judicial functions. As to Courts and other bodies which are subject to a writ of certiorari, I would quote here from Halsbury (Volume II, Third Edition) where the English case law on the point is summed up
"1.14. Certiorari and prohibition lie only in respect of judicial acts.‑The orders of certiorari and prohibition will lie to bodies and persons other than Courts stricto sense. Any body of persons having legal authority to determine ques tions affecting the rights of subjects, and having the duty to act judicially, is subject to the controlling jurisdiction of the High Court of Justice, exercised by means of these orders. It is not necessary that it should be a Court : an under a administrative body in ascertaining facts or law may be duty to act judicially notwithstanding that its proceedings have none of the formalities of, and are not in accordance with the practice of, a Court of law. It is an enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition. A body may be under a duty, however, to act judicially (and subject to control by means of these orders) although there is no form of lis inter partes before it; it is enough that it should have to determine a question solely on the facts of the particular case, solely on the evidence before it, apart from questions of policy or any other extraneous considerations. Moreover an administra tive body, whose decision is actuated in whole or in part by questions of policy, may be under a duty to act judicially in the course of arriving at that decision. Thus, if in order to arrive at the decision, the body concerned had to consider proposals and objections and consider evidence, if at some stage of the proceedings leading up to the decision there was something in the nature of lis before it, then in the course of such consideration and at that stage the body would be under a duty to act judicially. If, on the other hand, an administrative body in arriving at its decision has before it at no stage any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any time to act judicially. Even .where the body "is at some stage of the proceedings leading up to the decision under a duty to act judicially the supervisory jurisdiction of the Court does not extend to considering the sufficiency of the grounds for, or otherwise challenging, the decision itself.
115. The duty to act judicially.‑The duty to act judicially may arise in widely differing circumstances which it would be impossible to attempt to define exhaustively. The question whether or not there is a duty to act judicially must be decided in each case in the light of the circum stances of the particular case and the construction of the particular statute, with the assistance of the general principles already set out. The instances which follow are merely examples of cases in which the duty has or has not been held to exist.
251. Bodies exercising judicial or quasi‑judicial functions.‑ Certiorari will issue to quash the determinations of any body of persons having legal authority to determine questions affecting the right of subjects and having the duty to act judicially. Certiorari lies only in respect of judicial, as distinguished from administrative acts. A proceeding may be a judicial proceeding, and subject to certiorari although it is subject to confirmation or approval and the approval has to be that of the Houses of Parliament. It would seem to be no answer to an application for an order of certiorari to say that the decision is not in writing ; the Court will order the inferior body to record its decision and then to transmit this record to the superior Court.
It will appear from this quotation, and indeed it is not denied before us, that certiorari lies in all cases where there is a duty to act judicially or where there is a judicial act or order or when the proceedings are judicial or quasi‑judicial. The words "judicial" and "quasi‑judicial" are, in this connection, sometimes used in the same sense. What is needed is a judicial element in the proceedings. The only question, therefore, for decision is whether there was a duty to act judicially or whether the proceedings are quasi‑judicial.
There is no precise definition of a judicial act or a duty to act judicially, but a good deal of help can be derived from a study of reported cases. In Regina v. Dublin Corporation ((1878) 2 L R Ir. 371) I May, C. J. in dealing with this question said :‑
It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection, the term 'judicial' does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others .
This was regarded by Lord Atkinson in Frome United Breweries Co. Ltd. v. Bath Justices (1926 A C 586) as the best definition of a judicial act as distinguished from an administrative act and it is generally referred to in cases dealing with the question before me. As a definition I must say it is not helpful. "The con sideration of facts and circumstances" and the fact that the order affects rights of others have been regarded as sufficient for making the order a judicial order, but this will cover all cases where an administrative officer is charged with the duty of passing orders which affect rights of parties unless we introduce the judicial element in the words "upon considera tion of facts and circumstances of the case", but it is the judicial element for which we need a definition. The case is, however, important inasmuch as a "consideration of facts and circumstances", which was to have an effect on the rights of others, was regarded as by itself denoting a duty of act in a judicial manner and still the case is generally relied upon in cases where the question of nature of proceedings arises and was regarded as giving the best definition of a judicial act by Lord Atkinson.
Another case generally referred to in this connection is The King v. The Electricity Commissioners ((1924) 1 K B 171) where Lord Atkin L. J. said :‑
"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty "to act judicially, act in excess of their legal authority they Are subject to the controlling jurisdic tion of the King's Bench Division exercised in these writs." This paragraph itself contains the words "having a duty to act judicially" and obviously is not intended to be a definition of a judicial act. However, it makes clear that if an order is to affect rights and the order is to be based on a determination G in which the officer who passes the order is to act like a Judge, the elements requisite for the issue of a writ of certiorari are there. In The King v. London County Council ((1931) 2 K B 215) 8crutton L. J. observed :‑
It is not necessary that it should be a Court in the sense in which this Court is a Court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court ; if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari.
This is very near to a definition except that it does not refer to a case where only part of the proceedings are to be con ducted in judicial manner, whereas as will appear from Rex v, Manchester Legal Aid Committee (1952 A E R 480 at p. 489), and Errington and others v. Minister of Health (1935 1 K 13 249), if an inquiry be judicial at one stage) of the proceedings, that part of the proceedings will be, subject to an issue of certiorari even though the rest of the enquiry is administrative in character. I quote below from these two cases as otherwise too they are illuminating. In the former case, Parker J. said
The true view, as it seems to us, is that the duty to act judicially may arise in widely different circumstances which it would be impossible, and, indeed inadvisable, to attempt to define exhaustively. Where the decision is that of a Court then, unless, as in the case, for instance, of justices granting excise licences, it is acting in a purely ministerial capacity, it is clearly under a duty to act judicially. When, on the other hand, the decision is that of an administrative body and is actuated in whole or in part by questions of policy, the duty to act judicially may arise in course of arriving at that decision. Thus, if, in order to arrive at the decision, the body concerned has to consider proposals and objections and consider evidence, then there is the duty to act judicially in the course of that inquiry. That, as it seems to us, is the true basis of the decision in Errington v. Minister of Health. While the Minister's decision to confirm the clearance order was an administrative act for the purpose of which he was entitled and bound to take into consideration questions of policy, yet, before arriving at the decision, he had to consider the objections of the property owners and the view of the local authority. In other words, at one stage of the pro ceedings leading up to his decision there was something in the nature of a lis before him, and at that stage there was a duty to act judicially, as, for instance, not to hear one side behind the back of the other. Again in R. v. London County Council all that it seems to us, Scrutton, L. J., was saying was that in the case of the London County Council it was enough to make them amenable to certiorari that they had to decide on evidence between a proposal and an opposition during which they had a duty to act judicially."
Further on the learned Judge said :
If, on the other hand, an administrative body in arriving at its decision at no stage has before it any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any stage to act judicially.
In the latter case while dealing with the question whether a Minister acts judicially while confirming a clearance order under the Housing Act, Greer, L. J., said
The powers of the Minister are contained in the Act and the First Schedule to the Act (5) and under those powers he could, if no objection be taken on behalf of the persons interested in the property make an order confirming the order made by the local authority; and in so far as the Minister deals with the matter of the confirmation of a closing order in the absence of objection by the owners it is clear to me, and I think to my brethren, that he would be acting in a ministerial or administrative capacity, and would be entitled to make such inquiries as he thought necessary to enable him to make up his mind whether it was in the public interest that the order should be made. But the position, in my judgment, is, different where objections are taken by those interested in the properties which will be affected by the order if confirmed and carried out. It seems to me that in deciding whether a closing order should be made in spite of the objections which have, been raised by the owners the Minister should be regarded as exercising quasi judicial functions.
In the same case Lord Maugham, L. J., said
My conclusion is that although the act of affirming a clearance order is an administrative act, the considera tion which must precede the doing of that act is of the nature of a quasi‑judicial consideration, and the Minister is bound to the extent mentioned by the House of Lords in the Board of Education v. Rice ((1911) A C 179).
In Board of Education v. Rice, certiorari had been applied for in respect of an order of the Board of Education. Lord Loreburn, while explaining in what circumstances remedy lay byway of certiorari, observed
" Comparatively recent statutes have extended if they have not originated, the practice of imposing upon depart ments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind ; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. Provided this is done, there is no appeal from the determination of the Board under section 7, subsection (3), of this Act. The Board have, of course, no jurisdiction to decide abstract questions of law, but only to determine actual concrete differences that may arise, and as they arise, between the managers and the local education authority. The Board is in the nature of the arbitral tribunal, and a Court of Law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari."
In a recent judgment reported as Nakhuda Ali v. M. D. De S. Jayartne ((1911) A C 179), their Lordships of the Privy Council have clearly stated the nature of proceedings which are subject to certiorari. In that case certiorari had been applied for under section 42 of Ceylon Courts Ordinance. While dealing with the question whether the jurisdiction was the same as under the English Law, their Lordships said
But even in the cases of certiorari and prohibition the English law does not recognize any distinction for this purpose between the regularly constituted judicial tribunals and bodies which, while not existing primarily for the discharge of judicial functions, yet have to act analogously to a Judge in respect of certain of their duties. The writ of certiorari has been issued to the latter since such ancient times that the power to do so has long been an integral part of the Court's jurisdiction. In truth, the only relevant criterion by English law is not the general status of the person or body of persons by whom the impugned decision is made but the nature of the process by which he or they are empowered to arrive at their decision. When it is a certiorari can be granted.
Later in the same judgment their Lordships say:
" It would not be helpful to reconsider the immense range of reported cases in which certiorari has been granted by the English Courts ; or the reported cases, themselves numerous, in which it has been held to be unavailable as a remedy. It is, of course, a common place that its subjects are not confined to established Courts of justice and instances may be found of the quashing of orders or decisions in which the occasion of their making seems only distantly related to a judicial act. It is probably true to say that the Courts have been readier to issue the writ of certiorari to established bodies whose function is primarily judicial even in respect of acts that approximate to what is purely administrative than to ministers or officials whose function is primarily administrative even in respect of acts that have some analogy to the judicial. But the basis of the jurisdic tion of the Courts by way of certiorari has been so exhaustively analysed in recent years that individual instances are now only of importance as illustrating a general principle that is beyond dispute. The principle is most precisely stated in the words of Lord Justice Atkin (as he then was) in R. v. Electricity Commissioners ((1924) 1 K B 171 at 204) . . . . . . . . . . . . the operation of the writs has extended to control the proceed ings of bodies who do not claim to be, and would not be recognised as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."
Their Lordships have in the first passage quoted above pointed out that it is the nature of the process by which a determination is reached that distinguishes it from an administrative act. If the process is analogous to the judicial process, certiorari lies. This is the crux of the matter. It is the judicial approach, the need of acting analogous to a judge that makes the proceeding quasi‑judicial.
I will also quote here an extract from the judgment of Fazal Ali, J., in Province of Bombay v. Khushaldas (A I R 1950 S C 222 at 228), which gives quite a clear idea of proceedings subject to certiorari. The learned judge says
Without going into the numerous cases cited before us, it maybe safely laid down that an order will be a judicial or quasi‑judicial order if it is made by a Court or a judge, or by some person or authority who is legally bound or authorised to act as if he was a Court or a judge. To act as a Court or a judge necessarily involves giving an opportunity to the party who is to be affected by an order to make a representation, making some kind of inquiry, hearing and weighing evidence, if any, and considering all the facts and circumstances bearing on the merits of a controversy, before any decision a affecting the rights of one or more parties is arrived at. The procedure to be followed may not be as elaborate as in a Court of Law and it may be very summary, but it must contain the essential elements of judicial procedure as indicated by me.
I would define a quasi‑judicial proceeding as one in which a determination is reached on evidence only and after a proper opportunity to the party affected of showing cause, and the determination by itself or along with other circumstances which may or may not have been determined judicially forms the basis of an order which involves civil consequences to a party. The word "evidence" I use as denoting all the material, which is before the tribunal, though not in a formal manner, but against all of which the party affected is allowed to show cause. If I were to give a true picture of cases subject to certiorari I would say that whenever the law empowers an administrative officer to pass an order affecting parties, the exercise of the power depends upon the existence of a certain set of facts. These circumstances may be of two kinds : (1) those the determination of which the law does not entrust to the officer passing the order, (2) those circum stances the determination of which the law entrusts to the officer. As regards the circumstances of the first category I, if any of them does not exist, the order is void, no matter what opinion the officer has as regards their existence. As regards the circumstances of the second category, the law may expressly or by implication provide that either all or some of them are to be determined on evidence and after a proper opportunity to the party interested to show cause. To the existent to which this is provided, the proceedings are judicial or quasi‑judicial and a certiorari will lie in respect of such proceedings. In order to make clear all this, I will cite an example. Suppose, a law enables the Government to requisition agricultural land in the scheduled districts if in the opinion of an officer it is required for the defence of the State, and suppose too that the law provides a machinery for determination of the question whether the land is agricultural and this fact has to be decided on evidence alone and after an opportunity of being heard. Whether the land is in the scheduled district or not is a circumstance of the first category. If a piece of land which in fact did not form part of the scheduled district was requisitioned because the officer thought it did, that opinion of his will have no effect on the validity of the order which would remain void. As regards the other two facts, i.e., whether the land is agricultural and whether it is required for the defence of the State, the officer has to form an opinion with regard to them, and if his opinion is formed in accordance with law, it is not liable to be set aside. But for one of these two facts whether the land is agricultural‑there is a regular inquiry provided and the question whether the land is agricultural is to be decided only on the basis of that enquiry after an opportunity to the party affected of being heard. The proceedings with respect to the determination of this question, therefore, are judicial. As regards the second fact, i.e., requirement for the defence of the State, there is no enquiry provided and the manner of its determination is left solely to the officer concerned. In so far, therefore, as he forms an opinion as to the second fact, he is not performing a judicial function. The ultimate order which he passes is based partly on determination of a judicial or quasi‑judicial inquiry and partly on his opinion as an administrative officer. However, the ultimate order of requisition, if the objection to it relates to that part of proceedings which are quasi‑judicial, will still be liable to be quashed in certiorari, for if the decision as to agricultural land be legally defective the ultimate order will fall.
In this connection there is one point I want to stress. The real distinction between a judicial act and administrative act is created by the existence of the idea of the right of a party. An administrative officer, whenever he is passing an order, will consider circumstances which will enable him to reach a correct conclusion as to what order he should pass. He may make a full enquiry and even hear objections from the ‑ party interested just because that is the best way of informing himself. That will not make the proceedings judicial. But when a determination on a point is made subject to a proper enquiry in recognition of the right of the party affected, when the intention of the law is that the right of that party should not be affected unless a question of fact has been determined in a proper the enquiry acquires a judicial character.
In an administrative act the officer considers how best the interest of the State or the object of the law will be served; he considers what is expedient in the interests of the state or public welfare and what is the policy that should be adopted. Acting judicially he considers what is just and whether a party has or has not incurred a liability.
A distinction has sometimes been made between a subjec tive and objective determination as affecting jurisdiction to issue a certiorari. I have to deal with this point because it arises directly in the present cases. In Province of Bombay v. Khushaldas for instance, Mukerji J. regards a "subjective", ''private" or "personal" opinion as opposed to a judicial determination. I have no objection to "private" or "personal" opinion being not judicial, but with all respect I do not agree that the mere fact that a determination is subjective robs it of its judicial quality. It is significant that the learned judge himself held certiorari lay when the words of the provision were "If in the opinion of the Provincial Government it is necessary or expedient to do so . . . . . " Once it is accepted that a matter is to be determined only on evidence and after a proper opportunity to a party and the ultimate order is to affect the right of a party, the proceedings would not lose their judicial character merely because the fact to be determined is such that for it no objective test can be laid dawn or the words used by the Legislature refer only to the state of mind of the person making the enquiry. There are two reasons why a determination may in a particular case be regarded as subjective : (1) because the Legislature uses such words' as satisfied, "appear to him", "thinks fit" etc. which refer to the state of mind of the officer making the order, and (2) because the fact or circumstance to be deter mined is such that for its existence no objective test can be laid down. As regards the first of these reasons let me explain that the use of such words does not necessarily mean as their Lordships of the Privy Council pointed out in Nakhuda Ali v. M. F.De S. Jayartne that only the existence of a state of mind on the part of the officer is required and they may imply the existence of objective facts. In that case the words of the statute empowering the Textile Commissioner to revoke a licence were
"Where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer, the Controller may cancel the textile licence or textile licences issued to that dealer".
Their Lordships held that the words meant only that in fact reasonable grounds existed. Their Lordships said
After all, words such as these are commonly found when a legislature or law‑making authority confers powers on a Minister or official. However read, they must be intended to serve in some sense as a condition limiting the exercise of an otherwise arbitrary power. But if the question whether the condition has been satisfied is to be conclusively decided by the man who wields the power the value of the intended restraint is in effect nothing. No doubt he must not exercise the power in bad faith : but the field in which this kind of question arises is such that the reservation for the case of bad faith is hardly more than a formality. Their Lordships therefore treat the words in Regulation 62 "where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer" as imposing a condition that there must in fact exist such reasonable grounds, known to the Controller, before he can validly exercise the power of cancellation .
But even if such words were to refer to the state of mind of the officer conducting an enquiry, they cannot deprive the proceedings of the judicial or quasi‑judicial character. Such words are found in a number of enactments which relate to the procedure of Courts themselves. In section 5 of the Limi tation Act it is provided that a Court can extend time if the applicant satisfies the Court that he had sufficient cause. Here the satisfaction is of the Court and sufficient cause is not a matter for which strict and hard and fast rules can be laid down. Similar words are used in Order IX, Rule 4 and it Order IX, Rule 9, Civil P. C. In a number of places in the Code of Civil Procedure we find that the Court has to make such order as it thinks fit. I may refer to Order XVII, Rule 2 All Judges are, in the absence of law, to decide on the ground of equity, justice and good conscience. The decision as to what is in accordance with equity, justice and good conscience is to an extent subjective. While there are now in existence some rules of equity and justice, they do not cover all the circumstances that arise. In any case, the first judge who was deciding cases without the help of rules of equity, justice and good conscience could not be said to be not discharging judicial functions.
Apart from the use of words referring to the state of mind of the officer passing the order, the distinction between sub jective and objective decision is to a great extent a matter of degree. After all what do we mean by saying that a decision is a subjective determination Only this that no precise definition exists of the words that are used in an enactment and no objec tive test for determining the existence of circumstances under which the officer is to pass an order. The interpretation of those words and their application to a particular set of circum stances depends upon the conscious or sub‑conscious definition of the officer who conducts the enquiry. But there are so many provisions relating to judicial functions where no precise definition and no objective test exists.
It should be remembered that whenever an officer decides a matter, he himself is deciding only an objective fact and not his own state of mind. It should make no difference to him, when he decides only on evidence and as a Judge, that his decision is on a matter not capable of proper definition and he has to decide the existence of circumstances according to his own estimate
In Nakhuda Ali v. M. F. De S. Jayartne from which I have already quoted, no argument was put forward before their Lordships of the Privy Council that because the words used were "has reasonable grounds to believe" the matter was not one capable of objective test and certiorari therefore did not lie, nor have their Lordships themselves stated that the power to issue certiorari could be affected by this considera tion. The only reason which their Lordships gave for not issuing the writ was that the manner of decision was not judicial. In Minister of Health v. The King (1931. A C 494) the order of the Minister of Health confirming a scheme under section 40 of the Housing Act was the subject of proceedings in certiorari. The Minister had authority to pass the order if "satisfied on the report thereon that the circumstances are such as to justify the making of the scheme and that the carrying into effect of the scheme either absolutely or subject to condition or modifications would be beneficial to the health of inhabitants". Any objective test of the requirements of the order is hardly possible. Sir Stafford Cripps and Sir William Jowitt appeared for the Minister. Yet it was never argued that the test being only objective certiorari did not lie. Viscount Dunedin said "But as it is, if one can find that the scheme is inconsistent with the provisions of the Act which authorises the scheme, the scheme will be bad and that can only be gone into by way of proceedings in certiorari". The other Lords proceeded on the assumption that certiorari lay. In R. v. Rent Tribunal for Paddington ((1947) 1 A F. R 448) the words of section 2 of the Furnished House Rent Control Act which empowered a tribunal to enquire into a reference, were
Where any contract to which this Act applies is referred to a tribunal, then unless at any time before the tribunal have entered upon consideration of the reference it is with drawn by the person or authority by whom it was made, the tribunal shall consider it and, after making such enquiry as they think fit, and giving to such party (and, if the house is one the general management whereof is vested in and exercisable by a housing authority, to that authority) an opportunity of being heard, or in his option, of submitting representation in writing, shall approve the rent payable under the contract or reduce it to a sum as they may, in all the circumstances think reasonable, or may, if they think fit in all the circumstances, dismiss the reference, and shall notify the parties and the local authority of their decision in each case .
The proceeding before the tribunal was held to be, and obviously was, subject to certiorari in spite of the fact that the tribunal is to act according to what they "think reasonable" and they are to dismiss the reference if "they think fit in all the circumstances". Here there can be no objective criterion for the circumstances under which order is to be passed.
There is an Indian case too in which it has been held that the fact that determination is subjective does not exclude a writ of certiorari. I am referring to Muhammad Bux v, Govern ment, U. P. State (A I R 1953 All. 739).
Mr. Brohi relies in this case on the word "thinks" in section 29 of the Bombay District Police Act. He contends that if the Inspector‑General thinks the officer perverse etc., he can still dismiss him even though the facts do not establish a case against him. Learned counsel says that Inspector‑General may find that there is no charge proved against him and still say he "thinks" he is perverse etc. and is dismissing him. I do not think section 29 is capable of this interpretation. "Thinks" means nothing more than "in his opinion", or "is satisfied," y or "appears to him"; and this opinion must be held on some material and not merely on account of some intuition; other wise there would be no meaning in saying that the servant is entitled to an opportunity to show cause. Once we agree that there is a right as to an opportunity to show cause either on account of section 240 or the rules, it necessarily follows that dismissal can be passed only on some material, and not on the basis of something against which the servant cannot show cause. If the Inspector‑General were to say to him
"Now show cause why I should not dismiss you, because I still think you are in subordinate though I can refer to no fact on which I base this opinion" and asks the servant to show cause, he cannot show cause against a mere thought not based on any material. In all cases where an opportunity, to show cause is conceded by the law a servant can be dismissed only on the basis of proper findings and not otherwise.
Mr. Brohi relies on the fact that the Inspector‑General is entitled to inflict punishment when a subordinate Officer is guilty of misconduct in his presence and says in such a case he conducts no enquiry and does not act on evidence. I am, not dealing with a case of that kind but I would not concede that a proceeding which otherwise has a judicial or quasi‑judicial character loses that character merely because of a special provision that even that which occurs in the presence of the tribunal conducting the enquiry can be taken into consideration. After all the proceeding is, to use the words of their Lordships of the Privy Council only analogous to a proceeding before a Court. Courts too take notice of some facts which take place in their presence. I have already stated that I have used the word 'evidence' as denoting all the material that is available against a party affect ed in respect of which be is granted an opportunity of showing cause. If the subordinate officer is entitled to an opportunity to show cause even against what is alleged to have happened in the presence of the Inspector‑General the proceeding retains its judicial character.
Great reliance has been placed by Mr. Brohi on Franklin v. Minister of Town Planning ((1947) 2 A E R 289) which according to him is a landmark in the history of law relating to certiorari and which he says is opposed to all previous judgments. In that case the Minister for Town and Country Planning had, before he declared an area to be a "New Town" under the New Towns Act, to publish a draft order and have a public enquiry to be made with respect to any objection which may be filed and to consider the report of the enquiry before making the order. It was held that the Minister was not in making the order performing a judicial function. The Minister was not, it may be stated, bound to base his decision only on the enquiry. The interpretation put on the provisions relating to the enquiry was that they were only intended for the better information of the Minister. Lord Thankerton, who delivered the judgment said
"In my opinion, no judicial, or quasi‑judicial, duty was imposed on the respondent, and any reference to judicial duty, or bias, is irrelevant in the present case. The respon dent's duties under section 1 of the Act and Schedule I thereto are, in my opinion, purely administrative but the Act prescribes certain methods of, or steps in, the discharge of that duty. It is obvious that, before making the draft order, which must contain a definite proposal to designate the area concerned as the site of a new town, the respondent must have made elaborate inquiry into the matter, and have consulted any local authorities who appear to him to be concerned, and, obviously, other departments of the Govern ment, such as the Ministry of Health would naturally require to be consulted. It would seem, accordingly, that the respondent was required to satisfy himself that it was a sound scheme before he took the serious step of issuing a draft order. It seems clear also, that the purpose of inviting objections, and, where they are not withdrawn, of having a public inquiry, to be held by some one other than the respon dent, to whom that person reports, was for the further information of the respondent, in order to the final considera tion of the soundness of the scheme of the designation, and it is important to note that the development of the site, after the order is made, is primarily the duty of the development corporation established under section 2 of the Act."
On the interpretation put on the relevant provisions, I see no clash in the judgment with what I have said above. I have already stated that if an exhaustive enquiry be ordered by the law, not in recognition of the right of a party but for the better information of the officer passing an order, the Act still remains an executive Act. It is only when the idea of the right of a party enters into the proceedings that they become judicial in character. Whether proceedings are Q in‑recognition of the right of a party depends on an interpreta tion of the relevant provisions. Lord Thankerton came to the conclusion, on a consideration of the various provisions of‑the New Towns Act: that the object of the enquiry was only to inform the Minister. The reasons for the view that Lord Thankerton took are not material for our purpose. One of them, however, may be, as his Lordship pointed out; that the Minister was entitled, when actual development of the town began, to constitute, on his own motion, larger areas than the designated area for public purposes. However that be, the present is not a case where enquiry is to be made only for the purpose of further information of the Inspector‑General. It is the right of a party not to be dismissed without an opportunity to show cause and a proper enquiry has to be held on account of such right.
An objection has been taken that Amir Ali out of the petitioners has a right of appeal against the order of his dismis sal and an appeal by him is in fact pending and, therefore, he is not entitled to move for a writ of certiorari. If the proceed ings by which his dismissal was ordered be illegal or in excess R of jurisdiction; I do not see how the competency or pendency of an appeal can bar an application for certiorari. No authority has been cited in support of the contention and there is good authority against it vide The King v. North ((1927) 1 K B 491 (506)).
I hold that a writ of certiorari lies. I would point out, however, that while even under section 223A the jurisdiction of the High Court extended to the issue of writs in the "nature of" certiorari etc., now, under Article 170 of the Constitution of the Islamic Republic of Pakistan, the High Court has jurisdiction to issue "directions, orders or writs" and it is not necessary to bring an order within a particular category of writs issued by the English Courts, to warrant its issue under Article 170. The Article is intended to enable the High Court to control executive action so as to bring it in conformity with the law. Whenever the executive acts m violation of the law, an appropriate order can be granted which will relieve the citizen of the effects of illegal action.
I proceed to consider on merits the objection raised by the petitioners. They are : (1) Maqsood Ahmad was not examined as a witness. (2) Mr. Ghulam Mohy‑ud‑Din, the enquiry officer, had himself been associated in the investiga tion conducted by Mr. Iqbal Shah and was, therefore, not a fit person to conduct the enquiry. (3) The charge framed was vague inasmuch as it did not a specify the date when the petitioners assisted in the preparation of the anonymous letter. (4) Copy of the anonymous letter was not given to the petitioners.
I have already stated the circumstances relating to objection No. 1. The statement of Maqsood Ahmad, it is not disputed, is the main basis of the finding against the peti tioners and in its absence no story could be constructed against them. When the petitioners found that the statement was going to be used against them, they, in the words of the enquiry officer, raised a hue and cry and demanded that if his statement is to be used against them, the witness be pro duced for cross‑examination. The enquiry officer did summon the witness, but the prosecution refused to produce him stating that he had turned hostile.
The only reply of Mr. Brohi to this objection is that the enquiry officer had in fact ordered the production of the witness and that if ire was not produced in spite of that order, the enquiry officer is hardly to blame, for he had no power by which to force the attendance of the witness. This is hardly a reply to the objection. We are not concerned with whether the enquiry officer is to blame or not, but whether the petitioners have had a proper opportunity to show cause and that oppor tunity it must be held is wanting in this case. There is no proper opportunity to show cause if the person proceed against wants to cross‑examine a witness whose statement is being used against him and he is not allowed to do so. Apart from the provisions in the rules entitling the person proceeded against to call witnesses, the enquiry has to be conducted in accordance with the principles of natural justice. The result of holding a proceeding quasi‑judicial or of holding that there is a duty to all judicially is that the tribunal must act in accordance with the principles of natural justice. Any violation of such principle's warrants interference by proceedings in certiorari. If any authority was needed for such a proposition, I would refer to para. 122 of (Crown Proceedings) Halsbury Volume 11 and the cases referred to therein.
Mr. Brohi, while not contending that the statement of Maqsood Ahmad could be used as evidence, put forward the argument that Ghulam Rasul had already, while he was associated in the investigation conducted by Iqbal Shah, formed an opinion that the present petitioners were guilty and that opinion having been formed when Ghulam Mohy‑ud‑Din had Maqsood Ahmad before him could be the basis of a finding in the enquiry. Even if the factual assumption of this argument were correct, I would not agree that a proper finding could be given against the petitioners under such circumstances, but the assumptions are unjustified. Ghulam Mohy‑ud‑Din nowhere says he had already formed an opinion in the matter, nor is there any other evidence of this fact.
In the view that I take, it is unnecessary to consider the other objections. I hold that the proceedings are vitiated by a failure to give a proper opportunity to the petitioners for showing cause. I would quash the order, of dismissal or discharge passed in respect of the petitioners.
(Since this judgment was recorded their Lordships of the Supreme Court of Pakistan have held in Noor‑ul‑Hassan v. Federation of Pakistan (P L D 1956 S C (Pak.) 331) that section 240 of the Government of India Act does apply to subordinate police officers except to the extent of its repugnancy with some Police Act or Rules framed there under).
---‑In view of the recent pro nouncement of their Lordships of the Supreme Court in the appeals of the police officers, Nur‑ul‑Hasan etc., (1) it is now unnecessary to deal with the first contention of Mr. Brohi, namely, that section 240 (3) of the Government of India Act is inapplicable to the present case. After a con sideration of the relevant provisions of the Government of India Act and the rulings of the Judicial Committee of the Privy Council we were clearly of the opinion that section 240(3) of the Act operates only on the basis of repugnancy, that temporary police officers in the sub ordinate ranks are entitled to the benefit of the provisions in sections 240 and 241 in the absence of anything to the contrary contained in any other Act or statutory rules, and that there is nothing either in the Bombay District Police Act or in the Rules framed thereunder which makes the provision in subsection (3) of section 240 inapplicable to the petitioners. We are now fully fortified in this conclusion by the ruling of the Supreme Court in the above‑mentioned appeals.
I entirely agree with my brother Kaikaus, J. that as no reasonable opportunity was given to the petitioners to show cause against the action proposed to be taken in regard to them a fact which was not seriously disputed on behalf of C' the respondents the impugned orders, and the proceedings which led to them, are clearly unsustainable.
In an able and lengthy argument Mr. Brohi contended that a writ of certiorari cannot be granted because the orders of the Inspector‑General of Police dismissing or discharging petitioners were, in their character, administrative and not judicial or quasi‑judicial. In deciding this contention I am not prepared to accept the rulings of the English Courts as authority or even as relevant in their entirety. The present writ jurisdiction of the English Courts is the product of the constitutional and legal history of that country and bears the impress of the peculiar circumstances which have attended its growth and development. When the Royal power to call for the records of cases decided by Courts came to be exer cised by the superior Courts, the writ of certiorari was issued only to inferior Courts. But when in course of time it became apparent that it was equally necessary to protect the rights of the citizens when dealt with by bodies and officials other than subordinate Courts, the jurisdiction of the High Court to issue this writ was extended by the process of circumvention a device readily resorted to through out the English legal history for the development of the law and legal process. It was held that the writ could be issued to any body or official provided the proceeding conducted by it or him was of a judicial nature. As one irrational step leads to another, this inevitably led to the adoption by Courts of the term "quasi‑judicial", which throughout centuries has successfully defied definition with the result that the English decisions on the subject, some times; appear to be so irreconcilable that Mr. Brohi was led to assert that Franklin v. Minister of Health marks a definite and startling departure from the previous case law. In fact, the learned judges who decided that case intended nothing of the sort,; they only decided the case in the light of what in their opinion the term "quasi‑judicial" could be taken to mean in the particular circumstances of that case.
Our own constitution has dealt with the matter in a rational and direct manner. It has delegated the sovereign power of the people or the community to see that, in all spheres of activity, justice is done and wrongs are redressed to the superior Courts of the country and left it to them to exercise it in accordance with their judicial wisdom. It has not laid down either that a writ of certiorari can be issued to persons and bodies other than law Courts only when the pro ceedings before them were of a judicial or quasi‑judicial nature, or in the manner and circumstances in which it is issued by the English Courts. In fact the Courts in this country are not at all required to issue writs of certiorari. They may, in their discretion, issue, inter alia, writs" "in the nature of" those writs. The circumstances in which or the conditions upon which an English Court would issue a writ of certiorari have nothing to do with the nature of that writ, The nature of the writ, whether issued by the king or by the Courts, was that it was a command summoning the records of the proceedings held by any person, body, or Court in order to give relief from some inconvenience or error.
Again, it is not at all necessary that in a particular case only a writ in the nature of certiorari or a writ at all, be issued. Upon the language used in the Constitution it is open to a High Court to issue, besides "writs in the nature of certiorari" 'directions, orders or writs' for any purpose. The High Court has not been tied down to any par ticular procedure to be followed, or the nature of the 1T orders to be passed in the exercise of the special jurisdiction conferred upon it by the Constitution. Nor has its jurisdic tion been limited or confined to any particular circumstances or conditions.
Truly speaking, Mr. Brohi's argument, in its final analysis, cannot be that this case being not a case in which a writ of certiorari could have been issued by the King's Bench Division of the Supreme Court of Judicature in England, the petitioners are without a remedy. Such a contention, as I have already shown, is not sustainable upon the language of the provisions in question. He could have only contended that the "purpose" involved in this case is not one of the purposes contemplated by the Constituent Assembly. But here again learned counsel would have had to face the fact that the High Court may exer cise its powers under Article 170 for 'any' purpose besides the purpose of enforcing constitutional rights. It is true that the High Courts will never use that power for any purpose which is not necessary for the exercise of their true and proper function, viz., administration of justice, and that, in view of the extraordinary nature and extent of the power, they will use it sparingly and with utmost circumspection. But in these cases the constitutional, and the fundamental, right of the petitioners to a fair hearing has been violated and their employment has been wrongfully terminated. By refusing to redress the wrong done we shall not only be failing in the discharge of our sole duty but shall be turning the administrator into a despot. No valid principle or reason has been pointed out by the respondents to justify us in withhold ing relief from the petitioners.
The nature of the order or orders to be passed, or direc tions to be given by a High Court, in exercise of the extra ordinary jurisdiction, must depend upon the circumstances of each case. It is not that relief can be granted only if it fits in with some known or recognised form of writ or order; on the contrary such relief must be granted and order made, as the particular circumstances of a case call for. Here the facts are these. Some time in October 1954, an anonymous application was sent to the Governor‑General, Prime Minister, the Minister of Interior and other high officials containing serious allegations against the Inspector‑General and some other officers of the Karachi Police, specially Sub‑Inspector Ghulam Rasool. An enquiry as to the person or persons responsible for this application was started and is said to have been conducted by one Iqbal Shah, P. I. L. I. B, As a result of this enquiry, it is alleged. It transpired that one Maqsood Ahmad son of Mahboob Ahmad was responsible, Maqsood Ahmad was arrested on the 10th of November 1954 under the Security of Pakistan Act and interrogated. On the 14th of December 1954 the petitioners were, by an order of the Inspector‑General of Police, suspended from duty with immediate effect pending investigation "into grave charges of misconduct". Charge sheets, dated the 21st of March 1955 (as also the 1,16th of March) were handed over to the peti tioners and, ran as follows :‑
"in or about October 1954 you conspired with other members of the Karachi Police and public to compose and despatch anonymously a number of false and scurrilous allegations against the Inspector‑General of Police Karachi and other officers of the force and were instrumental in inducing one Magsood Ahmad son of Mahboob Ahmad to prepare and despatch anonymously to His Exellency the Governor‑General, the Honourable Prime Minister, the Hon'ble Minister of Interior and other high officials the said false and anonymous allegations contained in 20 typed pages."
The departmental enquiry was conducted by Mr. Ghulam Mohi‑ud‑Din, then Deputy Superintendent of Police, C. I. D., Karachi. According to para. 16 of Amir Ali's petition the enquiry commenced on the 25th of March 1955. On the 20th of June 1955 notices were issued to the petitioners informing them that the enquiry officer had found them guilty of the charge and, therefore, they should show cause within 14 days as to why they should not be dismissed from service. After considering the cause shown by the petitioners the Inspector- General of Police passed orders dated the 21st of July 1955, dismissing the petitioners from service.
The statement made by Maqsood Ahmad on the 4th of April 1955 in a complaint filed by him against S. I. L. I. B. Ghulam Rasool, P. I. L. I. B. Iqbal Shah, e. I. L. I. B. Sh. Abdul Karim and Liaqat All, Sub‑Inspector City Police Station, Karachi, in the Court of the Additional City Magis trate, Karachi, contains the following allegations : His friend Abdul Hakim came to him on the 28th of September 1954 and complained that S. I. Ghulam Rasool had given him a thrashing because he demanded from the S. I. a debt which the latter owed him. He obtained a medical certificate regarding the injuries received by him and a criminal com plaint was filed against S. I. Ghulam Rasool. Two or three days later Abdul Hakim was again beaten by the S. I. and a second complaint was lodged. Two further complaints were filed against him. According to the enquiry officer's report, Maqsood Ahmad stated before the police during the investi gation against the petitioners that "Hakim Khan Pathan . . . . . sought his help against the alleged tyrannies of S. I. Mian Ghulam Rasool. Maqsood took them to Mr. Ahmad Ghani Advocate, who is a friend of his, and got four complaint cases filed against Ghulam Rasool in various Courts in quick succession. The main witnesses in these complaint cases were cited at the instance of Maqsood". It was further alleged by Maqsood in his statement of the 4th of April 1955 that on account of these cases Ghulam Rasool arrested Abdul Hakim and challaned him for being in possession of illicit arms and charas. But Abdul Hakim was released on bail the next day. While these cases against Ghulam Rasool and Abdul Hakim must have been going on, the anonymous applications, which. resulted in the dismissal of the petitioners, were sent‑about the middle of October 1954. An investigation into the affair was immediately ordered and Maqsood was arrested, according to himself on the 9th of November 1954, but according to the respondents on the 10th of that month, under section 3 of the Security of Pakistan Act, 1952.
An order of the Division Bench of the late Chief Court of Sind is on the record (Exh. H‑1) and reveals some interesting facts. It shows that from the date of his arrest until the date of his release by the Chief Court on the 21st of February 1955, as a result of a habeas corpus application by his wife, Maqsood was all along detained in the custody of the C. I: D. for the purpose of interrogation which result was achieved by means of the orders of the Chief Commissioner dated the 10th of November 1954, 9th of December 1954, 22nd of January and 10th of February 1955 authorizing the C. I. D. to keep Maqsood in their custody for interrogation. An order of the Court that Maqsood should be sent to judicial custody was defined and in spite of it he was kept in the police custody. The police failed to point out any crime which had been reported or registered against Maqsood in connection with which he was being subjected to that "long interrogation". The learned judges, on these facts, held that the custody of Maqsood Ahmad was illegal and ordered his release on the 21st of February 1955. In this context the allegations of the complaint that it was Sub‑Inspector Ghulam Rasool who arrested him on the 9th of November 1954 and obtained from him the statement, which was the basis of the conviction of the petitioners during the departmental enquiry, by torturing him and committing an unnatural offence on him during his detention, cannot be completely ignored as was done by the enquiry officer and the Inspector‑General of Police.
The conduct of all the officers responsible for the illegal and highhanded detention of Maqsood Ahmad from the 9th of November 1954 until the 21st or 22nd of February 1955 calls for severe condemnation. This fact alone is sufficient to demonstrate that the attitude and conduct of the authori ties throughout the departmental investigation or enquiry was unfair and malicious. It is matter of regret that a high and responsible officer like the Chief Commissioner of Karachi should have allowed himself to become a tool in the hands of the local police and, wittingly or unwittingly, should have helped them ingrossly abusing the provisions of the Security of Pakistan Act.
The undeniable facts of these cases irresistibly lead to the conclusion that the statement in question of Maqsood could not have been voluntarily and no evidence was led before the enquiry officer, or before us, to show that it was not extorted as alleged. Maqsood had got four complaints filed against S. I. Ghulam Rasool and had, on his own admission, sent applications by the middle of October 1954 to the highest authorities in the country levelling most serious charges against him and the Inspector‑General of Police. Considering his state of mind, as it existed in mid October, he was not at all likely to have made any voluntary statement to the police. This conclusion is further strengthened by the fact that he was arrested on the 9th of November 1954 for the sole purpose of interrogation and it is admitted that he made the alleged statement only after his arrest. The date of the statement does not appear from the record ; but should it bear any date earlier than the 11th of February 1955, it would be difficult to believe its correctness. The last order obtained from the Chief Commissioner for detaining him in the custody of the C. I, D. Police for interrogation is dated the 10th of February 1955. This and the fact that three such previous orders had been obtained would go to show that Maqsood had not made the desired statement until that date. Again, the fact that until the very moment that the Chief Court ordered his release Maqsood was detained for interrogation in the police custody would again show that in fact the police had not succeeded till the last moment in obtaining any useful statement from him. Indeed there is ample justification for the view that in fact Maqsood made no such statement as is alleged.
The conduct of the police throughout the departmental enquiry again points to the conclusion that it was never intended to give the petitioners a fair trial. At the very commencement of the enquiry the petitioners applied for the production of Maqsood Ahmad for cross‑examination and the enquiry officer passed the following order :‑
The request is granted. P. I. L. I. B. should produce Maqsood Ahmad for cross‑examination on 15th April 1955 at 10 a.m.
The investigating officer (P. I. L. I. B.) on the date fixed wrote back : "witness Maqsood Ahmad is not present in Karachi as he has been externed from Karachi on the 9th of April 1955. under the Pakistan Security Act". Exh. 1 is a copy of a complaint filed on the 26th of March 1955 by Maqsood Ahmad in the Court of the Tenth Additional City Magistrate, Karachi, against S. I. Ghulam Rasool, P. I. Iqbal Shah, and two other police officers under sections 327, 347 and 377, P. P. C. The complainant was examined by the Magistrate on the 4th of April 1955 and the 9th of April had been fixed for his remaining statement. Admittedly, Maqsood Ahmad was arrested on the 9th of April. It is alleged, and the allegations appears to be highly probable, that he was arrested while he was present in the Court compound for the purpose of being examined by the Tenth Additional City Magistrate. There is little doubt that this highhanded and reprehensible step was taken in order to deprive the petitioners of the right to test the alleged statement of Maqsood by cross‑examining him. On a further request by the petitioners the enquiry officer again passed the following order on the 15th of April
"He (Maqsood) may be called to Karachi after obtaining permission for his stay for 3 days".
The investigating officer replied : "As he has turned hostile he is given up by the prosecution". There cannot be the slightest doubt that it was never the intention of the police Department to examine this man at all before the enquiry officer and that they were confident that they Twill manage the petitioners' conviction and dismissal without it. There was no allegation until the 15th of April that Maqsood Ahmad had turned hostile. Why was he not produced on or before that date It was not at all necessary for the petitioners to call for, and for the enquiry officer to order, his production. As admitted by the enquiry officer; in his report : "If we take off the statement of Maqsood from the file as suggested by the respondents, it would be absolutely impossible to sum up this case and to reach any conclusion".
It is hardly necessary for me to dilate upon other aspects of these cases. I have said enough to show that there can be no doubt whatever that the departmental enquiry against the petitioners as well as their dismissal was not bona fide. Under the circumstances, I direct that the dismissal of the petitioners should be set aside, that they be reinstated in the posts from which they were dismissed and that they should be given all C the emoluments and privileges to which they could have been entitled but for their, suspension.
--‑I agree with the order proposed by my brother Kaikaus.
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