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First Appeal No. 9 of 1955, decided on 15th April 1955.
S. 240 (3)‑Crown taking plea of temporary character of appointment of public servant at appeal stage‑Plea not allowed to be raised.
The suit of an unarmed constable in the Karachi Police on the ground of his having been dismissed in violation of section 240 (3), Government of India Act, 1935 had proceeded on the ground common between parties to suit that the plaintiff was a permanent unarmed police constable. The plea of the Federation of Pakistan that the plaintiff was a temporary member of the police force was sought to be raised for the first time at the appeal stage. The plea was not entertained as doing so would change the whole basis on which the suit had proceeded.
S. 240 (3)‑Copy of report of preliminary inquiry not supplied to public servant Provisions of section not complied with.
The dismissed public servant an unarmed constable in the Karachi Police was not supplied with the copy of report of the preliminary inquiry and not called upon to show cause against the proposed penalty in accordance with the provisions of sub‑rule 12 of Rule 1284 Bombay Police Manual, Vol. III.
Held, that there was no compliance with the Rule within meaning of section 240 (3), Government of India Act, 1935, and that a verbal demand to show cause as to why he should not be dismissed from service was not a compliance with sub- rule 12 of Rule 1284, Bombay Police Manual VOL. III.
Nasir‑ud‑Din, for Appellant.
Shams‑ul Ghani for Respondent.
‑‑This is an appeal against the judgment and decree of Munshi, J. declaring that the removal of the respondent, an unarmed Constable in the Karachi Police from service was void and that he continues to be in the service of the Crown in Pakistan as an Unarmed Police Constable.
The respondent was charge sheeted and an inquiry followed. It was held that the reasonable opportunity prescribed by sub‑rule 12 of Rule 1284 had not been afforded to the respondent to show cause against the penalty proposed to be inflicted upon him, in the terms in which sub‑rule 12 of rule 1284 prescribes it.
The suit proceeded on the common ground that respondent was a permanent unarmed Police Constable Neither in the pleadings nor at the hearing the question that the respondent was a temporary unarmed Police Constable was ever raised. The question was sought to be raised for the first time in appeal but we cannot in appeal change the whole basis on which the suit proceeded.
That being so the provisions of sub‑rule 12 of rule 1284 applied. The final statement of the respondent recorded by the Superintendent of Police who made the order of dismissal reads as follows :‑
"Q. 1.‑Have you understood the charges
A.‑Yes.
Q. 2.‑Have you been given opportunity to cross‑examine
A.‑I do not want to cross-examine anybody.
This question does not arise as the complainant forgave me.
Q. 3.‑Have you been given opportunity to produce your defence witnesses
A.‑‑Yes.
Q. 4.‑Do you plead guilty
A.‑I do not plead guilty.
Q. 5.‑Please show cause as to why you (should not be) dismissed from service.
A.‑I may kindly be excused this time. The complainant Mr. S. M. Sami has also forgiven me. In future such things will never occur. I may be excused this time."
Under Item No. 255 dated 7th August 1945, which forms part of sub‑rule 12 of rule 1284, after the inquiry against a Government servant has been completed and after‑ the punishing authority has arrived at provisional conclusion in regard to the penalty to be imposed the enquiry officer should, where the penalty proposed is dismissal, removal or reduction, supply to the servant a copy of the report of the enquiring authority and call upon him to show cause within a reasonable time not ordinarily exceeding one month against the penalty proposed to be inflicted and any representation submitted by the servant in this behalf should be duly taken into considera tion before final orders are passed. We agree that there was no compliance with this Rule and that the question and answer lastly recorded by the Superintendent of Police in the final statement of the respondent was not a compliance with sub‑rule 12 of Rule 1284.
The appeal therefore fails and is dismissed with costs.
A. H. Appeal dismissed.
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