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First Appeal No. 21 of 1955, decided on 11th February, 1958.

, S. 240 (3)‑Applies to Police Officers of subordinate ranks‑Punishment proposed, along with grounds, to be notified to person affected, and reasonable opportunity to be afforded to show cause against proposed punish ment‑Such opportunity not of a formal nature----Defect in notice not material, if provision of subsection substantially complied with ‑Each case to be decided on its own facts.

Held, that S. 240 (3), Government of India Act; 1935, applied to Police Officers of subordinate ranks.

Noorul Hassan and others v. The Federation of Pakistan P L D 1956 S C (Pak.) 331 ref.

The person to be dismissed must know the punishment pro posed and must be told the grounds on which it was proposed to take such action and must be given a reasonable opportunity to show cause why such punishment should not be imposed.

The reasonable opportunity contemplated under section 240 (3) was not only of a formal nature.

The second opportunity was as important as the one provided at the first stage, and if the Courts were satisfied that the constitutional provision in this respect had been substantially complied with, the order of dismissal, removal or reduction in rank was not invalidated simply because the written notice happened to be defective.

The idea behind providing a second opportunity to the public servant was that he might be able to make further representation in respect of the grounds on which the inquiry officer proposed to dismiss him from service.

Where this opportunity was not afforded, the order of dismissal having been passed on the same day at the conclusion of inquiry, the order was bad in law and held to be void and inoperative. Each case had to be decided on its own facts.

Secretary of State v. I. M. Lail A I R 1945 F C 47 and The High Commissioner for India and another v. 1. M. Lail P L D 1948 P C 150 ref.

State of Bombay v. Gajanan Mahadev Badley A I R 1954 Born. 351 mentioned.

Shamsul Ghani Khan foi Appellant.

E. V. Castellino for Respondent.

--‑ This is an appeal against the judgment of our learned brother Muhammad Bachal, J, in Suit No. 479 of 1952 filed in the former Chief Court of Sind, dismissing the appellant's suit for a declaration that the order of his dismissal dated 5th June 1951 is void and inoperative and he continues to be in the service of the Central Government of Pakistan in the Karachi Police.

The appellant was an armed police head constable Grade III in the Karachi Police. On the 14th January 1951 he was appointed to perform guard duty at the house of His Excellency the Governor‑General of Pakistan for a period of six months. It was alleged that one Nurul Haq, a half witted Bengali youth, entered the house of His Excellency the Governor‑General of Pakistan on the 2nd March 1951 between 14.30 hours and 15.00 hours by using the staircase on the north‑western corner, and this was due to the gross neglect of duty on the part of the appellant. The appellant was charge‑sheeted on the 30th of March 1951. He submitted his explanation on the 2nd of April, 1951. The Superintendent of Police, Headquarters, Karachi, after holding an enquiry, dismissed the appellant from service with effect from the 5th June 1951. An appeal was filed to the Senior Superintendent of Police, but it was rejected. A revision application was presented to the Administrator and Inspector General of Police, Karachi, which was also rejected. Representation was made to the Honourable Minister of Interior, Government of Pakistan on 29th December, 1951, but it remained unreplied. On the 8th February 1952 a notice under section 80, C. P. C. was given and thereafter on the 16111 May 1952 the suit under appeal was file.

The only ground on which the order of dismissal dated the 5th June 1951 was challenged before the learned trial Judge was that the mandatory provisions of section 240 (3) of the Government of India Act, 1935 read with sib‑rule 12 of rule 1284 of the Bombay District Police Manual as amended, were con travened and the order of the appellant's dismissal from service for this reason was void and inoperative. The learned trial Judge, after considering the evidence produced by the parties, came to the conclusion that section 240 of the Government of India Act was not applicable to the case of the appellant and that the provisions of the rules were not contravened, and therefore dismissed the suit.

The learned counsel for the appellant has challenged the finding in the suit under appeal on the same grounds. It is urged before us that section 240 (3) of the Government of India Act applies to police officers of subordinate ranks at Karachi, that no grounds, on which the appellant was to be dismissed were furnished, no reasonable opportunity for further explanation before passing the final order of dismissal was provided and therefore the order of dismissal contravenes the constitutional provisions.

Mr. Shamsul Ghani Khan, the learned counsel for the appel lant is perfectly correct in his contention that the controversy about the application of section 240 (3) of the Government of India Act to police officers of subordinate ranks in Karachi, has been finally set at rest by the decision of their Lordships of the Supreme Court in Noorul Hassan and others v. The Federation of Pakistan (1). Their Lordships in this connection observed :‑

" That the giving of an opportunity under section 240 sub section (3) to these subordinate officers, as required by rule 1284 sub‑rule (12) is not a mere matter of procedure, but constitutes a substantial and independent right, belonging to every such officer who finds himself in the situation envisaged in the sub‑rule".

In view of this authoritative decision, this question need not detain me any further and I shall proceed to find out whether in the case of the appellant the respondent‑Government complied with the provisions of section 240 (3) before dismissing the appellant from the police service of Karachi.

The learned counsel for the appellant has taken us through the entire record. It appears from the record that the appellant was charge‑sheeted on the 30th of March 1951, he submitted his explanation on the 2nd of April 1951 and denied all the charges. No witness was examined on behalf of the respondent Government. On the 14th May 1951 defence witnesses were examined and on the 30th of May 1951 the statement of the appellant was recorded, and the following questions were put to him on that day :‑

" Q.‑Have you received a copy of the charges framed against you.

Yes.

(1) PD 1956 S C (Pak.) 331

Q.‑Do you understand the charge.

A.‑Yes.

Q.‑Do you plead guilty to the charge.

A.‑No.

Q.‑Do you want to produce any more witnesses in your defence.

A.‑No.

Q.‑Have you anything further to say.

A.‑1 have nothing further to say.

Q.‑Can you show cause why you should not be dismissed.

A.‑I say that I am not guilty as the staircase was in my charge and 1 admitted this from the first. Had 1 denied charge of the staircase the charge would not have been given to me".

On the 5th June 1951 the Inquiry Officer gave his finding and held :‑

" The defaulter had admitted that the intruder may have got on to the first floor of G. G.'s House by using the staircase on the northern side at the bottom of which he was on duty. He, however, states that his duties as per orders, were to stand between the eastern door step and the bottom of the staircase to watch both entrances. In support of this he produced four Head Constables namely Musharaf Beg No. 3720, Muhammad Din No. 158, Abdul Hamid No. 128 and Rustom Khan No. 3656.

Abdul Hamid and Rustom Khan have clearly stated where the gunman is required to stand up against the staircase facing south. In this position no unauthorised entry could be effected. It is quite evident the defaulter was not standing in the correct place and as a result of this negligence, the intruder got in. One shudders to think what may have happened had the intruder, with ulterior motives, been other than a half wit."

And on the same day he passed the final order to the following effect :‑

" Head Constable Sher Zaman No. 73 is dismissed from service with effect from the date of this order i.e. 5‑6‑1951 (AN). The period of suspension is treated as leave due."

Bachal, J. on the material placed on the record held that the impugned order is in accordance with law. My learned brother observed :‑

" It is in the light of this legal position that I have to consider the facts of this case. It was argued by Mr. Shamsul Ghani on behalf of the plaintiff that Nurul Haq was not examin ed in the inquiry. His explanation was not necessary having regard to the fact mentioned in the charge sheet that he was half‑witted and the admission by the plaintiff of his entry in his explanation and final statement. There was therefore no defect in the first stage of the inquiry. As regards the second stage, Mr. Lewis who wrote the statement is dead. The plaintiff denies that Mr. Lewis informed him that he had found him guilty or to show cause against his dismissal. The plaintiff's signature on the second, statement belie him. The inquiry officer had the power to dismiss the plaintiff and passed the order 5 days after the final statement of the plaintiff and the order will not be invalid on account of any irregularity in procedure."

Mr. Shamsul Ghani Khan, the learned counsel for the appellant has strenuously contended that the finding of the learned Judge on this question is not correct , as the procedure laid down under section 240 (3) of the Government of India Act is in the nature of constitutional guarantee for the protection of the public servants and as this constitutional provision of law is applicable to the, case of the appellant, it was incumbent on the Inquiry Officer to furnish the appellant with the grounds on which he was proposing to dismiss him in order to have further explanation, and after considering this explanation, the final order should have been passed if necessary, for the dismissal of‑ the appellant. The learned counsel contended that as this procedure was not followed the order of dismissal is bad in law and the petitioner still con tinues to be in the service of the respondent Government. He has in this connection invited our attention to two cases reported in Secretary of State v. I. M. Lall (A I R 1945 F C 47) and The High Commissioner for India and another v. I. M. Lall (A I R1948PC 121 = P L D 1948 P C 150). The learned counsel also contended that it was on the exposition of law in these two cases that rule 1284 sub‑rule (12) was incorporated for the guidance of the Inquiry Officer in inquiries with a view to departmental punishment. In A I R (1945) F C 47 their Lordships at page 58 observed :‑

" We accordingly turn to the words of the main part of subsection (3) of S. 240 with a view to determining more exactly their meaning. In our judgment, the words against the action proposed to be taken in regard to him require that there should be a definite proposal by some authority either to dismiss a civil servant or to reduce him in rank or alternatively to dismiss or reduce him in rank as and when final action may be determined upon. It should be noted that the subsection does not require any inquiry, any formulation of charges, or any opportunity of defence against those charges. All that is expressly required is that where it is proposed to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him. It is also significant that there is no indication as to the authority by whom the action is to be proposed. It does however seem to us that the subsection requires that as and when any authority is definitely proposing to dismiss or to reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the subsection requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken. It is suggested that in some cases it will be sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved, dismissal or reduction in rank will follow. This may indeed be sufficient in some cases. In our judgment each case will have to turn on its own facts, but the real point of the subsection is in our judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punish ment should not be imposed. That in our judgment involves in all cases where there is an inquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank that the person concerned shall be told in full, or adequately summarised form, the results of that inquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that (sic) information why he should not suffer the proposed dismissal or reduction of rank."

This view of the Federal Court was approved by their Lordships of the Privy Council in L M. Lall's case ((1) A I R 1948 P C 121 : P L D 1948 P C 150 at p.160). At p. 126 column 2 in paragraph 21 [P L D 1948 P. C. 150 at p. 160]. Their Lordships observed:‑

Their Lordships agree with the view taken by the majority of the Federal Court. In their opinion, subsection (3) of S. 240 was not intended to be, and was not, a reproduction of R. 55 which was left unaffected as an administrative rule. Rule 55 is concerned that the civil servant shall be informed of the grounds on which it is proposed to take action,' and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing. This is in marked contrast to the statutory provisions of "a reasonable opportunity of showing against the action proposed to be taken in regard to him." In the opinion of their Lordships, no action is pro posed within the meaning of the subsection until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punish ments are merely hypothetical. It is on that stage being reached the statute gives the civil servant the opportunity for which subsection (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under rule 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory rights, and he would still be entitled to represent against the punishment proposed as a result of the findings of the enquiry."

These authorities clearly lay down that the person who is to be dismissed must know the punishment that is proposed and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity to show cause A why such punishment should not be imposed. Bachal, J. has, how ever, relied on a decision reported in Stale of Bombay v. Gajanan Mahadev Badley) (A I R 1954 Bom. 35). In that case Chagla, C. J. observed:‑

"It may not be necessary to duplicate what has already been done in the departmental inquiry. It may be said that if in fact the dismissed servant has been given a full and proper opportunity to show cause against the allegations made against him, then it may not be necessary again to require from him practically the same explanation. It may also be said that it may not be necessary m every case to issue a notice in terms calling upon the servant to show cause not only against the quantum of punishment but also against the grounds on which the proposed action is based. Even though, as in this case, the notice may be defective, if in fact the servant has been given the opportunity and has availed himself of the opportunity of showing cause against the grounds, then the mere fact that there is an irregularity about the notice may not lead to the Court holding that the Government servant did not have the opportunity required."

Each case has to be decided on its own facts. The view expressed in the Bombay decision does not lay down any new law. It only points out told of the grounds on which the proposed disciplinary action is to be taken the mere fact that there is an irregularity about the notice may not lead the Court to hold that reasonable op portunity at the second stage was not provided. I am afraid these observations cannot be invoked to come to the conclusion that the reasonable opportunity contemplated under section 2401 (3) is only of a formal nature. It appears to me that the second opportunity is as important as the one provided at the firstly stage, and if the Courts are satisfied that the constitutional provision in this respect has been substantially complied with the order of dismissal removal or reduction in rank will not be invalidated simply because the written notice happened to be defective. It is in this light that 1 shall consider the facts of this case.

In this case, the enquiry officer put a question to the appellant on the 30th May 1951 why he should not be dismissed and Mr. Castellino, the learned counsel for the respon dent contended that the inquiry officer might have orally furnished the grounds. This is only a surmise. There is no evidence on the record to support this contention. This fact is not mentioned in the question itself. On the contrary the material placed on the record altogether supports the contention that the grounds could not have been furnished on the 30th May 1951. A perusal of the record leaves me in no doubt that the enquiry officer recorded the finding on the 5th June 1951 and passed the final order of dismissal on the same date. In such circumstances it is difficult to believe that the enquiry officer furnished the grounds orally to the appellant. The idea behind providing a second opportunity to the public servant under section 240 (3) of the Government of India Act is that he may be able to make L further representation in respect of the grounds on which the inquiry officer proposed to dismiss him from service. This opportunity, in my opinion, was not given to the appellant all. The question of reasonable opportunity as contemplated in section 240 (3) of the Government of India Act was not taken into consideration by Bachal, J. and I consider that the finding of the learned Judge on the Original Side in this respect is not in accordance with law. After careful consideration of the facts of the present case I am definitely of the view that the provisions of section 240 (3) were not followed before passing the final order of dismissal against the appellant and therefore the order dated the 5th June 1951 dismissing the appellant from the service of the respondent‑Government is bad in law.

Under these circumstances, I will allow the appeal and grant a declaration to the effect that the order of the Senior Superinten dent of Police dated 5th June 1951 dismissing the appellant from police service at Karachi is illegal, void, and inoperative. The appellant will get costs throughout.

.---‑ I agree.

A. H. Appeal allowed.

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