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Writ Petition No. 254 of 1956, decided on 31st October 1957.
‑Provides a new remedy, not a new right‑May operate retrospectively.
Held, that whereas a substantive right created by a statute will have no retrospective effect, a remedial measure provided by such statute can operate retrospectively.
‑If a writ is sought on the ground that one or the other fundamental right granted to the citizens of Pakistan by the Constitution has been violated by an inferior Court or Tribunal prior to 23rd of March 1956, then it must be conceded on the best authority, that it cannot be granted for the short reason that fundamental rights were not then in existence. But this argument has no relevancy to the case in which a Tribunal or an inferior Court has acted in the exercise of the jurisdiction not vested in it, or has failed to exercise the jurisdiction vested in it, or has exercised the jurisdiction illegally or with material irregularity under the law then in force.
Remedy to the person wronged was even then available in the shape of suits, appeals, or revisions. Article 170 of the Consti tution has only afforded an additional remedy for the right which already existed.
Dr. Sher Bahadur Khan's case P L D 1956 (W. P.) Pesh. 77 ; Salamat Ali Jafri's case P L D 1956 (W. P.) Lah. 548 and Hindustan Motors Limited's case A I R 1954 Cal. 151 ref.
Where the petitioner claimed that he had, been dismissed illegally from service as a police officer before‑ the Consti tution came into force and invoked the writ jurisdiction of the High Court under Article 170 of the Constitution to remedy the injustice involved in his dismissal, the petitioner was well within his rights to ask for the issue of an appropriate writ.
r. 16.24(i) ‑Enquiry Officer's appointment not made according to Rule Enquiry, held, invalid‑Dismissal of police officer illegal.
Where, as required by Police Rule 16.24 (1), instead of the Superintendent of Police appointing an Enquiry Officer to conduct inquiry into charges of misappropriation of funds preferred against a Sub‑Inspector of Police, the I. G. P. directed the Superintendent of Police, to appoint a certain D. S. P. to conduct the inquiry and the direction was simply endorsed and forwarded to the D. S. P. concerned by a certain police officer on behalf of the Superintendent of Police.
Held, that the appointment was invalid and the dismissal consequent upon an enquiry held under an invalid appointment was illegal.
‑Glaring illegality apparent on face of record and cutting at very root of case‑Objection not raised at preliminary enquiry or in writ petition‑Allowed to be raised in argument.
Where there is a glaring illegality apparent on the face of record and it cuts at the very root of the case, then in normal circumstances, unless there is any rule or provision of law to the contrary, it is not only permissible, but it would be sheer justice and equity to allow an aggrieved person to argue the objection at the bar, though it was not raised in the memorandum of petition.
Ss. 12 & 29‑Violation of rules or orders under Police Regimental Fund Rules‑Covered by S: 29 Can form subject of Departmental enquiry.
S. 240 (3)‑Applies to police officers of subordinate rank.
Noorul Hassan and others' case P L D 1956 S C Pak. 331 ref.
S. 240 (3)‑Show‑cause notice should precede order of dismissal and not follow it.
r. 16.2 "Gravest misconduct" not the same as "serious misconduct."
‑Not to be confused with appellate juris diction.
‑Suspended before inquiry‑Cannot be re‑instated on writ petition if order of suspension remains un challenged.
Pir Bakhsh Khan for Petitioner.
Chaudhri Muhammad Ali, Additional Advocate‑General for Respondents.
Dates of hearing : 29th to 31st October 1957.
‑This is a writ petition filed under Article 170 of the Constitution by an Ex‑Sub‑Inspector, Police Sheikh Muhammad Afzal challenging the order of the Deputy Inspector‑General of Police, whereby he has been dismissed from service, with effect from 6th January 1955.
The brief facts of the events leading to the dismissal of the petitioner are, that a Police Regimental Fund was opened at the Headquarters of D. I. Khan District under the Police Regimental Funds Rules framed by the Inspector‑General of Police of the former N.‑W. F. P. under the Police Act and approved by the Provincial Government. The aims and objects of the Fund were "to promote the economic interests of its members,. t9 finance all transactions connected with the welfare of the men which were not directly controlled by the finances of the Government, and mere particularly to arrange (a) for the purchase of necessities of life, such as cotton fabrics, toilet goods, household linen and hosiery for retail sale to the members of the police at cheaper rates, and (b) for the purchase in bulk of wheat, ghee, fire‑wood, pules gur and tea etc. for sale to its members and police messes at cheaper rates". The member ship was optional and consisted of (a) Gazetted Officers, (b) Upper Subordinates, and (c) Lower Subordinates, serving in the district. A Managing Committee, as provided for by the Regimental Funds Rules and the Standing Orders issued by the Superintendent of Police, was constituted to manage the stores and the Regimental shop. The petitioner, who was Lines Officer D. I. Khan, was appointed Treasurer in April 1952 and was also assigned the duties of Cashier. After sometime when the accounts and finances of the Regimental Fund were checked by an Auditor, several cases of misappropriation, embezzlement, defalcation and shortage were detected. The I. G. P. directed the S. P. to make investigation in the case. Later the D. I. G. followed by the S. P. Anti‑Corruption Staff also con ducted enquiries. Finally, Mr. Abdur Rahman Khan, Deputy Superintendent of Police Tank, was deputed to make formal enquiry against four Police Officers involved in the case, namely, Amanullah Khan, Sub‑Inspector, Ahmad Nawaz Khan Head Constable Driver, Allah Bakhsh Foot Constable and the petitioner. As many as 46 witnesses for the prosecution and 40 for the defence were examined. The Enquiry Officer ultimately submitted his report to the D. I. G., holding the petitioner guilty of all the 15 charges, which were framed against him.
The D. I. G. after considering the report of the Enquiry Officer came to the conclusion, that 7 charges out of the 15 were fully proved against the petitioner, and 4 charges partially proved, while the remaining were not established. Accordingly, he sent for the petitioner and announced his order to him on 6th January 1955 dismissing him from service. The petitioner led an appeal to the I. G. P., who agreed with the findings of the D. I. G. and dismissed the appeal on 12th May 1955. The petitioner submitted a further appeal to the Provincial Government, but it was disallowed.
A preliminary objection has been raised by the learned Additional Advocate‑General that since the petitioner was dismissed before the new Constitution came into force and Article 1.70 had no retrospective operation, .the petitioner could not be permitted to invoke the aid of the said Article, and as such the petition must be dismissed. We have fully examined this aspect of the question and after considering the various authorities bearing on the point, we feel no hesitation ; in, rejecting the contention as without any force. There is an overwhelming authority in support of the view, that whereas a substantive right created by a statute will have no retrospective effect, a remedial measure provided by such statute can operate retrospectively, and this distinction between a substantive right and a remedial measure which is merely procedural, in nature is so clear, that it requires little discussion. In the present case, the petitioner does not seek to enforce a new right conferred upon him by the new Consti tution'. His case in brief is, that he was illegally dismissed from service, and now when the Constitution of ‑ the Republic of Pakistan has provided a new remedy under Article 170 he can avail of it'. In other words, he claims to be still in service, 6 his dismissal being 'illegal, and he simply asks this Court to exercise its writ, jurisdiction conferred upon it by Article 170. On this view of the matter, therefore, we are firmly of the opinion, that the petitioner is well within his rights to approach this Court: and to ask it to exercise its extraordinary writ jurisdic tion under Article 170, and to issue an appropriate writ to the relevant authorities.
The learned counsel for the petitioner has raised a number of objections to the dismissal of his client, but it is unnecessary to deal with all of them, because the petitioner can be c6nve niently disposed of on the' determination of one issue only, namely, whether the Enquiry Officer had the jurisdiction to conduct enquiry against the petitioner.
The relevant provision of ,law laying down the procedure for the appointment of an Enquiry Officer is contained in Police Rule 16.24,(i), which says :,‑
"The police officer accused of misconduct shall be brought before an, officer empowered to punish him, or such superior officer as the Superintendent or Assistant Superintendent Head quarters Peshawar may direct to conduct the enquiry. That officer shall record and read out to the accused officer a state ment summarising the 'alleged misconduct in such a way as to give full notice of the circumstances in regard to which evidence is to be recorded."
In the present case, according to this provision, the enquiry was to be conducted either by, the D. I. G. himself, who was empowered to punish the petitioner, or by an officer superior in rank to the petitioner appointed by the Superintendent of Police, D. L. Khan., The learned counsel's argument is that since the Enquiry Officer Mr. Abdur Rahman Khan was appointed directly by the I. G. P. and not by the Superintendent of Police, the appointment was illegal, and as such the Enquiry Officer had no locus standi to conduct the enquiry. What actually happened was, that the I. G. P. addressed a memorandum marked "Confidential" to the Superintendent of Police, D. I. Khan, to the following effect :‑
"Will you please depute Abdur Rahman Khan, D. S. P. Tank, to conduct departmental enquiries against the following officers of D. I. Khan
(1) Sub‑Inspector Amanullah Khan No. 127, Head Clerk Kohat under suspension.
(2) Sub‑Inspector Sheikh Muhammad Afzal No. 34, Lines Officer, under suspension.
(3) Head Constable Ahmad Nawaz Driver (Additional Police), under suspension.
(4) Foot Constable Allah Bakhsh, Store Keeper under suspension.
A brief statement of the allegations against all these officers made out by the Superintendent of Police, Anti-Corruption Staff, will be sent to you by this officer direct for the use of the Enquiry Officer.
A. B. Awan,
Inspector‑General of Police,
N. W. F. P.
When the above memorandum was brought to our notice, we asked the Additional Advocate‑General, whether apart from the memorandum in question there existed any order of the Superintendent of Police, D. I. Khan, appointing Mr. Abdur Rahman Khan, D. S. P. as the Enquiry Officer. Since there was no such order on the record, he promised to make enquiry into the matter and to produce the required order, ii' there was any. The case was accordingly adjourned and when on the following day the hearing of the petition was resumed, the learned Additional Advocate‑General produced the document Exh. D. A. This document is a verbatim copy of the confidential memorandum referred to above and also bears an endorsement signed by some officer named H. A. Khan on behalf 'of the S. P. D. I. Khan. The endorsement is to the effect :‑
"Confidential‑No. 1121/C, dated D. I. Khan, the 30th July 1954.
Copy of the above forwarded to Abdur Rahman Khan, D. S. P. Tank, for compliance. A brief statement of the allega tions, on receipt froth S. P. Anti‑Corruption, will be sent to him and the enquiries be started accordingly.
H. A. Khan.
for Superintendent of Police,
D. I. Khan.
Different and conflicting constructions have been put on this document by the learned counsel for the petitioner and tie learned Additional Advocate‑General, and when we closely examine its contents in the light of these interpretations, we find four possible situations emerging therefrom, namely :‑
(1) The order of appointment was made by the I. G. P.
(2) The order was made by the S. P.
(3) ,It was made jointly by the I. G. P. and the S. P.
(4) No such order was made either by the I. G. P. or by the S. P.
Now we proceed to find out the exact position vis‑a‑vis the document in question. Though the endorsement is signed by some officer of the name of H. A. Khan for the S. P., D. I. Khan, the learned Additional Advocate‑General thinks that the original, which is neither in his possession, nor has been brought on the record, might bear the signature of the S. P. We cannot be sure that the original endorsement must have been signed by the S. P., but for the time being we will assume that he did sign it. We have reproduced above the endorsement, and it is abundantly clear front its wording, that by no stretch of language or imagination, it amounts to an order of appoint ment by the S. P. It does no more than to forward the memo randum of the I. G. P. to the D. S. P. concerned for compliance. We would be laying down an extremely dangerous proposition, if we construe such an endorsement as an order of appoint ment. We, therefore, repel the contention that the endorsement of the S. P. amounts to an order of appointment of the Enquiry Officer.
In the alternative, the learned Additional Advocate‑General desperately attempted to show, that the memorandum of the I.G.P., and the endorsement of the S. P. taken together would amount to art order of appointment made jointly by them. Even this construction does not seem to us to be possible for the obvious reason, that the endorsement of the S. P. does not indicate any step whatsoever beyond forwarding the memorandum of the I. G. P. to Abdur Rahman Khan D.S.P., for compliance, Therefore, this contention also is found devoid of substance.
This leaves us with the remaining two situations, namely, (1) either the order of appointment was made by the I.G.P., tired (2) or it Is no order of appointment at all by any authority. If we construe the memorandum of the I. G. P. as an order of appointment, we are faced with an insurmountable difficulty placed in our way by rule 16.24 (i) of the Police Rules, which confers the power of appointment only on the Superintendent of Police, or the Assistant Superintendent of Police Peshawar, and on no other authority. The I. G. P. does not figure at all in the Rule as an appointing authority. We are unable to accept the Additional Advocate‑General's argument, that when the Superintendent of Police is empowered to appoint an Enquiry Officer, the I. G. P. being a superior officer must be presumed to have been invested with such powers. If it was intended to give such powers to the 1. G. P., there was nothing to prevent the framers of the Police Rules to insert some words to that effect in Rule 16.24 (i). Apart from that, the I. G. P. being an appellate authority, it would not have been quite desirable for him to appoint the Enquiry Officer, and then later to hear the appeal. It is possible that it was on this consideration that the powers to appoint the enquiry Officer were not given to the I. G. P. In this view of the matter, we are supported by the fact that even the punishing authority, which in the present case is the D. I. G. is not given powers to appoint the Enquiry Officer, though he himself can conduct the enquiry. But there is also another aspect of the matter which to our mind makes it perfectly clear, that, the memorandum of the I. G. P. Lis not an order of appointment. He simply asked the S. P. in his memo randum, "will you please depute Abdur Rahman Khan, D. S. P. Tank, to conduct departmental enquiries against the following officers of D. I. Khan If these words are con strued as an order of appointment, the order was not competent, having been passed by an authority not empowered by the rules to pass it, but if the memorandum amounted to a mere direction or suggestion to the S. P. to appoint Abdur Rahman Khan, D. S. P. Tank, as an Enquiry Officer, the S. P. concerned never passed such orders.
Now that we have found that either the I. G. P was not competent to make the order, or he did not in fact make an% such order and that the . P. also did not appoint Mr. Abdur Rahman, D. S. P. as the Enquiry Officer, the inevitable result would be, that no order of appointment was made at all. From whatever angle the question is considered the appointment of the Enquiry Officer will be found invalid and illegal. Therefore, we cannot escape the conclusion, that Mr. Abdur Rahman Khan, D. S. P., not having been legally appointed as an Enquiry Officer had no jurisdiction to conduct the enquiry against the petitioner. When an officer is not legally appointed to conduct an enquire and he conducts it, he must be deemed to have acted without jurisdiction, and as such the entire proceedings of the enquiry will stand vitiated. As a logical corollary, the order of dismissal which is based on the result of such an illegal enquiry will also be not legal and valid in the eyes of law. The learned Additional Advocate‑General maintained that since the petitioner did riot raise this objection either in his appeal to the I. G. P. or in the writ petition he cannot be allowed to raise it now, We are unable to agree with him. Where there is a glaring illegality apparent on the face of record and it its at the very root of the case, such as has been discovered in the case in hand, then in normal circumstances, unless there is any rule or provision of law to the contrary, it is not only permissible, but it would be sheer justice and equity to allow an aggrieved person to argue the objection at the bar, though it was not raised in the memo randum of petition.
In result, we accept the petition, declare the dismissal of the petitioner Sheikh Muhammad Afzal as illegal, and hold that he is still in the service of the Government as Sub‑Inspector Police. Accordingly, we issue direction to the Provincial Govern ment, the I. G. P. of West Pakistan and the D. I. G. concerned to treat the petitioner as still Sub‑Inspector Police, with effect from the date of his .dismissal. We must, however, make it clear that this order would in no way operate as a bar to the institution of another enquiry against the petitioner according to law, if the authorities are so advised... The costs of the petition are to be borne by the parties. Since we are not setting aside the suspension of the petitioner, we Make no order in regard to the arrears of , his pay. The question of the arrears of pay will follow the result of a fresh enquiry, if held.
‑I entirely concur in the reasons and conclusions arrived at by my :earned brother Habibullah Khan, J., but wish to say a few words to add strength. to the arguments advanced by the learned Judge and also because the points involved are of very great importance to the Police Department.
North‑West Frontier Province "Police Regimental Fund" was started in 1952 at the Headquarters of six districts of the defunct North‑West Frontier Province with the object of promoting the economic interests of those officers of the Police Department who cared to become its members on the monthly payment of amounts varying with the status of the Officer concerned. Its object was to arrange for the purchase of necessities of like, such as cotton fabrics, toilet goods, household linen, hosiery, wheat, gur, fire‑wood, pulses, ghee, tea etc. and sell them to the members at rates cheaper than those prevailing in the market. Inspector General of Police; North‑West‑ Frontier Province framed rules, which were duly approved by the Provincial Government regulating the working of the Fund. In each district, there was to be a Managing Committee, consisting of eight members, inclusive of the Superintendent of Police, who was to be its President. The Fund was established in D. I. Khan District in April 1952. Sub‑Inspector Police Muhammad Afzal Khan, who is the petitioner before us in this writ petition, was then functioning as the Lines Officer in the District. In addition to his own duties, he was also entrusted with the duties of the Treasurer of the Fund. In ' 1954, Sub‑Inspector Khuda Bakhsh Khan, the Auditor of, the Fund, discovered some shortage in the Regimental Store, and also some irregularities which had been committed in the Working of the Organisation. The then Superintendent of Police, D.I. Khan thereupon opened an inquiry. The Deputy Inspector‑General of Police, who then happened to visit D. I. Khan, suspended the petitioner along with some other; officers, who also held one post or the other in the Committee. Later on, Anti‑Corruption Department took over the investigation and found that the Fund had in fact sustained a heavy loss amounting to more than Rs. 10,000. A report waif accordingly made, whereupon the Inspector‑G6neral of Police addressed a Confidential letter from Nathiagalli on the 24th of July 1954, asking the Superintendent of Police D. I. Khan, to "depute Abdur Rahman Khan, Deputy Superin tendent of Police, Tank, to conduct departmental enquiry against the petitioner and other erring officers." By an endorsement made on the same‑ letter, the Superintendent of Police, Anti- Corruption Staff was directed to send a copy of statement No. 1 (Departmental Charges) only to the Inspector‑General of Police for onward transmission to the Superintendent of Police, D. I. Khan. The Superintendent of Police, D. I. Khan; forwarded the copy of the Inspector=General's letter by his Confidential No. 1121‑C, dated D. I. Khan, the' 30th of July 19'54, to the aforementioned Abdur Rahman Khan "for compliance." Thus authorised to conduct an inquiry, Abdur Rahman Khan prepared a summary of misconduct on the 20th of September 1954, and read it out and explained it to the petitioner. He then proceeded to record what he called the prosecution evidence. ,It is a pity, and I must regretfully say, that it is an irregularity by itself, that the Inquiry Officer did not give any date on the statements of the different witnesses, with the result that there is nothing on record to indicate as to when was a particular witness examined. The witnesses, however, were admittedly examined in the presence of the petitioner, who was given adequate opportunity to cross examine them. Basing it purely on the order in which different documents are placed on the Departmental file, which I must admit is far from satisfactory, one may infer that after examin ing forty‑six witnesses, Abdur Rahman Khan framed fifteen charges against the petitioner on the 28th of September 1954. He read these charges over and explained them to the petitioner, who pleaded not guilty, and wanted to defend himself by leading defence evidence. He required forty‑eight hour for the prepara tion of tile list of the defence witnesses, which time was duly granted. A list of fifteen defence witnesses was filed on the 1st of October 1954, but the petitioner only examined four of them, again oil dates which are not given on the record. The petitioner filed his written statement, which consisted of fourteen closely‑typed pages, on the 11th of October 1954, Abdur Rahman Khan then recorded his finding on each charge: 1t appears that this officer, either on sentimental grounds, or a9 a matter of habit., has a special abhorrence for writing the dates; because even the findings do not appear to be dated. He found the petitioner guilty of all charges except Charge No. 15, whiell he thought was redundant. The file was 9edt by him td the Superintendent of Police, D. I. Khan, who forwarded it on to the Deputy Inspector‑General of Police, on the 23rd of November 1954, with the remark that he was in entire agree ment with the findings arrived at, and that he had asked the petitioner, who was present before him, if lie wanted to produce further defence for proving his innocence or wished to acid to his previous statement, to which the petitioner replied in the negative. He recommended that an exemplary punishment should be metted out to the petitioner, because as he put it, "he had defeated the noble cause for which the Fund was brought into being." The Deputy Inspector‑General of Police examined the case thoroughly, and by his order, dated the 6th of January 1955, maintained the findings of the Inquiry Officer on charges Nos. 1‑6, 8, 10 and 12‑14. He found him not guilty on charges Nos. 7, 9 and 11. Charge No. 13, he said, was the same as Charge No. 9. About Charge No. 15. agreeing with the Inquiry Officer, but without understanding it, the Deputy Inspector‑General of Police found that the petitioner had "dis gracefully failed to check and supervise the work of the Store keeper which resulted in a heavy loss to the Fund." "Having found the accused guilty on the aforesaid charges, he proceeded to pronounce the punishment, which was dismissal with effect from the 5th of January 1955. After he had announced his order, he wrote down that the petitioner had nothing to add to his previous statement.
The petitioner filed an appeal against tile order of the Deputy Inspector‑General of Police, which again covered twenty‑four closely‑typed pages, to the Inspector‑General of Police, who by his order, dated the 12th of May 1955, upheld the order of dismissal, because in his opinion, Charges Nos. 3‑6, and 15 were of serious nature. He, however, found that charges Nos. 2, 7, 11, and 13 were not proved, and by implication, lie seems to have thought that Charges Nos. 1, 12, and 14, though proved, were not so serious as to merit dismissal. The peti tioner then attempted to go oil further appeal to the Provincial Government but it was disallowed on the 9th of August 1955, on the ground that it was not competent under the law governing the petitioner.
The petitioner has now come up to this Court on an applica tion under Article 170 of the Constitution of Islamic Republic of Pakistan, for the issue of a writ of certiorari in the shape of sending for the record of, and quashing the Departmental pro ceedings of A1‑aur Rahman Khan, and consequential order of dismissal, and also for the issue of a writ of mandamus by directing the appropriate authority to reinstate him in the post which he was holding at the time of his dismissal, viz. permanent Sub‑Inspector of Police.
Numerous grounds are given in the petition on the basis of which the petitioner wants this Court to exercise its ordinary and exceptional power conferred upon it by Article 170 of the Constitution, but most of them were either not argued, or were given up during the course of the arguments. It is, therefore, necessary only to discuss those grounds which were convassed and pressed at the Bar.
The learned Additional Advocate‑.General raised a preliminary objection that as the order of dismissal in the case was passed before the 23rd of March, 1956 the date on which the Constitution of Pakistan came into force, it cannot be questioned now, because the power to issue the different writs did not then exist in this Court.
If a writ of certiorari is sought on the ground that one or the other fundamental rights granted to the citizens of Pakistan by the Constitution has been violated by an inferior Court or Tribunal prior to 23rd of March 1956, then it must be conceded on the best authority, that it cannot be granted for the short reason that fundamental rights were not then in existence. But this argument has no relevancy to the case in which a Tribunal or an inferior Court has acted in the exercise of the jurisdiction not vested in it, or has failed to exercise the jurisdiction vested in it, or has exercised the jurisdiction illegally or with material irregularity under the law then in force. Remedy to the person wronged was even then available in the shape of suits, appeals, or revisions. Article 170 of the Constitution has only afforded an additional remedy for the right which already existed. It is only more quick and efficacious to secure protection of the right of the public, to impart justice and redress grievance, to curb excess of jurisdiction and keep inferior Courts and Tribunals within their bounds. In order, therefore, to attract the juris diction of this Court under Article 170 of the Constitution, what the petitioner has to show is, that the authorities concerned had either exercised jurisdiction not vested in them by law then in force, or had refused to exercise such jurisdiction, or had exceeded it. If he succeeds in showing that, he succeeds in the petition. This was the view which I expressed in Dr. Sher Bahadur Khan's case reported as (P L D 1956 Pesh. 77). I said that the very nature of writs like those of prohibition, mandamus and certiorari shows that they can be issued at any time whenever the occasion arises. If a certain authority is dealing with a matter which it has no jurisdiction to deal with the High Court will step in, irrespective of the fact that the authority started dealing with it before the powers of issuing the writs were granted to it. In concluded cases, however, what has to be seen is, whether the law than in force had given finality to the conclusions arrived at, and if it has, then the High Court will refuse to reopen them although even in those cases, if the Tribunal had acted without jurisdiction, the High Court will not hesitate in upsetting the conclusions. The same view was taken in Salamat Ali Jafri's case (P L D 1956 Lah. 548), where Kayani J. observed that the rights in Part 11 are fundamental rights and to that extent Article 170 cannot be retrospective, but. for other purposes envisaged by Article 170, only a new remedy as in section 223‑A has been devised, and, therefore, it is retrospective to that extent. The Calcutta High Court in Hindustan Motors Limited's case (A I R 1954 Cal. 151), also expressed similar views in the following paragraphs :‑
",That the Constitution is not retrospective in operation only means that, in the absence of an express provision, rights created or principles introduced for the first time by the Constitution itself cannot be claimed in respect of or applied to facts, situated in time before the Constitution, when rights and liabilities arising out of such facts fall to be adjudicated. That principle cannot apply to a mere procedural provision made by the Constitution unless such provision itself involves substantive rights. Article 226 merely enables High Courts to exercise their powers of revision and correction in a new form and in a new type of proceedings, and so far as Calcutta High Court is concerned, the power is not even a wholly new power as regards matters arising within the ordinary, original civil jurisdiction. The Article has created no substantive right, but only provided a new form of remedy through the High Courts which might well have been done by an Act of the appropriate legislature or legislatures. It follows that where the right asserted or the liability denied is one under the ordinary laws of the country and not one arising out of the Constitution and an assertion or denial has taken place after the Constitution has come into force, it cannot be said that the application of Article 226 is excluded by the fact that such right or liability originated before the commencement of the Constitution. The demand made was one under the Sea Customs Act and the accrual of the right on which it was based or the ground on which it was challenged depended in no way on the Constitution. The demand was sought to be enforced after the Constitution had come into force, and when the applicant which was resisting it; invoked Article 226 for protection and relief and asked the basis of the demand to be examined, it was not asking for application of the Constitution with retrospective effect or even it was, the application of anything more than mere procedure was not involved. At least, so far as the applicant was asking for a direction on the Customs authorities to forbear from giving effect to the Demand Notices, it was not at all asking for an application of Article 226, with retrospective effect. Further there being an assertion of a claim after the Constitution and the claim being not one under a right created for the first time by the Constitution itself, but being one under some other pre‑existing law, Article 226 empowered the High Court to deal with it by means of appropriate writs or directions although the claim might have originated before the commencement of the Constitution."
The preliminary objection is, thus, overruled.
Coming to the petitioner's case, it was argued that North -West Frontier Province Regimental Fund Rules have no legal sanction behind them, and, therefore, their disobedience, even if proved, will not constitute misconduct so as to provoke depart mental inquiry under the Police Law. I confess it is a bit difficult for me to appreciate this argument. It is inconceivable that a police officer cannot be dealt with departmentally if he has committed a criminal offence, but for one reason or another he cannot be prosecuted for the same in an ordinary Court of law. 1n this case, Charges Nos. 7, 9, 13 and 14, if proved, would have amounted to criminal offences. They were with respect to the petitioner converting the Regimental ‑Fund to his own use and prevailing upon the Superintendent of Police by deceitful means to write off thirty maunds of wheat found short in the store. Granted without admitting that the Rules had no force of law behind them, still when the petitioner undertook to deal with a certain property entrusted to him under the orders of his superior authorities, it was his duty, to exercise that diligence and care which he would exercise in regard to his own property. If he failed to do so, he was answerable in civil law. I do not see why a police officer cannot be departmentally dealt with for the civil wrong done by him either deliberately or negligently to somebody else's property. There appears to be no such bar in any law, much less in the Police Laws governing the Police officers. Let us look at the case from another point of view. The business of the Fund was regulated by the Rules as well a. by the Standing Orders, which emanated from the petitioner's) superior officers. If, he disregarded or violated those orders a he is found to have done in this case, then he committed an offence under section 29 of the Police Act V of 1861, which lay down : ‑‑
" Every police‑officer who shall be guilty of any violation of duty, or wilful breach or neglect of any rule or regulation, or lawful order made by a competent authority, or who shall with draw from the duties of his office without permission, or without having given previous notice for the period of two months, or who being absent on leave, shall fail, without reasonable cause, to report himself for duty on the expiration of such leave, or who shall engage without authority in any employment other than his police duty, or who shall be guilty of cowardice, or who shall offer any unwarrantable personal violence to any person in his custody, shall be liable, on conviction before a Magistrate, to a penalty not exceeding three months' pay, or to imprison ment with or without hard labour, for a period not exceeding three months, or to both."
I am unable to understand as to why the violation of the lawful order made by a competent authority cannot form the subject‑matter of departmental inquiry as well. Be that as it may I am firmly of the opinion that section 12 of the Police Ac does authorise the Inspector‑General of Police to frame rule on the line on which the Regimental Fund Rules are framed. Section 12 runs as under :‑
" The Inspector‑General of Police may, from time to time subject to the approval of the Provincial Government, frame such orders and rules as he shall deem expedient relative to the organisation, classification and distribution of the police force, the places at which the members of the force shall reside, and the particular services to be performed by them their inspection, the description of arms accountrements and other necessaries to be furnished to them the collecting and com municating by them of intelligence and information ; and at such other orders and rules relative to the police‑force as the Inspector‑General shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties."
The objects for which the Fund was opened are clearly covered by "necessaries to be furnished to the police force, and" all such other orders and rules relative to the police force, as the Inspector‑General shall from time to time deem expedient for rendering such force efficient in the discharge of its duties." The subject‑matter of the Rules can also be conveniently brought within the definition of the phrase "the particular services to be performed by them". I have, thus, no hesitation in rejecting this argument of the learned counsel for the petitioner.
The argument which has impressed me considerably is with regard to .the jurisdiction of Abdur Rahman Khan to conduct the inquiry in question. It has .already been mentioned that he was actually deputed by the Inspector‑General of Police to do the same. The Superintendent of Police, D. I, Khan, acted simply as a post office to convey the order. of the aforementioned authority to Abdur Rahman Khan. It is idle to argue that by doing so, the Superintendent of Police should be taken to have passed the order of the appointment of Abdur Rahman Khan, and not the Inspector‑General of Police, about whom the Additional Advocate General contended that he in his capacity as the Head of the Department, simply offered a judicious advice. This fantastic interpretation is sought to be placed upon the facts which are otherwise quite clear, merely for the sake of legalising departmental inquiries. Surely, the Court cannot be expected to be a party to such a (sic) effrontery. Let us pose a question to ourselves. Was there any room left in the Inspector General's letter for the Superintendent of Police to ignore his orders and depute somebody else to conduct the inquiry My answer to this question will be straight "No." If the Superin tendent of Police had adopted this course, he would have been hauled up for the. disobedience of the lawful order. The inter pretation, if adopted, will be a smoke‑screen to confound the real issue. A detailed procedure for conducting the Departmental Inquiries is given in Rule 16.24 of the North‑West Frontier Province Police Rules, 1937. According to it, the police officer accused of misconduct, must be brought before an officer empowered to punish him. In this case, such officer is the Deputy Inspector‑General of Police (vide Rule 16.1) or such superior officer as the Superintendent of Police, or Assistant Superintendent of Police Headquarters, Peshawar (added by Correction Slip No. 177, dated 14th December, 1939), tray direct to conduct the inquiry. Inspector‑General of Police does not come into the picture at all. 1f the punishing authority does not conduct the inquiry himself, then it has to be conducted by such officer superior to the accused officer as may be appointed by either the Superintendent of Police or the Assistant Superintendent of Police, Headquarters, Peshawar. The order of appointment must emanate from one or the other of these two authorities. It is quite clear that it is left to the subjective and objective discretion of these authorities alone to make the relevant appointment and the Inspector General of Police cannot arrogate to himself these powers, simply because he happens to be the Head of the Department. The absurdity of the proposition can best be exposed by illustrations. In the Police Rules, itself, the punishing authority in the case of a Sub‑Inspector of Police is the Deputy Inspector‑General. Supposing if the Inspector‑General by‑passed. the Deputy Inspector‑General of Police and inflicted punishment on a certain Sub‑Inspector of Police himself, will the Court uphold it
Again, under section 144 of the Criminal P. C., orders can only be passed by the District Magistrate, Chief Presidency Magistrate, Sub‑Divisional Magistrate or any other Magistrate specially empowered by the Provincial Government to do so. But, supposing the Governor, as the Head of the Provincial Government, passed such an order himself in a certain locality, will the Courts give an effect to it Again, offences under Pedal Code can only be tried by Magistrates or Sessions Judges. Supposing a Minister in charge of law and order were to arrog4te these powers to himself, and convict a person or order the Magistrate to convict him, will the High Court maintain that order and conviction In my view, when the law assigns a certain function to a certain officer, it is that officer alone who can discharge that assignment, and no other person, even if that person happens to be superior to the officer to whom the function is assigned can deal with it.
In this case, the wisdom of the Rule is quite apparent. The Inspector‑General of Police was the Appellate Authority, and if he interfered with a case before he was called upon to deal with it in due process of law, then it could not be expected of him to act impartially and objectively when he finally deals with it. The accused officer in that case could reasonably apprehend that bias had operated against him in the final decision of the Inspector‑General of Police. No Appellate Authority should really interfere in any case while it is pending before a sub ordinate officer. He should keep his mind open and unbiased, otherwise there will be no point in appealing to him against the order passed by the subordinate authority.
Abdur Rahman Khan, thus, having been appointed by the Inspector‑General of Police, was a person Non grata, and, there fore, I think the rights of the petitioner have been so far t invaded as to be prejudicialy affected if the proceedings remain unreversed;
The other argument which has considerable merit in it; is that the Deputy Inspector‑General of Police, in passing the final order, violated the law as envisaged in section 240, subsection (3) of the Government of India Act, 1935, by not giving a reasonable opportunity to the petitioner of showing cause against the action proposed to be taken against him. There is no doubt that this section was in force at the relevant time. Ordinarily, the con ditions of service of the subordinate ranks of the police force in North‑West Frontier Province, under section 243 of the Govern merit of India Act, 1935, shall be such as may be determined by the Police Act, or the Police Rules, which have been made under this Act. This is notwithstanding subsection (3) of section 240 of the Government of India Act, which makes it mandatory that no person, who is a member of a Civil Service, can be dismissed 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. It has, however, been held by our Supreme Court in Noorul Hassan and others case (P L D 1956 S C (Pak.) 331) that "the Constitutional safeguards in subsections (2) and (3) of section 240, Government of India Act, 1935, are available to police officers of the subordinate ranks unless those safeguards have been taken away by or under a Police Act. This result is consistent with the words of section 243, because if the intention had been that sections 240 and 241 were not at all to apply to subordinate police, nothing would have been easier than plainly to say so."
" The case of Suraj Narain Anand (P L D 1949 P C 1) is an instance of the application to a member of the subordinate police force of certain provisions contained in section 240, in the absence of any provision on that point under section 243."
" The language of section 243 is designed to operate on the basis of repugnancy between section 240 (2) (3) on one hand and the Rules under the Police Acts on the other. Therefore, the provisions of sections 240 and 241 have no application where there is in existence a contrary or repugnant rule made applicable to subordinate ranks of the Police forces by or under the Acts relating to such forces."
"The opening words of section 243‑ Notwithstanding any thing in the foregoing provisions of this Chapter,' are significant. They mean that the constitutional guarantees con tained in the foregoing sections, viz. sections 240, 241 and 242, can be destroyed . or diminished in the case of the Police forces by making rules under Police Acts contrary to the statutory provisions contained in the above sections. If no such rules exist, the statutory guarantees must have their full force and play."
It was argued that an elaborate procedure for conducting a departmental inquiry is set forth in Rule 16.24, but nowhere is it mentioned that show‑cause notice as required by section 240, subsection (3) should be given to the accused officer. This rule is to the following effect :‑
VI. " At the conclusion of the defence evidence, or, if the enquiring officer so directs, at any earlier stage following the framing of a charge, the accused shall be required to state his own answer to the charge, He may be permitted to file a written statement and may be given time, not exceeding one week, for its preparation, but shall be bound to make an oral statement in answer to all questions which the enquiring officer may see fit to put to him, arising out of the‑ charge, the recorded evidence, or his own written statement."
VII. "The enquiring officer shall then proceed to pass orders of acquittal or punishment, if empowered to do so, or to forward the case with his finding and recommendations to an officer having the necessary powers."
It is argued that no sooner a departmental inquiry is finished, then all that is left behind is for the relevant authority to pronounce the punishment. Nothing intervenes between these two stages. From this the conclusion is sought to be drawn that section 240, subsection (3) is superseded by implication. This section, as well as the police Rules, have to be interpreted liberally, and in favour of the petitioner, and if that is done, we would expect the learned Additional Advocate General to point to us a clear provision of law overriding the beneficial provision of section 240 (3), and not depend merely upon the inference to be drawn from a certain omission. If no clear provision of law exists, as is the case here, then we will be justified in assuming that section 240, subsection (3) governed the subordinate ranks of the Police Force of the North‑West Frontier Province in the same manner as it governed the members of a Civil, Service of the Crown as they then were in Pakistan .or who held any civil post under the Crown in Pakistan or held office during His Majesty's pleasure. To put it, in the words of Cornelius, J. in Nur‑ul‑Hassan's case "Section 243 only operates on the basis of repugnancy and the repugnancy should be clear on the face of the rules and is not to be left to the process of deduction. It is only when the Police Act or the Police Rules come in conflict with section 240, subsection (3) that the latter loses its force".
I am, therefore, of the view that the conditions of service of subordinate ranks in the police force which will govern the entire period from their appointment to the termination of their service are determined by or under the Act as well as by section 240, subsection (3) of the Government of India Act.
The next question which arises is as to what is meant by "reasonable opportunity of showing cause", and at what stage of the inquiry, it is to be given. On both these points, the law is now well settled and admits of no doubt. Basic authority on the point is the majority view in the famous I. M. Lall's case (A I R 1945 F C 47). The law enunciated in this case has been consistently accepted since shen by the"Court in India and Pakistan as sound law. The procedure which is to precede the order of dismissal was set forth thus :‑
" The words "against the action proposed to be taken in regard to him" in section 240 (3) 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. Section 240 (3) inquires that as and when (1) AIR 1945FC47
i
an authority is definitely proposing to dismiss or 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, the section 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. In some cases, it may 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. Each case will have to turn on its own facts. In all cases, where there is an enquiry and as a result thereof; some authority definitely proposes dismissal or reduction in rank, the person concerned must be told in full, or adequately summarised form, the results why he should not suffer the proposed dismissal or reduction of rank. A notice contained in the charge‑sheet that possibly dismissal might be decided upon was held not to be adequate compliance with section 240 (3)."
This procedure was affirmed by their Lordships of the Privy Council on appeal in the same case in A I R 1948 P C page 121 P L D 1948 P C 150. The words in which they put the law are as follows :‑
" Subsection (3) of section 240 was not intended to be, and was not, a reproduction of Rule 55, Civil Services (Classification and Control) Rules, framed under section 96‑B, Government of India Act, 1919, which was left unaffected as an adminis trative 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 provision of "reasonable opportunity of showing cause against the action, proposed to be taken in regard to him." No action is proposed 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 punishments are, merely hypothetical. It is on: that stage being reached that the statute gives the civil servant the opportunity for which subsection (3) makes provision. There is 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, for that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry."
Let us now examine this case in the light of the observations made in the above two authorities. The learned Additional Advocate General claims that the Deputy Inspector‑General has fully satisfied the requirements of law, but I find that all that this officer has done is that he has first announced the orders of dismissal to the petitioner and has then asked him if he has anything to add to his previous statement. This tantamounts to beheading a person first and then asking him if he has any cause to show why he should not be beheaded. No copy of the inquiry report, in spite of demand, seems to have been given to the petitioner, nor does he seem to have been told in full or adequately summarised form the result of the inquiry and the findings of Abdur Rahman Khan. The petitioner was also not informed that the Deputy Inspector‑General of Police had arrived at a tentative conclusion that the petitioner should be .dismissed from service, and that he proposed to inflict. this punishment upon him. The petitioner was also not given " reasonable opportunity " which means adequate opportunity ,to show cause why should he not be dismissed. The words ".reasonable oppor tunity " clearly signify that some time must elapse between the ' proposal and the actual announcement of the punishment, or otherwise there will be no point in granting the opportunity. The petitioner surely in order to answer the " show‑cause notice " must need some time to think over and collect the material. The impugned order of the Deputy Inspector‑General of Police, in my opinion, is 'not an adequate compliance of section 24U, subsection (3). In I. M. Lail's easel a notice was contained in the charge‑sheet itself that possible dismissal might be decided, and it was held as already mentioned, that it had not satisfied the mandatory provisions of section 240, subsection (3) of the Government of India Act. It is clear to me that the "show cause notice" must precede the order of dismissal, and not follow it. I am, therefore, of the view that the order of dismissal passed by the Deputy Inspector‑General was bad in law and must be quashed. .
It was also contended at the Bar by the learned counsel for the petitioner that the punishment of dismissal can only be awarded if the accused officer commits a gravest act of mis conduct or as the accumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. (vide Rule 16.2). The learned counsel then proceeded to define "gravest act of misconduct" and invited our attention to Appendix to Rule 16.18. This Appendix only lays down certain rules for the guidence of the Magistrates when a charge of .serious mis conduct as distinct from the " gravest misconduct " is made against a police officer. " Serious misconduct " is defined as a charge made against a police officer for having committed a cognizable or non‑cognizable offence in connection with his official relations with the public. The Appendix does not seems to have anything to do with the departmental inquiries which may result in the dismissal of a police officer. I am not prepared to subscribe to the view that the " gravest act of misconduct " is the same thing as the "serious misconduct" defined above, i.e. it can be said to have been committed only if the police officer commits a cognizable or non‑cognizable offence. The ordinary meaning of the word "misconduct" in Chamber's 20th Century Dictionary (blew mid‑century Version) is "bad conduct or wrong management." It is the cardinal principle of statutes that a word should be given its plain meaning unless it is otherwise expressly provided in the statute itself. 1f, otherwise too, the word "misconduct" is given a strained meaning as the learned counsel for the petitioner wishes us to do, it will lead to some most anomalous and absurd results. Supposing a police officer persists in disobeying the lawful orders of his superior officer, will it not amount to "gross misconduct" meriting dismissal 1f we hold that it does not, then it will strike a deadly blow to discipline which is. the corner‑stone of police force. In any case, the "misconduct" committed by a police officer, if it does not amount to an offence as enumerated in the Penal Code, it would certainly be an offence under section 29 of the Police Act, I reproduced above, which has a very wide range. So, on either ground, the argument of the learned counsel is adequately repelled.
The learned counsel for the petitioner has also attempted to take us into the merits of the case in order to prove that the findings arrived at by Abdur Rahman Khan were substantially erroneous, and not based on any evidence. In my view, this attempt must also be rendered futile, because the writ' jurisdiction, of this Court must not be confounded with its appellate Juris diction Certiorari can be issued in the exercise of this Court's supervisory jurisdiction, and it can only examine the external validity of the proceedings of an inferior Court or tribunal. It cannot inquire into the intrinsic correctness of the findings as on appeal. The High Court can only inquire whether the tribunal had the jurisdiction and proceeded legally, that is, whether it followed the form of proceedings legally applicable, and not whether it correctly decided the points in issue. It is, however, impossible to define as to in which particular cases certiorari will be issued, because that will destroy its compre hensiveness and beneficial effects, but in this case, there is definitely no justification to go into the merits of the case.
My conclusions, thus, are that the proceedings taken by Abdur Rahman Khan and the order of dismissal passed by the Deputy Inspector‑General were both bad in law and must be quashed. The writ of mandamus in the shape of directing the Inspector‑General or any other relevant authority to reinstate the petitioner to his permanent job cannot be issued for the simple reason that immediately before the departmental inquiry started, he had been suspended by a competent authority, and this suspension has not been assailed, or challenged before us.
The application is, consequently, accepted to the extent mentioned above.
A. H. Order accordingly.
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