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(P. N. DOCKYARD), KARACHI‑Respondents
Writ Petition No. 64 of 1962, decided on 19th March 1963.
(Law applicable) ‑ Petition presented (13‑1‑1962) and allowed to be amended (1‑5‑1962), before coming into force of Constitution of Pakistan (1962)‑Amended petition admitted on 10‑I‑1963‑Law applicable not Constitution of 1962, but that prevailing before its promulgation.
"Post connected with Defence"‑Foreman, Stores, a Class II (non‑gazetted) civilian post in Pakistan Navy‑Not a post "connected with Defence" [Government of Pakistan v.. H. A. Bokhari P L D 1961 S C 605 ref.]
‑Notice to show cause against "proposed punishment" without notice to show cause against "charges" preferred against Government servant, does not constitute compliance with cl. (2) of Art. 181, though two notices may be combined in one‑Notice to show cause against charges served by Screening Committee but, due to expiry of Public Conduct (Scrutiny) Ordinance (111 of 1959), punishment proposed and confirmed by Department‑Proceedings by two authorities, held, deprived Government servant of privilege of Art. 181 (2) Order of removal quashed by certiorari‑Writ‑Constitution of Pakistan (1956), Art. 170‑Regulations for the Royal Indian Navy, reg. 480‑B ‑ Government Servants (Efficiency and Discipline) Rules, 1960, r. 6 (5) (a).
Clause (2) of Article 181 of the Constitution of Pakistan (1956) does not make it necessary that two separate opportunities should be granted to a civil servant before he is dismissed, removed from service or reduced in rank but calling upon him to show cause against the proposed punishment only without giving him a chance to refute the charges cannot amount to affording a reasonable opportunity of defence because nobody can defend himself without first knowing as to what is alleged against him.
Where the notice held out the opportunity only of showing cause against the decision to remove the civil servant from service, held, that the provisions of Article 181 (2) had not been complied with.
High Commissioner for India and High Commissioner for Pakistan v. I. M. Lail P L D 1948 P C 150 ref.
Where the Screening Committee carried out investiga tions in terms of the Public Conduct (Scrutiny) Ordinance, 1959 to find out whether the conduct of the petitioner [a Foreman Stores, a Class II (non‑gazetted) civilian post in Pakistan Navy], was unbecoming that of a Government servant, but the C. S. D. later on acted in terms of rule 5 of the rules annexed to a circular letter No. CP/0302/54, dated 27th of May 1958, for coming to a conclusion as to whether the petitioner was liable to be removed from service in terms of regulation 480‑B of the Naval Regulations, and the enquiry was mostly oral, the allegations on the basis of which the enquiry was made not being communicated to the petitioner because it was presumed he knew
Held, that the convenient procedure was adopted at the expense of the petitioner's right to clearly understand the charges and allegations of facts that were in the mind of the first authority and then in the mind of the other, and thus resulted in depriving the proceedings of that character which could afford the petitioner a reasonable opportunity to show cause against the action that had been proposed against him.
The petitioner was entitled to the protection conferred by Article 181 of the Constitution of 1956 and he had not been afforded a reasonable opportunity to show cause against the proposed action to be taken in regard to him.
Hassan A. Shaikh for Petitioner.
Ali Ahmad Fazeel for Respondents.
Dates of hearing : 13th, 19th and 27th February 1963.
This petition was presented on the 13th of January 1962 but after a report was received from the Captain Superintendent, P. N. Dockyard, West Wharf, Karachi and the petition was admitted on the 1st of May 1962, it was allowed to be amended, and the amended petition was presented on the 10th of January 1963. The law applicable to this petition, therefore, is not the present Constitution but that which was in force before the present Constitution was promulgated.
2. The petitioner has asked for a declaration that the order communicated to him vide the letter from the office of the Captain Superintendent, Pakistan Navy Dockyard, West Wharf, Karachi, dated the 12th/13th August 1960, removing the petitioner from service "is without legal authority" and "of no legal effect" and for directions to the respondents "to reinstate the petitioner in the post of Foreman of Stores, a Class II (non‑gazetted) civilian post in the Pakistan Navy from the date he has been illegally removed therefrom."
3. The facts are that the petitioner was appointed as a clerk in the Civilian Establishment of the Royal Indian Navy at Naval Dockyard, Bombay on the 27th of December 1943, and was promoted to the post of a Foreman of Stores which was a Class II (non‑gazetted) civilian appointment in the Pakistan Navy with effect from 15th of August 1957. On the 19th of May 1959, a notice was received by him from the Chairman, Screening Committee to show cause as to why he should not be dismissed from service. On the 25th of June 1959, he was informed by a letter that he was "placed on retired list." On the 26th of June 1959, he was informed by another letter that the order by which he was placed on the "retired list" was to be "treated as cancelled" and that "further communication will be sent to him in due course." We may note that the Ordinance under which the Screening Committee was constituted expired on the 1st of July 1959. The petitioner did not receive any communication for about 9 months but on the 6th of May 1960, a notice was sent to him conveying the information that with reference to the representation made by him in reply to the first notice dated the 19th of May 1959, and subsequent enquiries, lie was found to be guilty of misconduct on account of complicity in smuggling Govern ment Stores out of the Naval Store Depot, and that the proposal was that he should be removed from service ; therefore, he could "show cause as to why the proposed punishment may not be inflicted on him." In reply to this notice, the petitioner submitted a well considered explanation dated the 25th of May 1960. This explanation was found to be unsatisfactory and he was informed by the impugned order that he was removed from service. The petitioner preferred an appeal to the Naval Headquarters, which was dismissed on the 12th of September 1960. Another appeal was made to the Ministry of Defence (Navy Branch), Government of Pakistan, which was also dismissed on the 16th of September 1961. Having thus exhausted departmental remedies, the peti tioner has invoked the writ jurisdiction of this Court.
4. The learned Advocate for the petitioner has criticised the impugned order on the grounds that no reasonable opportunity was given to the petitioner to show cause against the action which was taken against him and that the provisions of rule 6 (5) (a) of the Government Servants (Efficiency and Discipline) Rules, 1960 were not complied with.
5. Mr. Ali Ahmad Fazeel, Advocate appearing for the respondents firstly took the stand that the petitioner held "a post connected with defence" ; therefore he was not entitled to the protection conferred by Article 181 of the late Constitution against removal from service without a reasonable opportunity of showing cause against his removal. But in view of the B judgment of the Supreme Court in Government of Pakistan v. S. H. A. Bokhari (PLD 1961 SC 605) and after a reference was made to a notifica tion dated the 3rd of April 1959, he conceded that the petitioner had held a civilian post and was entitled to the benefit of Article 181 of the late Constitution. He nevertheless argued that there was no provision in this Article in virtue of which the petitioner could claim an opportunity to show cause against the charges that were framed against him for all that he could claim in terms of clause (2) of Article 181 was : "a reasonable oppor tunity of showing cause against the proposed action to be taken in regard to him," and this opportunity was given to the petitioner by the notice dated the 6th of May 1960, whereby he was called upon to show cause as to why the proposed punishment of removal may not be inflicted upon him. This contention was supplemented by the argument that Regulation No. 480‑B of the Regulations for the Royal Indian Navy were applicable to the petitioner and not the Government Servants (Efficiency and Discipline) Rules, 1960. He further argued that it was immaterial as to whether the regulations or the rules were applicable because firstly, an opportunity which was given to the petitioner by the Screening Committee to show cause against the charges was sufficient compliance with any requirements ; secondly, it is the contravention of a statutory provision which could be a cause of action in a Court of law and not the contravention of rules and regulations.
6. It will be noticed that the first link in the chain of arguments of Mr. Fazeel is the proposition that the words "reasonable opportunity of showing cause against the action proposed to be taken" does not mean that the petitioner should have been given an opportunity to show cause against the charges. If this view is not found to be correct, then it is unnecessary to decide whether the Naval Regulations or the Government Servants (Efficiency and Discipline) Rules, 1960 are applicable to the petitioner and as to whether violation of rules and regulations provides a cause of action for legal proceedings or not. We have heard counsel for the parties on three days and have gone through a fairly large number of legal precedents to discover the correct ness or otherwise of the contentions of Mr. Fazeel. We do not think that the time spent in this persuit has been wasted because the discussion was helpful in ultimately arriving at the conclusion that the first link of his arguments was too weak to sustain the weight of the rest of the chain.
7. The words "reasonable opportunity" have been inter preted by the Privy Council in the High Commissioner for India v. I. M. Lall (PLD1948 PC 150), and their Lordships have approved the statement of law as propounded by the Chief Justice of the Federal Court as follows
"It does however seem to us that the subsection requires that as and when 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, it seems to us that 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 a reasonable time to make his representations against the pro posed 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 dis missed 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 sub section 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 punishment should not be imposed."
Mr. Hassan A. Shaikh, Advocate for the petitioner conceded that clause (2) of Article 181 did not make it necessary that two separate opportunities should be granted to a civil servant before he is dismissed, removed from service or reduced in rank but emphasised that calling upon him to show cause against the proposed punishment only without giving him a chance to refute the charges cannot amount to affording a reasonable opportunity of defence because nobody can defend himself without first knowing as to what is alleged against him. We agree with Mr. Shaikh that the provisions of clause (2) of Article 181 of the late Constitution were not complied with by the opportunity which was given to the petitioner by the notice dated the 6th of May 1960.
8. In view of the above conclusion, it is unnecessary for us to examine as to whether rule 6 of the Government Servants (Efficiency and Discipline) Rules of 1960 or Regulation No. 480‑B of the Naval Regulations are applicable to the petitioner and whether they have been complied with or not. We have only to examine the argument of Mr. Fazeel that the notice given by the Screening Committee to the petitioner to show cause against the charges framed by it can be taken into consideration as a part of the subsequent proceedings by which he was removed from service.
9. The Screening Committee was constituted under the Public Conduct (Scrutiny) Ordinance (Ordinance III of 1959) which empowered the Committee to regulate its own procedure. It was not bound to give that opportunity of showing cause which is contemplated under clause (2) of Article 181 of the late Constitution. It commenced proceedings against the petitioner but went out of office owing to the expiry of the Ordinance before concluding these proceedings. Moreover the notice that was given by it to the petitioner was cancelled by the Committee itself. But the explanation which was submitted by the petitioner in response to that notice was considered by another authority as if it was submitted in response to a notice issued by it. The new authority conducted some enquiry subsequent to it and came to the conclusion that the petitioner was to be removed from service. The charges which were framed by the Screening Committee were not framed by the new authority and there is nothing to show as to what acts and omissions of the petitioner were present to the mind of the new authority. One cannot say with any certainty as to what considerations and facts have induced the new authority to arrive at the conclusion that the petitioner should be removed from service. We are convinced from the manner in which Mr. Fazeel has resisted this petition that the new authority did not consider itself bound by the charges which were framed by the Sreenirg Committee and has acted in the belief that neither did the petitioner enjoy the pro tection of Article 181, nor reasonableness of the opportunity to show cause was their concern.
10. The new authority has not even complied with the terms of Regulation No. 480‑B which is as follows
"Rules relating to the reduction, removal and dismissal of civilians employed in the Royal Indian Navy. The following rules apply to all civilians employed at Naval Headquarters R. I. N. Office, Bombay, and in R. I. N. Shore Establishments, as well as to all civilian employees, excluding casual daily paid labour, in H.M. I. Dockyard, Bombay:‑
(1) The Crown has the absolute right to terminate the services of any of its employees at pleasure and without assigning a reason, but the following instructions will be observed as far as possible.
(2) Permanent servants should not be removed or dismissed except for a serious offence which has been clearly proved.
(3) Cases of physical incapacity should be treated according to rules ; and as regards inaptitude for any particular branch of occupation the difficulty may frequently be overcome by a re‑adjustment of duties, so again, a man who is inefficient in one appointment may be capable of performing the duties of another.
(4) Neglect of duty, inattention or disobedience renders a servant liable to reduction from a higher to a lower grade.
(5) Continued and wilful neglect, or disobedience, gross inefficiency, fraud, dishonesty, gross misconduct, and offences involving moral disgrace should be visited with dismissal, or removal accordingly as it is considered necessary, or not, to bar the individual from re‑employment under Government.
(6) Before a permanent public servant is removed, before a temporary public servant is removed during the period of his contract or without notice, if he is not serving under contract, and before a permanent or temporary public servant is dis missed, a copy of the charge and evidence should be delivered to him gratis. In the subsequent proceedings which should be reduced to writing, he should be given full liberty to cross- examine any witnesses against him, to call any witnesses and to make a statement in his defence ; and he should be furnished with a copy of the document containing the charges against him and the order thereon. In the event of the removed or dismissed servant appealing, a copy of this document, together with the evidence and statement in defence and his character roll or service book should be forwarded with the memorandum of appeal. Legal exactitude is not essential either in the framing of charges or in the admission of evidence and any evidence that leaves no reasonable doubt of an offender's guilt may properly be relied upon for determining the punishment. In this rule a public servant, includes a menial servant.
(7) A dismissed servant should not be reinstated or re employed in any department of the State without the sanction of the Local Government or administration or head of a department.
(8) A dismissal should only be notified in the Gazette :‑
(i) When it is necessary to notify the public of the removal from service of an officer whether because his appointment was previously gazetted or from any other cause, or
(ii) When it is specially desired to exclude from re‑employment a public servant who has been dismissed for a heinous offence.
(9) The authority who can appoint to a particular office has power to dismiss, remove, reduce or suspend from that office but an appeal lies from an order of dismissal or removal, etc., to the official superior to the officer who passes such order.
(10) All civilians in R. I. N., employ holding or exercising any office other than a menial office are subject to the provisions of the Government Servants Conduct Rules.
(11) Temporary personnel employed on monthly wages shall be entitled to one month's notice of discharge, provided dis charge is not (i) the result of disciplinary action ; (ii) at the individual's request ; (iii) due to inefficiency ; (iv) due to invalidment for causes within an individual's control.
This rule applies to temporary personnel on the permanent establishment and not to temporary personnel engaged for limited periods."
Mr. Fazeel did not take the stand that the instructions set out in the regulation were carried out but argued that they were to be observed only "as far as possible" which according to counsel meant that they could be disregarded.
11. It was with a view to satisfy rule 6 (5) (a) of the Govern ment Servants (Efficiency and Discipline) Rules, 1960 that counsel found himself in need of connecting the proceedings which were commenced by the Screening Committee with the subsequent proceedings. In this respect he drew our attention to the contents of the well written report which has been submitted to this Court by the Captain Superintendent P. N. Dockyard, West Wharf, Karachi. Paragraph 5 of the report says
"Whilst this Article (480‑B) states clearly that the Government has the absolute right to terminate the services of any of its; employees at pleasure and without assigning any reasons, it lays down certain instructions which are to be observed as far as possible."
In paragraph 6 it says
"The observance of this procedure is not mandatory and does not necessarily: require any legal exactitude ; and any evidence that leaves no reasonable doubt of an offender's guilt may properly be relied upon for determining the punishment."
From paragraphs 8 and 9 of the report it appears that there were complaints against the petitioner which were communicated to the Naval Headquarters for enquiry by the Screening Committee. The Screening Committee came to the conclusion that the conduct of the petitioner was unbecoming that of a Government servant, "but a statement of allegations, as required under clause (b) of the aforesaid sub‑rule was not forwarded, as the Committee considered, that, since the various incidents which led to this charge sheet being issued were investigated by the C. S. D. and were well within the knowledge of the petitioner, it was not necessary to do so". Subsequently an enquiry was conducted in which the petitioner and other persons were interrogated by the Committee which came to the conclusion that the charge of conduct "unbecoming that of a Government servant" has been substantiated against the petitioner and the petitioner was informed that the proposal was to retire him from service. But the decision of the Committee was subject to confirmation by the Government which was not feasible "during the short time available namely up to 30th June 1959". Paragraph 11 of the report shows that
"The C. S. D., was later on directed by Naval Headquarters to take disciplinary action according to the normal practice against the petitioner amongst others. The formal investiga tions‑carried out by the Screening Committee, as stated above, on 24th June 1959, and at which not only was the C. S. D. present but took part in arriving at its decision‑was considered by the C. S. D., as a formal inquiry, required to be carried out under third stage vide sub‑rule (5) of rule 5. At such inquiries, it is permissible vide clause (a) to hold an oral inquiry and the aforementioned inquiry was considered by C. S. D., to be as such. Furthermore, at the formal inquiry, conducted by the Screening Committee and deemed by the C. S. D., as the Oral Inquiry', the petitioner was given all the latitude required to be given to an accused whose conduct is under investigation according to the aforesaid sub‑rule (5) except that the proceed ing of this inquiry were not reduced in writing. It is, therefore, submitted that the third stage of the inquiry had been complied with."
Paragraphs 12 and 13 of the report show that‑
"The C. S. D., was the authority competent to award the punishment of dismissal and he arrived at the decision after the formal Oral Inquiry' as stated above, that the petitioner was guilty of complicity in smuggling Government Stores out of the Naval Stores Depot'. This finding substantiated the Screening Committee's original charge‑sheet of the petitioner's conduct being unbecoming that of Government servant. The C. S. D., thereupon issued to the petitioner a show cause notice in terms of clause (b) of sub‑rule (6) of the aforesaid Rule 5 calling upon him to show cause as to why the proposed punish ment of removal from service be not inflicted upon him."
12. The above resume of the proceedings discloses that the Screening Committee carried out investigations in terms of the Public Conduct (Scrutiny) Ordinance (Ordinance III of 1959) to find out whether the conduct of the petitioner was unbecoming that of a Government servant. But the C. S. D., later on acted in terms of rule 5 of the rules annexed to a circular letter No. CP/0 302/54, dated 27th of May 1958, for coming to a conclusion as to whether the petitioner was liable to be removed from service in terms of regulation 480‑B of the Naval Regulations. The enquiry was mostly oral and the allegations on the basis of which the enquiry was made were not communicated to the petitioner because he was presumed to know them.
13. The above mixture of ideas, procedures, concepts of misconduct and of guilt as well as the change in the authority which took steps to propose punishment, could not enable the petitioner to reasonably clearly understand the point of view with which the proceedings were taken against him. He could not be confident of defending himself by steadily following one line of defence and has pointed the defects of procedure in detail in his explanation dated the 25th of May 1960. The only justifica tion for adopting the mixed procedure could be the convenience of avoiding the repetition of a good deal of what the Screening Committee had done already. This convenient procedure has been adopted at the expense of the petitioner's right to clearly under stand the charges and allegations of facts that were in the mind of the first authority and then in the mind of the other, and thus to deprive the proceedings of that character which could afford the petitioner a reasonable opportunity to show cause against the action that has been proposed against him.
14. The conclusion, therefore, is that the petitioner is entitled to the protection conferred by Article 181 of the late Constitution 1 and that he has not been afforded a reasonable opportunity to show cause against the proposed action to be taken in regard to him. The petition is, therefore, accepted and a writ in the nature of certiorari is to issue quashing the order dated the 13th of August 1960 to remove him from service.
A. H.
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