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Writ Petition No. 414 of 1962, decided on 17th October 1962.
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----Allegation, in show-cause notice, of "unsatisfactory service"-Removal order also mentioning grounds of "corruption" and "unbecoming conduct"-Held : Expression "unsatisfactory service" included grounds of "corruption" and "unbecoming conduct"-Public Conduct (Scrutiny) Ordinance (III of 1959), Ss. 3 & 4-Public Conduct (Scrutiny) Rules, 1959, r. 2.
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----Removal, on finding of Screening Committee-Appeal to Appointing Authority from such finding- Opportunity of personal hearing not necessary-Omission to hear, no ground for interference in order of removal, under writ jurisdiction-Public Conduct (Scrutiny) Rules, 1959, rr. 6, 7- "Appeal" means only "petition of appeal"-Public Conduct (Scrutiny) Ordinance (III of 1959), S. 10-Bar against Courts' jurisdiction does not apply to writ jurisdiction of High Court expressly given by Laws (Continuance in Force) Order (Post-Pro clamation I of 1958), Art. 2 (4).
An essential part of the procedure for the hearing of an appeal, as laid down in the cases of Sardar Ali and Mrs. Dina Sohrab Katrak, is that the appellant should be heard personally. In the present case, however, the provision in rule 7, Public Conduct (Scrutiny) Rules, 1959 is only that the appointing autho rity shoved consider "the finding the recommendation and the appeal, if any," and the word "appeal" can be understood to mean only the petition of appeal. It is not an appeal in the sense of an appeal from an order. The order has to be passed by the appointing authority.
Held, therefore, that the requirement of a personal hearing in the present case was not necessary, and that the reasoning of Sardar Ali's case P L D 1959 S C (Pak.) 25 and that of Mrs. Dina Sohrab Katrak P L D 1959 S C (Pak.) 45 was not applicable Further, that the Public Conduct (Scrutiny) Ordinance, 1959 is part of the ordinary law, and cannot oust the jurisdiction which the Post-Proclamation Order I of 1958, conferred on the High Court in respect of the issue of writs by Art. 2 (4).
Also, that to the four conditions laid down in Zafar-ul -Ahsan's case a fifth might be added, namely, that if an essential part of the procedure envisaged by a statute is ignored, the bar to jurisdiction will not apply.
Federation of Pakistan v. Sardar Ali P L D 1959 S C (Pak.) 25 ; Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak P L D 1959 S C (Pak.) 45 ; Zafar-ul-Ahsan v. Republic of Pakistan P L D 1960 S C (Pak.) 113 and Sardar Muhammad Zaman Khan v. M. B. Nishat P L D 1962 S C 22 considered.
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----r. 2-Does not say at what stage show-cause notice should be given-Notice not setting out charges of "bad remarks" in character-roll but such charges read out to Government servant at time of personal hearing by Screening Committee-Requirement of law, held, substantially complied with.
Karam Elahi Chauhan for Petitioner.
Zaheer Abbas for A.-G. for Respondents.
Date of hearing : 11th October 1962.
-This writ petition by Mr. Hamid ud-Din, formerly a member of the Provincial Civil Service (Execu tive Branch), seeks to avoid an order of the Governor retiring him from service under the Public Conduct (Scrutiny) Ordinance (No. III of 1959). The grounds, as stated before us in arguments, were: (1) that the show-cause notice was vague and did not disclose the grounds of proposed action, (2) that the petitioner was not heard in person by the appellate authority, and (3) that, whereas the notice was based on an allegation of "unsatisfactory service", the order of removal mentions two other grounds, namely, corruption and unbecoming conduct.
2. We made it clear to the learned counsel for the petitioner that the third ground was not substantial, because unsatisfactory service includes corruption and conduct unbecoming of and officer.
3. The petitioner received a notice, dated the 9th of March 1959, from the Chief Secretary, directing him to show cause, not later than the 15th of March 1959, "why disciplinary action should not be taken against you for unsatisfactory service. If he wished to be beard in person he was to appear before the Screening Committee on the 16th of March 1959. The petitioner submitted a written reply and appeared before the Committee which apprised him "of the material against him with regard to corruption, misconduct and inefficiency" on the spot. The remarks by the various officers in his character roll were read out to him and he was asked 'to explain them. He submitted that except for a single entry relating to corruption by Mr. Aslam Awais, who was inimically disposed towards him, his career had throughout been satisfactory. His attention was drawn to an unfavourable remark made by Mr. Marsden, Commissioner of Ambala Division, in 1945, and he replied that these remarks had not been communicated to him. The Committee, however, decided that he had a bad reputation, and that his conduct had been such as did not become his office, and it was recommended to the appointing authority that he should be retired compulsorily. This happened on the 16th of March 1959.
4. On the 31st of March 1959, the Chief Secretary permitted all officers, who had been served with a notice of termination of service, to inspect their character rolls, and the petitioner applied for inspection on the 14th of May. After inspection of his character roll, he filed an appeal to the Governor, which apparently was not accepted. Admittedly, he was not called upon to appear before the Governor. His complaint is that in the first instance he was not given a copy of his character roll to enable him to give a considered explanation and that sub sequently when, in the light of the character roll which he was allowed to inspect, he lodged an appeal, it was heard in his absence. The question is whether on this material we can interfere in the writ jurisdiction.
5. The relevant provisions of the law are the following :-
[Public Conduct (Scrutiny) Ordinance]
"(4) Every finding recorded by a Committee under section 3 shall together, in the case of a finding against the person concerned, with the recommendation provided for in that section, be submitted to the authority by which the person concerned was appointed, hereinafter called the appointing authority, and that authority shall pass orders thereon accord ing to law."
"(8) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Ordinance."
"(10) No order, proceeding or finding of a Committee or of an appointing authority shall be questioned in any Court."
6. Rules made under section 8 provide:-
"(2) Where a Committee is of the opinion that there is reason to believe that a person to whom the Ordinance applies-
(a) is corrupt, or may reasonably be consider corrupt because-
(i)
(ii)
(iii)
(b) is guilty, in the case of a Government servant of conduct contrary to the rules regulating the conduct of Government servants, and in any other case of conduct becoming his office ;
(c) is inefficient, or he ceased to be efficient and is not likely to recover his efficiency".
It may so inform that person and call upon him to explain any fact or circumstances appearing against him.
"(4) Having considered the explanation, if any, made under rule 3, the Committee shall record a finding on the matter of which the person concerned has been informed under rule 2, and submit the finding to the appointing authority."
"(5) The finding submitted under rule 4 shall be accompanied by the recommendation of the Committee as to punishment or other action."
"(6) Where the finding is against the person concerned. a copy of the finding and the recommendation shall be furnishes to him forthwith and he shall be entitled, within fifteen day of the receipt thereof, to appeal against it to the appointing authority."
"(7) Having considered the finding, the recommendation, and the appeal, if any, the appointing authority shall forthwith either pass an order or refer the proceedings to such advisor as he may think fit and pass an order after considering, they opinions.
No appeal shall lie against "the order so passed."
Now, although there is no provision under rule 7 that the appeal will be heard in the presence of the appellant, it is contended for the petitioner that the right of appeal implies that the personal hearing should be granted, and for this argument he relies on two casts of the Supreme Court, Federation of Pakistan v. Sardar Ali (P L D 1959 S C (Pak.) 25) and Chief Commissioner, Karachi v. Mrs. Dina Sohrah Katrak (P L D 1959 S C (Pak.) 45). The former was a case under the Sea Customs Act where an appeal was provided under section 188, though it was not expressly stated that the appellant would be heard personally. The learned Judges of the Supreme Court observed:
"The Central Board of Revenue, too, disposed of the appeal, it seems, without fixing a date of hearing or giving an opportunity to the respondents of being heard. The right of an appeal given by section 188 of the Act to a person aggrieved by a decision or order passed by an officer of Customs, would become illusory if the appeal could be disposed of merely after perusing departmental reports. The word appeal' in itself implies a right of audience and we are constrained to hold, therefore, that the Central Board of Revenue also failed to discharge its statutory duty in deciding the appeal, in the manner that it did. These were quasi-judicial proceedings of which the substance of a fair hearing and opportunity of defence at the appropriate stage are essential incidents."
7. In the second case, which was under the Sind (Requisition of Land) Act (XLVI of 1947), the right of appeal to Govern ment was provided by section 10 (2), which is in these terms:
"The Provincial Government shall then call for the report of the case from the Controller and after perusing such record and making such further enquiry as it thinks fit, may reverse, modify or confirm the order made by the Controller."
8. In that case also the appellant was not heard in person, and the State counsel argued that "section 10 (2) of the Act states all that the appellate authority has to do in dealing with the appeal, and as that provision, unlike section 423, Criminal Procedure Code, does not specify that the appellant or his pleader should be heard if he appears, the right of being given an opportunity of being heard has to be taken as having been denied to the appellant." Their Lordships, however, repelled this con tention and observed:
"There is nothing in this section which can be said to deny the appellant the right of being given an opportunity of being heard. It is true that section 423, Criminal Procedure Code, does specifically require the appellant or his advocate to be heard if he appears, but from this it does not follow that if that requirement had not been specified, then the appellant's right to be heard which he possesses according to the principles of natural justice could have been denied to him under that Code. That the absence in the provision of specific words giving the appellant the right of being heard is not sufficient for denying him that right is indicated by the fact that in the same Code though under section 435 and section 439 there is nothing to show that the petitioner moving the Courts in their revisionary jurisdiction has the right of being heard, yet it was considered necessary to enact section 440 which says that no party has any right to be heard either personally or by pleader before any Court when exercising its power of revision except in cases indicated in that section. However, the Criminal Procedure Code and the Sind (Requisition of Land) Act are not enactments in pari materia and from the fact that the right of being heard is specified in section 423 of the Code it cannot be said that that right has been abolished in the Act tinder consideration merely because it does not expressly preserve it. It cannot be disputed that it is a principle of natural justice that no one should be dealt with to his material disadvantage or deprived of his liberty or property without having an opportunity of being heard and making his defence. That being so, when a statute gives a right of appeal it should be understood as silently implying when it does not expressly provide that the appellant shall have the right of being heard. In The Queen v. The Archbishop of Canterbury E R 120 (K B) 1014, Lord Campbell, C. J., observed
"It is one of the first principles of justice, that no man should be condemned without being heard . . . . . . The Legislature here, gives an appeal from the Bishop to the Archbishop that implies that the appellant is entitled to an opportunity of being heard.' The first contention of Mr. Raymond, therefore, falls.' "
9. Their Lordships further observed that this rule of justice was not confined to proceedings before Courts but extended to all proceedings, by whomsoever held, which may affect the person or property or other rights of the parties concerned in the dispute.
10. The next question is whether section 10 of the Ordin ance, which bars the jurisdiction of the Court, will make any difference. Section 10 says that no order, proceeding or finding of a Committee or of an appointing authority shall be ques tioned in any Court. In Zafar-ul-Ahsan's case (P L D 1960 S C (Pak.) 113), one of the points taken for the appellant was that the order of retire ment was not a proper order because of the omission or refusal of the President to hear the appellant in support of his appeal. In repelling this contention, the learned Chief Justice observed that "if a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the autho rity should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These con ditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority."
11. It was argued for the petitioner, however, that the force of this ruling had been considerably weakened by Sardar Muhammad Zaman Khan v. M. B. Nishat (P L D 1962 S C 22). The facts in that case were somewhat different. A Screening Committee had been constituted for screening certain employees of the Cantonment Board of Rawalpindi, and this Committee issued notices requiring those employees to show cause why they should not be removed from service and requiring them to submit their explanations by the 28th of September 1959. These explanations were duly submitted on that date and on that very date the Screening Committee made its recommendations to the appointing authority that the employees in question be removed from service. The appointing authority removed them by an order of the same day, with the result that they had no opportunity even of filing an appeal. Referring to Zafar-ul-Ahsan's case, their Lordships observed
"As was held by this Court in Zafar-ul-Ahsan's case, if a statute provides that an order, made by an authority acting under it, was not to be called in question in any Court, the conditions necessary for ouster of the jurisdiction of the Courts would be that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action was taken should be within the grounds stated by the statute and the order made should be such as could have been made under the statute. The first three conditions are satisfied in the present case, but the fourth one has been clearly transgressed. The provision in this behalf appears to be of a mandatory character. An essential part of the procedure, envisaged by the Ordinance designed to ensure a fair hearing to the person concerned, has not been complied with. The impugned order, therefore, could not be said to be immune from challenge, in view of the bar raised by section 10 of the Ordinance, as the appointing authority's order did not strictly fall within the Ordinance."
12. Their Lordships thought that one out of the four conditions laid down in Zafar-ul-Ahsan's case for constituting an ouster did not exist in the present case. The condition in question is that "the order made should be such as could have been made under the statute." It is submitted that an order of removal could have been made under the statute concerned and that, consequently, on the reasoning of Zafar-ul-Ahsan's case a mere omission to hear the appellant should not have been regarded as fatal. The real emphasis in M. B. Nishat's case, however, was on the fact that an essential part of the procedure designed to ensure an opportunity of preferring an appeal had not been observed. This is exactly the case here also, and I would submit for further consideration that to the four conditions laid down in Zafar-ul-Ahsan's case a fifth might be added, namely, that if an essential part of the procedure envisaged by a statute is ignored, the bar to jurisdiction will not apply.
13. But we should make it clear that this argument as to the bar of jurisdiction is unnecessary. The Screening Ordinance is part of the ordinary law, and cannot oust the jurisdiction which the Post-Proclamation Order conferred on the High Court in respect of the issue of writs.
14. An essential part of the procedure for the hearing of an appeal, as laid down in the cases of Sardar Ali and Mrs. Dina Sohrab Katrak, is that the appellant should be heard personally. In the present case, however, the provision in rule 7 is only that the appointing authority should consider "the finding, the recom mendation and the appeal, if any," and we understand the word appeal to mean only the petition of appeal. It is not an appeal in the sense of an appeal from an order. The order has to be passed by the appointing authority. Perhaps the word appeal has not been correctly used. We cannot, therefore, apply here the reasoning of Sardar Ali and Katrak's case.
15. As regards the grievance that the notice in the first instance did not disclose the charges or bad remarks, it is to be noted that rule 2 does not say at what stage the Committee should inform the accused that he is corrupt or has a reputation of being corrupt, and since the character roll was read out to the petitioner at the time when he met the Committee, and he even inspected it subsequently and based his appeal on it, we do not think that the requirements of law were not substantially complied with.
16. The petition is dismissed, but there" shall be no order as to costs.
A. H. Petition dismissed
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