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Letters Patent Appeal No. 113 of 1962, decided on 21st Feb ruary 1963.
S. 240(3)‑Government servant‑"Reasonable opportunity of showing cause" against dis missal‑Includes opportunity to produce witnesses‑Two stages for showing cause‑(1); Departmental inquiry (2) when punishment pro posed has been determined‑Failure of Enquiry Officer to give oppor tunity to produce witnesses at second stage‑Report of Enquiry Officer factually incorrect in two matters‑Disregard of require ments of Cabinet Secretariat (Establishment Division) Letter No. 13/7/51 SEI, dated 15‑9‑1951 ‑ Enquiry vitiated ‑ Order of dismissal, illegal.
The words in section 240(3), Government of India Act, 1935, "the action proposed to be taken" point to the stage when actual punishment is provisionally determined, i.e., when the punishing authority has come to a definite conclusion of terminating the service of the civil servant concerned.
An enquiry against a dismissed servant is as it were, in two parts, where there is, first, a departmental inquiry and then a notice to show cause is served upon him by the authority which proposes to dismiss him, the Court has got to look at both parts of the inquiry in order to come to the conclusion whether a reasonable opportunity was afforded to the servant to show cause against the action proposed to be taken against him.
The right of calling defence is an indispensable attribute of a "show‑cause notice". It will be complete negation of justice to ask a civil servant to show cause against loss of status on certain charges, permit him only to say that the charges were incorrect, but refuse him to call evidence to prove his assertions. Cut out the right of defence from a show‑cause notice and the constitutional guarantee provided for by subsection (3) is com pletely cut out. The provisions of subsection (3) of section 240 would be rendered wholly illusory if a civil servant is merely given right of making a representation denying the correctness of the charges without proving it. The statutory guarantee provided for in subsection (3) of section 240 is founded on the principles of natural justice that no one should be condemned without a hear ing and is clearly intended to protect a civil servant against the loss of his status against a capricious and arbitrary action and, therefore, a civil servant is entitled to a full and thorough enquiry into the charges before being deprived of his status as a public servant.
Where (1) the Government servant concerned was not given an opportunity to produce defence witnesses named by him, (2) there was failure to observe the instructions contained to Government of Pakistan, Cabinet Secretariat (Establishment Division) letter dated the 15th of September 1951, under which it was incumbent on the Enquiry Officer while serving show‑cause notice on the appellant, to ask him specifically whether he wished to be heard in person and the appellant was not asked at all if he wanted to produce defence, (3) the Enquiry Officer flouted the directions of the Chief Engineer contained in letter dated the 6th of August 1955, under which the Enquiry Officer was specifically directed to inform the appellant that "if his final defence is not received within the prescribed limit, it will be taken that he has no defence and the case will be decided accordingly" and (4) that the report of the Enquiry Officer was factually inaccurate in respect of the two important points, namely, (i) that the Enquiry Officer had been clearly in error in thinking that the Chief Engineer's letter dated 2nd of June 1948 did not completely exonerate the appellant and had not expunged the pre‑Partition entries and (ii) that the post‑Partition adverse remarks were shown to the appellant:-
Held, that the failure of the Enquiry Officer to examine defence witnesses was a flagrant violation of the constitutional guarantee contained in section 240 (3), and the instructions con tained in the Cabinet Secretariat (Establishment Division) letter of the 15th September 1951, and vitiated the enquiry and the resultant dismissal of the appellant.
The High Commissioner for India and another v. I. M. Lail P L D 1948 P C 150 ; Nur‑ul Hasan v. Federation of Pakistan P L D 1956 S C (Pak.) 331 ; State of Bombay v. Gajanan Mahadev Badley A I R 1954 Born. 351 ; Ibrahim v. Federation of Pakistan P L D 1957 Lah. 925 and R. Venkata Rao v. Secretary of State AIR 1937 PC 37 ref.
Show‑cause"‑Meaning.
S. 240(2) ‑ Appointing authority "Chief Engineer"‑Letter of appointment signed by Under Secretary to Government, Chief Engineer being, at same time, Secretary to Government in respect of his (Irrigation) Department‑Dismissing authority "Chief Engineer"‑Dual capacity of Chief Engineer‑Case covered by S. 114 Wits. (f), Evidence Act (I of 7872)‑Order of dismissal, held, unexceptionable.
Naseem Hassan Shah for Appellant.
Syed Zaheer Abbas for Respondent.
Dates of hearing : 11th, 22nd, 23rd, 25th and 28th January 1963.
.‑This Letters Patent Appeal is directed against the judgment and decree dated the 6th of March 1962 of a learned Single Judge whereby the judgment and decree of the Additional District Judge, Lahore, dated the 27th of June 1961, dismissing the plaintiff's suit which had been decreed by the trial Court, were affirmed. The appeal arises out of a suit instituted by Muhammad Ihsan Khan, who was an Overseer in the P. W. D. (Irrigation Branch), for a declaration to the effect that the order of the Chief Engineer, Provincial Public Works Department, Irrigation Branch, dated the 24th of September 1955, removing him from service, was illegal, void and inoperative and that he continues in service.
2. The appeal raises questions, some of which are of con siderable importance, involving construction of section 240 of the Government of India Act, 1935, in particular the interpretation of the phrase "reasonable opportunity to show cause" within the meaning of subsection (3) of the said section.
3. To appreciate the arguments addressed at the Bar, it would be necessary to state the material facts giving rise to the present appeal. Muhammad Ihsan appellant was appointed apprentice Overseer on the 20th April 1938, by a letter of the Under Secretary to the Punjab Government. He was confirmed as an Overseer on the 26th of October, 1939.
4. By letter dated the 9th of October 1954, the Chief Engineer, Provincial Public Works Department, Irrigation Branch, appointed the Superintending Engineer, Dipalpur Canal Circle as Enquiry Officer, directing him
(1) to suspend the appellant immediately,
(2) to serve a charge‑sheet enclosed with that letter on the appellant, and
(3) to institute an enquiry against the appellant under para, 6 of the Pakistan Government, Cabinet Secretariat (Establishment Division) Memorandum No. 13/7/51‑SEI, dated the 22nd of September 1951, and send his findings and recommendations after taking defence.
The charge‑sheet (copy Exh. D. 9) was served on the appellant on the 25th of May 1955. The charge‑sheet reads as under :‑
"You, Muhammad Ihsan Khan, Overseer (under suspension') are charged as under :‑
(1) that you have a consistent bad record and have also been adversely reported on in your Personal Register (for the period 1939 to 1954),
(ii) that the reports made by your officers from time to time with regard to your work were shown to you and you were warned to show improvement but you have failed to show any improvement.
(2) The above charges show that you have been guilty of misconduct in the discharge of your official duties for which misconduct you are liable to disciplinary action which may amount to your dismissal from Government service.
(3) You are, therefore, hereby called upon to show cause in writing within fourteen days from the date of receipt of this charge‑sheet why severe disciplinary action amounting to dis missal should not be taken against you.
(4) You should also state within the same period whether you admit the above charges, what explanation or defence, if any, you wish to offer and whether you wish to be heard in person." On the 4th of June 1955, the appellant submitted a lengthy reply, denied the charges and pleaded inter alia
(1) that the adverse remarks for the period 1939 to 1946 had been recorded against hint by Hindu Officers due to communal bias and all those adverse remarks were set aside by "Mr. M. A. Hamid, Esqr., I. S. E., Chief Engineer, Irrigation Branch, vide Secretary and Chief Engineer's letter No. 2826 2/Z/ 575/43, dated the 22nd of June 1948",
(2) that his report for the year 1946 was quite satisfactory "especially report by Mr. F. H. Zaidi. Executive Engineer, Fatehpur Division, Leiah", which was excellent,
(3) that in 1952, the appellant incurred the displeasure of Mr. Z. A. Khan, S. D. O., whom he had charged for corrup tion (this report forms appendix to the reply to the charge -sheet). The S. D. O. thereafter arranged an assault on him on the night between the 27th and 28th of June 1953, resulting in grevious injuries to his person,
(4) that the qualification reports were not shown to him and the adverse remarks "were withheld from him till 5th May 1954" when at his request the entries were shown to him under the orders of the Chief Engineer.
With regard to the query whether the appellant wished to be heard in person, the appellant replied that he bad "nothing more to say, in person."
5. The Enquiry Officer, in his seven pages report, doted the 27th of June 1955, recorded the following findings :‑
(a) That letter No. 28262‑z/575/43, dated the 22nd June 1948, by Mr. M. A. Hameed, I. S. E., Chief Engineer, "was being mis‑interpreted" in that the above letter does not state that the past record shall have no bearing on his future career,
(b) that his transfer from Tehar Construction Division "was not due to his report of false classification of bricks wherein the Government was being made to suffer loss but was due to the fact that he failed to prove a suitable hand for construction work,"
(c) that though the appellant had made as many as eleven allegations against Mr. Zafar Ahmad, S. D. O., but none had been substantiated,
(d) that the appellant had seen the entries ending 20th March 1952, in that "the Overseer at page 12 of the Appendix II' has copied out the general remarks recorded by Mr. F. H. Zaidi, exactly word by word for the period ending 20th March 192, which inter alia shows that he had seen his personal register up to the entries ending the 20th of March 1952."
Under letter dated the 6th of August 1955, the Chief Engineer, intimated the Enquiry Officer that from his report the provisional conclusion arrived at "that the removal of the appellant from the Government service was fully warranted" and that he should inform the appellant in writing "that if his final defence is not received within the prescribed limit, it will be taken that he has no defence to offer and the case will be decided accordingly. A show‑cause notice along with a copy of the report was served on the appellant on the 13th of August 1955. On the 22nd of August 1955, the appellant filed eight pages written defence in which he raised the following points
(i) that appendices I to VIII were the true copies of various representations made by him to the authorities concerned in which he had endeavoured to show that the post‑Partition ban reports recorded against him were due to the machination of the officers against
whom he had made accusation of corruption;
(ii) that he had "not at all mis‑represented the contents of the Chief Engineer's letter dated 22nd June 1948, and that the record in the office of the Chief Engineer will corroborate this statement as the same may not be available in your office" ;
(iii) "that the charges of corruption levelled against the S. D. O. were found correct by the following remarks recorded by Mr. M. A. Karim on the 4th of August 1953 in the personal register of the appellant allegations against the S. D. O. were correct and necessary action taken against S. D. O."",
(iv) "that Sh. Abdur Rahman, Superintending Engineer, T. D. A. and Mr. Abdul Aziz, S. D. O., Gujrat Division, may be examined as his defence witnesses to throw light on his work while they were incharge of the construction work on Balloki Sulemanki works",
(v) that in fairness to him, he should have been supplied with copies of letters Nos. 213/147‑ES, dated 15th February 1954 and 1458/147‑ES, dated 5th October 1954, and
(vi) that the Enquiry Officer had misinformed himself in stating that the personal register had been seen by him and that the fact of the matter was that as a result of his representation to the Chief Engineer, vide his application dated the 8th of June 1954 (Appendix I') the adverse remarks were shown to him for the first time on the 5th of July 1954.
6. On the 24th of September 1955, without examining any defence of the appellant, vide his letter dated the 24th of Septem ber 1955 (copy Exh. P. 3), the Chief Engineer, ordered the dis missal of the appellant from service. The appellant first lodged an appeal and followed it up by representations to the relevant authorities. Not getting a redress, he instituted a suit on the 30th of November 1959, for a declaration 'challenging his dis missal. In the plaint the order of dismissal was challenged in the main on four grounds (and not three as stated by the learned Courts below). They are as follows:‑
(1) that the order of dismissal was inoperative because "the appointment of the plaintiff was made by the Secretary to Government, Punjab, Irrigation Branch", while the plaintiff was removed from service by the order of the Chief Engineer, P. W. D. Irrigation Branch, who is lower in status than the appointing authority,
(2) that no oral enquiry was instituted and no witness was examined by the Enquiry Officer in spite of the clear directions of the Chief Engineer in his letter dated the 9th of October 1954,
(3) that the provisions of section 240 of the Government of India Act, 1935, had not been complied with as the defence witnesses were not examined and the documents asked for by the plaintiff in his written reply dated the 22nd of August 1955 in pursuance of the show‑cause notice, were not requisitioned.
(4) that the dismissal of the plaintiff was on the basis of adverse remarks. The adverse remarks could not be taken into consideration for the two‑fold reasons :‑
(i) that the adverse remarks recorded before Partition by non‑Muslim Officers had been expunged, and
(ii) that the post‑Partition adverse remarks were never com municated to him in spite of directions of the Department as contemplated by rule 120 of the Public Works Department Code.
7. The suit was resisted on behalf of the Federation of Pakistan and it was pleaded inter alia
(1) that in the year 1937, the appointing authority for Over seers was the Chief Engineer (Works), Punjab, as contemplated by rule 4 of the Punjab Irrigation Subordinate Engineering Rules 1935, when the plaintiff was offered the post of apprentice Overseer by the Chief Engineer, vide his memorandum No. 2036 dated the 2nd of March 1937,
(2) that letter No. 6952, dated 20th April 1938, appointing the plaintiff as Overseer was issued by the Chief Engineer but inadvertently had been signed by the Under Secretary,
(3) that in view of the nature of the charge‑sheet, namely, consistent bad record of service ; and the fact that in his reply to the charge‑sheet the plaintiff had stated that "he had nothing more to say in person", no formal enquiry was called for.
In regard to the grievance that defence witnesses had not been examined and the documents requisitioned had not been sent for, the reply was that the explanation of the plaintiff had been duly considered and the plaintiff's removal was, therefore, quite valid.
8. The following issues were settled in the suit :‑
(1)Whether the order of plaintiff's dismissal from service dated the 24th of September 1955, is illegal, void and ultra vires
(2) Relief.
The learned trial Court found the issues in favour of the plaintiff on the ground that the appointing authority in his case was the Provincial Government and as such he could not be dismissed by the Chief Engineer. The other two grounds of attack, namely, (1) that no regular enquiry was instituted by the Superintending Engineer and (2), that, on the show‑cause notice, his defence witnesses and documents requisitioned by him had not been examined, were, however, repelled. In the result the plaintiff was granted a decree for declaration as prayed for with costs.
9. The defendant took appeal and the Additional District Judge, Lahore, by his order dated the 27th of June 1961, accepted the appeal, reversed the judgment and decree of the trial Court as he thought that the Chief Engineer, Irrigation Department, under rule 4 of the Punjab Irrigation Subordinate Engineering Service Rules, 1935, was the appointing authority and since at the time of the appointment of the plaintiff, the Chief Engineer was admittedly Ex‑officio Secretary to the Government in the Irrigation Department, he was competent to dismiss him. The Additional District Judge, dealing with the point observed : "Considering the dual capacity of the Chief Engineer, and Secretary to the Government, the presumption would be that the Under Secretary signed the letter of appointment on behalf of the latter in his capacity as Chief Engineer". With regard to the allegation that no enquiry was held, the learned Additional District Judge thought that under rule 14.13 of the Civil Service Rules (Punjab) Volume I, Part I, an oral enquiry is to be held in case when the person served with the charge‑sheet demands it or when the authority competent to dismiss so directs and since the plaintiff had waived his right for oral enquiry, "a little purpose would be served by holding otherwise as the charge against the respondent merely related to the adverse entries in his character roll". With regard to the grievance of non‑examination of the defence wit nesses and non‑requisitioning of the documents, the learned Addi tional District Judge, held: "Now this claim of the respondent was belated. If he wanted to produce witnesses in his defence the charge‑sheet was served on him and he was called upon to state whether he desired to be heard in person. The respondent waived his claim for an oral inquiry at that stage and later on it was too late for him to reclaim that right."
10. The appellant feeling aggrieved took further appeal, which was heard by our learned brother sitting in Chambers.
Before him the judgment of the Additional District Judge was assailed on the three main points, namely :‑
(1) that the order of dismissal had been passed by an autho rity lower than the appointing authority,
(2) no oral enquiry was conducted, and
(3) the Enquiry Officer after show‑cause notice had not examined the defence witnesses and called the documents requisitioned by the appellant in the written reply to the show‑cause notice.
It was argued before the learned Single Judge that it was incum bent on the Enquiry Officer to permit the appellant to lead evidence even after show‑cause notice. Reliance was placed on Ibrahim v. Federation of Pakistan (P L D 1957 Lah. 925); Moor‑ul‑Hassan v. The Federation of Pakistan (P L D 1555 Sind 200) and Khadim Husain v. The Federation of Pakistan (P L D 1955 Sind 250).
11. None of the arguments prevailed with our learned brother with the result that the appeal was dismissed. With regard to the objection that the order of dismissal was bad having been passed by an authority lower than the appointing authority, the learned Judge, held that since the Chief Engineer, P. W. D., Irrigation Branch, was also the Secretary to the Government of Punjab and since under the relevant Rules, the Chief Engineer was the appointing authority for Overseers, the appointment order though signed by the Under Secretary "who evidently was attach ed to the office of the Chief Engineer and a person subordinate to him * * * was passed by the Chief Engineer." With regard to the objection that oral enquiry was necessary, it was held that under Civil Service Rules (Punjab), Volume 1, Part I, Chapter XIV, rule 14.13, oral enquiry was necessary only in two cases, namely, (1) when the civil servant so desires it and (2) the authority empowered to dismiss, remove or reduce him in rank so directs, and since the appellant had not asked for an oral enquiry "and charge‑sheet was based on the entries contained in the Personal Register, consequently, there was no occasion for the Enquiry Officer to hold oral enquiry". As regards the grievance that the Enquiry Officer had not examined the defence witnesses, the learned Judge observed that "the Enquiry Officer was well within his rights if he did not record any defence evidence at this stage". With regard to the authorities cited on behalf of the appellant, the learned Judge observed "that none of the authorities were of any avail" and that remarks in Ibrahim v. Federation of Pakistan were in the nature of obiter dicta, and did not lay down a correct proposition of law. With regard to the Sind decisions, it was observed that these cases were not relevant as no show‑cause notice was served on the public servants proposed to be dismissed nor they were afforded any opportunity to show cause against the penalty to be imposed upon them.
12. We had the benefit of hearing full and industrious argu ments by Dr. Naseem Hasan Shah, learned counsel for the appel lant and Syed Zahir Abbas, Advocate, on behalf of the State. Besides the main grounds of attack directed against the order of dismissal raised before the courts below, the argument of the learned counsel for the appellant covered the following subsidiary points:‑
(a) that as the appellant had denied the charges, it had become incumbent on the Enquiry Officer to make an oral enquiry,
(b) that the enquiry was vitiated for failure of the Enquiry officer to comply with the instructions contained in letter No. 13/7/51‑SEI, dated the 15th of September 1951, issued by the Government of Pakistan, Cabinet Secretariat (Establishment Division), in particular, paragraph 6(3)(b), where-under the accused officer is to be asked to state whether he wishes (i) to be heard in person and (ii) to call any witness.
It was further stressed by the learned counsel that the appellant was not specifically asked to state whether he would call any witness and there was thus an infringement of the instructions causing a failure of justice,
(c) that the Enquiry Officer had misconstrued the reply of the appellant that he did not wish to be heard in person as tanta mount to saying that he had waived an oral enquiry, which became essential in view of the clear denial of the charges,
(d) that the Enquiry Officer had misconstrued the letter of the Chief Engineer, dated the 22nd of June 1948, by holding that the pre‑Partition adverse entries had not been washed away when the Government had decided to set aside all proceedings and departmental enquiry instituted against the appellant sub sequent to the acquittal of the Overseer by the Court,
(e) that the report of the Enquiry Officer was vitiated in taking into consideration post‑Partition adverse entries against the appellant when the said adverse entries had not been communi cated to the appellant as contemplated by instruction No. 9 on the upkeep of the Personal Registers of the subordinates where -under every adverse entry is to be communicated to the subor dinate concerned at the time it is made. Reference to the letter under which adverse entry is to be communicated should be mentioned in the Personal Register',
(f) that the finding of the Enquiry Officer that the adverse entries after Partition had been shown to him was factually incorrect in that the adverse entries were shown to the appellant only on 5th July 1954, under the orders of the Chief Engineer in pursuance of his representation,
(g) that the Enquiry Officer, after the denial of charges by the appellant, had instituted enquiry at the back of the appellant, which violated the principles of natural justice, especially, in taking into consideration copies of letters No. 213/147‑ES, dated 15th February 1954 and No. 1458/ 147‑ES, dated 5th October 1954,
(h) that the dismissal of the appellant with retrospective effect, namely, with effect from 15th November 1954 (forenoon), when the order was communicated on 24th September 1955 was illegal in that no order of dismissal could be passed with retrospective effect,
On the last objection pertaining to the failure of the department in not examining the defence witnesses and documents requisitioned by him, the learned counsel for the appellant vehemently argued that there had been a failure to adhere to the constitutional guarantee under which a statutory duty was cast on the punishing authority to afford reasonable opportunity of showing cause to a civil servant against the proposed punishment of dismissal and no discretion whatsoever was left with the Enquiry Officer in not calling the defence sought to be produced by the appellant. It was argued that even if the appellant had examined certain witnesses at the first stage of enquiry, he could still insist on the statutory right of calling defence evidence after the show‑cause notice and this right could not be denied to the appellant especi ally when the very basis of dismissal of the appellant was founded on the report of the Enquiry Officer, which was factually inaccu rate on two important aspects. The learned counsel for the appellant cited several rulings in support of the argument that the provision of section 240(3) of the Government of India Act, in particular the words reasonable opportunity' after the show cause notice was mandatory and not permissive.
13. The arguments addressed by Mr. Zahir Abbas, Advocate, for the State, may be summarised as follows : As regards the challenge that the order of dismissal was bad because it was passed by an authority subordinate to the appointing authority, it was argued that under the relevant rules, the Chief Engineer was the appointing authority and the order of appointment of the appellant was also passed by him and that the mere fact that the letter communicating the order of appointment was issued under the signatures of the Under Secretary would not go to show that order of appointment was made by the Provincial Government. It was explained that since the Chief Engineer was also Ex‑officio Secretary to the Government, the letter communicating the order of appointment had been issued under the signatures of the Under Secretary. With regard to the objection pertaining to the non institution of oral enquiry and non‑observance of instructions contained in para. 6(3)(b) of the Cabinet Secretariat (Establish ment Division) letter, dated the 15th of September 1951, it was argued that:-
(1) the Department had complied with the requirement of rule 14.13 of the Civil Service Rules (Punjab) Volume I, Part I, under which the appellant had been asked to state what explana tion or defence, if any, he had to offer and since the appellant had not specifically asked for producing any defence and bad added that "he had nothing more to say in person", the appellant could not make a legitimate grievance of instituting oral inquiry:-
(2) the instructions contained in the Cabinet Secretariat (Establishment Division) letter of the 15th of September 1951, have no statutory force and its non‑observance could not be made a grievance, especially when the appellant had not specifically asked for calling any defence.
It was also argued that since the enquiry against the appellant was oil the basis of adverse entries, no oral enquiry was necessary in that the record of the appellant itself provided sufficient material to be considered by the Enquiry Officer.
14. As to the objection that the Enquiry Officer had taken into consideration certain letters, referred to in the enquiry report, without showing the same to the appellant, it was contended that these letters were referred to by the Enquiry Officer with a view to showing that the transfer of the appellant was not because of levelling charges of corruption against the Sub‑Divisional Officer, Joya, but was the result of his inefficiency, lack of management and non‑execution of work in Tehar Defunct Division. As to the grievance that the adverse remarks had not been shown to the appellant prior to the 5th of July 1954 and that the same had not been communicated to him as required by instruction No. 9, on the upkeep of the Personal Register of subordinates, it was argued:-
(1) that the instructions do not form part of the rules contained in Government of the Punjab Public Works Depart ment Code and as such it was not incumbent on the Department to comply with these instructions,
(2) rule 1.20 (6) of the said Code requires that an official may see his Personal Register once in every year, and it was presumed that the appellant had seen the same.
It was also argued that at any rate the Lon‑observance of the instructions was not actionable.
15. With regard to the contention that the order of dismissal was vitiated under subsection (3) of section 240 of the Government of India Act, 1935, on account of the failure of the Enquiry Officer to examine the defence witnesses and the documents which the appellant wished to produce, it was argued that it was not incumbent on the Enquiry Officer to examine the defence witnesses especially when the appellant had not cared to call witnesses at the enquiry stage and had communicated that "he had nothing mole to say in person." The learned counsel further argued that the purpose of examining the defence witnesses, namely, Sheikh Abdur Rahman and Mr. Abdul Aziz, Superintending Engineer and Sub- Divisional Officer, respectively, was to testify the good work of the appellant when he worked under those officers and thus would not have in any way advanced the case of the appellant in regard to the charge of "consistent bad record".
16. Since the decision of the case turns on the interpretation of section 240 of the Government of India Act, 1935, it would be convenient to read the material provisions, namely, subsections (1) to (3), which are in the following terms:‑
"240. Tenure of office of persons employed in civil capacities in Pakistan‑‑
(1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in Pakistan or holds any civil post under the Crown in Pakistan, holds office during His Majesty's pleasure.
(2) No such person as aforesaid, who having been appointed by the Secretary of State or the Secretary of State in Council continues after the establishment of the Federation to serve under the Crown in Pakistan shall be dismissed from the service of His Majesty by any authority subordinate to the Governor- General or the Governor according as that person is serving in connection with the affairs of the Federation or a Province, and no other such person as aforesaid shall be dismissed from the service of His Majesty by an authority subordinate to that by which he was appointed.
(3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:
Provided that this subsection shall not apply‑
(a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where an authority empowered to dismiss him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause.
17. The central point on which the decision of the case solely hinges is whether in the instant case the statutory guarantee for which provision has been made in subsection (3) of section 240 of the Government of India Act, 1935, had been complied with. This question depends upon the proper construction of the phrase "a reasonable opportunity of showing cause" and the words "action proposed to be taken with regard to him." These expres sions came in for considerable judicial comment and observations before High Judicial Authorities including the Privy Council. The root authority on this point is the well‑known case of The High Commissioner for India and another v. I. M. Lall (P L D 1948 P C 150). At page 160, Lord Thankerton delivering judgment for the Board observed :‑
"In the opinion of their Lordships, no action is proposed within the meaning of the subsection until a definite conclusion has been come to on the charges, and 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. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under rule 55, it would not be reasonably that he should ask for a repetition of that stage, if duly carried out, but 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."
It would be manifest from the observations of their Lordships that the words "the action proposed to be taken" is the' state when actual punishment is provisionally determined, i.e., when the punishing authority has come to a definite conclusion of terminating the service of the civil servant concerned. The meaning put by their Lordships on the expression "reasonable opportunity to show cause" in paraphrase is when an enquiry against a dismissed servant is as it were, in two parts, where there is, first, a departmental inquiry and then a notice to show cause is served upon him by the authority which proposes to dismiss him, the Court has got to look at both parts of the inquiry in order to come to the conclusion whether a reason able opportunity was afforded to the servant to show cause against the action proposed to be taken against him.
18. The question now arises is whether the term "reasonable opportunity to show cause" gives a civil servant a right of calling defence at that stage. This question admits of a short answer in the affirmative for the short and good reason that right of calling defence is an indispensable attribute of a "show‑cause notice". It will be complete negation of justice to ask a civil servant to show cause against loss of status on certain charges, permit him only to say that the charges were incorrect, but refuse him to call evidence to prove his assertions. Cut out the right of defence from a show‑cause notice and the constitutional guarantee pro vided for by subsection (3) is completely cut out. The provisions of subsection (3) of section 240 would be rendered wholly illusory, if a civil servant is merely given right of making a representation denying the correctness of the charges without proving it. The statutory guarantee provided for in subsection (3) of section 240 is founded on the principles of natural justice that no one should be condemned without a hearing and is clearly intended to protect a civil servant against the loss of his status against a capricious and arbitrary action and, therefore, a civil servant is entitled to a full and thorough enquiry into the charges before being deprived of his status as a public servant.
19. It would be convenient here to quote the definitions of the words "show" and "show cause" as given in the Law Lexicon of British India by P. Ramanatha Aiyar, 1940 Edition. At page 1193, the word "show" means to make clear or apparent, as by evidence, testimony, or reasoning ; to prove. At the same page, the term "show cause" is defined :‑
"(1) where the Court calls on a party to show cause', that by necessary implication would allow the other side to answer ;
(2) the expression show cause' in the second para. of section 44 of the Dekhan Agriculturists' Relief Act (Bombay Act 17 of 1879) means, to allege and prove sufficient cause. It does not mean merely to allege cause' without proving it, or, in other words, merely to object' ;
(3) the words show cause' in section 525, C. P. Code do no mean simply putting in a verified petition of objections. The party opposing the filing of the award must show sufficient cause, that is to say, must establish by argument, or proof, of both, reasonable ground for the conclusion that the award is open to any objection mentioned in section 526 or section 521."
20. I would invite reference to the observations of Cornelius, J., in Nur‑ul Hasan v. Federation of Pakistan (P L D 1956 S C (Pak.) 331) on precisely the same point when his Lordship at gage 379 observed:-
"the importance of such an enquiry to precede a decision involving a loss .of status of public servant is undeniable."
With regard to the essential steps in such an enquiry, his Lordship proceeded to observe that the same "have been expressed in general terms of the clearest import by Viscount Simon, L.C.", and quoted the following observation:-
"Unless Parliament otherwise enacts, the duty of considering the defence of a party accused, before pronouncing the accused to be rightly adjudged guilty, rests on any tribunal, whether strictly judicial or not, which is given the duty of investigating his behaviour and taking departmental action against him. The form in which this duty is discharged e.g., whether by hearing evidence viva voce or otherwise is for the rules of the tribunal to decide. What matters is that the accused should not be condemned without being first given a fair chance of exculpa tion."
I may also quote the following observations of Chagla, C. J., at page 355 in State of Bombay v. Gajanan Mahadev Badley (A I R 1954 Bom. 351) when his Lordship was addressing himself to the meaning of the words "reasonable opportunity" :‑
"It may not be necessary to duplicate what has already been done in the departmental inquiry. It may be said that if in fact the dismissed servant has been given a full and proper opportunity to show cause against the allegations made against him, then it may not be necessary again to require from him practically the same explanation."
It would be profitable to quote the observations of A. R. Changez, J., in Ibrahim v. Federation of Pakistan (P L D, 1957 Lah. 925) on the point of right of a civil servant of calling witnesses :‑
"The expression reasonable opportunity to show cause' is not an idle and empty form. It contains a very salutary and substantial provision of law. The expression does not mean that only an opportunity is to be given for offering an explana tion against the proposed action. In my opinion it clearly means that adequate opportunity, not only to offer an explana tion against the proposed action but also to produce defence evidence, if any, should be given."
21. There is another consideration which seems to me to be of utmost importance and it is that under the relevant rules a civil servant has at least one right of appeal against an order of dismissal and, therefore, if the right of appeal is to be made a real one, it is of supreme importance that the order of the punishing authority must contain with sufficient precision the material on which the order of dismissal is proposed, which would naturally include the defence, if any, led by the civil servant so that the appellate authority could form a just opinion of the fairness of the order of dismissal. If the right to call defence is shut out, it amounts to denial of a right of hearing. In this connection.
I would extract the following passage from the judgment of the Privy Council in the leading case of R. Venkata Rao v. Secretary of State (AIR 1937 F Q 37) in regard to the strict compliance of the departmental rules :‑
"It is obvious, therefore, that supreme care should be taken that this assurance should be carried out in the letter and in the spirit and the very fact that Government in the end is the supreme determining body makes it the more important both that the rules should ‑be strictly adhered to and that the right of appeal should be real right involving consideration by another authority prepared to admit error, if error there be, and to make proper redress, if wrong has been done. Their Lordships cannot and do not doubt that these considerations are and will be ever borne in mind by the Governments concerned, and the fact that there happened to have arisen for their Lordships' consideration two cases, where there has been a serious and complete failure to adhere to important and indeed fundamental rules, does not alter this opinion. In these individual cases mistakes of a serious kind have been made and wrongs have been done which call for redress. But while thus holding on the clear facts of this case, as they now appear from the evidence, as they similarly held in Rangachari's case, their Lordships are unable a as a matter of law to hold that redress is obtainable from the Courts by action. To give redress is the responsibility, and their Lordships can only trust will be the pleasure of the Executive Government."
22. Judging the case of the appellant in the light of the tests laid down by the above authorities, it is manifestly clear that the solemn assurance afforded by subsection (3) of section 240 has been honoured more in breaches than the observance in that there has been no valid enquiry much less a fair and thorough enquiry as contemplated by the aforesaid subsection. There has also been a failure to observe the instructions contained in Government of Pakistan, Cabinet Secretariat (Establishment Division) letter dated the 15th of September 1951, under which it was incumbent on the Enquiry Officer while serving show‑cause notice on the appellant, to ask him specifically whether he wished (i) to be heard in person and (ii) to call any witness, and that in the instant case the appellant was not asked at all if he wanted to produce defence. Again the Enquiry Officer even flouted the directions of the Chief Engineer contained in letter dated the 6th of August 1955 under which the Enquiry Officer was specifically directed to inform the appellant that "if his final defence is not received within the prescribed limit, it will be taken that he has no defend and the case will be decided accordingly." Lastly, what is of utmost importance is that the Enquiry Officer in spite of the specific request of the appellant not only did not examine the defence witnesses but also did not care to record reasons for taking that course. It will be recalled that the main charges against the appellant were that he had consistent bad record and that in spite of bad record having been shown and warned to show improvement, he failed to show improvement. The appellant all through stoutly denied these charges and had been endeavouring to show that the pre‑Partition adverse entries were recorded by non‑Muslim Officers on account of communal bias and the same had been expunged by letter dated the 22nd of June 1948 of the Chief Engineer and that the post‑Partition adverse remarks were due to machination of the Sub‑Divisional Officer on account of his making charges of corruption against him and that at any rate the adverse entries had never been communicated to him before the 5th of July 1954, contrary to the instruction No. 9 on the upkeep of the Personal Registers of the subordinates, as contemplated by rule 1.20(6) of the Provincial Public Works Code. It is important to observe that the report of the Enquiry Officer is factually inaccurate in respect of the two important points, namely, (1) that the Enquiry Officer had been clearly in error in thinking that the Chief Engineer's letter dated 2nd of June 1948 did not completely exonerate the appellant and expunge the pre‑Partition entries and (2) that the post‑Partition adverse remarks were shown to the appellant. Mr. Zahir Abbas, the learned counsel for the State, frankly conceded that the report of the Enquiry Officer on both these points was historically inaccurate.
23. It is, therefore, manifestly clear that a serious prejudice has been caused to the appellant by the report of the Enquiry Officer which is inaccurrate in two important aspects. In this background of the case, the calling of the two defence witnesses, namely, Sheikh Abdur Rahman, Superintending Engineer and Mr. Abdul Aziz, Sub‑Divisional Officer, under whom the appellant worked, were of utmost importance for the defence of the appel lant and the failure of the Enquiry Officer to examine them is a flagrant violation of the constitutional guarantee contained in section 240 (3), and the instructions contained in the Cabinet Secretariat (Establishment Division) letter of the 15th September 1951, and in my view vitiates the enquiry and the resultant dismissal of the appellant.
24. In view of the findings, that the order of dismissal is vitiated for non‑observance of the provisions of section 240(3), it would be unnecessary to deal with the challenge of the appel lant that the order of dismissal is bad having been passed by an authority subordinate to the appointing authority, but since this point was fully argued before us, I would deal with it. The question admits of a short answer and against the appellant in that I am clearly of the view that because of the dual capacity of the Chief Engineer, the case is covered by illustration (f) to section 114 of the Evidence Act, which declares that the Court may presume that official acts have been regularly performed i e., that what ought to have been done in connection with an official act vas in fact done. In the instant case, since the Chief Engineer is admittedly the appointing authority for Overseers, it is reasonable to presume that the order of appointment of the appellant was made by the Chief Engineer, and not the Secretary to the Government, in particular, in view of Memorandum No. 2036 S. Est. S., dated 2nd July 1937, from the Chief Engineer Irrigation Works, Punjab, to the Principal Government School of Engineering, Punjab, under which the post of Overseer was offered to the appellant. At any rate, there is nothing on the record to suggest that in the instant case, the appointment of the Overseer should have been made by the Provincial Government. This point was, therefore, rightly decided against the appellant by the appellate authorities.
25. The result, therefore, is that I accept the appeal, set aside the judgments and decrees of the appellate Courts and restore that of the trial Court, but on different grounds, with costs throughout.
‑I agree.
A. H. Appeal allowed.
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