LAI MUHAMMAD Versus GOVERNMENT OF SIND

1. DORAB PATEL, ACTG. C. J‑ The appellants in both these appeals were employed in the Karachi Police and in 1973‑74, trey were attached to the Kalakot Police Station. They claim that they had been repeatedly commended for meritorious services and this claim was conceded by the learned Additional Advocate‑General, who, however, submitted that the Officers of the Kalakot Police Station were responsible through their negligence for an occurrence in which fifty‑two persons died in 1974, through drinking poisonous country liquor. Therefore, the Superintendent of Police, city division, Karachi, issued a show‑cause notice to the appellants, and to several other Police Officers, the relevant part of which reads: ‑

2. "In exercise of the powers conferred under rule 5(3) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, 1, Muhammad Ayub Qureshi, S. P. City Div. and the Authorised Officer, hereby call upon you to show cause why one or more penalties described in rule 4 of the said rules, including dismissal from service, may not be imposed upon you on the following charges: ‑

(1) That while posted at Kalakot P. S---- you were negligent in your duty to control the illicit trade in liquor, which eventually resulted in the use of poisonous country liquor by 52 persons in Karachi in, November, 1974, majority of them died.

(2) That you may reasonably be considered corrupt because you have a persistent reputation of being corrupt.

3. You are hereby directed to show cause within 7 days of the receipt of this show‑cause notice why disciplinary action as aforesaid should not be taken against you and also state in writing within the same period whether you admit the truth of the charge and if not what explanation or defence, if any, you wish to offer and whether you' desire to be heard in person.

4. Your explanation should reach the undersigned within the aforesaid period failing which it will be presumed that you have declined to offer the same."

5. These notices were so vague that it is not surprising that the appellants applied for particulars of the extremely vague charges, which they were called upon to answer. But, although, this very reasonable request was not complied with, they submitted their written explanations within the prescribed period, and broadly the explanation submitted by both the appellants were similar. Thus, for example, although both the appellants admitted that they were serving in the Kalakot Police Station, the appellant, Lai Muhammad, said that he had been transferred from Kalakot Police Station in May, 1974, which was five months before the deaths of November, 1974, whilst the other appellant stated that he had been put on leave on 8‑8‑1974, which was more than three months before the deaths in the area of Kalakot Police Station. Again both the appellants stated that they had been selected for burglary duty, therefore, they had nothing to do with investigations into the sales of illicit liquor poisonous or otherwise and their common grievance was that the Abkari staff disapproved of Police Officers investigating into the liquor trade except when they were deputed to do so. Thirdly, the appellant, Lai Muhammad, has said that in the course of his investigations into the burglaries, he had mostly been out of Karachi between 10‑3‑1973 and May, 1974, when he was transferred from Kalakot Police Station. The other appellant admitted that he had been in Karachi during the relevant period, but his plea was that throughout the period when he was at Kalakot Police Station, he had been put on duty under the D. S. P. Harbour, therefore, it was not possible for him to investigate into the illegal liquor trade in the area of Kalakot Police Station.

6. A casual perusal of the defences of these appellants would have convinced the most ignorant layman that the appellants would not be able to meet the charges against them unless they were permitted to produce evidence in support of their defences. However, without giving any opportunity to the appellants to show‑cause against the charges preferred against them, by his order dated 7‑4‑1975, the Additional Chief Secretary to the Sind Government ordered their dismissal under sub‑rule (4) of rule 5 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973.

7. The appellants challenged their orders of dismissal in a review according to the departmental rules and as their representations were not decided within the statutory period, they both filed appeals before the Sind Service Tribunal. But, as these appeals were dismissed on 30‑6‑1977, they filed petitions for leave under Article 212(3) of the Constitution, and as leave was granted, we have heard Mr. Rahimtoola on behalf of the appellant, Lai Muhammad, and the Additional Advocate‑General, who represented the Government.

8. As we pointed out, action was taken against the appellants under the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, and we will refer to these rules as the said rules. As the Authorised Officer had dispensed with an enquiry in the exercise of his powers under sub‑rule (3) of rule 5 of the said rules, Mr. Rahimtoola's first submission was that the proceedings against the appellants were illegal, because the Authorised Officer had neither passed an order in writing for dispensing with an enquiry nor given any written reasons for dispensing with an enquiry. Sub‑rule (3), on which learned counsel relies, reads:

9. "(3) If the authorised Officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall‑

(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and

(b) give him a reasonable opportunity of showing cause against that action:"

10. There is nothing in this sub‑rule to support learned counsel' submission that the Authorised Officer has to pass an order in writing for dispensing with an enquiry. Ail that the rule requires is that the Authorised Officer should make a decision on the question whether an enquiry should be held or not, and if he decides not to hold an enquiry, he is bound to inform the accused in writing "of the action proposed to be taken in regard to him and the grounds of the action." Therefore, the Superintendent of Police should have clearly specified in his show‑cause notice the grounds on which the appellants were directed to show cause against their dismissal. The only grounds in the notice which were quoted read: ‑

11. "(1) You were negligent in your duty to control the illicit trade in liquor . . .

(2) That you may reasonably be considered corrupt because you have a persistent reputation of being corrupt."

12. Mr. Rehimtoola advanced a lengthy argument to show that this notice did not comply with the mandatory provisions of clause (a) of sub‑rule (3), which we quoted. The point is self evident, and precisely because the Authorised Officer dispensed with an enquiry, he should have taken pains to give full particulars of the charges against the appellants. Instead he informed them of the allegations against them without giving any grounds, for those allegations. As the show‑cause notices were thus in flagrant violation of the mandatory provisions of sub‑rule (3), they were illegal and on this ground alone the proceedings instituted against the appellants haves to be set aside. Unfortunately, this aspect of the case, which stared the Tribunal in the face, was ignored by it in its order, therefore, the appeals have to be allowed

13. We now turn to the second grievance of Mr. Rehimtoola. This was that the fate of the appellants had been sealed without giving them a hearing, and in this connection, he drew our attention to the fact that the show‑cause notice had invited the appellants to state whether they "desire to be heard w person," and the appellants bad immediately informed the Authorised Officer to produce evidence: Mr. Sittar Sheikh admitted that the appellants had in pursuance of the show‑cause notice demanded the right to be heard but he submitted on the basis of case‑law that the right to be heard did not necessarily mean the right to a personal hearing. As we do not wish to lay down a wider proposition than is necessary for the decision of these appeals, we would only observe that the cases before us are cases in which no competent authority could have given a fair decision without hearing the appellants in person. Thus, for example, one of their main pleas was that throughout the period they were in Kalakot Police Station they were in no position to look into the illicit liquor trade in the locality because they had been allotted other duties with which they had been pre‑occupied. We are unable to understand how the Government rejected this plea as it did without hearing the appellants nor is it the learned Additional Advocate‑General's case that the Government had sent for the service records of the appellants in order to verify their claim that they were not able to look into the illicit liquor trade in the locality of Kalakot Police Station as they were pre‑occupied with other duties officially allotted to them.

14. The learned Additional Advocate‑General could only stress the fact that the Tribunal had rejected this plea and held that the appellants had not been "able to establish as to how non‑production of such evidence or denial of personal hearing have materially affected (their case." We are astonished at the Tribunal's observations, because the Tribunal's only finding against the appellants appears to have been that they were negligent. But, if the appellants were pre‑occupied, as claimed by them, in other duties, this would be a complete answer to the finding of negligence against them, therefore, we are constrained to observe that the Tribunal has dismissed the appeals of the appellants without applying its mind to their submissions.

15. Mr. Rahimtoola drew our attention to another circumstance which appalled us. One of the grievances of the appellants before the Tribunal apparently was that they had been condemned on the basis of a report submitted by an Enquiry Committee of which they had no knowledge and off; which they had not been given any particulars. In repelling this argument, the Tribunal observed:

16. "The learned Advocate for appellants has also argued that the report of the Judicial Tribunal cannot be used against them as they were neither party to it nor were they allowed to give evidence before it or cross‑examine; witness. Moreover the S. P. who has appeared before the Tribunal as a witness cannot be, judged in this case. We are of the view that the report alone has not been used against the appellant (s)."

17. We would pause to point out here that the complete vagueness of the charges against the appellants is all the more disturbing because the charges had been framed according to the learned Additional Advocate‑General, after the Enquiry Committee had submitted its report. Therefore the conduct of the Government in issuing such a vague show‑cause notice is most unfortunate. Be that as it may, reverting to Mr. Rahimtoola's submission, it is obvious from the observations, which we have quoted that the Enquiry, committees report was part of the material on the basis of which the appellants had been dismissed. But, as they had never participated in this enquiry, as they had never been confronted with this report and as its author had not been made available for cross‑examination, on this ground also, the view taken by the Mr. Rahimtoola referred us to many other infirmities in impunged order, but it is not necessary to examine these submissions, because we are satisfied that the Tribunal's order of 30‑6‑1977 is illegal. Both the appeals are allowed and as the appellant, Lal Mohammad, was represented by counsel, the respondent shall pay his costs.

18. Finally, the learned Additional Advocate‑General submitted that the respondent was entitled to take fresh proceedings against the appellants after issuing a proper show‑cause notice. The submission has force, therefore, we would clarify that although the impugned orders are set aside, it is open to the respondent to take fresh proceedings against the appellants accord ing to law, but if it does so, it should not flout the law again. With these observations, the appeals are allowed.

19. Appeals allowed.