1. GHULAM RASOOL SHAIKH (CHAIRMAN).--This is an appeal under section 4 of the Sind Service Tribunals Act, 1973 against the removal from service.
2. The appellant was officiating Sub-Inspector of Police in the Special Branch. There was an allegation against him that he was engaged in subversive activities and therefore, his retention in service was a great risk. On the basis of that allegation he was discharged from service with effect from 24-4- 1975 by order passed by the Deputy Inspector-General of Police, Special/Crime Branch, Sind, Karachi. Aggrieved by this the appellant filed an appeal to the Inspector-General of Police Sind. The appeal was allowed on the ground that the Deputy Inspector-General of Police was the appellate authority and the order in case of the appellant could only be passed by the appointing authority who was the Superintendent of Police. Consequently the order was set aside and direction was issued for a fresh order to be passed by the Superintendent of Police, Special Branch under whom the appellant was serving. In pursuance of this decision the Superintendent of Police, Special Branch, Karachi after going through all the relevant papers passed the impugned order dated 7-6- 1976 removing the appellant from service with effect from 6-6-1976. It was stated in the order that by virtue of rule 3(d) of Sind Civil Servants (Efficiency and Discipline) Rules, 1973, the Superintendent of Police was satisfied that the appellant was reasonably engaged in subversive activities and his retention in service was a great, risk. It was further stated in the order that the Superintendent of Police was satisfied in the light of rule 8 of Sind Civil Servants (Efficiency and Discipline) Rifles, 1973, it was not necessary to give an opportunity of showing cause. Aggrieved by this an appeal was filed before Deputy Inspector-General of Police but since the appeal was not decided till the expiry of the period of 90 days the present appeal was filed. Since the order has been criticised on account of its grave illegality it is necessary to reproduce it. It reads as under :- Karachi, dated the 7th June 1976.
3. NOTIFICATION No. ADMN. E-II/2387/REMOVAL FROM SERVICE: "In pursuance of the decision communicated by the I. G. P./Sind, ride No. 6237-39/E-III, dated 14-5- 1976, thereby vacating the order already passed by the D. I. G. P. Special/Crime Branch, Sind, Karachi, vide No. Admn/E-11;1888 dated 25-4-1975, I have gone through the departmental proceeding file. I am satisfied in the light of provision contained in rule 3(d) of Sind Civil Servants (Efficiency and Discipline) Rules, 1973, that while posted in Immigration Section, Special Branch, Karachi, Offg. S. I. Muslehuddin Sheikh son of Late Muhammad Abdul Wahab was reasonably engaged in subversive activities and his retention in service was therefore grave security risk ; And whereas I am satisfied in the light of provision of rule 8 of the rules (ibid) that it is not necessary to give Offg. S. I. Muslehuddin Sheikh an opportunity of showing cause ; Now, therefore in exercise of powers vested in me under the said rules, I hereby order removal from service of Offg: S. 1. Muslehuddin Sheikh son of Late Muhammad Abdul Wahab with effect from 5-6- 1976 F. N.
4. The period of his suspension from 24-4-1975 A. N. To 4-6-1976 A. N. Is treated as such.
5. (Sd.)
6. (Sabir Ali Khan), Superintendent of Police (S), Special Branch, Karachi."
7. The order has been attacked on the ground that show-cause notice was dispensed with under rule 8 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, but this rule was inapplicable as it would only be invoked if certain circumstances existed axed the present case, was conspicuous lay the absence of those circumstances.
8. In order to appreciate the contention raised by the learned counsel, it is necessary to refer to the various rules which necessitate an action against a civil servant and the procedure which has to be followed.
9. In this connection the first rule to be referred to is rule 3(d) which reads as under :-- "(3) Grounds for penalty.---Whereas a civil servant, in the opinion of the authority;
(d) is engaged, or is reasonably suspected of being engaged, in subversive activities, is reasonably suspected of being associated with others engaged in subversive activities or is guilty of disclosure of official secrets to any un-authorised person, and his retention in service is therefore prejudicial to national security, the authority may impose on him one or more penalties."
10. It is evident that if a civil servant is involved in subversive activities, an action can be taken against him by the authority competent to remove him from service. The penalties are provided by rule 4 and one of the penalties is removal from service. In view of this the competency of the Superintendent of Police who passed the impugned order cannot be assailed.
11. Then comes rule 5 which lays down the procedure to be followed in taking action. It reads as under :- "5. Inquiry Procedure.---The following procedure shall be observed when a civil servant is proceeded against under these rules :-
(1) In case where a civil servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave or, with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
(2) The authorised officer shall decide whether in the light of the case or the interest of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in rule 6 shall apply.
(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 Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
(4) On receipt of the report of the Inquiry Officer or Inquiry Committee or where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorised officer shall determine whether the charge has been proved and-
(a) If it is proposed to impose a minor penalty, he shall pass orders accordingly.
(b) If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee if appointed, and his own recommendations regarding the penalty to be imposed, and the authority shall pass such orders as it may deem proper.
(5) The order passed by the Authority or the authorised officer shall, alongwith a copy of the enquiry report, if any, be communicated to the accused within fifteen days of such orders.
(6) If two or more civil servants are proceeded against jointly, the authority or authorised officer in respect of the senior most civil servant amongst them shall be the authority or authorised officer, as the case may be, in respect of all such civil servants."
12. This rule gives discretion to the authority to hold an inquiry or not. Not only this but it gives an important discretion by laying down a proviso to the effect that even opportunity may not be afforded to the civil servant. Thus it is under this proviso that show-cause notice can be dispensed with and one of the penalties provided by rule 4 can be dispensed with (sic) and one of the penalties of the rule talks of authorised officer who is other than the authority but by virtue of rule 4(A)(B) the same powers can be exercised by the authority instead of the authorised officer.
13. Lastly comes rule 8 which was invoked in dispensing the service of show-cause notice. It reads as under :- "8. Rule 5 not to apply fn certain cases.---Nothing in rule 5 shall apply to a case:
(a) Where the accused is dismissed or removed from service or reduced in rank, on the ground of conduct which has led to a sentence of fine or of imprisonment ; or
(b) Where the authority competent to dismiss or remove a person from service, or to reduce a person in rank, is satisfied that, for reasons to be recorded in writing by that authority, it is not reasonably practicable to give the accused an opportunity of showing cause."
14. This rule excludes the application of rule 5 in the cases stated therein. There can be no manner of doubt that the circumstances stated therein must be present before the powers allowed by the rule can be exercised. In other words the existence of circumstances c: a condition precedent to the exercise of the powers vested by the rule. It consists of two clauses. Obviously clause (a) is not applicable nor action had been taken under that clause. It is clause (b) which had been referred to in the impugned order and had been invoked in the pressent case in dispensing with the necessity of serving the show-cause notice.
15. We have given our anxious consideration to the plea raised before us and we are inclined to agree with the learned counsel for the appellant that rule 8 could not be invoked in the present case.
16. There is nothing on record to show how it was not practicable to serve the show-cause notice. No reason was given to justify the exercise of the discretion allowed by the rule. It is a settled position of law that where the statute is penal it must be strictly construed and rigidly followed. It cannot be evaded without any valid reason. Of course if there is a discretion which rests on the satisfaction of the authority, it cannot be assailed but at the same time it cannot be ignored that the discretion must be exercised in accordance with rules or law prescribed to regulate the discretion. It cannot be arbitrary. In our view the discretion had not been exercised in accordance with rule 8(b). It is not the case that the appellant had gone underground or had become untraceable or his whereabouts could not be ascertained after due diligence. His previous removal from service was set aside, and he was under suspension as a result of an earlier order. So he was easily available and the non-practicability of the service of show-cause notice did not arise. It must be emphasised that rule 8(b) does not contemplate any such case.
17. The learned Assistant Advocate-General could not effectively meet the plea taken before us.
18. Although he conceded that the order was tainted with irregularity but he wished us to ignore the irregularity. Plainly speaking our reaction is to the contrary. We looked into the written statement which was filed in this appeal and we found that it was averred therein that the action was taken under the proviso to rule 5. We regret to say that in view of the contents of the impugned order and specific mention of rule 8, we are unable to accept the explanation offered in defence.
19. There is a marked distinction between proviso to rule 5 and rule 8(b). Proviso is applicable in case the interest of the security of Pakistan or any part thereof is involved whereas rule 8 (b) envisages a situation where it is not reasonably practicable to serve the show-cause notice. Not only this but rule 8(b) requires reasons to be recorded in writing. It has already been pointed out that no reason was given in the impugned order. We are sure that Superintendent of Police is not an officer who can be said to be ignorant of the Rules or the legal formalities to be observed when an action is proposed to be taken.
20. It was for the Superintendent of Police to act under either of the Rules but since he acted under rule 8(b) his action must be judged accordingly. Further, it cannot be stretched to mean that he acted under the proviso to rule 5 for the simple reason that different phraseology has been used in the impugned order in dispensing with the necessity of show-cause notice, apart from the fact that rule 8 was specifically quoted for that purpose.
21. It was stated in the impugned order that the retention of the appellant in service was a great risk but it was not indicated that giving of notice also involved any kind of risk. The risk involved in the retention of a civil servant in service is quite different from the risk involved in giving the notice. It is plain enough that Superintendent of Police did not properly apply his mind to the implications of the two Rules and the conditions laid down under them. It has already been stated that a penal statute must be strictly construed. That being so, the impugned order suffers from a serious infirmity and is not sustainable.
22. In the result the appeal is allowed and the impugned order is set aside. It is, however, open to the authority to take such action as may be deemed fit in accordance with the Rules, keeping in view the aforesaid observations.
23. Given under our hand and the seal of this Tribunal, this 25th day of March 1.979, at Karachi.