1. HAMOODUR RAHMAN, C. J.-This appeal by special leave arises out of a judgment of a Division Bench of the High Court of West Pakistan allowing a petition under Article 98 of the Constitu--tion of 1962 and setting aside an order of the Deputy Commis--sioner, Sahiwal, passed on the 4th of October 1965, dismissing the respondent from service.
2. The respondent, who was a Revenue Patwari in the District of Sahiwal, was charged on the complaint of one Muhammad Yousaf, a resident of village Bahripur, Tehsil Dipalpur, for having falsified the revenue records in order to deprive the said com--plainant of his share as a joint cultivator of certain lands along with his brother. He was tried by a competent criminal Court and acquitted on the technical ground that copies of Khasra Girdawari, which had allegedly been falsified by the deletion of the complainant's name therefrom were inadmissible in evidence being unattested copies. The trial Court had, however, remarked that nevertheless the case was fit for enquiry by the Department.
3. In consequence of this observation, the respondent and his Kanungo were charge-sheeted by the Deputy Commissioner of Sahiwal. There were two charges against the respondent, the first related to the making of a fraudulent change in the entries in respect of the Rabi crop of 1962 and the second related to the fraudulent preparation-of a Khasra Girdawari from which the name of the complainant was omitted.
4. The enquiry was held by the Sub-Divisional Officer, Pakpattan, who found the respondent guilty of the second charge as he had (i) issued two copies of Khasra Girdawari to the complainant which contradicted each other and (ii) tampered with the records by making alterations in the serial numbers of 11 entries in the register in order to cover up the issuance of such contradictory copies.
5. On the basis of the above findings, a show-cause notice was issued to him dated the 14th of September 1965, calling upon him to show cause within a period of 14 days from the receipt of the notice as to why he should not be dismissed from service.
6. This notice was served on the 20th of September 1965 and thus the period of 14 days fixed thereunder would have expired on the midnight of the 4th of October 1965. The Deputy Commissioner, Sahiwal, however, took up the case on the 4th of October 1965, even though that was the 14th day and passed the impugned order of dismissal.
7. The respondent, it appears, was unable to appear before the Deputy Commissioner on the 4th of October due not only to illness, for which he had duly applied for leave, but also due to engagement in other official duties. The leave application sent through the Kanungo had, unfortunately, not reached the Deputy Commissioner on that date but the respondent appeared before the Deputy Commissioner on the 5th of October 1965 and informed him of this fact. Even so no hearing was given to him and he was informed that he had been dismissed from service on the 4th of October 1965.
8. He went up on appeal to the Commissioner but the appeal was more or less summarily rejected.
9. All that the Commissioner said was that the Collector had followed the normal procedure and, therefore, no complaint could be made with regard to it. The contention raised on behalf of the respondent that the case against him was not proved as the documents which were alleged to have been tampered with were not on the file, was rejected on the short ground that this plea was not taken before the Enquiry Officer. It was thought that it was thus too late to agitate the same at the appellate stage.
10. A revision taken before the Member, Board of Revenue, was dismissed on the ground that the respondent had admitted before the Member that he had made a mistake and prayed to be excused.
11. After this the respondent moved the High Court and the High Court found no difficulty in coming to the conclusion that the order of the Deputy Commissioner had been made without affording any reasonable opportunity to the respondent of being heard.
12. The High Court pointed out that the show-cause notice was served upon the respondent at a time when the Indo-Pakistan War of 1965 was in the progress and the respondent who was posted in a border area had been assigned civil defence duties which necessitated his remaining at his post day and night. He was not, therefore, in a position to come to the District Head--quarters earlier before the 4th of October 1965 which was, in any event, within the 14 days time given by the notice for appearance. Furthermore, it appears that the respondent was on sick leave from 1-10-65 to 4- 10-65 due to kidney trouble but his leave application submitted through the Kanungo had unfortuna--tely not reached the Deputy Commissioner before the 4th of October 1965.
13. Apart from this, the High Court was also of the view that the Deputy Commissioner had made a mistake in calculation, for the 4th of October 1965 was not the 15th day but the 14th day after the service of the show-cause notice and, therefore, the respondent was entitled to enter appearance even up to the midnight of that day.
14. On these findings, the High Court found the contentions of the respondent irresistible and declared the order of the Deputy Commissioner to have been made without lawful authority. The appellate and revisional orders based on such an illegal order were also held to be vitiated as they were themselves founded upon an illegal and void order.
15. On a petition filed on behalf of the Government, leave was given by this Court on the 26th of February 1970 to consider whether the defect, if any, in the order of the Deputy Commis--sioner was cured by the full hearing, given by the Commissioner in appeal and the admission made by the respondent himself before the Member, Board of Revenue, in the revision stage.
16. Learned counsel appearing in support of this appeal has contended that if a person who is entitled to a hearing has riot been heard by the Court or the Tribunal of first instance, then the defect in the procedure of that Court stands cured if a higher or an appellate authority has furnished that opportunity to the aggrieved person.
17. In support of this contention, learned counsel has adopted as a part of his own arguments the observations in a full Bench judgment of Patna High Court in the case of Sheopujan Chowdhury v.
18. State of Bihar and others (AIR 1956 Pat. 212) where the question that arose for decision was as to whether the liquor shop licence of the appellant Sheopujan Chowdhury could be said to have been validly cancelled without giving any oral hearing to the licensee. The view that was taken there was that the principle of audi alteram partem does not necessarily include the right of oral hearing in every case. It only requires that the party affected should be given sufficient opportunity of meeting the case sought to be made out against him and not that he must in every case be given an oral hearing. In that case it was actually held that the principle had not been violated as the written explanation submitted by the licensee before the Superintendent of Excise controverting the allegations made against him had been duly examined by the Deputy Commissioner who issued the order of cancellation.
19. It may be pointed out here that under the Bihar and Orissa Excise Act there was no express provision for the giving of a notice before the cancellation of the licence nor was any procedure prescribed for that purpose although the decision of the Collector was subject to appeal before the Commissioner. In those circumstances, in the absence of any prescribed procedure, the most that could be said was that the Collector had to follow the principles of natural justice which include the principle of audi alteram partem.
20. The Courts in Pakistan have, however, taken the view that where the giving of a notice is provided for by the statute itself, then the failure to give such a notice is fatal and cannot be cured. A But where there is no specific statutory provision and reliance is only placed on the principles of natural justice and audi alteram partem, there if at some stage or other the person aggrieved has been given a fair opportunity of representing his point of view. Then the defect, if any, in the initial order may be deemed have been cured. Thus, in the case of Muhammad Ishad v. Dr. Saiduddin Stvaleh (PLD 1959 Kar. 669) it was pointed out that each case will have to be determined on its own facts. If the statutory provision for notice be of a mandatory nature, then an order without any notice would be wholly void ; but if there be no such provision or if the provision be merely of a directory nature, then, wherever a violation of this principle of natural justice is alleged, the Court may call upon the party alleging the same to prove prejudice before it sets aside the order Such prejudice would obviously not be there if it is found that the party had been actually given a full hearing by the appellate or revisional authority and afforded every opportunity of showing cause against the allegations made. To the same effect is the view of the Peshawar High Court in the case of Charsaddah Sugar Mills Ltd. v. Government of Pakistan (PLD 1971 Pesh.210).
21. This Court, too, has consistently taken the same view vide ; The Commissioner of Income-tax; East Pakistan v. Fazlur Rahman (PLD 1964 SC 410), Abdul Latif Mazi v. Government of West Pakistan (PLD 1967 SC 62) and Mansab Ali v. Amir (PLD 1971 SC 124).
22. This Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural ,justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal.
23. The principle, so far as this country is concerned, is accordingly well-settled that where notice required to be given by the statute is a mandatory notice, then the failure to comply with such mandatory requirement of the statute would render the act void ab initio as being an act performed in disregard of the provisions of the statute. Furthermore any further action taken on the basis of such a void order would also be vitiated and the defect at the initial stage would be incurable by a hearing at a subsequent stage.
24. In the present case, there can be no dispute about the mandatory nature of the notice which was required to be given to a person sought to be removed from service. The notice is provided for by the Constitution itself. Sub-clause (b) of clause (1) of Article 177 of the Constitution of 1962, provides that no person holding a civil post in the service of the Central or a Provincial Government shall be dismissed or removed from service, or be reduced in rank, unless he has first been given a reasonable opportunity of showing cause against the action proposed to be taken with respect to him.
25. The action proposed to be taken against the respondent was dismissal from service, and the respondent, being a public servant in the employ of the Provincial Government, was entitled as of right to such a notice. Notice was given to him but the case was taker. Up and decided before the period fixed by the notice to show cause had expired. The respondent was, therefore, clearly denied the opportunity of showing cause. His absence was neither contumacious nor motivated by any desire to avoid appearance. He was not only on civil defence duty at a time of grave emergency but was also at the relevant time on sick leave for kidney trouble. He actually appeared before the Collector on the 5th of October but even then the Collector could not see his way to giving him a hearing.
26. In the circumstances, we are in entire agreement with the High Court that this was not a case of a mere disregard of the principle of audi alteram partem but a clear case of non-compliance with a Constitutional requirement. The giving of the notice was in the nature of condition precedent to the exercise of the jurisdic--tion by the authority concerned. If this condition precedent was not fulfilled, the action was void ab initio and, therefore, not only the initial order but every subsequent order founded upon such a void order also became void.
27. This appeal is, accordingly, dismissed; but in view of the special facts of this case, we make no order as to costs. We would also like to make it clear that this order will not in any way debar the departmental authorities from proceeding against the respondent in accordance with law if they are still so minded.
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