1. A.Q. QAZI (MEMBER).--This appeal is directed against the order of Superintendent of Police, Security, Special Branch Karachi, whereby the appellant was dismissed with effect from 12th December, 1983 on charges of being suspectedly involved in subversive activities.
2. To state briefly the facts, the appellant, was appointed as a Wireless Operator in the rank of Police Constable. Appellant after serving at different branches of police was promoted to the rank of Sub- Inspector Police and on 15-5-1974 he was deputed to the Special/ Crime Branch (immigration K.P.T.) Karachi. Since he was appointed on 11-12-1950 he had by this time twenty-four years of service at his credit. On basis of the allegation that the appellant was engaged in subversive activities he was discharged from the service on 24-4-1975 on the orders of D . I . -G . P . Special Branch (Sind). He filed an appeal to I.-G.P. Sind which was allowed on the technical grounds that
(a) D.I.-G.P. Special Branch was not the appointing authority but the appellate authority (b) that there was no provision for the discharge in the Sind Civil Servants (E & D) Rules of 1973. In the order of I.-G.P. It was further instructed that S.P. Shall pass the proper orders who was competent to do so and that 'No enquiry was called for'. Consequently he was removed by the S.P. Special Branch who exercised the power, under Rule 3(d) and Rule 8 of Sind Servants (E & D) Rules of 1973 in force at that time. The appellant is said to have filed the departmental appeal which was also dismissed.
3. The appellant, therefore, filed a service Appeal No.91 of 1976 to the said Service Tribunal which was allowed on 25-3-1979 on the technical and legal grounds. The operative portion of the order of the Tribunal is reproduced to read as under: "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."
4. He was not re-instated. He now filed another application before the Service Tribunal on 2nd April, 1980 wherein he prayed that the Tribunal be pleased to direct the authority to give effect to Tribunal's order dated 25-3-1979. The appellant was re-instated on 8-6-1980, vide Order No. ADMN- E-11-1230-37/80 and through the same order was put under suspension.
5. We have heard in detail the arguments of the learned counsel for appellant. We have also very carefully examined the 'secret' incriminating material. The learned counsel for defence has attacked the impugned order on the following two grounds as are averred in the memo of appeal and these are:
(1) That departmental proceedings against the appellant were initiated in 1975 when the Sind Civil Servants (E&D) Rules of 1973 were in force and that the impugned order has been passed under Rule 16.20(ii)b of the Revised Police Rules which came in force in 1979 and as such the action taken is not legally sustainable.
(2) Without prejudice to (1) above the respondent No. 3 while holding the departmental proceedings failed to comply with the mandatory provisions of Rule 16.20 of R.P.R. Of 1979. We shall examine these grounds in substance. We shall examine the first ground first.
5. Inquiry-procedure.--The following procedure shall be observed when a civil servant is proceeded against under these rules:-
(1) In case there 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 facts of the case or the interests 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) given 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 orders passed by the authority will be communicated to the accused or notified in the official Gazette by authorised Officer or the department concerned.
(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.
6. Procedure to be observed by the Inquiry Officer and Inquiry Committee:-
(1) Where an Inquiry Officer or Inquiry Committee is appointed, the authorised officer shall;
(a) frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration;
(b) require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him to put in a written defence and to state at the same time whether he desires to be heard in person.
(2) The Inquiry Officer or the Committee, the case may be shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him.
(3) The Inquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing and where any adjournment is given;
(a) it shall not be for more than a week; and
(b) the reasons therefor, shall be reported forthwith to the authorised officer.
(4) Where the Inquiry officer or the Committee, as the case may be is satisfied that the accused is hampering, or attempting to hamper, the progress of the inquiry, he or it shall administer a warning, and if thereafter he or it is satisfied that the accused is acting in disregard of the warning, he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as he or it thinks best suited to do substantial justice.
(5) 16.18. Prompt record and complaints.--Inquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authorised Officer, submit his or its findings and the grounds thereof to the authorised Officer.
6. The contention of the appellant is that R.P.R. 1979 were not' in force and nor could they be applied retrospectively. We tend to agree to the extent, if these materially affected him adversely. We shall now reproduce 16.18, 16.19 and 16.20 of the R.P.R. Of 1979 read these in comparison and see that the appellant was not materially prejudiced in his defence.
7. Whenever a definite complaint is made by a member of the general public of misconduct on the part of a Police Officer the officer to whom complaints such complaint is made shall, provided he is senior in rank to the officer in support of the complaint as may be immediately available. This record shall be forwarded without delay through the usual channel to the Superintendent of Police or other Officer under whose immediate control the officer who has recorded the complaint, is serving. If such officer is of the opinion that the allegations in the record constitute a prima facie case for enquiry, he shall proceed in accordance with rule 16.19.
8. 16.19. Procedure in departmental enquiry.--(1) The authority shall determine before the start of enquiry under this sub-rule whether the allegations against the police officer/ officers if proved are likely to result in award of major punishment /punishments. In such cases the following procedure shall be followed. It will however, be in order to award major punishment in consequence of an enquiry conducted under this sub-rule:-
(a) The accused shall be brought before an officer empowered to punish him or such superior officers as the authority may direct to conduct the departmental enquiry;
(b) If the defaulting officer at this stage admits the charge against him, the officer conducting the enquiry may proceed further to record the accused officer's admission and any statement he may wish to make in extenuation and to record a final order, if it is within his powers to do so, or to forward the case alongwith his findings to the authority.
(c) If the accused officer does not admit charge, the officer conducting the inquiry shall require the accused within a reasonable time which shall not be less than ten days from the day the charge has been communicated to him, to put in a written defence and to state at the same time whether he desires to be heard in person.
(d) The officer conducting the enquiry shall then enquire into the charge, and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary land the accused shall be entitled to cross-examine the witnesses against him.
(e) The officer conducting the enquiry may bring on record the statement of any witness whose presence cannot, in the opinion of such officer be procured without undue delay and expense or inconvenience, if he considers such a statement necessary, provided that it has been recorded and attested by a Police Officer superior in rank to the defaulting officer, and the defaulter shall be given opportunity to take notes of such statements. The defaulting officer shall make an oral statement answer to all questions which the Inquiry Officer may put to him arising out of the charge, record of evidence, or his own statement or documents brought on record. When evidence in support of allegations has been recorded the defaulting officer, will be given an opportunity to produce the witnesses in his defence, and to file documentary evidence and may for this purpose be allowed access to such files and papers except classified papers, as the Inquiry Officer may deem fit.
(f) The Inquiry Officer shall then proceed to pass orders of acquittal or punishment, if empowered to do so, or forward the case with his finding and recommendation to an officer having the necessary powers who shall then pass such orders as he may deem proper.
9. 16.20. Procedure for punishment case of strike, etc.--When an involved Police 0 icer:-
(a) goes on striks, hunger strike, protest or demonstration or by use or threat of criminal force or in any other manner whatsoever, induces or incites any other Police Officer to go or participate in such strike, demonstration or protest.
(b) is accused of or is reasonably suspected of subversive activities or associates with persons indulging in subversive activities or is reasonably suspected of indulging in subversive activities the authority shall, notwithstanding anything contained in these rules: -
(i) by order, in writing, inform the accused of the action proposed to be taken in regard to him and grounds of the action and require him to submit his explanation within a specified period;
(ii) consider the explantion of the accused, if any, and after giving him a reasonable opportunity of showing cause against the proposed action, may award any of the punishments specified in these rules: Provided that no such opportunity shall be given where the authority is satisfied that in the interest of security of Pakistan or any part thereof, it is not expedient to give such opportunity, or where the defaulter cannot be found in spite of notice to attend or the defaulter is deliberately evading appearance or refusing to attend without due cause.
10. If we closely compare these rules, in essence, these are more or less the same. Rule 5.2 read with Rule 6 of the S.C.S. (E&D) Rules, 1973 are in parallel to 16.18 and 16.19 and 16.20 of the R.P.R. Of 1979.
11. Overriding proviso 5(3)b of the S.C.S. (E&D) Rules, 1973 compares with the overriding proviso of 16.20 (b)(ii) of the R . P. R . Of 1979. In our opinion R . P . R . Of 1979 are only more elaborate. Of course a procedural change has taken place in transiting from S.C.S. (E&D) Rules of 1973 to R.P.R. Of 1979 and as long as the procedural transition has not affected adversely the appellant or has taken away any of the vested rights we may assume that application of R.P.R. Of 1979 to his case could not be argued. We, therefore, dismiss this ground of the appeal.
12. Now we return to the second ground. It is our finding from the files that the appellant was called to state and explain his position in respect of the charge of "being in contact with a foreign diplomat"".
13. His explanation which we have examined, is an elaborate document. It is a part of enquiry that was held. We have examined the written statements of other witnesses also. We have gone through findings and recommendations of the enquiry formulated by the Assistant Director Intelligence and we tend to agree with the findings and it was finding that 'retention of the appellant constituted a grave security risk; It would appear to us that the enquiry has been conducted under Rule 5(2) and Rule 6 of the S.C.S. (E&D) Rules, 1973 applicable at that time. Since this enquiry was not 'ordinary' its finding only was sent to authority for proper action and rest of the material was not 'disclosed'. We are absolutely clear in our minds that appellant was always aware of the 'reasons' of the present show-cause notice and as such he has not been materially prejudiced in his defence. Now that the Appeal No.91 of 1976 was allowed by Sind Service Tribunal, on technical and legal grounds whereby it was left to the administrative department to proceed with and "take such action as may be deemed fit in accordance with the Rules". The department then chose to proceed with 16.20(b)(ii) (in force at that time in 1983) and issued a show-cause notice giving the 'finding' as a ground. The appellant did reply to the show-cause notice and was also heard in person and as such we do not agree with the plea of appellant that he 'did not know the reasons and that he has been practically condemned unheard'. He has been heard twice, once during the enquiry and again by the authority personally before the issue of the order of dismissal. We, therefore, feel satisfied with the opportunity of defence offered to him and we feel that the mandatory requirements of both 16.19 and 16.20 of R.P.R. Of 1979 have been complied with in substance and as such we cannot allow the appeal on this ground also.
14. We now come to another serious legal objection raised by the learned counsel for appellant. His main point of agitation has been that the show-cause notice does not specify any ground of action. We do not agree with the learned counsel. The show-cause notice No. ADMN/E-II/2742/83 dated 9-4-1983 is a consequence of an enquiry conducted properly as has been said earlier and the detail of which is 'secret' of which "the appellant is fully aware of and is in full knowledge". It may not be correct to say that appellant did not know the 'reasons'. The 'finding' of the Assistant Director Intelligence is the 'ground' in the show-cause notice. In our opinion this ground is sufficient looking at the nature of the case. The strict application of overriding provision, as that provided in Rule 5(3) of S.C.S. Rules 1973 and 16.20(b)(ii) of the R.P.R. Of 1979 may not have even allowed the level of defence which has been provided to the appellant. The learned counsel for the appellant has not been able to refer to any case-law in which 'subversion' and 'security' have been dealt with at length and in a detail in a show-cause notice. For obvious reasons we may not allow the appeal on this plea also.
15. We now concentrate on the last ground of appeal. In the first instance the appellant was discharged from service but this order was set aside in departmental appeal. On the same charge and as a consequence of the fresh proceedings he was removed. The order of removal was set aside by the Sind Service Tribunal, on technical and legal grounds. Proceedings were re-instituted against appellant on the same ground and charge and he was now dismissed. We have anxiously thought over this averment. The charge has undoubtedly remained same but punishment has increased in time. Appellant was last dismissed on 12th December, 1983 and by this time he had put in 33 (thirty-three years) of service. Keeping in view his last averment and the length of service he has put in, we do strongly feel that the punishment is not in accordance and conformance with sub-rules (1) and (5) of the Rule 16.3 of the R.P.R. Of 1979. We, therefore, partly allow the appeal and modify the impugned order of dismissal with compulsory retirement of appellant w.e.f. 12th December, 1983 with all consequential benefits.
16. Order accordingly.
17. MUNAWAR ALI KHAN (CHAIRMAN).--While agreeing with the conclusions reached by the learned Member and his proposed modification of the penalty awarded to the appellant, I would like to sum up the case as follows. The appellant was working as Sub-Inspector in the Special/Crime Branch (Immigration), Karachi, when he was removed from service on the charge of his involvement in subversive activities under rule 3 (d) read with rule 8 of the Sind Civil Servants (E&D)
18. Rules, 1973 (hereinafter referred to as 1973 Rules). However, the Service Tribunal vide its order dated 25-3-1979 set aside the order of the appellant's removal from service, leaving open to the authorities to take such action as may be deemed fit in accordance with the rulles, keeping in view the observations of the Tribunal. It would appear that the main reason that prevailed with the Tribunal was that the case of the appellant was not covered by Rule 8(b) of 1973 Rules, as it has not been shown that the appellant had gone underground or had become untraceable or his whereabouts could not be ascertained after due diligence. Obviously no exception can be taken to the finding of the Tribunal with regard to application of Rule 8(b) in the case of the appellant. The judgment of the Tribunal also indicates that the attention of the learned Tribunal was drawn by the learned A.-A.G. To proviso to Rule 5 of 1973 Rules arguing that the action against the appellant was actually taken under the said proviso. However, this view of the learned A.-A.G. Was not accepted by the Tribunal mainly for the reason that the order of the appellant's removal was based on Rule 8(b). In obedience to the judgment of the Service Tribunal the appellant was re-instated in service but simultaneously he was placed under suspension and proceeded against afresh, this time under the Police Rules which had, in the meantime, been made applicable to the police personnel upto and including Police Inspectors vide Government Notification dated 11-8-1979. To start with, the appellant was given show-cause notice dated 9-3-1983, requiring him to explain why major penalty of dismissal should not be awarded to him. In his reply to the notice, the appellant denied the charges made against him. However, his explanation was found unsatisfactory and, therefore, he was dismissed from service by the impugned order which has given rise to the present appeal.
19. The arguments advanced on behalf of the appellant were two-fold; His first contention was that since original action was taken against him under the 1973 Rules, he was entitled to be dealt with under the said rules even in respect of the action taken by the department second time. Therefore, he averred that show-cause notice given to him under Police Rules was illegal. Another argument put forth on his behalf was that even proper compliance of the Police Rules was not made as the notice given to him thereunder did not mention the details of the grounds on which the charge was based.
20. It may be observed that by the time the Police Rules were extended to the Police personnel of the appellant's category, the case initiated against him under 1973 Rules had already been finally concluded. The Service Tribunal before whom his case was pending announced its judgment on 25th March, 1979 whereas Police Rules became applicable about five months later, on 11-8-1979. In the meantime no appeal was filed before the Supreme Court against the judgment of the Tribunal.
21. Therefore, it cannot be held that the appellant's case was pending at any legal forum when Police Rules became applicable. It had rather become a past and closed transaction by the time of application of the Police Rules to him. Moreover, the Tribunal had not remanded the case back to the authorities for fresh action and as such the action taken against the appellant second time cannot be regarded as the one in continuation of the earlier action. Consequently the fresh action though taken on the same charges of subversive activities was correctly taken in accordance with the rules then in force, namely Police Rules.
22. It is a settled law that a procedural change can take effect retrospectively, provided that the change is not of such nature that it has the effect of taking away the vested right of the party, in which case the change will no doubt be applicable prospectively. In the instant case the procedure prescribed by 1973 Rules had yielded to the procedure contained in the Police Rules in respect of the appellant's category of police personnel. The relevant provisions of both the sets of rules that are applicable in the appellant's case were:' proviso to rule 5 of 1973 Rules and proviso to rule 16.20 o Police Rules. On close comparison of these provisions, it is found that more or less same language has been used in drafting both the provisos. Thus, hardly any change was made in the procedure even after application of Police Rules. Since the charge against the appellant was that he was engaged in subversive activities or in other words the activities of subversion, his case clearly fell either under proviso to Rule 5 of 1973 Rules or proviso to Rule 16.20 of Police Rules. On careful perusal of both the provisos, it would appear that with the above charge against the appellant, he was not entitled to show-cause notice. This was precisely the reason why he was not given any such notice when he was punished for the first time by way of removal from service.
23. However, through ignorance or oversight of the punishing authority wrong provision of rules namely, Rule 8(b) of 1973 Rules was mentioned in the order of removal and, therefore, as pointed out above, the said order was set aside by the Service Tribunal. But there is no specific order from the Tribunal that the appellant if proceeded afresh would be given any show-cause notice. The Tribunal had rather left to the authorities to proceed against the appellant as they deemed fit in accordance with the rules. Thus, the authorities were absolutely free to take fresh action under the rules in force. As the Police Rules had replaced the 1973 Rules in respect of the appellant's category of Police officials, the authorities took fresh action against the appellant under those rules. The show-cause notice dated 9-4-1983 given to the appellant reads as follows: ---I , Shah Muhammad Aqib Superintendent of Police security, Special Branch, Karachi, am satisfied that while posted in the then Immigration Section, Special Branch, Karachi, you officiating S.I. Shaikh Muslehuddin son of Late Muhammad Abdul Wahab were reasonably suspected of subversive activities. Your retention in service is, therefore, a grave security risk.
(2) I, therefore, hereby inform you S.I. Muslehuddin Shaikh son of Late Muhammad Abdul Wahab that you ore liable to be awarded the major punishment of dismissal on the above-noted charge.
24. You are, therefore, required to submit your explanation, if any, within 15 days as to what you have to say in the matter."
25. Assuming that the above notice was given under Police Rules, there could be no material difference in the text of the notice if it were to be given under 1973 Rules, even though we are clear in our mind that the appellant was not entitled to any such notice regardless of whether his case was processed under either of the two sets of rules. It may not be out of way to mention here that on the principle of the natural justice that no one can be condemned unheard, it has been repeatedly held by Superior Courts of the country that if the right to show-cause notice is taken away by express provision of law, then the party cannot insist on such notice. It would be seen that in the case of charges of subversion against a civil servant the right of giving show-cause notice to him has been expressly taken away both by proviso to rule 5 of 1973 Rules and proviso to Rule 16.20 of Police Rules.
26. Despite the above legal position, the appellant was given show-cause notice as reproduced above. The grievance of the appellant was that the show-cause notice given to him did not specify the details of the grounds on which action was to be based. Reference to the show-cause notice reproduced above clearly shows that the appellant was being proceeded against on the ground of his activities of subversion. In a case like this the details of the subversive activities are not elaborated for security reasons. Nevertheless it is clear from the record that the appellant was heard personally and the entire material on which the impugned order was based was within his knowledge. The Tribunal also called for file containing the "secret material" on which the impugned order was based and went through the same. We are convinced from the material available on the secret file, of which the appellant had also the notice, that it was not' without risk to retain the appellant in service. However, as proposed by learned Member, the Tribunal is inclined to take lenient view in awarding punishment to the appellant particularly for the reason that he has long service to his credit. Accordingly the penalty of dismissal awarded to him has been substituted for that of compulsory retirement.