Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: A. S. M. SHAMSUL ALAM CHOWDHURY VS Respondent: PROVINCE OF EAST PAKISTAN AND OTHERS
P L D 1963 Dacca 665
P L D 1963 Dacca 665
Before Hassan and M. R. Khan, JJ
A. S. M. SHAMSUL ALAM CHOWDHURY‑---Appellant
versus
PROVINCE OF EAST PAKISTAN AND OTHERS---Respondents
Second Appeal No. 1202 of 1958, decided on 16th December 1961.
Government servant--‑Dismissal Order passed by inferior authority, set aside by competent authority Original order not maintainable as not in subsistence‑‑Inferior authority's order merges in superior authority's competent order.
M. H. Khondker with Ahmadur Rahman Khan for Appellant.
Md. Jane Alam A. G. P. for Respondent.
JUDGMENT
M. R. KHAN, J.‑This appeal by the plaintiff appellant arises out of a suit for a declaration that the order of dismissal of the plaintiff from service passed by the Superintendent of Police, Khulna on 30‑11‑52 and the order of the Inspector‑General of Police dated 18‑3‑55, confirming the said order of dismissal are ultra vires, without jurisdiction, inoperative and void and for a further declaration that the plaintiff is still in service and entitled to get pay from the Province of East Pakistan.
2. In January, 1943, the plaintiff was appointed Sub- Inspector of Police. Since then, he served at various stations in different capacities. In 1951, he was the Officer‑in‑Charge of Shyamnagore Police Station in the district of Khulna. On 17‑4‑52, Mr. M. A. K. Chowdhury, the then Additional Superintendent of Police, Border Security, Khulna, drew up several charges against him alleging corruption and misconduct on his part, and an enquiry on those charges was partly held by him. On his transfer to Karachi, Mr. M. R. Chowdhury, Additional Superintendent of Police (D), Khulna, continued the enquiry and, after its comple tion recommended on 21‑9‑52 that the plaintiff's pay should be reduced by Rs. 10 for one year. The Superintendent of Police, however, did not accept the recommendation and, by his order, dated 30‑11‑52, dismissed the plaintiff from service. On appeal against the order of dismissal, Mr. S. M. Rab, the then D. I. G. of Police set aside that order on 27‑7‑53 on the ground of certain defects in the proceeding and for not affording the plaintiff an opportunity of showing cause against the proposed order of dismissal and remanded the case to the Superintendent of Police for passing final orders after rectifying those defects and the error. Then on 21‑11‑53 the Superintendent of Police again passed an order dismissing the plaintiff. An appeal against the second order of dismissal was preferred by the plaintiff. Mr. M. A. Abdullah, the then Deputy Inspector‑General of Police heard the appeal, and on 10‑5‑54 he held the proceeding to be bad in law, set aside the order of dismissal and remanded the case for holding a de novo enquiry after framing charges afresh by the Superin tendent of Police himself. Being aggrieved by the two successive orders of remand and his continued suspension, the plaintiff made an application to the Inspector‑General of Police for quashing the proceeding. The Inspector‑General of Police, however, made an order on 18‑3‑55 upholding the order of the plaintiff's dismissal and gave effect to it from the date of its communication to the plaintiff. Thereafter, the plaintiff served on the defendants notices under section 80 of the Code of Civil Procedure and brought the suit alleging that the Additional Superintendent of Police was not empowered to draw up charges against the plaintiff, nor the charges so drawn up were approved by the Superintendent of Police, and that the two orders of remand were not complied with by the Superintendent of Police and the plaintiff was not given any opportunity to show cause against the action proposed to be taken in regard to him as required by section 240(3) of the Government of India Act, 1935. On those grounds, the plaintiff challenges the validity of the proceeding against him and alleges that the order of his dismissal passed by the Superintendent of Police on 3‑11‑52 and the 1. G. P.'s order, dated 18‑3‑55, upholding that the orders of dismissal are ultra vires, without jurisdiction, void and inoperative.
3. The Province of East Pakistan (defendant 1) contested the suit by filing a written statement. This defendant admits the facts as stated herein before, but contends that the Additional Superintendent of Police was competent to draw up charges against the plaintiff; that the procedure for enquiry was correctly followed; that the charges drawn up by the Additional Superintendent of Police were also approved by the Superintendent of Police; that the order of remand was duly complied with by the Superintendent of Police before passing the second order of dismissal on 22‑11‑53; that there was no infringement of section 240(3) of Government of India Act, 1935; that the proceeding against the plaintiff is not bad in law and that the S. P.'s order dismissing the plaintiff and that of the Inspector -General of Police are good and valid orders.
4. The trial Court decreed the suit on the findings that the charges against the plaintiff Were bad in law, the same having been drawn up by the Additional Superintendent of Police without any lawful authority and that the plaintiff was not given a second opportunity of showing cause as required by section 240(3) of the Government of India Act, 1935. The lower appellate Court, however, upheld the contentions of the defendant 1, reversed the findings of the trial Court, set aside the trial Court's judgment and decree and dismissed the suit. The plaintiff has, therefore, preferred this appeal against the judgment and decree of the lower appellate Court.
The main reliefs sought for the plaintiff are as follows :‑
"(1) That the order of dismissal passed by the D2 (i. e. S. P., the defendant No. 2) on 30‑11‑52 and confirmed by Inspector- General of Police (D3) on 18‑3‑55 be declared to be ultra vires, without jurisdiction, inoperative and void.
(2) That it be further declared that the plaintiff is still in Government service and entitled to get his pay from the Province of East Pakistan".
The notice under section 80 C. P. Code (Exh. 1) served on the defendants recites exactly the same reliefs as are stated in the plaint. The plaintiff's serious grievance is against the I. G. P.s order, dated 18‑3‑55. The relevant portion of that order (Exh. C) is as follows :‑
"Under rule 884 of the P. R. B. Vol. I, I called for the connected records of the case and after having perused the records asked the delinquent to show cause as to why the order of his dismissal passed by the Superm tendent of Police, Khulna should not be upheld as a ''penalty as there was satisfactory proof of his guilt. The delinquent showed cause in writing before me on 28‑2‑55. 1 have again perused the records in the light of the explanation submitted. The delinquent could not show any grounds why the original order of dismissal passed in his case should not be upheld. The order of dismissal is, therefore, upheld in the case; but with effect from the date of communication of this order to the delinquent.
Admittedly, the Superintendent of Police, Khulna passed two successive orders of dismissal the original one on 30‑11‑52 and the other on 21‑11‑53 after the order of remand by D. I. G. Mr. Rab. In this context, the plaintiff appeared to have construed the expression "the original order of dismissal" occurring and underlined in the above quoted order of the I. G. P. to be the first order of dismissal passed by Superintendent of Police on 30‑11‑52. In other words, the plaintiff took that the I. G. P.s order dated 18‑3‑55 upheld the first order of dismissal passed by the Superintendent of Police on 30‑11‑52 and that it is on this under standing that the plaintiff issued the notice under section 80 C. P. Code and brought the suit challenging the validity of only the first order of dismissal, dated 30‑11‑52 and the 1. G. P.s order, dated 18‑3‑55. The written statement filed on behalf of the defendant 1 does not contain any averment to the effect that the 1. G. P.s order, dated 18‑3‑55 did not upheld the first order of dismissal, dated 30‑11‑52. In the absence of any such averment, the written statement of the defendant 1 drawn up on the basis of the notice under section 80 Civil Procedure Code and the plaint must be taken to have been filed to support the S. P.s first order of dismissal, dated 30‑11‑52 and the I. G. P.s order dated 18‑3‑55 on the understanding that the said order of the 1. G. P. upheld only the first order of dismissal. As a matter of fact, Mr. Jane Alam, the learned Advocate appearing on behalf of the Province of East Pakistan admitted in the course of the hearing of this appeal that the I. G. P.s order, dated 18‑3‑55 upheld the original order of dismissal passed by the Superintendent of Police on 30‑I1‑52.
5. Now, according to the admitted facts, Mr. Rab, the then D. I. G. of Police by his order, dated 27‑7‑53 (Exh. 4) set aside the first order of dismissal passed on 30‑11‑52 and remanded the case for fresh orders by the Superintendent of Police after rectifying the defects pointed out by him. As the order of dismissal passed on 30‑11‑52 was set aside on appeal, the said order ceased to exist in law. Moreover, further developments took place later on. After the order of remand made by Mr. Rab, the Superintendent of Police passed the second order of dismissal on 21‑11‑53 (Exh. A). An appeal against that order was allowed on 10‑5‑54 by Mr. Abdullah the then D. I. G. of Police; he set aside the second order of dismissal and remanded the case for de novo enquiry after drawing up charges afresh by the Superintendent of Police himself (Exh. 4‑a). After all those developments in the proceeding against the plaintiff, it can not be said that the first order of dismissal passed by the Superintendent of Police on 30‑11‑52 remained alive up to 18‑3‑55 to be confirmed or upheld by the Inspector‑General of Police on that date. The only order in the proceeding that existed in law on 18‑3‑55 was the order of remand passed by Mr. Abdullah on 10‑5‑54, and it was that order alone that could have been interfered with by the Inspector‑General of Police on the said date in the exercise of his revisional power under Police Regulation 884. But the Inspector‑General of Police did not examine the said order of remand on merits and interfere with it and, as such, that order is still alive. In law, an order of an inferior authority merges with the order of its superior authority competent to make such order, whether such order confirms modifies, or annuls the order of the inferior authority. In such view of the matter, the S. P,s order dated 30‑11‑52, dismissing the plaintiff for the first time did not subsist on 18‑3‑55 to be confirmed or upheld by the Inspector‑General of Police on that date. Therefore, the question of declaring the said order of dismissal, dated 30‑11‑52 to be illegal does not arise. The prayer for declaring the said order of 30‑11‑52 to be illegal is obviously misconceived. As the order of dismissal, dated 30‑11‑52 did not subsist on 18‑3‑55, the 1. G. P.s order of that date upholding the said order was also misconceived and is of no legal effect. In the circumstances, it is not necessary for us to examine if the Additional S. P. was competent to draw up the charges against the plaintiff and whether the proceeding was bad in law and also whether the mandatory provision of section 240(3) of the Govern ment of India Act, 1935, was complied with or not.
6. In the result, no declaration declaring that the order dated 30‑11‑52 dismissing the plaintiff from service is ultra vires, without jurisdiction, inoperative and void is called for. As, however, the I. G. P.s order dated 18‑3‑55 is of no legal effect, the plaintiff is entitled to a declaration to that effect. In our view, such a declaration alone is sufficient in this case.
7. The appeal, therefore, succeeds. The judgment and decree of the lower appellate Court are set aside. It is declared that the order of the Inspector‑General of Police dated 18‑3‑55.
upholding the order of the plaintiff's dismissal from service passed on 30‑11‑52 by the Superintendent of Police, Khulna, is of no legal effect, and the suit is decreed to that extent. No order declaring the said order of 30‑11‑52 to be ultra vires without jurisdiction, inoperative and void is called for, the order having no existence in the eye of law so as to affect the plaintiff's service. In the circumstances of the case, the parties are to bear their respective costs of this appeal.
HASAN, J.‑----I agree.
S. B./A. H.
Appeal allowed.