Q. Qudratullah vs N.W.F. Province

Spens, C.J.—Section 240, Government of India Act, 1935, provides as follows:

(1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post

under the Crown in India, holds office during His Majesty''s pleasure.

(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was

appointed.

(3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reason able opportunity of showing cause against

the action proposed to be taken in regard to him....

The appellant in this ease, Qudratullah Khan, was appointed a foot constable in the police at Peshawar on 9th January 1922. On 1st March

1933, he was promoted as Assistant Sub-Inspector. On 10th May 1934, he was con-firmed in his rank as Assistant Sub-Inspector. On 25th

March 1930, he was promoted to the rank of Sub-Inspector and he was confirmed in that appointment on 25th March 1937. On 8th March

1941, he was dismissed from the service by the Deputy Inspector-General of Police.

Basing his claim on the provisions of the above section of the Constitution Act and on the; decision of this Court in Suraj Narain Anana v.

North-West Frontier Province (''42) 29 A.I.R. 1942 F.C. 3 the appellant commenced on 28th July 1942, an action in the Court of the Senior

Subordinate Judge, Peshawar, against the Government of the North-West Frontier Province. The appellant claimed a declaration that he had not

been legally dismissed from the service on the ground that he had been dismissed by an authority subordinate to that by which he claimed to have

been appointed, namely, the Inspector-General of Police. He also-added a further claim based on Sub-section (3) of Section 240, Constitution

Act, that he had been dismissed without being given a reasonable opportunity of showing cause against the action proposed to be taken against

him. His action was on 20th February 1943, dismissed in the Court of the Senior Subordinate Judge, and an appeal to the Court of the Judicial

Commissioner at Peshawar suffered the same fate on 2lst June 1943. A certificate under Section 205, Constitution Act, was however granted by

the Judicial Commissioner''s Court. Hence the present appeal to this Court. Before us the same two points under Section 240, Constitution Act,

were taken and argued on behalf of the appellant.

So far as the first point is concerned, the matter turns wholly upon a question of fact as to the authority by whom the appellant was appointed to

the post of Sub-Inspector. By the year 1935, the Deputy Inspector-General had been given powers under rules duly made under the Police Act

(Act 5 of 1861) and sanctioned by the Provincial Government to appoint and dismiss Sub-Inspectors. Both the Courts below were satisfied on the

evidence of the official witnesses and documents produced by them that the appellant had been appointed in March 1936 to and confirmed in

1937 in his post as Sub-Inspector by the Deputy Inspector-General and that, therefore, the Deputy Inspector-General was an authority by whom

he could be legally dismissed. It was submitted to us that the record of the case as put before this Court did not contain proper evidence that the

appointment had been made by the Deputy Inspector-General of Police and it was suggested that accordingly this Court should come to a

contrary conclusion of fact to that on which both the Courts below were unanimous. This Court is normally very slow to come to a conclusion of

fact contrary to the unanimous findings of Courts from which appeals come to it. But in view of the fact that this Court was doubtful whether the

directions given by the Senior Subordinate Judge to file copies of the orders produced before him as evidence of the appointment of the appellant,

and of the confirmation of his appointment, as Sub-Inspector had been carried out, this Court, on the conclusion of the arguments, gave the

Advocate-General an opportunity of forwarding to this Court the documents produced in the Courts below and relied upon as evidencing the

appointment of the appellant by the Deputy Inspector General of Police. This the Advocate-General has done, and this Court is now satisfied that

the record before it did contain copies of all documents relied upon in the Courts below and that the suggestions that such documents did not

Justify the findings in the Courts below and that there may have been some other documents relating to the appointment of the appellant not

produced are without foundation. In our judgment accordingly the conclusion of fact to which the Courts below have come is fully justified and the

appellant having been duly appointed to and confirmed in his post as Sub-Inspector by the Deputy Inspector General of Police, the Deputy

Inspector General was an authority who could in the circumstances legally dismiss him. The appellant has therefore no cause of action under Sub-

sections (1) and (2) of Section 240, Constitution Act.

As regards the second point, it appears that before it was proposed to dismiss the appellant an enquiry was carried out into his conduct both by

an Inspector of Police and by a Superintendent of Police. The appellant''s complaint was that the preliminary enquiry by the Inspector was held in

his absence and that at the subsequent open enquiry before the Superintendent the file prepared by the Inspector was used and he was not

permitted to be represented by counsel. Both the Courts below went in detail into the evidence of these matters and were satisfied that the

appellant was given a reasonable opportunity of showing cause against his proposed dismissal. Having listened with care to all that was addressed

to us by appellant''s counsel, we too are convinced that on this point also the Courts below came to a right conclusion. Accordingly this appeal fails

and must be dismissed with costs.