This is an appeal against the decision dated 28-12-1.977 of Punjab Labour Court No. 1, Lahore.
2. Messrs Builders Associates Limited, appellants appointed Talib Hussain Chauhan, respondent as a Typist-cum-Clerk on 29-9-1975 and confirmed him in service on 7-1-1976. On 27-12-1976 the respondent along with six other persons addressed a letter Exh. P-3 to the Management demanding bonus. The same was repeated on 4-1-1977 vide letter Exh. P-4. In January, 1977 three letters Exits. P-5, P-6 and P-7 were addressed to the respondent by Mr. Masood Ahmad, an officer of the appellants. In those letters he was asked to explain his conduct because he was disobedient.
On 11-2-1977 the Chief Engineer vide letter Exh. P-8 referred the matter to the Managing Director of the appellants firm informing him that the respondent had been unwilling to co-operate and give any explanation. An enquiry against him was recommended. The respondent in his reply Exh. P-9 to the afore--mentioned three letters explained that as he had raised the demand for bonus, baseless charges of non-co-operation were levelled against him. Accordingly, a charge-sheet Exh.
P-11 was issued, which was served on the respondent on 15-3-1977. The charges mentioned in that charge-sheet are as under :---- "(1) On 22-1-1977 Mr. Masud Ahmad, Liaison Officer, ordered you to file the papers in the relevant files. It was your duty as Typist-cum---Clerk to do the job, but you failed to comply and instead misbe--haved and ref6sed to comply with the orders of a supervisor.
(2) You were directed to submit explanation regarding this disobedience of orders on 124-1-1977, but you failed to do so. On 2-2-1977 you were again directed to submit written explanation about your misconduct but you intentionally did not submit any explana--tion.
(3) You have been guilty of wilful insubordination and indiscipline and refused to obey the orders of a superior, which is a grave misconduct. You should explain as to why you should not be punished for this misconduct."
3. After obtaining the explanation of the respondent the charges against him were dropped. On 19- 5-1977 the Chief Engineer transferred the respondent from Lahore to Karachi vide order Exh. D-5, in which it was mentioned that he was required to report at Karachi not later than 27-5-1977. The respondent did not obey the order and so on 29-5-1977 Mr. G. M. Niazi, Administrative Officer addressed the following letter Exh. P-14 to the respondent:--- "You left the office on 19-5-1977 at 9-00 a. m. You have not reported for duty nor any intimation from you nor any leave application has been received. Your transfer orders to Karachi were also despatched to you. You have not communicated whether you have complied with these orders or intend to comply with them. If you have not proceeded to your new place of postings you should immediately report in this office, otherwise disciplinary action will be taken against you."
On 6-6-1977 Mr. C. M. Niazi addressed another letter Exh. P-15 to the respondent as under:----- "(1) You were transferred to Karachi vide this office letter No. BL/P dated 19-5-77 and ordered to report there not later than 27-5-77. You have failed to comply with the orders.
(2) You are absent from duty since 19-5-77 and no intimation or applica--tion has been received from you.
(3) You were asked vide this office letter No. BL/P dated 29-5-77 and BL/P dated 1-6-77 to comply with the orders but no reply has been received from you.
(4) You are guilty of wilful insubordination, disobeyance of orders and absence from duty. You are again directed to submit your reply within three days of the receipt of this letter, otherwise action for termination of your service will be taken."
4. The respondent, vide reply Exh. P-16 dated 10-6-1977 submitted as under;- "On 19-5-77 I was kicked out by force from office by you and the Secretary of the company. This action of serious misbehaviour was reported by the undersigned to the Zonal Director Labour Welfare, Lahore. The case is still under execution and you have also been attending the Labour Office in this respect. My transfer case was also discussed there. As such the implementation of transfer order cannot be carried out. Moreover no such term and condition are mentioned in my appointment letter.
It is, therefore, requested that my transfer older may please be got cancelled and I may be taken back on duty.". '
5. The Managing Director, thereafter, served a charge-sheet Exh. P-17 dated 20-6-1977 on the respondent. In brief the charges against the respondent were as under:---
(1) He refused to receive the pay for the month of April, 1977 and the bonus with the mala fide intention to institute the false and baseless applications before the Labour Authorities.
(2) He wilfully disobeyed the order of transfer from Lahore to Karachi.
(3) He was absent from office since 17-5-1977.
(4) His work and conduct were unsatisfactory.
6. The respondent submitted his reply Exh. P-18 dated 27-6-1977. It was to the effect that there were certain discrepancies in the pay of the respondent and that he was being paid on voucher instead of salary-sheet. Regarding transfer he stated that he was thrown out of the office by the Secretary and the Administrative Officer by use of force on 19-5-1977 and that his transfer from Lahore was unjustified because there was no such terms and conditions in his appointment letter. He also stated that his work and conduct were satisfactory but the management was annoyed with him because he had raised the demand for bonus. His explanation was found unsatisfactory.
Thereafter, Mr. C. M. Niazi, Administrative Officer was appointed as Enquiry Officer in this case and he issued a letter Exh. P-19 dated 11-7-1977 to the respondent directing him to face the enquiry in his office on 8-7-1977. There appeared to be some mistake because the letter is dated 11-7-1977 and so how could the enquiry be fixed on 8-7-1977 According to the learned counsel for the appellant the enquiry was fixed for 18-7-1977 and not 8-7-1977, which was a clerical mistake. The respondent did not appear before the Enquiry Officer. He was again asked to face the enquiry on 4-8-1977 vide letter Exh. P-20. In this letter it was mentioned that he was to appear before the Enquiry Officer on 18-7-1978 but since he had failed to appear on that date he was asked to appear on 4-8-1977. On 3-8-1977 the respondent sent a letter Exh. P-21 informing the Enquiry Officer that since he was personally involved in the mutter, he was not competent to hold the enquiry against him. This representation was duly considered by the Managing Director, who vide letter Exh. P-22 dated 7-8- 1977 turned down the representation of the respondent. It was ordered that Mr. C. M. Niazi would hold the enquiry. The enquiry was conducted on 28-8-1977. No information was sent to the respondent that the enquiry would be conducted on 28-8-1978. On the due date the respondent was not present and so the enquiry officer recorded ex parte evidence of five witnesses against him and found him guilty of the charges levelled against him in the charge-sheet Exh. P-17, vide report Exh. D-15 dated 12-9-1977. Thereafter, second show-cause notice Exh. D-16 dated 19-9-1977 was issued to the respondent and he sent his reply Exh. D-17 dated 29-9-1977. Since his reply was found unsatisfactory, he was dismissed from service on 3-10-1977.
7. The respondent served a grievance notice on 10-10-1977 and filed a petition under section 25-A of Industrial Relations Ordinance, 1969 on 17-10-1977 for re-instatement with back benefits before the Labour Court, which accepted the same in toto vide decision in appeal:
8. Aggrieved by the above decision Messrs Builders Associate Limited. Lahore, appellants have preferred this appeal.
9. From the perusal of the record I find that the Enquiry Office Mr. C. M. Niazi could not be regarded as an impartial and independent officer, because the charge against the respondent were framed on his reports. Further there were definite allegations made by the respondent that he and the Secretary of the Company had forcibly kicked him out of his office on 19-5-77. Under these circumstances, he should have acted as a witness against the respondent and not the Enquiry Officer in the enquiry against the respondent. It is well established that a person or a party cannot function as a judge or on behalf of the Judge in his or its own cause. I am fortified in this view by the judgment in the case General Manager, Lyallpur Cotton Nills, Lyallpur v. Sardar Muhammad and another (P D 1977 Lah. 188).
10. In the case Muhammad Mohsln Siddin v. Government of West Pakistan (PLD 1964 SC 64) Mr. Mohsin Siddiqi was accused of having mis-conducted himself towards Mr. Qadir Nawaz Awan, District Judge, Hyderabad. The enquiry in his case was held by Mr. Awan. The Supreme Court com-- mented upon the propriety of such a procedure as under:- "It is, therefore, somewhat startling to learn that despite every effort made by Mr. Mohsin Siddiqi to procure an enquiry before some other officer on these very grounds, nevertheless within the cognizance of the High Court, the enquiry was allowed to commence and to proceed to its conclusion before Mr. Kadir Nawaz Awan. Being himself the person whose feelings were involved, it is unquestionable that there was a danger of those feelings affecting his judgment in the evaluation of the evidence before him.
It is impossible to imagine that upon charges of insulting behaviour towards himself Mr. Kadir Nawaz Awan could apply a detached or pure judgment to the evaluation of the supporting evidence.
The opposite view is the simpler one, namely, that to require the same men to serve both as prosecutors as well as Judges not only under--mines judicial fairness, but it also weakens public confidence in that fairness. Decisions in such circumstances by the superior officers of the same administrative agency often come under the criticism of being rationalizations of the initial findings reached in the role of prosecutor, and presented as charges by the agency itself.
The latter is the attitude generally held in these matters by judicial authorities to whom, by virtue of their function, it is anathema that any person should be a prosecutor and the Judge in his own cause. It is, therefore, calculated to cause dismay that in the present case an administrative agency composed of a single person within the frame--work of the judiciary should have been consciously allowed to operate as prosecutor and Judge and finally as punishing authority in its own cause. This was the quarter in which such proceeding was least to be expected. In our opinion, no ground in justice can be advanced in support of the proceedings before Mr. Kadir Nawaz Awan and every principle of jurisprudence combines to require that those proceedings should be entirely set aside."
11. In the case, Muhammad Abdullah, District Manager, Government Transport Service, Lyallpur v.
The Road Transport Corporation, Lahore through Its Secretary and four others (PLD 1964 Lah. 743) after show-cause notice the case of the petitioner was put up for hearing in the meeting of the Corporation on the 19th of August, 1963, in which the Chairman and the remaining two members attended. (The Enquiry Officer being one of the two mem--bers). Held; "that the Enquiry Officer had already formed an opinion against the petitioner and it could not be said that he sat in the meeting of the Corporation with an unbiased mind. By this report he had prejudged the issue against the petitioner before participating in the meeting. The petitioner was placed in a position of great disadvantage in having to face the member who already expressed his opinion against him in writing. Moreover in the situation of the petitioner, he was bound to experience considerable reluctance and embarrassment to face the Enquiry Officer and to criticise his conduct and the report.
No doubt administrative tribunals are not required to follow the procedure commonly known to law Courts but nevertheless in quasi-judicial matters they are bound to act in conformity with the principles of natural justice and in accordance with the canons of fairplay. It is one of the fundamental and well-recognised principles of administration of justice that justice should not only be done but it should mani--festly and undoubtedly be seen to be done If one of the members of a tribunal is biased or, which is the same thing, has prejudged the issue against a party, it is bound to cause reasonable apprehension in the mind of the party that he is not likely to get a fair and impartial deal at the hands of tribunal."
12. In the case of Rahim Jan v. Institute of Chartered Accountants and another (PLD 1977 Lah. 1450) it was observed:----- "The facts narrated above which are admitted by the Institute do not leave any manner of doubt in my mind that it could not with equanimity be asserted that the gentlemen against whom the petitioner had made allegations could be called unbiased and impartial Judges in a cause to which he was a party. I may go a step further and say that the allegations levelled under the signatures of the two gentlemen noted above on behalf of the Institute were enough to disqualify them from conducting any enquiry against the petitioner.
In paragraph 69, page 83 of Volume I of Halsbury's Laws of England (Fourth Edition) it has been unambiguously laid down: "It is unnecessary to establish the presence of actual bias, although the Courts are not precluded from entertaining such an allegation. It is enough to establish a real likelihood that in the circumstances of the case an adjudicator will be biased. Alternatively, it may be sufficient to establish that a reasonable person acquainted with the outward appearance of the situation would have reasonable grounds for suspecting bias."
13. Applying the above principle to the facts and circumstances of the instant case, it is clear that Mr. C. M. Niazi was a prosecutor and so he could not have been a judge in his own cause. Further he himself was involved in the allegations made by the respondent to the effect that he (Mr. C. M.
Niazi) had thrown him out of the office on 19-5-1977 by using force. Under the circumstances, it is obvious that the enquiry held against the respondent was against the principles of natural justice and as such the order of dismissal based on the finding of such an Enquiry Officer was nullity in the by of law.
14. Now coming to the merits of the case I find that some of the charges in the charge-sheet Exh. P- 17 do not amount to misconduct. The first charge was that he had not received the pay for the month of April, 1977 and the bonus for the year 1976. Non-receipt of wages and bonus did not amount to misconduct as laid down under Standing Order 15(3) of W. P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The second charge was that after his transfer to Karachi he did not report for duty there. The respondent in reply to the said charge had stated that the Management was not competent to transfer him from one establishment to another, because the appointment letter Exh. P-1 did not mention that he could be so transferred. Prima facie, therefore, the stand taken by the respondent appeared to be correct. In any case he had made a representation and so it was necessary for the Management to reconsider the matter. Nothing has been produced on the record to show that the order of transfer was lawful and as such its disobedience did not amount to misconduct. The third charge related to absence from duty since 17-5-1977. This charge of course did amount to misconduct. The fourth charge that the work and conduct of the respondent was unsatisfactory, was vague because no instances were given to provide sufficient opportunity to the respondent to defend himself.
15. In the case, Chan Pir Shah v. Congothene Chemical Industries Ltd. Etc. (1978 L S L R 7) two charges framed against Chan Pir Shah were found not to be misconduct and only the third charge was held to amount to misconduct within the meaning of Standing Orders Ordinance. It was held by the Lahore High Court that since two out of three charges on the basis of which action had been taken did not amount to misconduct, the action of dismissal on the assumption that all the three charges proved vitiated the entire order. Reliance was placed in the case, Sher Muhammad v.
Bashir Ali Khan (PLD 1962 Lah. 172) and Rehmat Elahi v. Government of West Pakistan (PLD 1955 Lah. 112). In the instant case the action of dismissal was taken on the assumption that all the four charges stood proved, vitiated the entire order.
16. Lastly I find that no opportunity was given to the respondent to plead his case because no notice for enquiry on 28-8-1977 was sent to him.
17. Taking all the above circumstances into consideration, I find no merit in this appeal which is hereby dismissed.