Shahid Waheed, Chairman.--This appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 has arisen from the disciplinary proceedings initiated against the appellant, Sh. Shahid Rafiq, under the Punjab Civil Servants (Efficiency & Discipline) Rules, 1999 which culminated in the impugned Notification No, 151/RHC/D&SJJ dated 13.06.2011 whereby major penalty of compulsory retirement from service was imposed upon the appellant.
2. In the case on hands, the appellant, while working as District and Sessions Judge was charged with following misconduct:
(a) That you while posted as Chairman Drug Court, Multan in July, 2009 invited Ch. Abdur Rehman, Advocate of Khanewal, spouse of Ms. Tahira DDPP of your Court when you were posted as Addl. D & S.J., Khanewal, in your chamber and directed your Court staff to persuade accused of cases in Drug Court, Multan to engage said Ch. Abdul Rehman, Advocate as their counsel for favorable decisions who was ultimately engaged in 33 cases pending in your Court and you never recorded convection in the said cases which amounts to misconduct;
(b) That while conducting sham proceedings Under Section 87 of Cr.P.C. You managed fake and fictitious reports through your Court Staff to consign the files of almost 450 cases to the record room without completing legal formalities, even without mentioning the name of the police station and without initiating proceedings U/S. 88 Cr.P. C. Which amounts to misconduct.
(c) That you declared accused of different cases as proclaimed offenders without issuing perpetual/non bailable warrants of arrest to the respective police stations for making entries in Register No, IV and thereby chance of arrest of these accused by the police was scuttled and this was done after accepting illegal gratification in each case and you received Rs, 25,000/-per case in lieu of dumping every such file and as such provided chance to the accused to escape from legal proceedings and thus committed corruption.
(d) That you conducted the Court in violation of Section 31 of the Drug Act when he quorum was not complete so as to constitute a Drug Court and in the same proceedings you recorded acquittal of the accused which was in contravention of Section 31 of the said Act thus rendering the proceedings illegal which amounts to abuse of judicial powers.
(e) That you did not entertain the challans, sent by the prosecution for trial in February and March 2010 which remained unattended in your Court till the day of inspection by the M.I.T. Lahore High Court, Lahore i.e, 26-06-2010, which reflects your inefficiency and negligence.
(f) That you never conducted your Court on Saturdays and Mondays in Multan and in fact, you always enjoyed French leave on both these days during your tenure in the said Court and as such remained absent without leave which amounts to misconduct.
(g) That your attitude towards the members of the Bar is very harsh and you have a persistent reputation of being corrupt and the members of Lahore High Court Bar Association, Multan, District Bar Association, Multan and District Bar Association, Dera Ghazi Khan passed resolution against you and declared you as king of corruption and your Court has been boycotted by the said Bar Associations for many days and as such your attitude is unbecoming of a Judicial Officer"
The appellant on 23.08.2010 submitted reply and denied the allegations. The Inquiry Officer, Hon'ble Mr. Justice Sh. Najam-ul-Hassan, in his report dated 17.01.2011 found the appellant guilty of misconduct and proposed that he be awarded major penalty of reduction to a lower post from the rank of District & Sessions Judge to Addl. District & Sessions Judge for one year. The disciplinary authority viz. The Administration Committee, Lahore High Court, Lahore disagreeing with the proposed punishment, issued show-cause notice dated 20.05.2011 to the appellant to explain as to why major penalty of dismissal from service be not imposed upon him. After affording opportunity of hearing to the appellant, the Authority imposed upon him major penalty of compulsory retirement vide impugned Notification dated 15.06.2011. Feeling aggrieved, the appellant through a petition under Rule 18 of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1999 sought review of the. Notification dated 15.06.2011. This review was not responded and, therefore, after lapse of 90 days the appellant filed the instant appeal before this Tribunal.
3. For the order to be proposed in this appeal we are not touching merits of the case.
4. It is admitted on all hands that the case of the appellant was put up for consideration in the meeting of the Administration Committee of the High Court on the 9th of June, 2011 headed by the Honorable Chief Justice and attended by other six Honorable Members. The Honorable Mr. Justice Sh. Najam-ul Hassan, one of the Hon'ble Members of the Administration Committee, in his capacity as the Inquiry Officer had already formed an opinion against the appellant and with all due respect it cannot be said that he sat in the meeting of the Administration Committee with an unbiased mind. By his report dated 17.01.2011 he had pre-judged the issues against the appellant before participating in the meeting. It is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence of this country. It is now well settled that natural justice in relation to disciplinary proceedings means observance of procedural fairness before holding an officer guilty of misconduct. Procedural fairness demands not only that those whose interests may be affected by an act or decision should be given prior notice and an adequate opportunity to be heard, but also requires that the decision-maker or Authority should not be biased or prejudiced in a way that precludes fair and genuine consideration being given to the case presented by the parties. The rule against bias thus aims at preventing a consideration of the case being sham. The law disqualifies a person or Authority from adjudicating whenever circumstances point to a real possibility that his decision may be pre-determined in favour of one of the parties.
5. Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 is also of course relevant here which states that for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. One of the essential requirements of fair trial is that the rights of a person be determined by an independent and impartial Court/Tribunal/Authority. The principle expressed in the maxim nemo. Judex in sua causa (no one should be a judge in his own cause) refers not only to the fact that no one shall adjudicate his own case; it also refers to the fact that no one should adjudicate a matter in which he has formed an opinion adversely to the party. In order to give effect to the said two aspects of the principle, the concern is not only to prevent the distorting influence of actual bias, but also to protect the integrity of the decision-making process by ensuring that, however, disinterested the Court/Tribunal/Authority is in fact, the circumstances should not give rise to the appearance of bias. As has been famously said by Lord Hewart in the case of R.v. Sussex Justice Ex.P Mc Carthy (1924) 1 K.B 256 at 259 that justice should not only done, but should manifestly and undoubtedly be seen to be done.
6. It has been held in the cases of R.v Hertfordshire JJ (6 Q.B.753), R.v. Middlesex JJ (1 QBD 173) R v.
Lond. C.C. (1892) 1.Q.B.190; and R v. Lancashire JJ (75 L.J.K.B 198) that the presence of one interested justice renders the Court improperly constituted, and vitiates the proceedings; it is immaterial that there was a majority in favour of the decision, without reckoning the vote of the interested justice.
7. In Ghulam Rasul and others v. Crown (PLD 1951 F.C.62)-a Legal Remembrance to the Government advised the Crown to file an appeal against an order of acquittal. Subsequently after he was appointed as Judge of the High Court, the appeal was decided by a Bench of which he was a member. In these circumstances it was held that the impropriety in the constitution of the Bench was not a .Mere irregularity but an illegality and that it was highly undesirable for a judicial officer whatever be his rank or position that he should act judicially in a case in which he had formed an opinion adversely to the party against whom he had directed a prosecution or institution of an appeal or review and that nothing should be allowed to happen in a case which may give rise to a reasonable apprehension to an accused person that he would not or did not have fair trial.
8. The learned Division Bench of the Lahore High Court in the case of Mian Muhammad Abdullah, District Manager, Government Transport Service, Lyallpur v. The Road Transport Corporation, Lahore through its Secretary etc (PLD 1964 (W.P) Lahore 743) has observed that if one of the members of a tribunal is biased or, which is the same thing, has pre-judged 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. If one of the authority or any one of the authorities hearing a case has any pecuniary or otherwise substantial interest or is biased, the defect goes to the root of the constitution of the tribunal which becomes improperly constituted.
9. The Court of Appeal in the case of Locabail (U.K) Ltd. v. Bayfield Properties Ltd. (200 Q.B.451) upon a detail analysis of decision in R.v. Gough (1993 AC 646) together with Dimes' case (3 House of Lords Cases 759), Pinochet case [(2001) 161 I AC 119], J.R.L: exp. C.J.L: Re [(1986) 161 CLR 3421 and President of the Republic of South Africa v. South African Rugby Fortbal Union [(1999) 4SA 147] stated that it would be rather dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. The Court of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided. If further observed: "By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the Judge and any member of the public involved in the case; or if the Judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the case of the case; or if, in a case where the credibility of any individual were an issue to be decided by the Judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the Judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to through doubt on his ability to try the issue with an objective judicial mind (see Vakuta v. Kelly); or if for any other reason, there were real ground for doubting the ability of the Judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a Judge, earlier in the same or in a previous case, had commented adversely on a party-witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case.
The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be."
(underlining is for emphasis)
10. In view of the above discussion we hold, with all due respect, that the Inquiry Officer could not participate in the meeting of the Administration Committee of the High Court held on the 9th of June 2011, in which the case of the appellant was considered. Presence of the Inquiry Officer in the said meeting was not a mere irregularity but an illegality which vitiated the whole proceedings culminated in the impugned order retiring the appellant, compulsorily from service.
11. In the sequel, while setting aside the impugned Notification No, 151/RHC/D&SJJ dated 13th June, 2011, this appeal is accepted and the Registrar of the Lahore High Court is directed to place the matter before the Authority i.e, (Administration Committee) for reconsideration of the case of the appellant for a fresh decision.