' These two writ petitions were moved by Syed Muhammad Akram Shah, Secretary A. K. M. I. D.
C,/now the Secretary of the Public Service Commission Azad Jammu and Kashmir Government Muzaffarabad on 12th January, 1984 wherein he has impeached two orders :-
(1) The order passed on 20th of March, 1982 (Anneure H/3) whereby promotion of the petitioner was withheld for five years and punishment of Censure was also awarded to him. This order was passed by the Azad Jammu and Kashmir Government and is reproduced as under :- "In exercise of the powers conferred under rule 5 of Efficiency and Discipline Rules, the 'Authority' directed the 'Authorised Officer' to initiate disciplinary proceedings against Mr. Muhammad Akram Shah, former Deputy Secretary Law (now Secretary, A. K. M. I. D. C. On deputation). The 'Authorised Officer' after examination of the facts of the case decided to serve show-cause notice (containing the allegation) on Mr. Muhammad Akram Shah. The reply to show-cause notice was received and Mr. Muhammad Akram Shah was afforded opportunity of personal hearing which he did not avail.
' The thorough scrutiny and examination of charges in show cause notice and the reply to these charges submitted by Mr. Muhammad Akram Shah established the 'misconduct' committed by him and as such it has been decided by the 'Authorised Officer' (Competent Authority) to impose the following minor penalties on him."
(a) Withholding of promotion for five years ;
(b) Censure.
Section Officer (Law)
' No, SL/305-11/82, Dated the 20th March, 1982.
(2) The order dated the 13th of April, 1983 whereby his two annual increments were stopped. This order is Annexure H, was passed by the Azad Jammu and Kashmir Government and is reproduced as under :- {{URDU TEXT}} XT}}
2. These two writ petitions arise out of the following facts :-
(a) The petitioner Syed Muhammad Akram Shah joined the service of the Azad Jammu and Kashmir Government as a Law Drafting Officer on 2nd January, 1974 and after putting in about eight years of service as Law Drafting Officer, A. L. R. And Deputy Secretary Law, was transferred on 21st November, 1981 as the Secretary A. K. M. I. D. C. On deputation ;
(b) The petitioner was given a 'warning' vide the letter of the Secretary Law No, SL/E/74-70/81 on 17th October, 1981 in connection with some case or/matter whereby the petitioner conveyed to the Secretary Law (Mr. Khalil Ahmed Qureshi) vide his No, t/49-7804-9/81, dated 20th October, 1981 (written on 19th October, 1981 that :- (0 The Secretary Law's warning amounted to punishment and the same was said to have been given without affording him an opportunity of being heard and that the action could not be taken without obtaining the prior sanction from the Government. He also stated that the matter of delegation of Financial Powers essentially pertained to the Finance Department and that the proposed draft was expected to be submitted by the Finance Department first and the Law Department would have vetted it later on. He also explained that the delay for the submission of the proposed Draft did not take place due to any laches or neglect of duty on the petitioner's part.
The petitioner also mentioned that he worked with eminent Secretaries Law e.g. Mr. Justice (now Retired) Malick Muhammad Aslam Khan, Mr. Justice Sardar Muhammad Ashraf Khan, and Mr. Justice Raja Muhammad Khurshid Khan (now the Chief Justice of Azad J & K Supreme Court)
Sardar Aftab Ahmed Khan but nobody ever complained against his work. The petitioner, inter alia, wrote :--{{URDU TEXT}} ' This letter was written by the petitioner on 19th October, 1981 and sent to the Law Secretary on 20th October, 1981 :-
(ii) I would like to quote from page 3 of the written arguments on behalf of the non-petitioner No, 2 (The Secretary Law)-
(a) The petitioner who joined the service in Grade-17 and manipulated to get the promotion as Deputy Secretary in Grade-18 before the expiry of two years, which was normal period of probation, for his appointment to a post in Grade-17. This promotion was irregular and uncalled for. It was made due to some undue favour. The opinion of the Finance Department for creation of his post was also unduly ignored. Any how the non-petitioner No, 2 got it regularised when he was Secretary S&GAD Copy of working paper Annexure 'R E' showing his position as attached."
(b) It is mentioned that the petitioner was not entitled even to the annual increments in Grade-18 held by him as he had not completed the requisite seven years' service in N. P. S. 17, therefore, it was strange that S & G A D prepared his case of promotion for Grade-19 which was a wrong effort to favour the petitioner.
' The part (a), reads :- "No case of promotion to a post in the Grade-19 could be placed before the Selection Board as no such post in Grade-19 existed at that time."
' So, the Secretary Law has admitted in clear terms that he had opposed the promotion of the petitioner before the Selection Board. However, the Secretary Law mentioned in para. 9(g) of the written arguments :- "The non-petitioner No, 2 (Law Secretary) had no against the petitioner but pointed out the legal defects enumerated above which was his duty as Secretary Law and member of the Selection Board."
3. This unhappy background shows (a) That both the petitioner and the Law Secretary were not on good terms right from 19th October, 1981 as the Secretary Law had long before the enquiry as an Enquiry Officer had 'Censured' him and opposed his promotion in a meeting of the Selection Board."
(b) That both the petitioner and the Law Secretary considered that the other person was not fit for his promotion. It is a case of {{URDU TEXT}}.
(c) That the petitioner has alleged that there was an apprehension in the mind of the petitioner that under the above-mentioned circumstances the petitioner would not get justice from the Law Secretary ; and
(d) That the petitioner in reply to the letter No 3223/82, dated 10th March, 1982 replied on the same date. {{URDU TEXT}}
4. It should be remembered that the impugned orders were passed on 20th March, 1982 and 13th April, 1983 and the allegation of 'bias' was repeated on 10th March, 1982.
5. Now I would like to reproduce the two show-cause notices :--
(1) The notice issued by the Secretary Law on 11th February, 1982 to the petitioner reads {{URDU TEXT}}
7. Khawaja Muhammad Saeed Advocate, the learned counsel for the petitioner, has impeached the two impugned orders on the following grounds :-
(a) That no witness was called for and no evidence was recorded at all. The Secretary Law considered the record of the files sufficient and in his own wisdom thought it proper to hold the enquiry himself adopting the shorter route despite the admitted had relations between the two officers and despite the fact that the petitioner had clearly alleged "bias" on the part of the said Authorised Officer (the Secretary Law) who himself chosen to be the Enquiry Officer and the punishing authority.
' In one explanation, the petitioner concluded his reply like this {{URDU TEXT}} ' In the other explanation, the petitioner justified his filing of an extract from the Report of the Commission headed by Brig. Muhammad Arif Khan which was clearly against the Law Secretary and which might have enraged him as the petitioner had chosen in his own wisdom (which was no wisdom at all) to bring into limelight a secret Report against the Secretary Law:--
(b) That the impugned orders are coram non judice as under the Rules of Business of 1975 which were framed under section 58 of the Interim Constitution Act of 1974 (Schedule V Part III 2 Col. (5), "the authority competent to award any punishment" is the "Government" in respect of all the senior Class I Officers, hence the punishment awarded by the Secretary Law in one case (Reference is made to the impugned order of the Secretary Law dated 20th March, 1982 is illegal and that the Secretary Law cannot shield his action under The Efficiency and Discipline Rules of 1977 because whenever there is a clash between the Rules of Business of 1975 and a subordinate legislation -(e.g. ' Efficiency and Discipline Rules of 1977), the Rules of Business shall prevail if they remain unamended. The Government has amended the Rules of Business from time to time and they have amended them even in 1984, but the above-mentioned Schedule remains unamended so it applies and was given its full effect. So, it was argued that :-
(1) The charge-sheet was not issued by a competent authority (Reference NLR 1979 Service SC 182) ;
(ii) "The Authority" and "Authorised Officer" entitles (Reference: 1981 PLC (C. S.) 194) ; are two different.
(iii) The Rules of Business of 1975 shall prevail and the Courts shall ignore the Efficiency and Discipline Rules of 1977 when the Rules of Business of 1975 issued under section 58 of the Constitution are clear qua the Efficiency and Discipline Rules, on a point ;
(c) That the enquiry was "mala fide" and hence without jurisdiction : Reference : PLD 1955 FC 185, PLD 1957 Kar. 363 (365), PLD 1958 SC (Pak.) 41, PLD 1963 Lah. 8, PLD 1965 SC 671, 698, PLD 1968 Kar. 599, PLD 1969 SC 14, PLD 1973 SC 49(87)U, 1976 PLC 779, 1977 PLC 139 and NLR 1979 Service SC 182 ;
(d) That the Rules of Natural Justice have been violated in these enquiries and, therefore, they stand vitiated even on this point alone ;
(e) That the best course for the Enquiry Authorised Officer was to refer the case to the Government and request for the appointment of another Authorised Office/Inquiry Officer under rule 10 of the Civil Servants (Discipline and Efficiency Rules of 1977) Reference was made to :- PLD 1957 Kar. 363, PLD 1962 SC 142, PLD 1964 SC 68, PLD 1970 Lah. 811, and 1 Q B 539.
( f) That the Officer who is the offended complainant must give his evidence in support of the complaint : Reference was made to :- PLD 1964 SC 64.
(g) That no personal hearing was given by the Government and the petitioner was condemned unheard : ' Reference was made to :- PLD 1956 Lah. 824, PLD 1959 SC 45, PLD 1961 SC 437, PLD 1964 SC 410, PLD 1977 SC (A J & K) 1, 1980 PLC (C. S.) 418, NLR 1979 Service SC 182, PLD 1982 SC (A J & K) 124, PLD 1982 Pesh. 165, 1984 CLC 318, 1973 SCMR 455, PLD 1980 SC 307, 1980 CLC 508, 1981 CLC 1654, PLD 1981 SC 176, (1920) 3 K B D 334 and (1965) 1 Q B D 456.
' That provision contained in rule 2(3) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline Rules of 1977) has been violated by Secretary Law. The rule 2(3) of the Efficiency and Discipline Rules of 1977 reads :- "Where the authority of the authorised Officer would personally be interested in the result of the proceedings under these Rules," is absolute and hence the Secretary Law stands disqualified to act as an "authorised Office" Reference : 1967 PLC 215 ;
(i) That the case of the petitioner does not fall in the definition of "misconduct" an defined in rule 2(d) of the said Rules of 1977 which were issued under section 23 of the Azad Jammu and Kashmir Civil Servants Act of 1976 Ref : PLD 1983 SC (A J & K) 95.
(I) That the rules Nos, 3 and 6 are discriminatory and unreasonable, unjust and harsh and offend the rules of natural justice as they give unbridled powers to the "authorised Officer". These rules were declared as bad law by our High Court in the case of Raja Saeed Ahmad Khan v. A. B.
Government ;
(k) That according to the version of the Government itself, the penalties awarded are "minor" penalties, hence the objection that no writ lies because matter should have been referred to the `Service Tribunal' is misconceived and untenable ;
(1) That the Secretary Law could not hold the enquiry as an "Authorised Officer" because the petitioner was on a deputation as the Secretary A.H.M. I.D.C. Reference was made to Rules of Business, Schedule II Item 21 (2), (ii) and (iii) Services and Central Administration Department ;
(m) That the Government passed two short and telegraphic orders and no reasons were given in support, hence the impugned orders are illegal. Reference : PLD 1978 Lah.
1166.
(n) That the High Court in its extraordinary Constitutional Jurisdiction will interfere with the discretionary orders passed by the Executive if they are arbitrary or in abuse of power where the Executive authorities have travelled beyond the sphere allotted to them by law : PLD 1958 SC 281; ' Reference : ' 1981 CLC 321, 1981 PLC (C. S.) 190 and PLD 1980 Quetta 58.
(o) That the "Authorised Officer" failed to inform the petitioner about the action proposed to be taken against him and the grounds of the action and also failed give him a reasonable opportunity to show cause against that action.
' NLR 1979 Service SC 182 and PLD 1982 Pesh.
165.
8. On the other hand, the learned Advocate-General, Sardar Rafique Mahmood Khan, has raised the following points :-
(a) That the Writ Petitions are liable to be dismissed the ground that no law has been violated by the non-petitioners ;
(b) That the petitioner submitted to the jurisdiction of the non-petitioners without raising any objection whatsoever and cannot, therefore, turn a volte face and challenge the competency and jurisdiction of the non-petitioner No,
2. He is estopped to raise objection regarding the jurisdiction of the Secretary Law to hold an enquiry against him and punish him.
' Reference has been made to :- ' PLD 1964 SC 829, 1970 SCMR 375 and PLD 1972 SC 271
(c) That the non-petitioners have committed no illegality and have not gone beyond the sphere allotted to them by law and have complied with the requirements of law applicable to the two cases : ' Reference has been made to :- 1969 SCMR 217, PLD 1969 Sc 153, 1971 SCMR 527 and 1971 SCMR 80.
(d) That the non-petitioner No, 2 was competent to take action against the petitioner because he was not interested in the result of the enquiries in both the cases ;
(e) That the High Court does not sit as a Court of appeal in service matters and shall explore all possibilities to validate the impugned orders ;
(f) That the impugned orders are justified on law and facts ;
(g) That the petitioner has placed on record certain extraneous matter (Commission's Report) and that even this act of the petitioner amounts to "misconduct" ;
(h) That the authorised Officer has always got powers to charge-sheet his 'subordinate' ;
(1) That the Authorised Officer (the non-petitioner No, 2) had no ill-will against the petitioner ; ' That the Efficiency and Disciplinary Rules of 1977 replace all earlier provisions of law in view of section 49 of the Interim Constitution Act and section 23 of the Civil Servants Act ;
(k) That the borrowing authority can take action in a limited numher of cases only and not when the alleged act or omission takes place during the period the petitioner served under Law Secretary. As the alleged misconduct of the petitioner pertains to a period when he was the Deputy Secretary Law, hence the special provisions cannot be invoked in these cases ; and
(1) That there is no legal requirement to supply the detailed orders to the petitioner. The "substance of the order" was communicated to the petitioner.
9. I have carefully gone through the written arguments of the parties, have also heard the learned counsel for the parties in my Chamber (when they were asked to clarify certain points raised by them) and perused both the files and documents attached with the two Writ Petitions.
10. The following points of controversy fall for determination in two Writ Petitions :- ' Was the Secretary Law/Authorised Officer competent to pass order dated 20th March, 1982 himself as an Authorised Officer ?
(ii) Did the Enquiry Officer/Authorized Officer suffer from 'bias' and, therefore, both the enquiries were tainted and defective on that score ?
(iii) Was it proper for the Enquiry Officer (Secretary Law) to refer the cases for the appointment of another Authorized Officer/Enquiry Officer under law ;
(iv) Could the Enquiry Officer/Authorized Officer penalise the petitioner without affording an opportunity of being heard after obtaining his explanations and before proposing the action to be taken by him or the Government for the alleged misconduct in both the cases ?
(v) Do the allegations made against the petitioner amount to "misconduct" as defined under rules 2(d) of Efficiency and Discipline Rules of 1977 ?
(vi) Did the petitioner submit to the jurisdiction of the non-petitioner No, 2 and was, therefore, estopped to challenge the jurisdiction and competency of the Secretary Law to pass the impugned orders ?
(vii) Was the enquiry 'mala fide' and hence without jurisdiction?
(viii) Can the High Court quash the impugned orders (in service matters) under its extraordinary writ jurisdiction ?
(ix) Do the Civil Servants Efficiency and Discipline Rules of 1977 give uncontrolled and unbridled powers to the Authorised Officers to pass any orders they like or deem fit and proper and whether their powers to pass minor penalties are immune from review by the Superior Courts of the country ?
(x) What it the value and importance of the Rules of Business ? Do they prevail qua the Efficiency and Discipline Rules of 1977 if and when there is a clash between the two ?
(xi) Whether the petitioner is entitled to get the impugued orders quashed ?
11. Now I would like to express my opinion on some of the points formulated above.
12. I would like to take points Nos, 1, 2 and 3 together. It is the settled law that an inquiry Officer/Authorised Officer who has to make an inquiry and arrive at a conclusion should be fair and impartial. The person against whom he has to hold an Inquiry should have full confidence in him. If the Officer is not on good terms with the person proceeded against or has expressed his adverse opinion against him prior to the holding the inquiry or developed bad relations with him, should not bold the inquiry himself and refer the matter to the Government or the appointment of another Authorised Officer. I would like to produce from Page 29(t), Service Laws Manual by M. Z. Khan Edition.
"(t) Enquiry should not violate basic rule of natural justice.-When a public authority is directed under a law to make an "enquiry" and the competent authority has to take action on the basis of its report and recommendation it cannot carry out a grotesque caricature of it but, on the contrary, has to conduct it in a manner which does not violate the basic rules of natural justice. One of these rules is that there shall be a fair enquiry into the truth of alleged facts. If it is held by a biased person, the element of fairness is bound to disappear and with it will vanish the validity of the enquiry itself which will stand vitiated. To hold the opposite would amount to attributing fraud to the Constitution and the law and to suggesting that the provisions to afford security to Government servants were enacted merely as a clock and the intention was just the opposite (Muhammad Nawaz v. Pakistan PLD 1970 Lah. 81, per Mushtaq Hussain, J. Ghulam Sarwar's case PLD 1962 SC 142 ; Ridge v. Baldwin (1963) I Q B 539 and Abdul Wassey v. Pakistan PLD 1957 Kar. 363 referred).
13. In this case, "bias" was alleged by Syed Akram Shah the petitioner in para. 6 of both the writ petitions. The affidavit of Syed Muhammad Akram Shah has not been controverted by a counter- affidavit from the other side and this fact cannot be ignored when "bias" comes under discussion.
The question arises why no counter-affidavit was produced in both the writs by the non- petitioners. It has been admitted by the Secretary Law that he opposed his promotion before the Selection Board. The Secretary Law might have done so in good faith but nobody can deny that it generated reasonable apprehension in the mind of the petitioner that he would not get justice from the Secretary Law. It is also on the file that the petitioner also raised some filth and Law, when criticised in such a way by a subordinate or by a person who was once his subordinate might, have consciously or unconsciously engendered some had feeling or hostile attitude. The Secretary Law should have avoided to be an Authorised Officer himself and referred the matter to the Government for the appointment of another Authorised Officer/Inquiry Officer. There was no justification, whatsoever, to retain the enquiry after 10th March, 1982. A separate application for transfer was not necessaries because the Law Secretary is supposed to know the law. He should have stayed after 10th March, 1982 if not earlier.
' The reply of the petitioner No, Corp 812/82, dated 10th March, 1982 has already been referred to by me.
(Annexure `G').
14. It has been held in vurious authorities that even a domestic inquiry should he made by a person who is not an interested person. In C this respect, I am fortified by a plethora of authorities :-
(i) M. P.
0. WAPDA Workers' Union, Hyderabad v. M. P.
0.
' WAPDA, Lahore 1967 PLC 251 ; I reproduce a small para, from page 258 :- "I may also and that the enquiry was held by Mr. Malik who was an interested person. Under these circumstances the law is quite clear. In Industrial Dispute Rs, 72.65, published in the Gazette of West Pakistan, Extraordinary issue, dated 21st September, 1966, I have held that the enquiry by an interested person cannot be said to conform to the principles of material justice, equity and good conscience."
(ii) The other base is Pakistan Cables Employees' Unian v. Messrs Pakistan Cables Limited, Karachi 1967 PLC 446 :- ' I would like to reproduce from page 450 :- "Before parting with the case papers, I may, however, add that the domestic enquiry has not been done properly and does not conform to the principles of natural justice, good conscience and equity. Dismissal of a workman amounts to his economic death. Before this extreme penalty is awarded, the person who had the authority to dismiss the worker, should at least hear the worker personally and ask for the explanation on the enquiry submitted by the Enquiry Officer. In the present case, firstly the Enquiry Officer was not a disinterested person."
' As regards to the 'bias' I would like to refer. To :-
(a) Cases from Indian Jurisdiction, and
(b) Cases from Pakistan Jurisdiction.
16. First of all I shall cite authorities from the (Indian) Jurisdiction :-
(i) The case of Manak La! Advocate PLD 1957 SC (Ind.) 436. AIR 1957 SC 425 ;
(ii) AIR 1959 SC 1376 (Andh. Pra.) ;
(iii) AIR 1961 All. 571, and
(iv) AIR 1962 Cal.
460.
17. From the case of Manak La!, Advocate v. Dr. Prem Chand Singhvi and others . I would like to reproduce from pages 351 and 352 :- "It is well-settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially ; and it is of the essence of judicial decisions and judicial administration that Judges should be able to act impartially objectively and without any bias. In such cases the test is not whether in fact a bias has effected the judgment ; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It1 is in this sense that it is often said that justice must not only be done but must also appear to be done. As Viscount Cave L. C. Has observed ' in Frome United Breweries Co. v. Bath Justice (1926 App. Cas. 586 at 590) :- "This rule has been asserted, not only in the case of Courts of Justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as Judges of the rights of others."
' In dealing with cases of bias attributed to members constituting tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest however small it may be in a subject-matter of the proceedings, would wholly disqualify a member from acting as a Judge. But where pecuniary interest is not attributed but instead a bias is suggested it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. 'The principle', says Helsbury, nemo debet esse judex in cause propriety sua preludes a justice who is interested in the subject-matter of a dispute, from acting as a justice therein" (Halsbury's Laws of England, Vol. XXI, p. 535 para. 952). In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that this principle applies not only to the justices as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties."
18. From the case Nageswa rarao v. State of Andh. Pra. , I would like to quote from page 1376 :- "The principles governing the 'doctrine of bias' vis-a-vis judicial tribunals are well settled and they are : (i) no man shall be a judge in his own cause, (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The two maxima yield the result that if a member of a judicial body is subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that a bias must be assumed to exist, he ought not take part in the decision or sit on the tribunal ; and that any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify a judge, and any interest, though not pecuniary, will have the same effect, if it he sufficiently substantial to create a reasonable suspicion of bias. The said principles are equally applicable to authorities, though they are not Courts of justice or judicial tribunals, who have to act judicially in deciding the rights of others i,e, authorities who are empowered to discharge quasi-judicial functions."
19. From the case of Hukam Chand v. S. T. A. Tribunal , I would like to reproduce from paras. 8 and 9 :- "The general principle governing the conduct of judicial and quasi-judicial proceedings is : If a member of a body engaged in a' proceeding is subject to a bias (whether financial or other) in favour of or against either party to a dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal 1928 A C 586, foll. A I .R 1959 SC 1376 ref"
"The proceedings of the authorities who are empowered to discharge quasi-judicial functions such as the Regional Transport Authority constituted under section 44 of the Motor Vehicles Act should not be tainted or affected by bias. Even the existence of a reasonable suspicion of bias is enough to effect the proceedings. Hence, a person participating in the decision of the Regional Transport Authority, if found related to an applicant applying for a permit, is disqualified from participating in that decision AIR 1959 SC 1876, Rel. On (1955) I Q B 41 ref." (Para. 9).
20. From the case of Kawsar Alam v. State of West Bengal , I would like to reproduce from page 468, para. 43 :-2 3 4 "The learned Trial Judge did not deal in this case with the question of bias at all. For his views on the subject, reference has to be made to the decision in Matter No, 140 of 1958 (see AIR 1958 Cal. 232) which forms an appendix to the paper book. This order was the subject of appeal, being Appeal from Original Order No, 87 of 1958 (Cal.) Palriwala Brothers Ltd. v. Collector of Customs, Calcutta).
The appeal was disposed of by this Bench. My Lord the Chief Justice in delivering the judgment, to which 1 had the honour of being a party, held after an elaborate citation of authoritative judicial pronouncements that the views expressed from time to time by the Judges in England on the question of bias were to be accepted in preference to the views expressed by the American Courts in this regard. The view accuser cannot be permitted to act as judge and the purity of such hearing can only be maintained by excluding participation as Judges of all who might reasonably be suspected of being biased."
21. Jurisdiction. Now I would like to cite authorities from Pakistan.
22. The case of Manzoor Hussain v. The State I reproduce from pages 21 :- "The learned counsel, however, contends that the record should not be allowed to stand as it is, because the learned trial Court conducted the trial with certain preconceived notions and theories which it seems to have formed at a fairly early stage of the trial. This contention of the learned counsel appears to be well founded."
23. The case of Anwar and another v. The Crown . This is an important case in which the view taken in case of Khairdi Khan case was reviewed. In that case, leading judgment was written by Justice Munir, C. J. But Justice Cornelius who was one of the Judges who decided the case of Khairdi Khan stuck to his guns and supported the rule laid' down in the case of Khairdi Khan. However, we shall consider the law laid down by the Majority. Six rules mentioned in that case are important.
' In the case of Hadi Ali v. Government of West Pakistan , it was observed at page 838 by Kaikaus, J:- "My conclusion is that even in respect of purely administrative acts, there is a duty to act justly, fairly and reasonably, and if the order impugned be one which could not possibly have been passed by a person acting justly, fairly and reasonably, the order will be invalid in law."
' Referring to the case of AIR 1950 Born. 363, it was observed at page 839 :- "...The High Court can in the exercise of this (Constitutional) jurisdiction pass all such orders as are suited to the circumstances of a case. The object of Article 170 of our Constitution is to enable the High Courts to enforce observance of law by Public Officers and whenever there is violation of law by such officers an appropriate order can be passed to compel observance."
25. In the case of Abdul Wassey v. Pakistan , the case of a civil servant came up for consideration before the Karachi High Court by way of a Writ Petition. The petitioner Abdul Wassey who was a Superintendent in the Pakistan Legation-at Jeddah was dismissed after an enquiry and service a charge-sheet by an officer of the Foreign Ministry who had expressed an opinion prejudicial to the petitioner in correspondence proceeding the inquiry. It was held that the rules of natural justice demand that the Inquiry Officer should be a person with an open mind. I would like to reproduce from pages 365 and 366 :- "It is contended that as the Enquiry Officer had expressed an opinion prejudicial to the accused before he was asked to hold the enquiry, the proceedings are vitiated by reason of his bias. I he Public Service Commission brought this fact to the notice of the Government and the petitioner stated that the enquiry should be entrusted to the Enquiry Officer appointed on the 23rd January, 1954. We consider that the bias is apparent from the fact that the petitioner was refused inspection of documents on which the findings of the Enquiry Officer were based. Though no question of demanding production or inspection of documents, can arise in terms of the Classification Rules we consider the principles of natural justice cast a duty upon the Government to specify and5 6 7 8 9 produce for inspection the documents asked for and relevant to enable an officer to defend himself.
We consider that the rules of natural justice demand that the Enquiry Officer should be a person with an open mind, a mind which is not biased against the delinquent Eaherlu v. Mersey Docks and Harbourd Board (1894) 2 Q B 667, R. v. Susses Justice (1924) I K B 256), R. v. Camborne Justice (1866)
I Q B 230 ; (1926) A C 586, King v. Essex Justice (1954) 2 All E R 850, R. v. London Country Council (1927) 2 K B 475, Cooper v. Silson 66 L T 168 :' (1931) 2 K B 215. He should not have prejudged the issue.
In Ghulam Rasul v. The Crown (1987) 2 K B 309 Legal Remembrancer advising Crown to file appeal against order of acquittal was subsequently appointed Judge of High Court apd the appeal was decided by a Bench of which he was a member. Their Lordships held that the constitution of the Bench was illegal. The same principles would apply to administrative tribunals. In this case the Deputy Secretary was closely associated with that branch of the Ministry which had correspondence with the petitioner against whom he had given his opinion, giving rise in the mind of the petitioner to an apprehension that the course of justice will be deflected.
' We, therefore, hold that this is a fit case in which the writ should be issued against the respondent as prayed in clause (a) of para. 32 of the petition. This is without prejudice to the appointment of a proper Enquiry Officer. The respondent will bear the costs of the petitioner.
' In the case of Muhammad Mohsin Siddiqi v. Government of West Pakistan , the case of dismissal of a Government servant went up to the Supreme Court. The charge against the Government servant was of misbehaviour and misconduct. As the dismissal was passed on a finding in an inquiry which was faulty, as the whole proceedings in the departmental inquiry were quashed. I would like to refer to a few lines from pages 67 and 68 : - "The whole proceedings in a departmental enquiry are required by the Rules to be conducted in accordance with the principles of justice. The superior Courts will not tolerate, and certainly not within the framework of the judicial administration itself, conditions in which officials can be made prosecutors, judges and punishing authorities when they themselves are the complainants, merely on the ground that the power of removal is vested in them as appointing authorities under the Rules. There is power and there are facilities evadable, to place the conduct of the enquiry and the report thereon in other hands and in such a case the officer who is the offended complainant must give his evidence in support of the complaint before such officer."
27. In the case of Abdul Hug alias Abdul Hug Munshi and others v. Abdul Matleb , it was held that if there is an apprehension of bias in the mind of the accused, the case should be transferred.
28. In the case of Major Muhammad Nawaz v. Pakistan bias was alleged and it was held in the writ petition that an inquiry should not violtate the basic rules of natural justice. The biased enquiry could not be sustained. In that case, so many authorities were discussed and at page 920, the case of Abdul Wassey v. Pakistan was also referred to and relied upon. The case of Ridge v. Baldwin was also referred to and a passage from the English authority was produced.
' The learned Judge Mushtaq Hussain (as he then was) observed in' para. No,
28. Pages 819 and 820 :- "When a public authority is directed under a law to make an 'enquiry" and the competent authority has to take action on the basis of its report and recommendation it cannot carry out a grotesque caricature of it but, on the contrary, has to conduct it in a manner which does not violate the basic rules of natural justice. One of these rules, of course, is that there shall be a fair enquiry into the truth of the alleged facts. If it is held by a biased person, the element of fairness is bound to disappear and with it will vanish the validity of the enquiry itself which will stand vitiated. To hold the opposite would amount to attributing fraud to the Constitution and the Law and to suggesting that the provisions meant to afford security to Government servants were enacted merely as a cloak and the intention was just the opposite.10 11 12 13 ' So important is the necessity for a fair hearing where the inquiry is quasi-judicial, that, in any case where there is any reasonable chance that it might have altered the result, the Court must insist on it."
29. In the case of Crescent Textile:Mills Ltd. v. Khaliq-uz-Zaman , it was held that even in a domestic inquiry, the Inquiry Officer must be an independent person, otherwise the finding of inquiry would be perverse. I would like to reproduce from page 780 :- "In his application before the Junior Labour Court, the respondent pleaded that his removal was due to Trade Union activities and that finding of the Inquiry Officer was erroneous because he did not record the defence witnesses and did not take into consideration the defence version.
' The learned Junior Labour Court was of the opinion that the Inquiry Officer was not independent because he himself had seen the workers and as such he should not have been appointed as Inquiry Officer in this case, 1 agree with the finding of the lower Court. The Inquiry Officer admitted while appearing before the lower Court, that he was present at the scene of occurrence with the Mills Manager. It is provided in Standing Order No, 15 that the employer shall institute independent inquiry before dealing with the charges against a workman. An officer who himself was a witness of the scene of occurrence cannot be termed an independent Inquiry Officer. The Junior Labour Court was, therefore, justified to annul the inquiry."
30. The question of 'Biss' again came up before the Lahore High Court in the case of General Manager, Lyallpur, Cotton Mills, Lyallpur v. Sardar Muhammad and others in a writ petition (1977 PLC 139).
' I would like to reproduce para. 3 of that judgment :- "A perusal of the impugned order would show that it was observed that it had contended that 'the second enquiry was held by the same enquiry officer and that the enquiry proceedings were recorded by the same persons who was a prosecution witness against him in the first enquiry and as such the enquiry officer was prejudiceced against him as he had found him guilty previously. In my view this contention has great force'. The facts are that the first enquiry which resulted in the dismissal of the respondent had been held by Dr. Khalil Ahmad in which the evidence was recorded by one Mr. Maqsood who was also a prosecution witness against the respondent in the enquiry. The respondent challenged those proceedings on the grounds inter alia that Mr. Maqsood recorded the proceedings when he himself was a prosecution witness against the respondent. His plea was finally accepted and it was for this reason that his application was allowed and he was re-instated, although with the permission to them player, the petitioner, to hold a fresh enquiry. The petitioner ordered fresh enquiry. This time too, the enquiry was held by the same officer and in the same way. He, again, allowed Mr. Maqsood to record the proceeding whereas the letter was a prosecution witness. The contention of the learned counsel for the petitioner that there was no law or any agreement between the parties as regards the mode of enquiry and since section 25-A of the above-mentioned Ordinance only protects rights has no force whatsoever. His rights are in respect of the service or termination thereof. These have been protected by the aforesaid provision of law. It is quite obvious that before those rights could be taken away that has to be done in a just and legal manner. This argument raised by the learned counsel for the petitioner that since the proceedings were not before a Court of law and were domestic in character, therefore, any irregularity in the conduct thereof is immaterial is devoid of force. Even when the proceedings are taken by a domestic tribunal or by bodies other than Courts of law, the minimum these have to do consistently with elementary justice and fair play is to show that they are acting on their own i. e.
Independently and imparially between the parties arraigned before them. An ex facie partially or irregularity knocking out the minimum norms of law and justice would be of no consequence. It is quite elementary that a person who is a witness cannot function as a Judge or on behalf of the Judge, it is quite obvious that the recording of evidence or proceedings is part of the judicial14 function. A party to the proceedings or its witness cannot take part in the recording of evidence or proceedings nor in actual decision making. The position and the place of the parties and the witness on the one hand, and of the person making decision or taking part in the proceedings culminating in the decision on the other, are mutually exclusive and distinct, 'justice has not only to be done but has to be manifestly seen to be done'... ...... "
31. For "bias" the following more authorities are cited :-
(i) 1979 PLC 250, para. 17.
(ii) 1979 PLC 250, para. 18.
(iii) 1979 PLC 250, paras. 17, 18 and 19.
(iv) 1981 PLC 812.
32. Let it be remembered that justice should not only be done but it should appear to have been done. A fair, impartial and unbiased enquiry is a must. I would here like to refer to the oft-quoted observations of Lord Hewart. C. J. Made in Rex v. Sussex Justices . "it is not merely of some importance but of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."
Justice Siddiky, J. Has observed in PLD 1969 Dacca 741 :- "Justice should not only be done but it should appear to have been done so that people may have confidence in the administration of justice."
33. The other question that was agitated before, me was that the enquiry was mala fide and hence it was without jurisdiction.
34. It is the settled law that a mala fide act is an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the Statute. In this respect, I am fortified by the following authorities : PLD 1958 SC (Pak.) 41, PLD 1963 SC 382.
PLD 1964 Kar.
599.
P LD 1965 SC 671.
PLD 1965 SC 698.
PLD 1968 Kar.
599.
PLD 1969 SC 14. PLD 1973 SC 49.
PLD 1980 Pesh.
281. 1980 CLC 508.
35. Now I come to the point whether the Inquiry Officer/Authorised Officer penalised the petitioner without affording an opportunity of being heard after obtaining his explanation and before taking the proposed action either himself or by the Government for the alleged misconduct.
36. It is the settled law that the proposed action should be put to the accused Government Servant and his explanation should be obtained, otherwise, the whole action will be illegal because it will offend against the rule of audi ateram partem which rule stems from the Muslim Jurisprudence.
37. The petitioner thought that his case would be referred to the Government under the Rules of Business of 1975 (Schedule) in which the authority competent to award "any punishment" in respect of all senior Class One Officers other than the Secretaries and Heads of the Departments is the Government. This part of the Rules of Business of 1975 stands unamended up till now although the Secretary Law could very easily get this provision amended by the Government. We know that15 the Rules of Business, issued under section 58 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, were promulgated in 1975 and many amendments have been made therein since 1975.
The Secretary Law knows better than anybody else that there is a clash between this provision of the Rules of Business and the Azad Jammu and Kashmir Civil Servants Efficiency and Discipline Rules of 1977 issued under the Civil Servants Act of 1976. The Rules of Business of 1975 empower only the "Government" to take "any action" against a Class 1 Officer while a "minor penalty" can be awarded by an Inquiry Officer/Authorised Officer under the Azad Jammu and Kashmir Civil Servants Efficiency and Discipline Rules of 1977. This controversy or conflict in law could be very easily resolved/removed, had an amendment in the above-mentioned portion of the Rules of Business made/passed by the Azad Jummu and Kashmir Government. Mr. Sarfraz Hussain Siddiqi, the Chief Secretary of the time, in his "Forward" to the Rules of Business, para. 3 has clearly mentioned that :- "The strict observance of the Rules of Business which have statutory import cannot be over- emphasized. The Departments are expected to bring to the notice of the Services and General Administration Department changes in their functions as a result of enforcement of these Rules and in the event of any doubt they should not hesitate to consult the Services and General Administration Department."
38. In the instant case, the action proposed should have been communicated and put to the accused officer and his explanation duly obtained. On the violation of the rule of audi alteram partem Khawaja Muhammad Saeed Advocate has cited the following authorities : - (1920) 3 K.B.L.
334.
PLD 1959 SC 45.
PLD 1961 SC 437.
PLD 1964 SC 410. (1965) I.Q.B.D.
456.
PLD 1966 Kar.
427.
PLD 1966 SC 536.
PLD 1977 S. C. (A J & K) 1. 1980 PLC (C. S.) 418. 1980 CLC 508.
PLJ 1981 SC 185. 1981 CLC 1654.
PLD 1982 SC (A J & K) 124. 1984 CLC 318.
There is no doubt that the violation of this time honoured principle which stems from the Muslim Jurisprudence makes the enquiry as void and ineffective and any action based upon such an enquiry is without jurisdiction.
39. Moreover, if an order is void and nullity in the eye of law subsequent orders are also void as held in PLD 1958 SC (Pak.) 104 and PLD 1967 Kar.
295.
40. In the instant case the petitioner was not heard before the pro-. Posed penalties were inflicted upon him. A person must be given an opportunity of explanation before the proposed action. In this respect the verdict of the Supreme Court of Pakistan in the case of Mir Muhammad v. N.-W. F. P.
Government , is very clear, "such a requirement cannot be brushed aside by saying that it would amount to a second show-cause notice". This opportunity is also given when the shorter procedure L is followed (page 187).
41. A Government functionary cannot say that he has got unfettered powers to punish the accused officer and has done it and therefore, his action cannot be called in question by the High Court.
42. Let it be known very clearly that wherever there is power, there are responsibilities and the greater the power is, the greater are the responsibilities otherwise the absolute power corrupts15 absolutely.
43. In the case of S. K. Gosh. v. Vice-Chancellor, Utkil University the Syndicate of the University cancelled an examination on the ground of leakage of examination papers. The act was regarded as a wholly administrative act. But it was held that a body exercising statutory powers was not protected merely because it acted bona fide. It must also act reasonably and with due care. The learned Judge said :- "But a body exercising statutory powers cannot rely on good faith alone for escaping the jurisdiction of this Court under Article 228, however arbitrary or capricious its actions may be if want of good faith be held to be the only ground for interfering with the exercise of statutory powers, the primary object of the writ of mandamus namely to supply defects of justice would be frustrated. The field in which the question of bad faith arises is "such that the reservation for the case of bad faith is hardly more than a formality" per Lord Redcliffe `Nakkuda Ali M. F. De. S. Jayarante (1951) I A C 66 (77). It must further be shown that the statutory powers were exercised reasonably with due care (See Halsbury, 2nd Edition, Vol. 31, p. 533). As early as 1864 in Galloway v.
Corporation of London (1864) 46 E R 356 L. J, Turner observed : "Powers, such as those which are given to the Corporation by this Act of Parliament, are at all times to be exercised bona fide and with judgment and discretion."
This observation was quoted with approval in Mayor and C of Westminter v. L & N. W. Rly. Co. (1905)
A C 416 where Lord Mac Naughton said.
"It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably."
In Sanitary Commissioners of Gibralter v. Orfils (1890) 15 A C 500, Lord Watson emphasised the same aspect by saying :- "It is an implied condition of statutory powers that when exercised at all, they shall be executed with due care."
' After discussing many English and Indian authorities, Kaikaus, J. (as he then was) was pleased to observe at page 838 of Hadi Ali Khan's case PLD 1956 Lah. 824 :- "My conclusion is that even in respect of purely administrative acts there is a duty to act justly, fairly and reasonably, and if the order impugned be one which could not possibly have been passed by a person acting justly, fairly and reasonably, the order will be invalid in law...."
44. So I cannot validate the invalid enquiries which suffer from many defects. The enquiries and unjust, unfair, biased and mala fide and P liable to be quashed under the Constitutional writ jurisdiction.
45. The best course for the Secretary Law should have been to stay his hands and refer the matter to the Government for the appointment of Q another Inquiry Officer/Authorised Officer. Due care and caution, fairplay, reasonableness and justice all demanded that.
46. I have pondered over the argument of the learned Advocate-General that the petitioner has submitted to the jurisdiction of the Secretary Law and, therefore, cannot challenge the action taken against him.
47. This argument is misconceived because the petitioner refused to submit his explanation to the Authorised Officer and wrote to him that he would submit his reply to the competent authority and not to him. How can a person who refuses to give an explanation to the Secretary Law, can be said to have submitted to his jurisdiction ? Three or four cases have been cited by the learned Advocate-General, but they are not applicable to the facts of the instant case. Therefore, I do not find such submission to jurisdiction, weaver or estoppel in this case. The mere submission of two replies to two show-cause notices do not mean submission to the jurisdiction of the said Authorised Officer.16
48. It cannot be denied that when the order of a statutory body is impeached on the ground that it was wholly unjust partial, and mala fide, the High Court in exercise of its writ Jurisdiction has got wide powers to grant relief to the aggrieved person, even if another remedy is open (PLD 1972 SC 279, 1972 SCMR 257).
49. Let me make it clear here that there is no alternate remedy available against "minor penalties".
The remedy lies in writer Jurisdiction.
50. It was laid down in PLD 1974 SC 151 that where the acts, orders or proceedings in service matters are done, taken or made without jurisdiction, mala fide, or coram non judice they are open to scrutiny by the High Court in writ jurisdiction.
51. No charges of "misconduct" can be established on the basis of tainted and biased enquiries. A charge of wilful misconduct must have been established by a fair and impartial inquiry.
52. As the impugned orders are based on mala fide and biased enquiries and as no reasonable opportunity was given to the petitioner before the action taken against the petitioner in both the cases, the impugned orders are liable to be quashed being without jurisdiction and of no legal effect. I need not reply the other questions because they are not important. I would like to leave the other questions open.
Under these circumstances, both the writ petitions are accepted and both the impugned orders passed by the non-petitioners :
(1) Order dated 20th March, 1982, and
(ii) Order dated 13th April, 1983.
' Are hereby quashed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1947 as being unlawful without jurisdiction ineffective and void. The petitioner shall be entitled to his to increments, dues privileges etc. Which he is entitled to under rules.
' Before parting with the case, I would like to quote para. 6 from PLD 1981 Journal 19 (20), reply to address of welcome by Mr. Justice Raja Muhammad Khurshid Khan as the acting Chief Justice of Supreme Court of Azad Jammu and Kashmir :- "Judiciary is the guardian of the conscience of the people as well as the law of the land. It sits aloof and detached from the political arena or the seats of the executive business-away from the storms and stresses which so often assail them. Its decisions are, therefore, more apt to reflect unbiased justice and traditional impartiality than political expediency or the dictates of political exigencies. It is rooted and grounded in the fundamental instincts of humanity in respect of equity and good conscience. This is why our Holy Prophet (peace be upon him) has said that one hour of justice is worth prayers of 60 years. Hazrat Ali-has said:- "Be fair, just and impartial in your dealings ; so that even the influential may not take an undue advantage and the uninfluential and the poor may not be disappointed in your justice and fairness." PLD 1957 SC (Ind.) 346 AIR 1959 SC 1376 AIR 1961 All. 566 AIR 1962 Cal. 460 PLD 1963 (W. P.) Lah. 20 PLD 1955 FC 156 PLD 1953 FC 223 PLD 1956 Lah. 824 9 PLD 1957 (W. P.) Kar. 363 PLD 1964 SC 64 PLD 1967 Dacca 305 PLD 1970 Lah. 8111 2 3 4 5 6 7 8 10 11 12