' CH. HASAN NAWAZ (MEMBER).---While in service as National Savings Officer (Inspection), on 3-7- 1984, the appellant was served with a notice by Mr. Muhammad Fasih Khan, Joint Director (respondent No,3) calling upon him to show cause within fourteen days of its receipt, as to why action against him should not be taken under the Government Servants (Efficiency & Discipline)
Rules, 1973 on the allegations of misconduct and inefficiency and why major penalty of dismissal from service should not be imposed against him. The notice was accompanied by a statement of items/record which the appellant had failed to check at the National Savings Centre of Fortress Stadium, Lahore. (Annexure 'A').
2. The appellant's explanation in writing dated 16-7-1984 (Annexure 'B') failed to find favour with respondent No,3 who awarded minor penalty of withholding his increment due on 1-12-1984 for one year. Departmental appeal dated 9-9-1984 (Annexure 'C') addressed to the Chief Director, National Savings, Islamabad was accepted on 15-10-1984 and the impugned order of minor penalty passed by respondent No,3 was set aside.
3. Two years later on 3-12-1986, he was again served with a notice under Rule 5(1)(iii) of the Efficiency and Discipline Rules, 1973, whereby he was required to show cause (in writing) within seven days of the receipt of the notice as to why major penalty of dismissal from service should not be awarded against him in consequence of disciplinary proceedings. Like the previous one, this was also issued by respondent No,3 who decided as Authorised Officer that it was not necessary to hold an inquiry against the appellant under the circumstances of the case (Annexure 'G'). An explanation in writing (Annexure `G/1') was submitted and personal hearing was also granted to the appellant by respondent No,3, on whose recommendation he was finally removed from service by the competent authority on 25-1-1987.
4. The appellant's departmental appeal dated 25-2-1987 (Annexure J) having failed to produce any result, he came to the Tribunal on 24-6-1987 within the statutory period with the present appeal under section 4 of the Service Tribunals Act, 1973, where it is prayed that the impugned order of his removal from service dated 25-1-1987 may be set aside and he may be reinstated in service with fullback benefits.
5. The appellant's case is that Muhammad Fasih Khan, Joint Director (respondent No,3) developed disliking of the appellant sometime in the year 1984 and that initiation of disciplinary proceedings with service of show-cause notice dated 3-7-1984 was the result of this personal disliking. The acceptance of departmental appeal further annoyed respondent No, 3 and their relations became not only highly strained but almost inimical, which resulted in the initiation of fresh disciplinary proceedings with service of show-cause notice dated 3-12-1986. The main thrust of the case is that "entire proceedings stood vitiated due to personal bias and malice of Muhammad Fasih Khan". It was pleaded that he was not competent to initiate disciplinary proceedings and that he was debarred from acting as an Authorised Officer in the matter and decide that no inquiry was necessary, either in the light of the facts of the case or the interests of justice. The recommendation for his removal from service was, therefore, mala fide and the result of strained relations. It is alleged that respondent No,3 had acted as a judge in his own cause in violation of the principle of natural justice. It was a case of regular inquiry and its denial deprived him of an opportunity to defend himself against the proposed action.
6. In defence it was pleaded that if the appellant had any objection against the conduct of disciplinary proceedings by respondent No,3, "he should have approached the higher authorities".
Notice under Rule 5(1) (iii) contains the grounds of action, substance of evidence in support of the allegations and specific action proposed to be taken against him which was followed by personal hearing on 20-12-1986 by the Authorised Officer. It cannot, therefore, be said that he was denied an opportunity of showing cause against the proposed action. The impugned order was passed by the Director General (respondent No,1) as Authority after careful application to the record and the appellant under the circumstances, duly exercised the right to defend against the proposed penalty.
7. Detailed address to certain material facts is necessary to determine whether there is any substance in the allegations that respondent No,3 harboured grudge against the appellant and their relations were strained to an extent, as would have been sufficient to vitiate the disciplinary proceedings and the consequential recommendation for his removal from service. In view of the pleadings of the parties, I feel that this is the only important question in this case, particularly when no offence seems to have ostensibly been committed against the Disciplinary Rules of Procedure.
8. The first in point of relevancy is show-cause notice dated 13-7-1984. The following facts having bearing on the question, can be made out of this notice:
(a) The notice was issued under Rule 5(1)(iii) of the Rules after it was decided by respondent No,3 that no inquiry need be conducted either in the light of the facts of the case or the interests of justice.
(b) The charge was that of misconduct and inefficiency based on certain facts which need not be mentioned in detail. Gist of the allegations is that he consumed more time in completing the audit of National Savings Centres of Abbot Road, Shadman Colony and Fortress Stadium Lahore, than was taken by other Inspecting Officers in respect of period of equal duration. Another allegation was that while conducting audit of National Savings Centre, Fortress Stadium he failed to submit work diary for the period from 16-10-1983 to 30-11-1983 in the desired manner in accordance with the relevant instructions for the purpose of avoiding fair assessment of the daily progress of work.
(c) These allegations in view, an inquiry should have been conducted for substantiation of the charge of inefficiency and misconduct, considering that whether delay in completing the audit work amounted to inefficiency, required a comparative study which could be possible only by an inquiry, where the appellant would have had the opportunity of establishing that his disposal was satisfactory with better quality of work. The question whether the progress of work was unsatisfactory and there was delay in completion of the audit work, depended upon the length of the period under inspection, with volume, nature and quality of work to be inspected. This could be possible only through an independent inquiry, conducted by an officer other than respondent No,3 who had formed a definite opinion about the appellant's performance.
9. The next in point is the appellant's explanation in writing dated 16-7-1984, which he submitted in response to the notice. We may take notice of the following averments from this explanation:
(a) "But, it is only due to bad luck, perhaps, that my peformance is not being considered as satisfactory from the last one year and there has been a misunderstanding that I am not performing my duties properly, whereas, if my performance during the last year is compared with my performance during the previous years, it would become clear that my performance remained almost at a constant level and any change in it whenever it occurred was only due to the objective conditions."
(b) "During the previous years, whenever there was some misunderstanding about my prolonged stay at a centre in connection with audit, same type of clarifications were accepted by your goodself, but now from the last one year similar explanations/clarifications are not considered as satisfactory."
10. In addition, the appellant mentioned a few facts regarding performance of other Inspecting Officers for a comparison to show that his disposal was at least as satisfactory as that of other officers who had not been served with a similar notice. Although it has not been said so, the appellant wanted to establish that his performance did not justify the issuance of show-cause notice and initiation of disciplinary proceedings. It was also meant to convey that under the circumstances, service of notice was with ulterior motive and the result of bias.
11. It may also be pointed out as a material fact that in spite of this explanation, which ex-facie seems to be sufficient, minor penalty of withholding one increment for a period of one year was imposed by respondent No,3 with the observation that he had been found guilty of inefficiency and misconduct.
12. The appellant then addressed a departmental appeal on 9-9-1984 to the Chief Director, National Savings Islamabad against the impugned order of minor penalty. The following allegations of this appeal are relevant:
(a) "The action taken by an Authorised Officer in my opinion is one-sided, biased, unfair and it proved that show-cause notice dated 3-7-1984 was issued to me with an intention of mala fide."
(b) "While Muhammad Fasih Khan (respondent No,3) an Assistant Director Inspection, conducted the audit of accounts of NSC Fortress Stadium Lahore, for the period from 24-2-1975 to 13-5-1975 in four days." Total number of Journal entries checked by him were 345 with an average of 86 entries per day."
(c) "Muhammad Fasih Khan, Assistant Director Inspection, (respondent No,3) again conducted audit of this Centre for the period from 14-5-1975 to 11-8-1975 in six working days and checked 625 Journal entries with an average of 104 entries per day."
13. Detailed account of the work of certain other senior officers was also given in the appeal to show that the appellant's output was quite satisfactory in comparison. It was alleged that those officers were considered efficient, despite their disposal and that in the light of this circumstance, the charge of inefficiency and misconduct against him was without justification.
14. It was also alleged that in so far as the appellant's memory goes nobody was proceeded against under the Efficiency and Discipline Rules "on charges of showing low output than others."
15. This explanation found favour with the competent authority and the impugned order of minor penalty was set aside in acceptance of the appeal on 15-10-1984. It is alleged in Para. 3 of the appeal that acceptance of departmental appeal "had serious repercussion on the appellants' service career because Muhammad Fasih Khan got annoyed over the fact that his order was got set aside by the appellant. Not only that, he was further annoyed over the fact that appellant had by giving concrete figures with regard to the working of Mr.Fasih, his other colleagues and appellant's own working, cast personal aspersions over Mr.Fasih and put him in lower esteem under the eyes of the higher authorities."
16. Though in a feeble manner, it has been denied that respondent No,3 got annoyed on account of the acceptance of appellant's appeal. It may, however, be pointed out that the written statement does not specifically plead against the allegation that an account of respondent No,3's work as Inspecting Officer during the inspection of Fortress Stadium Centre Lahore, lowered him in the estimation of his superior officers, which caused further annoyance. Apart from this circumstances, however, it can reasonably be presumed that respondent No,3 could not possibly have relished an account of his own performance in comparison with the work of other officers like Miss Tajwar Sultana and Mr. Abdul Latif, Assistant Director Inspection.
17. In Para. 4 of the appeal, the appellant mentioned certain facts, in an attempt to show that respondent No,3's treatment against him was discriminatory, in that he deputed him for performance of certain duties against relevant instructions. He was asked to conduct the audit of NSC Abbot Road, in July 1984, although he had conducted audit of the same Centre in the previous year of 1983. It has been denied in the written statement that there was any instruction forbidding the entrustment of audit of the same Centre to the same officer for two consecutive years.
However, irrespective of this circumstance, he was asked to select any other Centre for audit out of three Centres and that Abbot Road Centre was his own choice. Apart from merits of pleadings in defence on this point, it is evident that relations between appellant and respondent No,3 left almost everything to be desired.
18. Another fact deserves notice. In para. 4(iv) of the appeal it has been alleged that the Chief Director asked Ch.Saeed Ahmad, Joint Director, Directorate of National Savings Lahore to intervene to "arrange a patch-up" between respondent No,3 and the appellant. It is further alleged that a meeting was accordingly arranged during which the appellant told respondent No,3 that he had been victimizing him at the instance of Mr. Sarshar Ahmad Thaha, the then Assistant Director, who did not have good relations with the appellant.It is further pleaded that Mr. Saeed Ahmad submitted a report to the Chief Director that misunderstanding between them had been removed.
In the written reply it was pointed out that the appellant had "ascribed the alleged vengeance of Muhammad Fasih Khan to be " only at the instance of some other officer whereas previously in paras. 2 and 3 of the appeal, he attributed it to the personal disliking and annoyance of Muhammad Fasih Khan". It may be pointed out as a material circumstance that there is no denial of the fact that the aforementioned Ch.Saeed Ahmad was asked by Chief Director to intervene and bring about a conciliation between the parties.
19. On 27-4-1985, the appellant addressed the following letter to respondent No, 3 (Annexure 'CA): "Subject: AUDIT/INSPECTION OF NSC. ABBOT ROAD, LAHORE ' Kindly refer to your office memo No, F (16) ZL-4/82-1550 dated 25-4-1985 (which was addressed to me and was sent without being even covered in an envelope). In this connection, it is submitted that the first para. Of the said memo containing adverse remarks against me are not backed by any solid or documentary evidence, contain no positive logic behind them are based on mala fide intention and I take exception to it.
' It is, therefore, requested to either kindly prove the adverse remarks (allegations) under reference or to withdraw the memo under reference."
20, A copy of this letter was communicated to the Director Inspection and Accounts Rawalpindi with the following remarks: "The Director Inspection & Accounts, Rawalpindi, with the request to kindly refer to my letter No, NSC-(AR-85/636-37, dated 3-3-85 and to please note that the memo No, F(16)ZL-4/82 1550 dated 25-4-85 (photocopy enclosed) is yet another proof of my submissions that the Joint Director, National Savings, Zonal Inspection & Accounts Officer, Lahore, is actively trying his best to spoil my career for the reason best known to him. By issuing such irresponsible letter, the worthy Joint Director is not only interfering in my lawful and sacred official as well as public duties but also he is neither doing any service to Government nor to public and is directly responsible for the wastage of Government Public time and money. It may also be pointed out that I am constantly being forced to work under stress and in a state of mental torture, so (God forbid) if any loss is causes to Government by me during the course of audit under such circumstances, due to omission, overlook or lack of concentration, the Joint Director National Savings, Zonal Inspection & Accounts Office, Lahore, may and should be held directly responsible for the same and I am/would not take any responsibility for that. The Joint Director, National Savings, Zonal Inspection & Accounts Office, Lahore, may please, therefore, be directed to behave like gentleman, to refrain from issuing such letters (under reference) and to create a congenial atmosphere in the office, instead of creating harassm ent."
21. Certain other letters were addressed by the appellant to the Chief Director, National Savings Islamabad, where serious allegations of partiality, discrimination and mala-fides were made against the respondent. Here again, detailed account of the averments made by the appellant is unnecessary and it is sufficient to say that they were enough to cause further deterioration in their relations.
22. Then, in the background of this correspondence, he was served with another show-cause notice on 3-12-1986 for action under rule 5(1)(iii) of the Rules, obviously after concluding that no inquiry was necessary either under the circumstances of the case or in the interests of justice. The notice is reproduced below because of its importance in the matter.
"Government of Pakistan Zonal Inspection & Accounts Office National Savings, Lahore No, F(16)ZL- 4/82-2958, Dated 03-12-86 SHOW-CAUSE NOTICE ' You, Hafeez-ul-Haq, National Savings Officer (Insp), Zonal Inspection and Accounts Office, National Savings, Lahore are charged as under:-
(1) You are in the habit of using intemperate and derogatory language in your letters. In spite of the fact that you apologized in your letter No, NSO(AR).85/766-68, dated 11-5-85, you again started using intemperate language, vide your letters dated 27-4-85, 7-5-85, 28-4-86, 29-4-86, 7-5-86 and 1-6-86, against your Controlling Officer, which constitutes serious misconduct. Some extracts from your letters are given below:
(i) Letter No, NSC-(AR)-85/741-42, dated 27-4-1985 ' The Joint Director, National Savings, Zonal Inspection & Accounts Office, National Savings, Lahore, may please, therefore, be directed to behave like gentleman.
(ii) Letter No, NSC-(AR)-85/759-60 dated 7-5-85 ' The remarks contained therein vide your Memo. No,F(16)ZL-4/82-1550 dated 25-4-85 are baseless, ridiculous and uncalled for--
(iii) Letter dated 28-4-86 {{URDU TEXT}}
(iv) Letter dated 29-4-1986 {{URDU TEXT}}
(v) Letter dated 7-5-1986 {{URDU TEXT}}
(vi) Letter dated 1-6-1986 ' The remarks contained in your letter dated 5-5-86 are not based on facts and if not withdrawn I shall be constrained to deal with the matter accordingly x x x x
(2) You have been disobeying the lawful orders of your Controlling Officer, for instance:
(i) You were directed to pay a surprise visit to NSC-Pattoki and NSCChunian, vide this office Memoranda No, F(2)ZL-1J82-2594-95, dated 28-10-86; No,F(2)ZL-1/82-2596-97, dated 28-10-86 and No,F(2)ZL-1/82- 2612, dated 28-10-86 but you did not comply with the orders.
(ii) You were asked to wait in office on 28-10-86 for receiving a letter but you refused to comply;
(iii) You were asked vide this office Memo No,F(2)ZL-1/82-2770-71, dated 12-11-86 to provide certain information to this office regarding the audit work done by you at the National Savings, Treasury, Lahore but you refused to supply the said information to this office vide your letter No,F(1)HH.11/86, dated 13-11-1986.
(iv) You endorsed a copy of your abovementioned letter dated 13-11-1986 to the Director, Inspection and Accounts, National Savings, Rawalpindi directly and also you used intemperate and threatening language therein which tantamounts to misconduct.
(3) You have been working as NSO (Insp.) and conducting audit for the last more than seven years but you have not been able to achieve proficiency in your job, as:-
(i) You take unduly long time in conducting audit;
(ii) You leave the audit work incomplete;
(iii) Your audit reports are unnecessarily voluminous and contained objections which mostly relate to minor procedural irregularities which can be removed on the spot. Besides, your audit observations are also vague some-time.
(iv) Your audit reports are received very late after completion of the audit. The above is evident from the different audit reports submitted by you during the period in respect of NSCS Bhati Gate, Shad Bagh, Allama Iqbal Road, Model Town, Fortress Stadium, Shadman Colony and Abbot Road, Lahore.
(4) In order to give a cover to your inefficiency you have been using various tactics such as mentioned below:-
(i) Frequently applying for leave/availing leave on medical grounds mostly on certificates issued by private medical practitioners.
(ii) Attributing your poor performance sometimes to non-cooperation of the Centre's staff and improper maintenance of Centre's record, and sometimes to non-provision of assistance in audit work by your Controlling Officer.
(iii) Making frequent requests to higher authorities both personally and in writing for your transfer from inspection side to some other office on one pretext or the other.
(5) You are in the habit of availing of leave without prior intimation and approval of your Controlling Officer, despite the fact that you have been advised several time to refrain from this practice. Some instances are given as under:- {{TABLE}} S. No, Leave availed on Application received on 11-1-1986 14-1-1986 20-1-1986 21-1-1986 25 & 26-1-1986 27-1-1986 1-2-1986 2-2-1986 10-2-1986 11-2-1986 18-2-1986 19-2-1986 1-3-1986 2-3-1986 16 & 17-3-1986 18-3-1986 3-5-1986 6-5-1986 13 & 14-5-1986 15-5-1986 14-6-1986 15-6-1986 26-6-1986 30-6-1986 2-9-1986 3-9-1986 5 & 6-10-1986 7-10-1986 26-11-1986 29-11-1986 27-11-1986 29-11-1986 {{TABLE}} ' By reasons of above you are accused of misconduct and inefficiency and are thus liable to be proceeded against under Government Servants (Efficiency and Discipline) Rules, 1973.
' In the light of facts and circumstances of the case it has been decided by the undersigned (Authorised Officer) that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee in this case in terms of rule 5(1)(iii) of the Government Servants (E & D) Rules, 1973.
(4) You are, therefore, required to show cause (in writing) within 7 days of the receipt of this notice as to why you should not be proceeded against under Government Servants (Efficiency and Discipline) Rules, 1973 and why the major penalty of dismissal from service should not be imposed upon you failing which it shall be presumed that you have nothing to say and action against you will be processed ex parte:-
(5) You should also state whether you would like to be heard in person. Sd/ Muhammad Fasih Khan, Joint Director (Authorised Officer.)"
23. The appellant submitted an explanation in writing on 11-12-86 where it was, inter alia, pleaded that the allegations levelled against him by respondent No,3 were the result of mala fide intention and personal grudge. After considering this explanation, respondent No,3 came to the conclusion that all the charges against the appellant had been established and he recommended the case to the competent authority for major penalty of reduction to a lower post on a finding that he had been found guilty of misconduct and inefficiency; which was followed by the impugned order of removal from service on 29-1-1987.
24. It is in the context of these facts that we have to examine the contentions that since the remarks alleged in the show-cause notice to have been made by the appellant, were directed against respondent No,3 "he was not competent to decide that no inquiry was necessary"; that "he was debarred from examining the appellant's explanation to the show-cause notice to make a recommendation to the competent authority"; that he "acted as judge in his own cause" in violation of the principle of natural justice and that the entire disciplinary proceedings stood vitiated because of his personal bias and malice. We may also take notice of the contention that "controversies with regard to various facts were involved and it was not at all possible to resolve such controversies without holding an independent inquiry and that absence of such an inquiry has caused serious prejudice to the case of the appellant who has been deprived of the opportunity of rebutting the accusations against him.
25. Whether it was a case of inquiry may be decided in the light of observations made by the Federal Service Tribunal in the case of Saeed Ahmad and approved by the Supreme Court in WAPDA through its Chairman v. Saeed Ahmad 1985 SCMR 1887. They were as follows: "The option given to a concerned authority to proceed against an employee, whether by charge- sheeting him and subjecting him to enquiry proceedings or straightaway requiring him to show cause against proposed action, is not one to be exercised arbitrarily or at the sweet will of the concerned authority. This Tribunal has invariably taken the view that the concerned authority can dispense with the enquiry proceedings only when the case is prima facie so clear, convincing and cast-iron as to be taken to have been established and requiring no further evidence to prove it".
In the present case, the allegations on the charge of inefficiency were such in nature as required evidence for proof, and respondent No,3's decision that no inquiry was required, was clearly arbitrary, particularly when seen in the background of strained relations with the appellant and the fact that he denied their correctness. An inquiry in this matter would, therefore, have given him an opportunity to disprove the charge and thus resulted in the promotion of ends of justice.
26. Leaving this aspect of the matter aside, I am absolutely in no doubt about one thing: It is, the least said, that in view of the unpleasant relations of the parties, which is an euphemism for enmity, in all fairness and accord with the rules of natural justice, respondent No,3 should not have sit in the judgment on whether it was or was not a case of inquiry, particularly when he was aware of the fact that the appellant had been crying himself hoarse, during all those years from 1984, that he bore grudge against him. It goes without saying that under the circumstances, it was a very important decision, and it was, therefore, the least demand of justice that it should have been made by an independent person. Respondent No,3 was far from being so, and I find it impossible to refute the contention that he sat as a judge in his own cause and the proceedings which followed were vitiated and of no legal effect.
27. In support reference may be made with advantage to the case of Major Muhammad Nawaz v.
Pakistan through Secretary, Communication PLD 1970 Lah. 811, cited at the bar by the appellant's learned counsel, where during proceedings under the Efficiency and Discipline Rules, an Inquiry Officer was appointed who was not acceptable to the appellant on the ground that he was inimically disposed towards him. In spite of his protest, the same person held an ex parte inquiry and submitted a report where he found him guilty of the charges. In reply to the final show-cause notice, the appellant, inter alia, referred to the denial of a reasonable opportunity to show cause against the allegations levelled against him and the holding of ex-parte inquiry by an officer who was patently biased and inimical towards him. Eventually, he was dismissed from service, on the basis of that report with immediate effect on the ground of inefficiency and misconduct. The order of dismissal was set aside by the High Court in a constitutional petition, inter alia, on the ground "that the inquiry was vitiated" because of the bias that the Inquiry Officer had against the petitioner and that report of such inquiry could not in law, be considered by the competent authority, nor could it base its finding upon it, particularly when representations had, time and again, been made to it against the very appointment of such officer.
28. The following observations made by the High Court are in point: "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."
29. The appellant's learned counsel, relied upon the following authorities in support of his case:
(1) Mohammad Mohsin Siddiqui v. Government of West Pakistan (PLD 1964 SC 64).
(2) Haji Ghulam Mustafa v. Secretary, Government of Punjab, Agriculture Department 1973 PLC Lah.
308.
(3) Muhammad Abdullah Khan v. National Bank of Pakistan and two others (1980 PLC (C.S.) 105)
(4) Province of Punjab through Secretary, Home Department, Lahore and others v. Malik Mukhtar Ahmad (1989 SCMR 551).
(5) Malik Mukhtar Ahmad v. Superintendent of Police, Attock and two others (1982 PLC (C.S.) 238).
(6) WAPDA through its Chairman v. Saeed Ahmad 1985 SCMR 1887.
30. In Mohammad Mohsin Siddiqui's case, the appellant sought, by means of a writ petition, an order for the quashment of his dismissal by the District Judge of Hyderabad from the post of permanent Stenographer he held under the District Judge, which had followed upon a finding by the same District Judge in an inquiry held on a charge framed by himself that the charges were of "very serious nature", that he had "misbehaved and misconducted himself' and therefore there was no reason "to take lenient view of the sentence". Mr. Siddiqui appealed against the order of dismissal on the administrative side of the High Court as well to the Government, but without success. The writ petition in the High Court also failed. Of the several grounds upon which the rejection was based, the only one relevant for the purpose of appeal was that "the order of the petitioner's dismissal has been affirmed by Justice Munshi in appeal, with which we have no jurisdiction to interfere in exercise of our writ jurisdiction.. This Court cannot issue a writ to itself to quash the order of Justice Munshi as being without jurisdiction." The order made by Mr. Justice Munshi sitting as Administration Judge in the High Court was communicated to the appellant in the following words: "The Administration Judge after careful scrutiny of the explanation submitted by Mr. Mohsin Siddiqui and the report of the District Judge, Hyderabad, has decided that the retention of Mr. Mohsin Siddiqui in the Judicial Department will serve no useful purpose. Hence in order not to prejudice Mr. Siddiqui's future prospects the Administration Judge has been pleased to alter the order of dismissal passed by the District Judge, Hyderabad to one of discharge with no bar to future employment by Government."
31. Leave to appeal against the judgment of the High Court in the Writ Petition was granted to consider whether the District Judge was not disqualified from trying Mr. Siddiqui, because firstly, the charges had been framed by himself which included references to acts of discourtesy towards himself as well as disobedience of his orders and, secondly, they mentioned also that at a stage before the commencement of the inquiry upon the charges, Mr.Siddiqui had forwarded a representation to the High Court complaining against the District Judge.
32. The appeal was allowed with the direction that a writ should issue from the High Court quashing all the proceedings before the District Judge, with the effect that all consequential proceedings were rendered void and of no legal effect.
33. The Supreme Court took notice of the total effect of all the charges against the appellant which were summarized by the District Judge himself in the following words: "It is thus clear that you have misconducted, misbehaved and insulted your superior officer, i,e,, the District Judge, Hyderabad and launched unfounded, malicious, insulting, insinuating language against him without any justification and acted in insolent manner, and have thus rendered yourself liable to be punished with one of the penalties mentioned in Rule 33 of the Sindh Civil Services Conduct, Discipline and Appeal Rules."
34. The following observations made by the Court arc in point: "Enough has been said in this judgment already to put it beyond all conceivable doubt that Mr. Kadir Nawaz Awan had presented charges against Mr. Mohsin Siddiqui which were wholly based upon his personal dissatisfaction with Mr. Mohsin Siddiqi's behaviour towards and in respect of himself. He was quite clearly the complainant in the case, and undoubtedly the most important witness in the case. 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 affecting his judgment in the evaluation of the evidence before him. This indeed would be a case of the evidence which he could and should have given in the enquiry as to the degree of outrage he himself suffered through the alleged actions by his stenographer, being thrown untested into the scales in weighing the innocence or guilt of the latter and that could only lead to a mere perversion of justice. 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."
35. The facts of cases cited at the bar as 1973 PLC 308 and 1980 PLC (C.S.) 105 are distinguishable.
In the case of WAPDA v. Saeed Ahmad (1985 SCMR 1887), the respondent who was the Chief Auditor of the Authority, made a statement before the Summary Military Court as defence witness in a case against one Abdul Qayyum Arif Contractor of WAPDA, where, according to the Authority, he levelled defamatory and baseless allegations against the Chairman and other officials of the Authority with the malicious intention of defaming them. Disciplinary proceedings were initiated and on 31-7-1980 he was served with a notice under Rule 5(iv)(a) of the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978. Instead of submitting a reply, the respondent asked the Authority to provide him with the report on the basis of which the notice had been issued. He also requested for permission to see various files and other record. None of these documents was either supplied or shown to him on the ground that his request was nothing more than a dialatory tactic. On 26-1-1981, without further ado, he was dismissed from service under rule 4 of the Rules on charges of misconduct.
36. The Supreme Court upheld the following observations made by the Federal Service Tribunal in this case: "Besides, while the allegations levelled against the Chairman and his colleagues by the accused in the trial before the Summary Military Court were sub-judice, the Chairman,who was himself an interested party, decided to use the full weight of the powers of the Authority to punish the appellant who had deposed against him in the case; thus, in a way making himself a judge in his own cause. Simultaneously, having decided to punish the appellant for his alleged misconduct, he also closed the doors of appeal on him by getting the matter decided by the Authority itself, in the very first instance. For the above infirmities both on merit and in law, from which the action of WAPDA suffers, we hold that the impugned order cannot be sustained." The appeal was accordingly dismissed by the Supreme Court.
37. In Province of Punjab v. Malik Mukhtar Ahmad (1989 SCMR 551), which was on appeal against the judgment of Punjab Service Tribunal reported as 1982 PLC (C.S.) 238, Ch. Mushtaq Ahmad Superintendent Police, Attock recovered Rs, 2,000 from the respondent which amount was alleged to have been extorted by him from various truck Drivers as illegal gratification. The Superintendent Police issued show-cause notice to him containing six charges and after giving him a personal hearing, dismissed him from service under rule 6(3) of the Efficiency and Discipline Rules. While accepting the appeal, it was observed by the Tribunal that the principle of natural justice had been violated, as the Superintendent Police, was himself the most important witness, prosecutor and judge all at the same time. The Supreme Court upheld the Tribunal's decision by placing reliance on the case of Mr. Siddiqui (PLD 1964 SC 64) where the following observations were made: (1989 SCMR 551)
"The whole proceeding in a departmental enquiry is 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 frame-work 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."
38. In the end, we might as well take notice of plea that order of appellant's removal from service in the present case was passed, not by respondent No,3 but by the Director General "in his capacity as Authority after carefully going through the record, keeping in view the pleas and explanation of the appellant and taking into consideration all aspects of the case." It was contended at the bar during the course of arguments that since the impugned order was passed by an impartial competent authority, there has been no miscarriage of justice.
39. Even in Malik Mukhtar Ahmad's case it had been contended on behalf of the Province of Punjab that the case was considered by two appellate authorities and the defect was cured. While repelling this contention it was ruled that the circumstances of consideration of the case by two appellate Authorities "would not cure the jurisdictional defect in the order passed by the biased Superintendent Police." This contention was also considered in the case of Mohammad Mohsin Siddiqui and it was observed by the Court that the effect of initial irregularity "will be that all consequential proceedings will be rendered void and of no legal effect."
40. In the present case, like in those we have examined, the relations of respondent No,3 with the appellant left everything to be desired and we do not hesitate to hold that he should have not acted as Authorised Officer to decide about the necessity of an inquiry and that his finding in this respect and subsequent recommendations are tainted and prejudiced against the appellant; which circumstance was sufficient to vitiate the entire proceedings and render them void and of no legal effect.
41. For these reasons, the appeal is accepted and the impugned order of appellant's removal from service dated 29-11-1987 is set aside, with the direction that he shall be reinstated in service.
Respondents Nos. 1 and 2 shall, however be within their legal right to start the disciplinary proceedings afresh, from the stage when the mistake can be rectified. He shall be entitled to all back benefits in case fresh disciplinary proceedings are not initiated; but in case they are initiated the question of whether he is entitled to such benefits shall depend upon the result of those proceedings. There will be no order as to costs. Parties to be informed.