MUSHTAQ HUSSAIN, J.---By our order dated 10th December 1969 we accepted this writ petition and declared the impugned order to be without lawful authority and of no legal effect. We further directed that the petitioner shall get his costs from the respondent and declared that he continues to be in the service of Pakistan. Our reasons for the aforesaid order are as follows.
2. Major Muhammad Nawaz petitioner was commissioned into the Ordnance Corps of the Indian Army in the year 1942. He continued to serve in the Defence Forces till 1950 when his services were requisitioned by the Ministry of Communications, Telephones and Telegraphs Department, for a period of six months. This period was extended by one year and eight months. A request by the Ministry of Communications for further extension of the period of deputation of the petitioner by two years was turned down by the Ministry of Defence on 7th July 1952. A letter from the Chief Engineer, Telephones and Telegraphs Department, dated 4th April 1952, which was endorsed by the Director-General on 7th April 1952, in which the petitioner was labelled as indispensable. Could not make the Ministry of Defence change its mind. As would appear from Appendix `C', a letter from the Director-General to the Minister of State, "the Services of Major Muhammad Nawaz Siddiqi were urgently required for an important appointment in the Army." The petitioner, therefore, reverted to the Army in July 1952.
3. One Mr. Abdul Hamid, who was then Deputy Director---General, Staff and Establishment, in the Telephones and Telegraphs Department, and whose name would appear more than once in the course of this judgment, wrote a letter to the Army Authorities in October 1952, informing them that the petitioner's control over his subordinates during his stay in the Telephones and Telegraphs Department was lax. The Army Authorities held an enquiry and found the report to be incorrect.
4. On 21st December 1954 Lt.-Col. S. A. Siddiqi, Director-General, Posts and Telegraphs Department and Joint Secretary in the Ministry of Communications. Wrote to the Minister of State on the subject of deputation of the petitioner. The letter, inter alia, contains the following passage--- "During the term of his appointment in the Post and Telegraphs Major Siddiqi was engaged on implementing new methods of working in the Stores Branch of the Department. The work of implementation, referred to above, has not yet been completed and we would very much like to have Major Siddiqi in the Posts and Telegraphs for some time more. I shall be grateful if the services of Major Muhammad Nawaz Siddiqi are replaced with the Posts and Telegraphs Department for a period of one year initially. The following will be the terms of his deputation to this Department:
(i) The Officer will be on deputation for a period of one year and will work in the Posts and Telegraphs Stores Organization.
(ii) The Officer will draw pay and allowances which he would have drawn in his substantive post or the post which would have held but for this deputation to the Posts and Telegraphs Department, plus a special pay of Rs. 250.
(iii) In respect of all other matters such as leave, T. A., disability pension, etc. The officer will be governed by the Military Rules."
Haji Abdul Hamid and other departmental officers, who are said to be associated with him, protested against this request but they were overruled by the Government.
5. On 12th August 1955 the petitioner took over as Controller of Telegraph Stores, Karachi. The extension of his term was successfully obtained by the Telegraph Department up to August 1957.
6. When the petitioner came over on the 2nd deputation, his G. O. C. In the Army gave an excellent report in which he was graded as an above average army Officer.
7. It was on or about the expiry of the extended period of deputation that the Ministry of Defence and the Ministry of Communications agreed to appoint the petitioner to the General Central Service, Class-I, Telephones and Telegraphs Department. Thus, having served the Army for about fourteen-and-a-half years the petitioner was transferred to Civil Employ in spite of vehement protests made by Haji Abdul Hamid and Mr. Mahbub Khan etc. It may, at this stage, be mentioned that Mr. Mahbub Khan, who was the Incharge of the Telegraph Workshop, had during this period fallen out with the petitioner.
8. On 12th July 1966, the petitioner was served with two letters containing orders suspending the petitioner from service with immediate effect and appointing Haji Muhammad Bashir as Enquiry Officer under rule 6 (2) of the Government Servants (Efficiency and Discipline) Rules, 1960. One of the letters also stated that a summary of allegations was being forwarded to the Enquiry Officer who was required to examine them and report on his conduct. The petitioner, in spite of best efforts, failed to get a copy of the summary of allegations. On 27th August 1967, Haji Muhammad Bashir submitted the preliminary enquiry report to Haji Abdul Hamid, Director-General. This report was never shown to the petitioner.
9. On 27th October 1966 a Memorandum of Charges signed by Haji Abdul Hamid was served upon the petitioner. The peti--tioner considered these charges to be sketchy and vague and wholly lacking in particulars. On 3rd November 1966, the petitioner submitted his reply to the charges by registered post to the Principal Secretary to the President of Pakistan and endorsed copies to the Secretary, Ministry of Communications and the Director-General of Telegraphs and Telephones. In his reply he mentioned the vagueness etc., of the charges, referred to above, and protested against the refusal to grant access to the relevant files. In particular, and this is the main factor, the petitioner recounted the enmity harboured by Mr. Mehbub Khan against the petitioner, instances of which would be adverted to later in the judgment, and protested against the appointment of a sworn enemy as the Enquiry Officer. He prayed for the appointment of an independent person to hold an enquiry into the charges levelled against the petitioner. He adverted the attention of the President to the fact that he intended to produce oral as well as documentary evidence in the course of the enquiry.
10. Since the petitioner did not hear in reply, he sent a registered reminder on 7th January 1967, to the Secretary, Ministry of Communications. The petitioner was informed by the Director-General that his case was under consideration. The petitioner followed it up with two more registered reminders.
11. On 14th March 1967, the petitioner was directed by the same Enquiry Officer to submit his reply to the charges within fourteen days of the receipt thereof, failing which, he was informed, the Enquiry Officer "shall have to report to the competent Authority to start ex parte proceeding against" him.
12. The petitioner, in reply, informed the Enquiry Officer by registered post on 21st March 1967, that the reply to the charge--sheet had been duly sent to the President as well as to the two officers, named above. Some of the points made out in the reply sent to the President were reiterated in this letter to the Enquiry Officer who was informed in categorical terms of the details of the malice that he bore towards the petitioner and was finally informed that-- "as such you are not only not acceptable to me but also not qualified to become an enquiry-officer in this case."
13. The petitioner then went on sending reminders to the Ministry and thereafter to the Director- General of Telephones and Telegraphs, copies of which were forwarded to the Enquiry Officer, but to no avail.
14. On 11th October 1967 the petitioner again moved the President of Pakistan against the appointment of Mehbub Khan as Enquiry Officer.
15. He never received any reply and on 31st October 1967 received instead a final show-cause notice from the President of Pakistan disclosing that Mr. Mehbub Khan, the Enquiry Officer, having held an ex parte enquiry against the petitioner, had held him guilty on all counts. It is interesting to note that the Enquiry Officer brushed aside the reply sent by the petitioner on 21st March 1967, and rules it out of consideration on the ground of "irrelevancy".
16. On 5th December 1967 the petitioner submitted his reply to the final show-cause notice in which he, inter alia, referred to the denial of a reasonable opportunity to show cause against the charges framed against him and the holding of an ex parte enquiry by an officer who was patently biased against him and was inimical towards him.
17. The petitioner was dismissed from service vide Gazette Notification, dated 24th July 1968, with immediate effect on grounds of inefficiency and misconduct.
18. This brought the petitioner to this Court.
19. The orders of dismissal have been assailed on a large number of grounds which may be summed up as follows:
(i) The Memorandum of Charges was vague and was not accompanied by a Statement of Allegations ;
(ii) access to relevant record was denied ;
(iii) ex parte report of the preliminary Enquiry Officer was not disclosed ;
(iv) the enquiry was vitiated because of bias in the Enquiry Officer ;
(v) the right to produce evidence and cross-examine the witnesses denied as date of hearing was never communicated ;
(vi) no finding having been recorded by the Enquiry Officer under rule 8 (3) he had no jurisdiction to proceed ex parte ;
(vii) the report does not separately specify the material on which the charge of ineffciency and that of misconduct was based ;
(viii) the Enquiry Officer proceeded on the basis of the ex parte report of the preliminary Enquiry officer and did not hold any enquiry of his own ;
(ix) the competent Authority has failed to consciously apply its own independent mind to the matter ; and
(x) the competent Authority did not take into consideration the cause shown by the petitioner.
20. We have gone through the Memorandum of Charges and we would not call them vague if a Statement of Allegations giving necessary details were to accompany it. As for the statement of Allegations, we have no choice but to accept the statement made in the petition, that it was not delivered to the petitioner, for not one word denying this allegation has been written in the entire petition. Rule 6 (5) (a) of the Government Servants (Efficiency and Discipline) Rules, 1960, which deals with cases in which tha major penalty is called for, provides that the authority having power to impose the penalty shall frame a charge and communicate it to the accused together with a statement of the allegations on which it is based and of any other circumstances which the authority proposes to take into consideration when passing orders on the case." This is a mandatory provision of law and the use of the word "shall which applies both to the framing of the charge-sheet, communicating it to the accused and to the supply of a statement of the allegations makes it incumbent upon the Authority to comply with it. A non-compliance with it would amount to transgression of an obligatory rule which lays down the minimum standards comprising reasonable opportunity to be afforded to a Government servant against whom action is sought to be taken. The amount of prejudice, which would be caused to the person concerned, need not be taken into consideration, for non--compliance with the rule itself would constitute denial of a reasonable opportunity which per se would vitiate the action taken. In this case, however, the absence of the statement of allegations particularly when the charges were shorn of all details in the charge-sheet did cause prejudice to the petitioner because he was deprived of information as to the basis on which the charges had been framed against him and the other circumstances which were taken into consideration when passing orders of his dismissal.
21. The allegation, that the petitioner was denied access to the relevant record, has been repelled and it has been stated that the petitioner himself avoided access to it. Annexure `V' to the Petition is a copy of a letter addressed by the petitioner to the Secretary, Ministry of Communications, demanding copies of letters, documents etc. He also asked for inspection of the record. This allegation has been met with a bare denial (Para. 48 (iii) of the written Statement) and the assertion that the petitioner himself avoided examination of the relevant record. The Department has not produced any document to show that permission for inspection was granted to the petitioner but he failed to avail of it. In fact, no effort has been made by the respondent to substantiate its denial. We are consequently constrained to conclude that the opportunity asked for by the petitioner was denied to him.
22. The mere fact that the report submitted by the preliminary Enquiry Officer was not disclosed to the petitioner, even if correct, does not affect the impugned order. The petitioner is required to be associated with the enquiry from the stage when the charge-sheet is served upon him. The preliminary enquiry was admittedly held before the charge-sheet was served and, therefore, the petitioner cannot mane a grievance ou;. Of the fact that anything which happened before the charge--sheet was framed was not brought to his notice.
23. The most important part of the case is the allegation of Bias against the Enquiry Officer. The petition is replete with instances of bias of the Enquiry Officer. Some of them may be summarised as follows:
(a) The relations of Mr. Mehbub Khan and the petitioner had become extremely strained and charges and counter-charges against each other on account of alleged shortcomings were the order of the day. (Para. 5 of the Petition).
(b) Mr. Mehbub Khan was appointed as a helper and assistant to an Enquiry Committee presided over by Haji Abdul Hamid long before the enquiry in question was held and the suspension of the petitioner was secured on a report made by Mr. Mehbub Khan. (Para. 8 of the Petition).
(c) The petitioner had as far back as the year 1958, when this action was taken, protested against Mr. Mehbub Khan's association with that enquiry on the ground that he was inimically disposed towards him. (Para. 9 of the Petition).
(d) The petitioner was exonerated by the Government which not only repelled the findings of Mr. Mehbub Khan and Haji A. Hamid but criticised them for adopting a vindictive attitude., and the petitioner was re-instated in service. (Para. 9 of the Petition).
(e) Mr. Mehbub Khan wrote "a defamatory and adverse report" against the petitioner in the year 1958 which was endorsed by Haji A. Hamid. A representation made by the " petitioner to the Government against it was withdrawn. The petitioner then filed Writ Petition No, 25 of 1960 and the same having been admitted the representation was forwarded to Government which expunged the said adverse remarks(Paras. 11 and 12 of the Petition).
(f) In 1963 the petitioner served a notice through counsel on Haji Abdul Hamid and Mr. Mehbub Khan for damages arising out of defamation. (Para. 18 of the Petition).
24. No satisfactory answer to these allegations has been given in the written Statement filed by the Government. In fact none could have been given because the relations between Mr. Mehbub Khan and the petitioner, as is clear from the resume of facts given above, were strained for a long time before the enquiry culminating in the impugned order started, and matters had reached such a head that legal notices through counsel were exchanged between them. In these circumstances, the petitioner was well within his right to assume that any enquiry held by Mr. Mehbub Khan against him would not be free from bias.
25. It was pointed out to us by learned counsel for the Government that since bias was alleged only against the Enquiry Officer the impugned order would not be bad in law because there was no allegation that the competent Authority, which passed it, was biased against him. Reference was made to Mirza Muhammad A.I v. Commissioner, Lahore Division (PLD 1960 Lah. 641). The observations made in ti,at case are wholly inapplicable to the circumstances before us. In that case, there was a Committee which made recommendations against Mirza Muhammad A.I and the order was finally passed by the Commissioner. Captain Mohabat Khan, one of the Members of the Committee, gave an affidavit that he had no ill-will towards Mirza Muhammad A.I. Apart from the fact, that in that case there was a Committee cansisting of three persons and the Hon'hle Judge who decided that case found it difficult to believe that even if Captain Mohabat Khan had ill-feelings towards the petitioner he could not have prevailed upon the other two Members of the Committee to join him in expressing an opinion against Mirza Muhammad A.I, in the present case Mr. Mehbub Khan was the solitary person who was to and did hold the enquiry and made the report against the petitioner. We have no affidavit of Mr. Mehbub Khan before us either. No doubt, their Lordships held in that case that since there were no allegations of ill-will against the Commissioner, the order passed by him could not be vitiated on account of bias alleged against one of the Members of the Screening Committee. The facts here are quite different. In this case, an enquiry was held with which the petitioner was not associated; no evidence was led by either party; the Enquiry Officer acted upon the basis of an ex parte preliminary enquiry held by another enemy of the petitioner; and the findings arrived at by him were placed' before the President who had only one side of the picture before' him and that too had been painted by a person who had a long history of open enmity towards the petitioner. The President was not even informed that the petitioner had protested against the appointment of the Enquiry Officer whose findings were being placed before him. It was, therefore, a case where there was only one version before the President and that too of a biased person. Can it, in such circumstances, be said that an order based upon such a report would not be vitiated on account of the bias of the officer who made the report simply because the officer, who passed orders on that report, had no bias against the person concerned.
26. Learned counsel for the respondent also referred to Syed Akhlaque Hussain v. Pakistan (PLD 1969 SC 201). All that has been held in that case is that-- "a real likelihood of bias must be established."
27. Our attention was also adverted to Husain All Chagla v. District Magistrate, Lahore and another (PLD 1966 Lah. 309). In that case the order of detention passed by the District Magistrate was held not to be void, simply on account of the bias that the Inspector General of Police had against the petitioner. That case is distinguishable, firstly, because it was held that "even as regards the Inspector-General of Police the matter rests in allegation only" and further that the Inspector- General of Police had nothing to do with the detention of Hussain A.I Chagla. That is not so here, and we, therefore, do not consider Chagla's case apposite to the facts before us.
28. 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 mannet 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. In the words of Cornelius, J. (as he then was) in Nurul Hasan's case "the importance of such an enquiry to precede a decision involving a loss of status of a public servant is undeniable". Similarly, it was observed by Fazle-Akbar, J. (as lie then was) in the case of Ghularn Sarwar (PLD 1962 SC 142) that- "the provision of section 240 and the rules made under section 241 thus give a guarantee of employment to the Government servants and the guarantee continues through the period of their service. It is, therefore, clear that the Govern--ment cannot act in a high-handed manner and award punishment to its servants without following the proper procedure," and by Hamoodur Rahinan, J. (as he then was) in the same case that- "I have come to this conclusion for I too wish, in the words of noble Lord Roche in the opinion which he delivered at the Board of the Judicial Committee of the Privy Council in the case of Venkata Rao, 64 1 A 55, to regard the terms of the section as containing a statutory and solemn assurance that the tenure of office, though at pleasure, will not be subject to capricious or arbitrary action, and am as equally anxious as the noble Lord was that supreme care should be taken that this assurance should be carried out in the letter and in the spirit in which it was granted by Parliament." "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."
30. Notice in this connection may be taken of Abdul Wassey v. Pakistan (PLD 1957 Kar. 363) where it was held on the basis of a large number of English Cases that "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".
31. We have no option but to hold that the enquiry was vitiated because of the bias that the enquiry officer had against the petitioner and the report of such an enquiry could not, in law, be considered by the competent authority, nor could it base its findings upon it, particularly when representations had time and again been made to it against the very appointment of such officer.
32. The fact remains that no date was ever fixed by the Enquiry Officer for holding the enquiry although the petitioner did send to him a reply to some of the charges levelled against him, and he was thus deprived of opportunity to produce evidence in his defence. We are not prepared to make any assumption that he would not have appeared before the Enquiry Officer if the latter had fixed a date for that purpose.
33. It cannot be lost sight of that the Enquiry Officer did not hold any enquiry, at all. He based his conclusions on a so-called preliminary enquiry held by another enemy of the petitioner, referred to above. The Enquiry Officer had to submit a report on the basis of a evidence led before him and he had no power whatsoever to base his conclusions upon the report of another officer.
34. We have had a look at the order passed by the competent authority is this case and that has left us with the impression that the Authority just passed an order on the basis of the biased report before it without consciously applying its own independent mind to the matter. A perusal of the files, shown to us by learned counsel for the respondent, has convinced us beyond any shadow of doubt that at the time when the file was placed before the President for his final orders he was not ever: apprised of the fact that the enquiry had been held in the absence of the petitioner and in spite of repeated allegations made by him that the Enquiry officer was a biased person who could not hold an independent enquiry against him.