1. ' NAIMUDDIN, J.---Petitioner a Patwari was dismissed from service after inquiry by the Assistant Commissioner (Saddar)/Collector, Lahore by the order dated 24th March, 1976. His appeal before the Commissioner, Lahore and the revision petition before the Member, Board of Revenue were also dismissed by the respective orders dated 28th June, 1976 and 8th July, 1980.
2. ' He impugned these orders in an appeal before the Punjab Service Tribunal which was heard by the Full Bench consisting of the Chairman and two members. The Tribunal dismissed the same by the order dated 19th July, 1981. The order, however, was signed by the Chairman and one member as the other member after hearing the appeal and before the order could be passed was transferred to some other post.
3. ' On 13th August, 1988, a notice was issued to the Advocate-General (Punjab) to show cause why this petition be not converted into an appeal and allowed as one of the learned member of 'the Tribunal, namely, Mr. Sarwar Hussain who heard the matter has not participated in the decision- making. Accordingly we have heard the learned counsel for the petitioner and the Additional Advocate-General (Punjab). The question for consideration is whether the order of the Tribunal dated 19th July, 1981 signed by the Chairman and one Member of the Tribunal is valid though the appeal was heard by the Full Bench of the Tribunal consisting of the Chairman and two members.
4. In considerting answer to this question we find that the only provision of law which has some relevancy is rule 24 of the Punjab Service Tribunals (Procedure) Rules, 1975. It provides that if any member of the Tribunal is, for any reason, unable to take part in the proceedings of the Tribunal, the other members may hear or' continue to hear the appeal but the decision of the Tribunal shall be shown to the absentee member and if such member has any view to express the same may be recorded and the decision of the Tribunal shall be expressed in terms of the view of the majority.
5. A perusal of the rule 24 makes it clear that the proceedings in appeal could continue notwithstanding the absence of a member and the decision could be expressed in terms of the view of the majority but the proposed decision of the Tribunal is required to be shown to the absentee member, in order to give him an opportunity to express his view in the matter if any, and record the same. This obviously has not been done. No other rule or provision of law has been pointed out which- gives authority to the Chairman and a member to decide the appeal in the absence of the other member or without his participation in the decision-making. The judgment must be an expression of the mind of the Tribunal as a whole at the time of delivery of the judgment. In support we may here quote a passage from a decision of Indian Supreme Court in the case of Surrender Singh v. State of Uttar Pradesh (AIR 1954 SC 191), which was referred to by this Court in the case of Mian Aftab A. Shaikh and others v. Income-Tax Appellate Tribunal (1988 SCM R 50). It reads: "An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open Court. But however it is done it must be an expression of the mind of the Court at the time of delivery. We say this because that is the first judicial act touching the judgment which the Court performs after the hearing. Everything else uptil then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is, not their judgment. They may write and exchange drafts.
6. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open Court with the intention of making it the operative decision of the Court. That is what constitutes the `judgment'."
7. ' In the case of Aftab A. Shaikh (supra) order of Income-Tax Tribunal was questioned on similar ground. It was observed at page 56 of the report by Shafiur Rahman, J. Who wrote the opinion of the Court as follows: "The law with regard to the decision of the Tribunal on a point on which the Members thereof differ, is not different than that applicable to a Bench of Judges of any Court for that matter. It provides that if the members of a Bench differ in opinion on any point, the point, shall be decided according to the opinion of the majority, if there is a majority. This exercise of formulating Court's order or Tribunal's order in case of difference of opinion, cannot be left to any other individual or a Judge alone but has to be done by all the Judges constituting the Court or Tribunal for that particular case. They must agree with regard to the Court's order irrespective of their individual differences and must decide upon each point in view of the legal provisions made for such a situation.
8. Actually, the view advanced by the learned counsel for the appellants, is loaded with mischief because the parties would be going behind and looking to the tentative views expressed by the Judges while finalising their own opinion in a case heard by them."
9. These observations apply with full force to this case more so when the rule itself requires that the decision of the Tribunal has to be shown to the absentee Member and he has to be afforded an opportunity to express his view if any.
10. ' We, therefore convert this petition into appeal, set aside the impugned judgment of the Tribunal and remand the appeal to the Tribunal for fresh decision according to law. The parties shall bear their own costs.