' Facts leading to this Constitutional petition are that the respondent, an employee of the petitioner, was found to have remained absent for a number of days between the year 1972-73. He was charge-sheeted on 10-12-1973. Enquiry was held and he was found guilty on 24-2-1975. A show- cause notice was given to the respondent. After consideration of his reply, the respondent was dismissed from service vide order dated 18-4-1975. The later challenged this order by means of an application under section 25-A of the Industrial Relations Ordinance, 1969 which was finally accepted and it was directed that the respondent shall be re-instated, though his employer was allowed to hold fresh enquiry. This is vide order of the Junior Labour Court No, II, Lyallpur dated 17-11- 1975. The petitioner, for fresh enquiry, issued a notice to the respondent on 2641-1975. The Enquiry Officer submitted his report which was adverse to the respondent on 13-12-1975. Alongwith copy of the report, a show-cause notice was given to the respondent on 6-1-1976. After considering his reply, he was again dismissed on 11-1-1976. After serving notice on the employer, the respondent filed another application under section 25-A of the aforementioned Ordinance. The Punjab Labour Court No, 3, Lyallpur dismissed the application on 29-4-1976. The respondent filed an appeal which has been accepted by the learned Punjab Labour Appellate Tribunal vide order dated 3-8-1976.
The order has been challenged by means of the present Constitutional petition.
2. Learned counsel for the petitioner has contended that the application before the Punjab Labour Court was incompetent and, consequently, the same could not have been allowed on appeal for the reason that the basis of the complaint was that the enquiry as conducted was illegal but the respondent had no right in law or any agreement as regards the method of the enquiry. The learned counsel has referred to section 25-A of the aforesaid Ordinance.
3. 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 person who was a prosecution witness against him in the first enquiry and as such the enquiry officer was prejudiced 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 Ahmed in which the evidence w is 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 the employer, 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 proceedings whereas the latter 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. Those 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 impartially between the parties arraigned before them. An ex facie partiality 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 judicial 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 places of the parties and the witnesses on the one hand, and of the persons 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'. This is an age old addaae. In Rex v. Sussex Justices. Ex parte Mc Carthy (1), the deputy clerk to the justices was a member of a firm of solicitors who were acting for the plaintiff in an action against a certain McCarthy who was being prosecuted by the police for driving a motor-car in a manner dangerous to the public. Lord Hewart, C. J., referred to a long line of cases and held that "it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." It was observed that "the question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered, the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. His two-fold position was a manifest contradiction." In the present case, Mr. Maqsood who recorded the proceedings was not even a clerk of the enquiry officer but was a representative of the party opposed to the person proceeded against and was also a prosecution witness against that person I e. The respondent. In the case of Rex. v. Sussex Justices, Ex parte McCarthy (2), Swift, J.
Observed that "nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice." Would it not appear that a person proceeded against may have a reasonable suspicion that his opponent witness is himself recording the evidence and proceedings against him? It would be asking too much from a person placed in the position of the respondent not to have a suspicion that he was not getting justice when the proceedings against him are being conducted in that fashion. In the case of The King v. Salford Assessm ent Committee Ex Parte Ogden (3) the facts were that an officer of a rating authority, whose duty was to attend the meetings of the rating committee for the purpose of taking minutes of their proceedings, and so would obtain knowledge of all the transactions of the rating authority, was appointed by the assessing committee for that area acting clerk to the Committee and would have to advise the assessm ent Committee upon matters of procedure. The assessment Committee would have to consider an objection by the rating authority to a proposal to amend the valuation list. An application was made to prohibit the assessment Committee from acting on the resolution appointing the officer acting, clerk to the assessment Committee and also from acting upon a resolution directing him to remain in attendance on the Committee during the hearing of the objection to the appellants' proposal to amend the valuation list and the deliberation of the Committee thereon. After referring to a number of -cares, application was finally allowed on the ground that the assessm ent Committee in hearing objections to the draft valuation list was a body performing judicial or quasi-judicial functions and that if the Officer were present at the meeting of the assessm ent Committee when the objection and proposal were being heard, and advised the Committee on procedure,
(1) (1924) 1 K B 256 (2) (1927) 2 K B 476
(3) (1937) 2 K B 1 ' it would be impossible to hold that it was a case where justice appeared manifestly and undoubtedly to be done. This case and the cases referred to therein, concerned bodies performing quasi-judicial functions. In the case in hand, the question for determination was the validity of the termination of the service of the respondent. Undoubtedly, it was a matter of quasi-judicial character. Moreover, minimum norms of justice and fair-play are not confined to proceedings in the corridors of Courts of law. C These extend to, as was said in relation to a right of hearing by the late and noble Lord of the Supreme Court of Pakistan, Mr. Justice M. Shahabuddin who later on became the Chief Justice of Pakistan, in the case of Chie Commissioner, Karachi and another v.
Mrs. Dina Sohrab Katrak (1) to all proceedings, by whomsoever held, which may affect the person, the property or other rights of the parties concerned in the dispute. In the case of Tumahole Bereng and others v. The King (2), a person expecting to be called as an assessor, in good faith, went to see the physical features of the spot and material aspects of the case with one party in the absence of the other, his subsequent participation in the proceedings was held to invalidate the trial. Lord MacDermott held that "as has been so often said, justice must not only be done but must manifestly be seen to be done. In their Lordships' opinion Mr. Driver's conduct was such as to cause doubt in the public mind as to the complete impartiality of the proceedings in which he subsequently took part. As counsel for the Crown said when dealing with this aspect of the case, it has not been shown that what Mr. Driver did before the trial prejudiced the appellants. But it might well have been thought, when his activity became known that he had come to Courts with a biased mind in the sense of having formed a definite view as to what had occurred or as to the credibility of the witnesses whom he had observed or questioned. It might also have been thought that he had been told more than could be legally proved, or that his interrogation of an accomplice might have had an effect upon the story as told by that witness afterwards at the trial.
All this, of course, is in the realm of conjecture, but where the irregularity complained of may reasonably engender suspicions of this nature it cannot be left out of account, particularly when as here, the opinion of the officer could have been communicated to the Judge in private." In the present case it is obvious that the participation of the witness with the enquiry officer to the extent that the witness recorded the proceedings, the irregularity complained against would certainly engender suspicion that the person proceeded against ie. The respondent was not being meted out even-handed justice. In the case of R. v. East Kerrier Justices, Ex Parte Moondy (3), after justices bad retired with. Their clerk to consider their decision, on an information preferred before them by a police officer the clerk returned to the Court, spoke to a police officer, received a piece of paper from him and took it back into the retiring room. Neither the defendant nor others present in Court knew what the paper contained, which, in fact, was the particulars of a previous conviction of the defendant. On the return of justices into Court, they convicted the defendant. The conviction was challenged on motion for certiorari, Lord Goddard, C. J., observed that "I am not going to comment strongly on the conduct of the justices in this case because, in my view, they intended to act properly, but I think they made a mistake when they retired, the clerk retired with them. He later came out of the retiring room and was seen to speak to a police otficer, from whom be received a piece of paper which he took back with him into the room. The justices then returned into Court, and, without saying
(I) PLD 1959 SC (Pak.) 45 (2) P D 1949 P C 47
(3) (1953) 2 B 144 ' anything more, they announced that they convict the applicant and called for evidence of provious convictions, if any." Quashing the conviction, His Lordship observed : "I think it has certainly been said more than once in this Court that it is not right that the justices clerk should retire with the justices. It has been said over and over again that the decision must be the decision of the justices, not the decision of the justices and their clerk, still less the decision of the clerk, and, if the clerk retires with the justices, people will inevitably form the conclusion that the justices' clerk may influence the justices, or may take some course which it is for the justices alone to take". Devlin, J.
Observed that "I think the authorities on the matter are not entirely clear, but I agree entirely with everything the Lord Chief Justice has said. I should like to state what I believe to be the principle on which the Court is acting. We are not dealing with a case of actual injustice. If we were, that would be the end of the matter, and clearly the conviction would be quashed. We are dealing with an infringement of the rule that justice must not only be done but must also manifestly appear to be done and, accordingly, we are dealing with matters of form. The Courts have held in the past that it is important not only that justice should be done but also that it should be seen to be done, and that a person who has been found guilty by the justices should know there has been no actual injustice. It is preferable that he should go free rather than that rule should be infringed." In the case in hand, the least that can be said is that it is a matter of forms that the witness took part in the proceedings in recording the evidence or the E proceedings but that is contrary to law and natural justice because in that event justice does not appear to be manifestly done. In the case of R. v.
Stafford Borough Justice, Ex Parte Ross (1) after the conclusion of the hearing of a charge of larceny to which the defence was that the defendant intended to return the article taken, the clerk to the justices handed a note to the chairman before the justices retired to consider their verdict. The note which was very short contained in substance an argument on the facts for the justices to convict. On application for certiorari to quash the conviction, Lord Parker observed that "I confess that I only hope that this is not a practice which has been carried in this justices' Court or any other justices' Court, and that it is an isolated instance, but to my mind, it is wholly improper for a justices' clerk to seek to influence because I can give it no other meaning the justices by a representation addressed to the facts of the case." His Lordship while dealing with the question of quashing the conviction observed that "it has always been a principle of our law that justice should manifestly be seen to be done. Here was a document whose contents were unknown, handed up to the justices at the moment of their retirement. In fact, we now know that it was a thoroughly improper note. The applicant could not know what was in it; he was not allowed to see it. The answer which he got from the chairman of the justices when they retired was, I should have thought, calculated to what his appetite to see it, and it certainly gave no innocent explanation of the note. In these circumstances, taking the whole matter together, it seems to me that this is a case in which the Court In its discretion ought to quash the conviction." In this case a note of an argument on the facts given by the clerk of the Court to the Justices resulted in quashment of the conviction. What should happen if the witness himself were to record the evidence in respect of a person against whom he deposed and hands that out to the judge to make the decision? The obvious feeling of the accused would be that he had had it He would have no confidence whatsoever in the impartiality of the decision.
(1) (1962) 1 All E R 540
4. In view of what has been stated above, it is quite clear that the learned Appellate Tribunal was quite right in allowing the appeal of the respondent. The proceedings taken against the latter were patently contrary to normal notions of justice. The matter was so obvious and in the present case when the proceedings similarly conducted previously had been annulled by the properly constituted tribunal for this very reason, one fails to see as to why the petitioner should have allowed the same process to be repeated which had earlier been declared to be illegal.
5. For the foregoing reasons, there is no force whatsoever in this petition and the same is, accordingly, dismissed in limine in lirnine.