' CH. MUHAMMAD ARIF, J.---Through this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 leave is claimed against judgment, dated 26-11-1998 passed by a learned Judge in Chamber of the Lahore High Court, Lahore allowing respondent Board of Intermediate and Secondary Education and others' Revision Petition No,1393 with the result that the judgment/ decree passed by a learned Additional District Judge, Faisalabad favouring the petitioner was reversed and the matter remitted to the Appellate Forum for decision of the appeal before it afresh in the light of the observations made therein by the High Court.
2. Petitioner Riaz Hussain had filed a suit for declaration to the effect that order No,2060-70/Estt., dated 14-10-1990 and appellate order No,860/SE/Estt., dated 2-3-1992 were illegal, mala fide and inoperative against his rights and that he continued to be in employment since the date of removal and entitled to the salary and other benefits throughout. According to the pleadings in the plaint, he had joined Sargodha Board of Intermediate and Secondary Education as Junior Clerk and was transferred to Board of Intermediate and Secondary Education, Faisalabad. He was promoted as Senior Clerk on 31-12-1989 as per Order No,1644-1644. The respondent/ defendant- Authorities of the Board of Intermediate and Secondary Education, Faisalabad suspended him from service vide, Order No,8386, dated 24-9-1989 and a charge-sheet was served upon him vide Office Order No,8800/SB/BST, dated 4-10-1989 alleging that he had made alterations in the sheets of result etc. He denied the charges upon which an Inquiry Officer was appointed and show-cause notice issued to him on 15-1-1990 which was replied to. After inquiry, he was removed from service vide Office Order No,2060-70/SE/Estt., dated 14-10-1990. His appeal against this order was dismissed on 2-3-1992, illegally.
3. The suit, was contested by the respondent-Board alleging, that (1) Civil Court had no jurisdiction to try the same, (2) petitioner was estopped to file the suit by his words and conduct and (3) the order of removal was passed after fulfilling all the requirements of natural justice. After framing issues and taking whatever evidence the parties wanted to produce in the cause, the learned trial Court decided the issue regarding jurisdiction of the Civil Courts to try the suit, in favour of the petitioner. So was the issue with regard to the petitioner having confessed his offence before the Chairman of the Board. Even Issues No,3 and 4 regarding cause of action and maintainability of the suit were also resolved in favour of the petitioner. The termination from service of the petitioner was held to be legal under Issue No,5 and his suit was dismissed vide judgment and decree, dated 11-4- 1994.
4. Petitioner filed an appeal against the judgment and decree, dated 11-4-1994 which was allowed by a learned Additional District Judge vide his judgment and decree, dated 14-7-1998 by observing that " It has been held in 1993 Supreme Court Monthly Review, 1440 and 1993 SCM R 1440 that enquiry on the basis of statement recorded in question and answer form, order passed on such enquiry is not sustainable. In this case after recording statement of the accused/ appellant only, the Enquiry Officer in an illegal manner hastened to hold him guilty. The plaintiff has denied that he has introduced interpolations in the result sheets and the conjectures (sic). It has been held by the Hon'ble Supreme Court in PLD 1959 Supreme Court (Pak.) 45 that if the enquiry officer starts taking interest for the collection of evidence himself he becomes a prosecution witness more than to be an enquiry officer; such proceedings are invalidated. The plaintiff has been pleading throughout that he was not guilty and the procedure adopted by the Enquiry Officer recording statement of the plaintiff in a question and answer form seriously prejudiced the case of the plaintiff. Therefore. I find no justification to discard the contention of the plaintiff that the impugned orders were illegal and avoid. These are hence, without lawful authority and as such of no legal effect. In the result, the findings of the learned trial Court on issue No,5 are hereby set aside. The issue is accordingly decided in favour of the plaintiff and against the defendants." (Underlining is for emphasis).
5. The respondent-Board filed Civil Revision No,1393 of 1998 which has been allowed by. The High Court and the case remanded to the learned Additional District Judge to decide the appeal before him afresh, as below:-- "10. Issue No,5 "The appellant/plaintiff called in question the legality, validity and propriety of the impugned orders on the following grounds:--
(a) That the charges levelled against the appellant were factual and the same were dully refuted and denied. Therefore, in such circumstances, proper enquiry according to the provisions of the E&D Rules was a must. No such enquiry has been held, and therefore, no charge/ guilt has been proved against the appellant. The order is, therefore, illegal and without lawful authority.
(b) that the appellant has not been provided any opportunity to cross-examine the witness and to produce his defence evidence. The appellant has been condemned unheard.
(c) that appellant's statement was recorded first and before the prosecution could prove his case, therefore, the novel procedure was adopted. It has seriously produced the appellant. Therefore, the orders based on such illegal procedure are not sustainable in the eyes of law.
(d) That the statement of the appellant was recorded in questions/ answers form. This procedure was illegal in the eyes of law as pronounced by the superior Courts. The orders are, therefore, not sustainable in the eyes of law.
(e) That the appellant has pleaded that he was not guilty. The enquiry officer has based his enquiry on surmises and conjectures. Therefore, the order is not sustainable.
"11 On the same premises the appellant/ plaintiff also challenged the order, dated 2-3-1992 by which his appeal was also dismissed against the order, dated 22-10-1990 as being illegal, mala fide, without authority and not, sustainable in the eye of law. This is an admitted fact on record that the enquiry was held at all only statement of the plaintiff was recorded in question/ answers form.
The learned trial Court tried to justify this procedure on the strength of section 342, Cr.P.C. Whereas the statement of accused person is recorded in terms of section 342, Cr.P.C. When the prosecution has concluded its evidence. In this case, after charge-sheeting the plaintiff, the evidence of prosecution/ Department was not recorded. The charge levelled against the plaintiff was factual and the same was duly refuted by him, therefore, in such an event it was incumbent upon the Enquiry Officer to hold a proper enquiry according to the provisions of E&D Rules. The law requires that at the end of recording examination of the accused under section (sic) Cr.P.C. a certificate shall be given to the effect that the above examination of the accused was taken in his presence and hearing and the same contains a full and true account of the statement made by the accused. No such certificate has been given under the ' statement of the plaintiff. The statement of the plaintiff was recorded first without asking the prosecution/ Department to prove its case. It was a novel procedure which was adopted by the Enquiry Officer, therefore, the order based on such illegal procedure is not sustainable in the eye of law. It has been held in 1993 Supreme Court Monthly Review, 1440 and 1993 SCM R 1440 that enquiry on the basis of statement recorded in question and answer form, order passed on such enquiry is not sustainable. In this case after recording statement of the accused/ appellant only, the Enquiry Officer is an illegal manner hastened to hold him guilty.
"12. The plaintiff has denied that he has introduced interpolations in the result sheets and that conjectures. It has been held by the Hon'ble Supreme Court in PLD 1959 Supreme Court (Pak.) 45 that if the enquiry officer starts taking interest for the collection of evidence himself he becomes a prosecution witness more than to be an enquiry officer, such proceedings are invalidated. The plaintiff has been pleading throughout that he was not guilty and the procedure adopted by the Enquiry Officer recording statement of the plaintiff in a question and answer from seriously prejudiced, the case of the plaintiff. Therefore, I find no justification to discard the contention of the plaintiff that the impugned orders were illegal and void. There are hence, without lawful authority and as such of no legal effect. In the result, the findings of the learned trial Court on Issue No,5 are hereby set aside. The issue is accordingly decided in favour of the plaintiff and against the defendants."
6. Hence this petition.
7. Mr. Malik Noor Muhammad Awan learned Advocate Supreme Court appearing in support of this has contended that the Appellate Forum had decreed the suit of the petitioner after appreciating the entire evidence on the record and for the said reason alone no interference was called for by the High Court in the exercise of its Revisional Jurisdiction. According to him, there was sufficient evidence on record to enable the High Court to decide the matter and that there was no need for remanding the case to the Appellate Forum. He was also critical of the findings recorded by the High Court in relation to the 'controversy' and argued that in the presence of the findings of the High Court, the Appellate Forum will not be in a position to redress the grievance of the petitioner all over again. Further, the observations made by the learned Judge in Chambers on the principle of Master and Servant cannot be sustained in law. He also referred to sections 3, 20 and 29 of the Punjab Boards of Intermediate and Secondary Education Act, 1976 and Chapters Nos. 9 and 10 respectively titled "Service Regulation of the Employees of the Board of Intermediate and Secondary Education, Faisalabad" and 'Scrutiny and Tabulations of Result' in 'The Calendar of the Board of Intermediate and Secondary Education, Faisalabad Volume II' generally and to Chapters Nos.2, 11. 12 and 18 of Volume II above in particular to conclude his arguments with the submission that his client was entitled to the relief prayed for in the suit.
8. Contrarily, Mr. Mohyuddin Qazi, learned Advocate Supreme Court appearing on behalf of the respondent-Board has supported the impugned judgment in its entirety and; by referring to Ijaz Hussain Suleri v. The Registrar and another (1999 SCM R 2381), contended that in all cases involving factual therein, even this Court, in the exercise of its jurisdiction under clause (3) of Article 185 of the Constitution, cannot help the petitioner.
9. There is no need for making an in-depth reference to the material brought on the record in the case. Sufficient it to say that the learned Judge in Chambers did consider the case of the parties in juxtaposition with the arguments addressed on their behalf and came to an unambiguous conclusion that: "In view of the averments made in the plaint and the evidence led the question for consideration for the Appellate Court was to satisfy if the inquiry was held in fair manner, there was sufficient material with the Inquiry Officer to uphold the punishment and as to whether the punishment imposed against the respondent was justified in the circumstances of the case. This aspect of the case was attended to by the learned trial Court but the learned Additional District Judge did not examine the case in proper perspective and was persuaded by extraneous considerations. The findings recorded in appeal by the learned Additional District Judge, therefore, suffer from material illegality and non-consideration of the material available on record and are accordingly set aside. Since the appeal has not been decided by attending the questions raised here in above and also considering the points supra, therefore, the case will have to remand to the learned Additional District Judge for fresh decision of the appeal in accordance with law and on its own merit." (Underlining is for emphasis).
10. We find that in the exercise of his power under section 115, C.P.C. The learned Judge in Chambers rightly came to the conclusion that the Appellate Forum below did not consider the material on the record and therefore, the necessity for remand of the case to it. It is not the case of either side that the Appellate Forum is not bound to bring to bear the evidence on the record on the decision in the case before, it under section 96 C.P.C. It was exactly this position that was found lacking in the judgment and decree, dated 14-7-1999, which necessitated the making of the impugned judgment by the learned Judge in Chambers.
11. As regards the plea of the petitioner that the Appellate Forum had resolved the controversy in his favour and therefore, there was no need for remitting the case back for decision by it anew or that the High Court should have decided the case itself, we suffice by observing that the learned Judge in Chambers was on the right lines in directing the Appellate forum to perform its function in accordance with law and its own merits. Put differently, as there were sufficient reasons for reaching the conclusion that the appellate forum had not considered the cause before it in accordance with the material brought on the record by the parties, the learned Judge in Chambers remitted the cause to the appellate forum for doing the needful. Be that as it may, it is not the case of either party that the learned Judge in Chambers was not possessed of the jurisdiction to remit the case back to the Appellate Forum below for decision of appeal before it afresh.
12. In view of the above discussion, the instant petition is dismissed and leave refused.