1. The petitioners Messrs Tanveer Textile Mills Ltd. a private limited Company incorporated under the Companies Act, 1913, own and possess a Textile Mill at Tando Adam. The respondent 1 Ghulam Sarwar (hereinafter referred to as the respondent) was employed by the petitioners on 3-4-1970 as an unskilled worker on daily wages in the Ring Section of Spinning Department of the Mills. The respondent was alleged to have committed misconduct on 15-11-1970 in the course of his duty by going on an illegal strike and inciting other workers to strike work in disobedience of the orders of his superiors and against the provisions of law.
2. It is the case of the petitioners that on the same day they received a report in relation to the incident from Mehboob A.I, Supervisor Shift B. On 16-11-1970 the petitioners called for the explanation of the respondent in regard to the circumstances alleged against him. The respondent submitted his reply on 19-I 1-1970, which having been found unsatisfactory, the petitioners decided to institute independent enquiry to deal with the charges under Standing Order No. 15 of the West Pakistan (Standing Orders) Ordinance, 1968. The respondent was also simultaneously placed under suspension.
3. The petitioners appointed one Mr. Zahoor Ahmed, the Labour Officer of the petitioners establishment as Enquiry Officer. It is alleged by the petitioners that although full opportunity to offer his defence was accorded to the respondent before Enquiry Officer, but he deliberately boycotted the enquiry proceedings. As a result of that the Enquiry Officer proceeded with the enquiry in the absence of the respondent and after recording the statements of the witnesses of the establishment, submitted his report dated 25-11-1970 holding the respondent guilty of the charge of misconduct.
4. Then upon considering the evidence adduced before the Enquiry Officer and the finding given in his report, the respondent was served with the show cause notice together with the copy of the report. On 29-11-1970 the respondent submitted his reply to the show-cause notice which was found unsatisfactory by the petitioners and it was thereafter proposed to dismiss the respondent from service. However since the respondent was an office-bearer of a Registered Trade Union an application under section 25-A of the Industrial Relation Ordinance, 1969, was submitted before the Junior Labour Court No. 5, Hyderabad, Sind seeking permission to dismiss him from service as required by law. For reasons not clear from the record this petition remained pending for more than 4 years until respondent ceased to be the office-bearer of the registered Trade Union, when on 2-4-1975 the petitioners withdrew their petition which was dismissed as withdrawn by the Junior Labour Court on the same day. On 6-4-1975 the respondent was dismissed from service with retrospective effect from 16-11-1970.
5. Aggrieved by the order of dismissal the respondent moved the Junior Labour Court 5, Hyderabad, Sind under section 25-A of the Industrial Relations Ordinance, 1969, seeking the remedy of re- instatement in service. After hearing the parties the Junior Labour Court by its order dated 5-9-1975 accepted the application of the respondent and directed his re-instatement in service with full back benefits and privileges with effect from 16-11-1970. The Junior Labour Court came to the finding that the ex parte enquiry held by the Enquiry Officer against respondent was unjustified and illegal, he further held that the Enquiry Officer being himself an aggrieved party, inasmuch as his own orders were defied by the respondent and also being a witness to the alleged misconduct on the part of the respondent, he could not be properly appointed as the Enquiry Officer. In view of these facts the Court came to the conclusion that the enquiry proceedings were vitiated and the order passed in consequence thereof was void and illegal.
6. The petitioners appealed against the decision of the Junior Labour Court before the VI Sind Labour Court at Hyderabad, which also maintained the decision of the Junior Labour Court and dismissed the appeal of the petitioners by its orders dated 12-10-1977.
7. The petitioners have filed the present Constitutional Petition to challenge the legality of the aforesaid two orders passed by the Labour Courts.
8. The learned counsel appearing for the petitioners has contended that the two Tribunals were in gross error in taking the view that the Enquiry Officer was disqualified from holding the enquiry as he himself was a witness of the incident which was made the foundation of the charge of misconduct against the respondent. In this behalf the two Tribunals have referred to the concluding part of the enquiry report in which the Enquiry Officer had made the following observations :- "Therefore, in the end I recommend severe action against Ghulam Sarwar under the law because I had also tried to dissuade him. But be was not prepared under any circumstances to resume work and he went out of the Mill taking with himself 6/7 workers. And the application in which the refusal to work and refusal to accept the Jobber etc. Etc. Were mentioned, was also written and signed' by Ghulam Sarwar in my presence; (this application) was also got signed by the other workers.
9. Therefore I have reached the conclusion that this entire incident has taken place at the instigation of Gbulam Sarwar."
10. It was argued that in order to disqualify the Enquiry Officer on the ground of bias it was necessary to examine the nature of personal knowledge of the Enquiry Officer to see whether it was sufficient to create bias or prejudice.
11. The counsel went on to argue that merely because the Enquiry Officer made personal observations, it did not vitiate the proceedings. The counsel relied upon a case of the Industrial Appellate Tribunal W. P. Reported as Muhammad Shafi v. District Manager, Government Transport Service (1969 PLC 803), where objection was raised against the Enquiry Officer on the ground that previously he had held preliminary enquiry against accused employee in respect of the misconduct and had recommended that a charge-sheet should be served on the employee.
12. Repelling the contention the Tribunal observed that there was nothing on record to show that the Enquiry Officer had any animosity against the employee, for, when he appeared as a witness before the Industrial Court no suggestion of any motive to falsely implicate the employee was made to the witness in cross-examination. Reliance was also placed on a case decided by a D. B.
13. Of this Court reported as Abdul Aziz v. Pakistan Cable Ltd. (PLD 1977 Kar. 474), in which it was held that all that the law requires is that the enquiry must be by an independent person, that is, a person who is not biased or prejudiced against the workman concerned. Now, it is well established that in the disciplinary proceedings through departmental enquiries or quasi judicial proceedings, the principles of natural justice are attracted to the adjudication in such proceedings as much as in the case of judicial trials by the Courts of law. A cardinal principle of the rules of natural justice is that no person can sit as a Judge or an Enquiry Officer in whom exists actual bias or a likelihood of bias for or against a party to the proceedings (see Sadiq Hussain Shah -v. Member, Board of Revenue, Punjab (1971 SCMR 540). It is observed by S. A. De Smith in his treatise on Judicial Review of Administrative Action, that natural justice is said to demand not only that those whose interest may be directly affected by an act or decision should be given prior notice and an adequate opportunity to be heard, but also that the Tribunal should be disinterested and impartial. The learned author has also expressed opinion that whatever may be the formal requirements of natural Justice it will seldom be appropriate for a witness to adjudicate. In Manak Lal v. Dr. Prairn Chand (AIR 1957 SC 425 ), it was observed as under;------- "It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi judicial proceedings must be able to act judicially; and it is of the essence, of judicial decisions and judicial administration that Judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might, have operated against him in the final decision of the Tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done."
14. It was further observed;------ "Actual proof of prejudice in such cases may make the appellants' case stronger but such proof is not necessary in order that the appellant should effectively raise that argument that the Tribunal was not properly constituted."
15. The Indian Supreme Court dealt with the specific question of the competence of a witness to act as an Enquiry Officer in Disciplinary proceedings in the case of U. P. State v. Muhammad Noor (AIR 1958 SC 86), S. R. Das, C. J. Who wrote the leading judgment observed: "The two roles could not obviously be played by one and the same person. Indeed Shri B. N. Bhalla himself realised it and accordingly had his own evidence recorded on both the occasions by other high officers. It is futile to except that he could, in the circumstances, hold the scales even. It is suggested that there might have been other evidence establishing the friendship between Shariful Hasan and the respondent and that the evidence of Shri B. N. Bhalla might not have been relied on or might not have been the deciding factor. There is noting on the record before us to support this suggestion. But assuming that Shri B. N. Bhalla did not rely on his own evidence in preference to that of Mohammad Khalil a fact which is hard to believe, especially in the face of his own affidavit quoted above the act of the Shri B. N. Bhalla in having his own testimony recorded in the case indubitably evidences a state of mind which clearly discloses considerable bias against the respondent. If it shocks our notions of judicial propriety and fairplay, as indeed it does, it was bound to make a deeper impression on the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fairplay were grievously violated by Shri B. N. Bhalla continuing to preside over the trial. Decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding."
16. Coming now to the facts of the present case, the respondent was proceeded against by his employer (the petitioners) for misconduct as defined under Standing Order No. 15(3) of the W. P.
17. (Standing Orders) Ordinance, 1963. Clause (4) of the aforesaid Standing Order provides for the procedure to be employed by the employer in case of dismissal of a workman in the following terms:---- "No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him.
18. The approval of the employer shall be required in every case of dismissal and the employer shall institute independent enquiries before dealing with charges against a workman."
19. It will be observed that the institution of `independent enquiries' by the employer is a mandatory requirement of the law. The intention of the Legislature is apparent from these express provisions...
20. Apart from the generally rule that the rules of natural justice shall be imported in all statutes where power is granted to pass orders affecting the rights of a citizen-that the enquiries must be held through an agency which is impartial and unbiased for otherwise, the enquiries cannot be said to be independent. In the present) case, as observed earlier, the two Tribunals reached the conclusion that the Enquiry Officer being himself a witness to the incident forming the subject matter of the enquiry was disqualified from performing the function of an adjudicator in the enquiries. The learned Labour Court has observed that from the enquiry proceedings and the enquiry report it was clear that Mr. Zahoor Ahmed, Labour Officer of the petitioners who was the Enquiry Officer was involved in these proceedings from the very outset and his position was that of a witness for the management. This was supported by the statements of witnesses for the management recorded by the Enquiry Officer himself. Indeed the enquiry report is the best evidence of the fact that Mr. Zahoor, Ahmed himself tried to dissuade the respondent from acting in the alleged C manner and this fact has been stated in the enquiry report, extract of which has been set out above. From the perusal of the charge-sheet Annex. "B" the allegation that the respondent gave in writing his refusal to work, which was characterised as a clear proof of causing interference in the work of the management and the disobedience of the orders of higher officers, was an integral part of the allegations contained in the charge. There is thus no doubt that Mr. Zahoor Ahmed was a witness to the material part of the alleged circumstances charged against the respondent. In these circumstances it is but natural that Mr. Zahoor Ahmed having formed his impression upon what he stated in his enquiry report to be his own observation, could hardly be expected to avoid his predeliction to the version of the management or to bring an independent mind to the decision of the issue before him. I am therefore, of the confirmed view that in these circumstances Mr. Zahoor Ahmed could not qualify as an independent person to hold the enquiry. I therefore agree with the conclusion arrived at by the two Tribunals that the enquiry proceedings were vitiated. The cases cited by the counsel at the bar are distinguishable on facts and it is not necessary to burden this judgment with a detailed discussion about the facts of those cases. Suffice it to say that in the present case it was not necessary for the petitioners to show animosity or actual bias of the Enquiry Officer as the fact that he was a witness and his own observations in the report showing that he bad taken into consideration his personal knowledge in order to come to the finding on the issue before him, sufficiently spelt out a case of bias. In my view the facts of the present case are much stronger than the, case of U. P. Stat referred to above. In that case the Enquiry Officer bad stepped down to have his statement recorded by another officer so that the accused employee had an opportunity of cross examining him, whereas in the present case the Enquiry Officer imported his personal knowledge in the decision of the case without having to solemnize it with his oath or subject himself to cross-examination. Therefore this part of the evidence which was to the prejudice of the respondent formed part of the material considered by the Enquiry Officer without affording the respondent any opportunity to contest it.
21. It was next contended on behalf of the petitioners that even if the evidence mentioned in the observations of the Enquiry Officer in question is excluded from consideration, there was sufficient evidence on record against the respondent to sustain the finding. The contention is without substance. As would appear from the cited portion of the judgment in the case of U.' P. State v.
22. Muhammad Noor, this consideration would be irrelevant once the Enquiry Officer is shown to be disqualified on account of bias operating on his mind. It is difficult to say to what extent the mind of the Enquiry Officer was influenced by his own personal knowledge of the incident and to what extent by other evidence on record. In the very nature of things it is well nigh impossible to say which part of the evidence was decisive for making up his mind by the Enquiry Officer.
23. For the foregoing reasons there is no force in this petition which is accordingly dismissed with no order as to costs.
24. S. A.H.Petitiondismissed.