1. ' TANVIR AHMED KHAN, J.---The above three petitions for leave to appeal are directed against a consolidated judgment dated 21-4-2001 passed by the N.-W.F.P. Service Tribunal, Peshawar (hereinafter referred to as the Tribunal), whereby the appeals filed by the respondents against their dismissal orders issued separately against them on 29-5-1999 by the Secretary Health, Government of N.-W.F.P., Peshawar, were set aside and they were reinstated in service with back benefits.
2. ' The facts briefly stated for the disposal of these petitions are that all the three respondents were appointed as Medical Officers in different Institutions of the Health Department, Government of N.- W.F.P., Peshawar. The Pakistan Doctors Association (P.D.A) in its meeting held on 8-1-1997 decided to observe a token strike of one day on 9-1-1997 as a mark of protest against the appointment of a non-doctor Secretary Health (Non-technical) and suspension/termination of doctors. This intended strike call was, however, declared illegal by the Administrator, Khyber Teaching Hospital, Peshawar. The P.D.A., accordingly, observed strike on 9-1-1997. Dr. Hussain Ahmad Haroon and Dr. Syed Muhammad Kamal, respondents respectively in Civil Petitions Nos.270-P of 2001 and 271-P of 2001, were thereafter suspended on 22-1-1997 for non-acceptance of the orders of the Provincial Government regarding posting of a non-technical as Secretary of the Health Department and pre- strikes. They were, however, reinstated in service through an order dated 15-8-1998 passed by the Secretary Health N.-W.F.P. By imposing a minor penalty of stoppage of two years, annual increments and were transferred to different places.
3. ' Thereafter, show-cause notices were issued to all the three respondents in October, 1998, for criticising the Government policies, levelling false allegations against higher officers and giving notices of strike on behalf of doctors on 23-10-1998. Dr. Hussain Ahmad Haroon and Dr. Syed Ahmed Kamal respondents were 'Aso charged for not assuming their places of duty upon their transfers earlier ordered in August, 1998. It was also averred in the show-cause notices that they were refusing to obey transfer orders, playing with the lives of innocent persons and resorting to illegal strike. Since no reply to the show-cause notices was sent by them, as such subsequently through a notice dated 15-4-1999 published in the daily "Aaj", they were directed to appear before the Secretary Health (Authorised Officer) on 28-4-1999 at 2-30 p.m. In his office. Thereupon, the respondents made a written application on 23-4-1999 to the Chief Secretary, Government of N.- W.F.P., requesting him for the change of Authorised Officer on the ground that their grievance throughout was against the appointment of a nontechnical as Secretary Health, as such it would be just and proper that some other independent officer be appointed as Authorised Officer in his place. However, this application was not responded to by the Chief Secretary. Thereafter, through an order dated 29-5-1999, all the three respondents were dismissed from service by the Secretary Health, Government of N.-W.F.P.
4. ' The respondents made departmental appeals on 16-9-1999 which were not responded to, whereafter they tiled their respective appeals before the Tribunal on 1-10-1999.
5. ' The learned Tribunal through a consolidated judgment dated 21-4-2001 reinstated the respondents in service with back benefits. The petitioners were, however, allowed to hold fresh enquiry through an independent officer or Enquiry Committee in accordance with law if it still considers necessary. Hence, these petitions for leave to appeal.
6. ' It is inter alia argued by the learned Additional Advocate-General, N.-W.F.P. On behalf of the petitioners that the respondents were dismissed from service on the ground of misconduct as they violated the legal orders of their transfer as well as disrupted the atmosphere of Health Department by resorting to illegal strike. He has further stated that the respondents did not file representations to the competent Authority, as such their appeals before the Tribunal were not maintainable. It is also argued by him that in spite of notices the respondents did not avail the opportunity of personal hearing and were adamant throughout and due to their illegal actions, the hospitals and medical institutions stood paralysed. The impugned orders of dismissal from service of the respondents were passed by the Competent Authority within the four corners of law and the ambit of rules.
7. ' Learned counsel appearing for the respondents has supported the impugned judgment and has stated that neither any show-cause notice was issued to them in accordance with law nor any enquiry was conducted into the allegations levelled against the respondents. The doctors community en bloc inclusive of the respondents was sent to jail where they remained in incarceration for about three weeks. During this period show-cause notices were issued to the respondents which were served upon them quite late. Their application for the change of Authorised Officer addressed to the Chief Secretary was not responded to as they never expected any fair deal at the hands of Secretary Health against whose appointment they were voicing throughout.
8. ' We have considered the contentions advanced by the learned counsel for the parties and have gone through the entire documents appended with these petitions. We have noticed that the respondents were arrested alongwith many other doctors in October, 1998, when the P.D.A. Made a call for token strike on 23-10-1998 against the treatment meted out to the doctors at the hands of the Health Department. The stated show-cause notices were issued to them during the period of their incarceration. In these circumstances there was no question of responding to the show-cause notices in time when they were in jail.
9. ' The application of the respondents for the change of Authorised Officer was not attended to for the reasons best known to the Authority. It is an age-old fundamental principle of law that justice should not only be done but manifestly and undoubtedly it should seen to have been done. To achieve this objective/goal it is of prime importance that a Judge/person equipped with the authority of decision should not be having any sort of personal interest in the outcome of the matter under issue before him. The conduct of the proceedings should not generate any reasonable apprehension in the mind of a person that the deciding officer has harboured any grudge or bias against him. This principle that no person should be a judge in his own cause (memo debet esse in propria sua causa) was discussed threadbare in Dimes v. Grant Junction Canal Co. (1852) 3 H.L. Cas. 759). The learned Judges of this Court in a case reported as Federation of Pakistan v. Muhammad Akram Shaikh (1990 PSC 388) has highlighted the above principle after discussing the ratio of the aforesaid case. They have incorporated the dicta underlying this principle which are as under:- "There is no doubt that any direct pecuniary interest, however, small in the subject of inquiry does disqualify a person from acting as a Judge in the matter." Blackburn, J. In R v. Rand (1986) LR 1 WB 230, 232.
10. "If he has any legal interest in the decision of the question one way he is disqualified no matter how small the interest may be." Lush, J. In Serjeant v. Dale (1877) 2 QBD 558, 567.
11. ".... The least pecuniary interest in the subject-matter of the litigation will disqualify any person from acting as a Judge. "Stephen, J. In .R v. Farrant (1887) 20 ADB 58, 60.
12. "... a person who has a judicial duty to perform disqualifies himself from performing it if he has a pecuniary interest in the decision which he is about to give or a bias which renders him otherwise than an impartial Judge. If he has a pecuniary interest in the success of the accusation he must not be a Judge." Bown, L.J. In Lesson v. General of Medical Education. (1889)43 Ch. D 366, 384."
13. ' It is to be judged whether a reasonable person in the similar situation would assume the possibility of bias in the mind of the deciding officer. It is always a question of fact to be decided independently in each case. In the present case the doctors community through their Association was agitating from the very beginning against the posting of a non-technical person as Secretary Health. This issue was going on for a considerable period. They were having some demands as according to their assumption their career was at stake. In these circumstances it could not be said that their apprehension for the change of Authorized Officer was not reasonable when they all were voicing for the change. They were certainly having apprehension that they would not get fair treatment which apparently was not without any foundation. In this regard it would be apt to reproduce the determination of the learned Judges reported in Manak Lal, Advocate v. Dr. Prem Chan Singhvi and others (PLD 1957 SC (India) 346) which is in the following terms:-- ' "It is well-settled that every member of a judicial proceedings must be able to act judicially; and it is that Judges should he able to act impartially, objectively and without any bias. In such case the test is not whether in fact 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. As Viscount Cave, L. C. Has observed in Frome United Breweries C. v. Bath Justices (1926 App. Cases 586 at page 590): 'This rule has been asserted, not only in the case of Courts of Justice and other Judicial Tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as Judges of the rights of others.'
14. ' In dealing with cases of bias attributed to members constituting Tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest, however, small it may be in a subject-matter of the proceedings, would wholly disqualify a member from acting as a Judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. The principle, says Halsbury, nemo debt esse judex in causa propria sua precludes a justice who is interested in the subject-matter of a dispute, from acting as a justice therein." (Halsbury's Laws of England; Vol.XXI, p.535, para. 952). In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that this principle applies not only to the justices as mentioned by Halsbury but to all Tribunals and bodies which are given jurisdiction to determine judicially the rights of parties."
15. (Underlining is ours).
16. ' As far as the plea of the learned Additional Advocate-General appearing for the petitioners that the respondents referred their representations/appeals to the Governor, N.-W.F.P. Who was not the competent Authority, as such their approach to the Tribunal without availing this remedy was not proper, is devoid of any force. It is reflected from the record that the Section Officer of the Health Department sent a letter to the respondents on 14-7-1999 asking them to send their representations to the competent Authority which they had wrongly sent to Governor, N.-W.F.P. The said letter reads as under:-- ' "Subject: DEPARTMENTAL APPEAL/REPRESENTATION AGAINST ORDER DATED 29-5-1999.
17. ' Reference your Departmental appeal dated 18-6-1999 addressed to the Governor, N.-W.F.P. On the above-cited subject.
(2) You have preferred your appeal to Governor N.-W.F.P. Direct which is not through proper channel and not to proper authority.
(3) You are, therefore, advised to prefer your appeal/revised petition through proper channel to the proper appellate authority if you wish to do so."
18. We feel sorry in holding that the Section Officer who had written the above letter was from the parent department of the respondents i.e, the Health Department. When he wrote the above letter he was certainly seized of their representation as they reached within the departmental hierarchy.
19. It was incumbent upon him to send their departmental appeals to the competent Authority instead of intimating the respondents to prefer the same through proper channel to the appellate authority if they so wished. Since it was a rectifiable irregularity which could easily have been removed by the Section Officer himself who was sitting in the parent department of the respondents by forwarding the same to the proper authority, the respondents in the circumstances could not be non-suited. This was the minimum expectation from him which he deliberately avoided with impunity. Reliance in this respect is placed upon 1992 SCM R 1789 and 1988 SCM R 1458.
20. ' It goes without saying that under the circumstances it was the least demand of justice that the matter should have been entrusted to some independent person instead of Secretary Health. It cannot be stated in the present scenario that Secretary Health who was the Authorised Officer was not having ill-feelings against the doctors for their continuous agitation respecting his posting.
21. Article 17 of the Constitution of the Islamic Republic of Pakistan, 1973 gives the respondents a right to form Association in accordance with law. They have got inalienable right to be treated in accordance with law. The dignity of their persons and profession is protected by law. They were having certain demands as already stated because they were apprehending their career to be at stake. The Authority as reflected from the documents instead of adopting amicable/cordial methods put majority of the doctors behind the bars and got them in incarceration for about three weeks. This attitude of the Authority is certainly violative of Article 14 of the Constitution which upholds the dignity of man as his invioable right. The stigma of incarceration for such a long period would certainly haunt their future career.
22. ' However, it equally applies to the doctors as well who are having a profession which deals with human life. They should always resort to legal means to ventilate their feelings and should avoid jeopardising medical facilities provided to innocent persons by the Government. They should have avoided to create such an atmosphere which leads to endangering the lives of innocent people in the medical institutions. It is not denied that if they were demanding for betterment of their service structure, there is a method for the same and the authorities are enjoined to tackle the problem in a peaceful and congenial atmosphere. The learned Tribunal has given cogent reasons for accepting the appeals of the respondents and its determination is in the following terms : - "8. The Tribunal further observes that the demand of the posting a Technical Secretary was not without substance as Health Department is a Technical Department. The modernization, improvement needs of Health Institutions in terms of medical equipments, Medical Staff and necessary infrastructure can be better understood by a doctor Secretary and taken care of.
23. Moreover, the Doctor Community would have more chances of interaction with a doctor Secretary Health of Government for the improvement of working of the Health Institutions than a Bureaucrat Secretary. Similarly the demand of the PDA regarding the amendment in the Ordinance concerning Health Institutions was also not without substance. The privatization of Health Institutions referred in the Ordinance was apparently neither in the interest of the Doctors Community as their services career was at stake nor it was in the interest of the general public and the Government servants who are mostly poor and cannot afford treatment in private medical institutions being very expensive and depend upon the Government Institutions. The demand for the posting of a doctor Secretary and non-privatization of Health Institutions, BHUs etc. Was the demand of the doctors community. The majority of doctors community took part in the agitation/strike to press for their demands and it was not an individual act of the appellant. All the disciplinary proceedings/actions namely suspension/transfer orders, show-cause notices, personal hearings and dismissal order against appellant were taken by the non-doctor Secretary Health whose appointment as Secretary was opposed by the PDA/appellant and thus he was party to the dispute and not an impartial officer. The appellant had demanded the appointment of an independent officer for the purpose of disciplinary actions against him instead of the Secretary Health but his request was ignored against law. In view of the above circumstances it was incumbent upon the Authorised Officer/Authority to appoint an independent Enquiry Officer or Enquiry Committee to conduct proper enquiry in the matter against appellant after the issue of a proper charge-sheet/statement of allegations and affording him opportunity of cross-examination of witnesses, personal hearing and self-defence to the appellant to meet the ends of justice."
24. The perusal of the documents demonstrates that no independent enquiry was held. It is true that the departmental enquiry could be dispensed with and summary procedure could be adopted instead but in the circumstances all these actions have been initiated and finalised with haste without providing opportunity to the aggrieved persons. The procedure adopted by the Authority was highly arbitrary and cannot be termed as a fair treatment to the respondents.
25. ' Resultantly, for what has been stated above, the instant petitions being without any merit and force are dismissed and .