P L D 1964 Supreme Court 64 (PLP)

CORNELIUS, C. J.‑The appellant, Muhammad Mohsin Siddiqi, sought by means of a writ petition an order for the quashment of his dismissal by the District Judge, Hyderabad, from the post of permanent stenographer, which he held under the said District Judge, which dismissal had followed upon a finding by the same District Judge, in an enquiry which he held on charges framed by himself, that the charges were of "very serious nature", that he bad "misbehaved and mis-conducted himself", and therefore, there was no reason "to take lenient view of the sentence". Muhammad Mohsin Siddiqi appealed against the order of dismissal on the administrative side in the High Court as well as to the Govern ment, but without success. He then moved the aforesaid petition in the High Court, which also was rejected. Of the several grounds upon which rejection is based, the only one relevant for the purposes of this appeal is that "the order of the petitioner's dismissal has been affirmed by Justice Munshi in appeal, with which we have no jurisdiction to interfere in exercise of our writ jurisdiction . . . . . . . . . . this Court cannot issue a writ to itself to quash the order of Justice Munshi as being without jurisdiction." The order made by Mr. Justice Munshi sitting as Administration Judge in the High Court was communicated to the appellant in the following words:‑ "the Administration Judge after careful scrutiny of the expla nation submitted by Mr. Mohsin Siddiqi and the report of the District Judge, Hyderabad, has decided that the retention of Mr. Mohsin Siddiqi in the Judicial Department will serve no useful purpose. Hence in order not to prejudice Mr. Siddiqi's future prospects the Administration Judge has been pleased to alter the order of dismissal passed by the District Judge, Hyder abad to one of discharge with no bar to future employment by Government." Leave to appeal against the judgment of the High Court in the writ petition was given by this Court on the consideration that a question arose whether the District Judge was not disqualified from trying Mr. Mohsin Siddiqi, because, firstly, the charges had been framed by himself and included references to acts of discourtesy towards himself, as well as disobedience of his orders, and secondly they mentioned also that at a stage before the commencement of the enquiry upon the charges, Mr. Mohsin Siddiqi had forwarded a representation to the High Court complaining against the District Judge. The order admitting the appeal was founded on the assumption that what was sought by the petitioner (now appellant) was not quashment of the order of the Administration Judge, but of all the proceedings before the District Judge which had resulted in an order by that officer removing him from service. The wording of the order made by the Administration Judge makes it clear that he expressed no opinion upon the guilt or innocence of Mr. Mohsin Siddiqi in respect of the charges preferred against him, but merely said that his further retention in service in the Judicial Department would "serve no useful purpose". It is questionable whether the Administration Judge could make that circumstance by itself a sufficient ground for removal of a member of a permanent service under the Provincial Government, and in any case, the ground given seems to have no bearing upon the enquiry conducted by the District Judge which resulted in the dismissal. The question therefore still remains for consideration whether those proceedings should not be quashed in their entirety for the very simple reason that the District Judge had made himself the Judge in his own cause. The fact that this was seemingly ratified by subsequent actions of the Administration Judge and of the Government does not seem to us to possess any efficacy to cure the patent defect by which the enquiry proceedings were allegedly affected. There is no doubt whatsoever that the enquiry proceedings were of a quasi‑judicial nature. 'They were head by a judicial authority, which on the judicial side was under the appellate juris diction of the High Court and consequently of this Court. Although the enquiry in this case was conducted by this judicial authority in exercise of its administrative functions, nevertheless it was a quasi judicial enquiry, subject to control of the High Court in the writ jurisdiction. It should be mentioned that the first two grounds in support of the prayer for quashment contain ed in Mr. Mohsin Siddiqi's writ petition were that the departmen tal enquiry against him was not conducted bona fide and that "the enquiry had been held by the District Judge himself, who person ally was the person concerned in the matter as would appear from the charge sheet itself". Nothing relevant to this fundamental objection appears in the judgment of the Division Bench of the High Court dismissing the writ. The truth of the allegation that the District Judge, who held the enquiry was himself "personally the person concerned in the matter" appears with great clearness from the charges. These are contained in a lengthy "statement of allegations" in 10 para graphs, which it is unnecessary to consider in detail, since the total effect of all these charges has been conveniently summarized by the District Judge, in the final paragraph, which reads as follows:‑ "It is thus clear that you have misconducted, misbehaved and insulted your superior officer, i.e., the District Judge, Hyderabad and launched unfounded, malicious, insulting, insinuating lan guage against him, without any justification and acted in insolent manner, and have thus rendered yourself liable to be punished with one of the penalties mentioned in Rule 33 of the Sind Civil Services Conduct, Discipline and Appeal Rules." The charge against Mr. Mohsin Siddiqi was clearly that he had misconducted himself towards Mr. Kadir Nawaz S. Awan, District Judge of Hyderabad. There were abundant reasons for the allegation made in a number of applications to the High Court in the course of the entire affair, copies of which appear in the paper‑book of the case, that Mr. Kadir Nawaz Awan was a principal witness and indeed the most important witness to be examined in the case. Enough has been said in this judgment already to put it beyond all conceivable doubt that Mr. Kadir Nawaz Awan had presented charges against Mr. Mohsin Siddiqi which were wholly based upon his personal dissatisfaction with Mr. Mohsin Siddiqi's behaviour towards and in respect of himself. He was quite clearly the complainant in the case, and undoubtedly the most important witness in the case. It is therefore somewhat startling to learn that despite every effort made by Mr. Mohsin Siddiqi to procure an enquiry before some other officer on these very grounds, nevertheless, within the cognizance of the High Court, the enquiry was allowed to commence and to proceed to its conclusion before Mr. Kadir Nawaz Awan. Being himself the person whose feelings were involved it is unquestionable that there was a danger of those feelings affecting his judgment in the evaluation of the evidence before him. This indeed would be a case of the evidence which he could and should have given in the enquiry as to the degree of outrage he himself suffered through the alleged actions by his stenographer, being thrown untested into the scales in weighing the innocence or guilt of the latter and that could only lead to a mere perversion of justice. It is impossible to imagine that upon charges of insulting behaviour towards himself, Mr. Kadir Nawaz Awan could apply a detached or pure judgment to the evaluation of the supporting evidence. The question of allowing public administrative agencies (as distinguished from judicial agencies) to investigate, present, and decide matters falling within their jurisdiction and involving either members of the general public or members of their own staff, is one which has received considerable thought from responsible autho rities in many countries. There is a view held that to entrust the adjudication of such matters to an outside agency which does not also investigate and prosecute them would be unwise, if not definitely harmful to both the Government and the citizen. Such an attitude is often over‑weighted by considerations of the prestige of the superior officers of the administrative agency concerned. The opposite view is the simpler one, namely, that to require the same men to serve both as prosecutors as well as Judges not only undermines judicial fairness, but it also weakens public confidence in that fairness. Decisions in such circumstances by the superior officers of the same administrative agency often come under the criticism of being rationalizations of the initial findings reached in the role of prosecutor, and presented as charges by the agency itself. The latter is the attitude generally held in these matters by judicial authorities to whom, by virtue of their function, it is anathema that any person should be a prosecutor and the judge in his own cause. It is therefore calculated to cause dismay that in the present case an administrative agency composed of a single person within the frame‑work of the judiciary should have been consciously allowed to operate as prosecutor and judge and finally as punishing authority in its own cause. This was the quarter in which such proceeding was least to be expected. In our opinion, no ground in justice can be advanced in support of the proceedings before Mr. Kadir Nawaz Awan, and every principle of jurispru dence combines to require that those proceedings should be entirely set aside. Mr. Abdul Kadir Sheikh, Additional Advocate‑General, appearing for the Provincial Government placed before us, against the request for quashment of the District Judge's proceedings, the consideration that to require that administrative officers of his rank who are appointing officers with power of dismissal in respect of most of their staff should not be the deciding officers in cases of the present kind where insult had been offered to themselves, would lead to loss of discipline. He agreed that it was possible for the Government to entrust such an enquiry to another officer of equal rank, or even to transfer the officer concerned so that his successor might conduct the enquiry. He urged however that this would be placing insolent subordinates at a premium against their superior officers, if they could by a calculated insult either procure their transfer or require them to assume the position of mere witnesses before an equivalent authority. These are not and cannot be considerations of any determinative force in a judicial matter. The whole proceeding in a departmental enquiry is required by the Rules to be conducted in accordance with the principles of justice. The superior Courts will not tolerate, and certainly not within the frame‑work of the judicial administration itself, conditions in which officials can be made prosecutors, judges and punishing authorities when they themselves are the com plainants, merely on the ground that the power of removal is vested in them as appointing authorities under the Rules. There is power and there are facilities available, to place the conduct of the enquiry and the report thereon in other hands and in such a case the officer who is the offended complainant must give his evidence in support of the complaint before such officer. We accordingly allow this appeal and direct that a writ should issue from the High Court quashing the proceedings before Mr. Kadir Nawaz Awan throughout. The effect will be that all consequential proceedings will be rendered void and of no effect. The appellant has undergone considerable expense in the prepara tion of the paper‑book for this appeal, even though he had been permitted throughout to represent his case himself, and he will be reimbursed by the respondent Government for his expenses on this account by way of costs. K. B. A. Appeal accepted.