1991 PLP (C (PLC(CS))

27-1-1986 3 25 & 26-1-1986 2-2-1986 4 1-2-1986 11-2-1986 5 10-2-1986 19-2-1986 6 18-2-1986 2-3-1986 7 1-3-1986 18-3-1986 8 16 & 17-3-1986 6-5-1986 9 3-5-1986 15-5-1986 10 13 & 14-5-1986 15-6-1986 11 14-6-1986 30-6-1986 12 26-6-1986 30-9-1986 13 2-9-1986 3-9-1986 14 5 & 6-10-1986 7-10-1986 15 26-11-1986 29-11-1986 16 27-11-1986 29-11-1986 (2) By reasons of above you are accused of misconduct and inefficiency and are thus liable to be proceeded against under Government Servants (Efficiency and Discipline) Rules, 1973. (3) In the light of facts and circumstances of the case it has been decided by the undersigned (Authorised Officer) that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee in his case in terms of rule 5(1)(iii) of the Government Servants (E & D) Rules, 1973. (4) You are, therefore, required to show cause (in writing) within 7 days of the receipt of this notice as to why you should not be proceeded against under Government Servants (Efficiency and Discipline) Rules, 1973 and why the major penalty of dismissal from service should not be imposed upon you failing which it shall be presumed that you have nothing to say and action against you will be processed ex parte:- (5) You should also state whether you would like to be heard in person. Sd/ Muhammad Fasih Khan, Joint Director (Authorised Officer.)"

23. The appellant submitted an explanation in writing on 11-12-86 where it was, inter alia, pleaded that the allegations levelled against him by respondent No.3 were the result of mala fide intention and personal grudge. After considering this explanation, respondent No.3 came to the conclusion that all the charges against the appellant had been established and he recommended the case to the competent authority for major penalty of reduction to a lower post on a finding that he had been found guilty of misconduct and inefficiency; which was followed by the impugned order of removal from service on 29-1-1987.

24. It is in the context of these facts that we have to examine the contentions that since the remarks alleged in the show-cause notice to have been made by the appellant, were directed against respondent No.3 "he was not competent to decide that no inquiry was necessary"; that "he was debarred from examining the appellant's explanation to the show-cause notice to make a recommendation to the competent authority"; that he "acted as judge in his own cause" in violation of the principle of natural justice and that the entire disciplinary proceedings stood, vitiated because of his personal bias and malice. We may also take notice of the contention that "controversies with regard to various facts were involved and it was not at all possible to resolve such controversies without holding an independent inquiry and that absence of such an inquiry has caused serious prejudice to the case of the appellant who has been deprived of the opportunity of rebutting the accusations against him.

25. Whether it was a case of inquiry may be decided in the light of observations made by the Federal Service Tribunal in the case of Saeed Ahmad and approved by the Supreme Court in WAPDA through its Chairman v. Saeed Ahmad 1985 S C M R 1887. They were as follows: "The option given to a concerned authority to proceed against an employee, whether by charge-sheeting him and subjecting him 'to enquiry proceedings or straightaway requiring him to show cause against proposed action, is not one to be exercised arbitrarily or at the sweet will of the concerned authority. This Tribunal has invariably taken the view that the concerned authority can dispense with the enquiry proceedings only when the case is prima facie so clear, convincing and cast-iron as to be taken to have been established and requiring no further evidence to prove it". In the present case, the allegations on the charge of inefficiency were such in nature as required evidence for proof, and respondent No.3's decision that no inquiry was required, was clearly arbitrary, particularly when seen in the background of strained relations with the appellant and the fact that he denied their correctness. An inquiry in this matter would, therefore, have given him an opportunity to disprove the charge and thus resulted in the promotion of ends of justice.

26. Leaving this aspect of the matter aside, I am absolutely in no doubt about one thing: It is, the least said, that in view of the unpleasant relations of the parties, which is an euphemism for enmity, in all fairness and accord with the rules of natural justice, respondent No.3 should not have sit in the judgment on whether it was or was not a case of inquiry, particularly when he was aware of the fact that the appellant had been crying himself hoarse, during all those years from 1984, that he bore grudge against him. It goes without saying that under the circumstances, it was a very important decision, and it was, therefore, the least demand of justice that it should have been made by an independent person. Respondent No.3 was far from being so, and I find it impossible to refute the contention that he sat as a judge in his own cause and the proceedings which followed were vitiated and of no legal effect.

27. In support reference may be made with advantage to the case of Major Muhammad Nawaz v. Pakistan through Secretary, Communication P L D 1970 Lah. 811, cited at the bar by the appellant's learned counsel, where during proceedings under the Efficiency and Discipline Rules, an Inquiry Officer was appointed who was not acceptable to the appellant on the ground that he was inimically disposed towards him. In spite of his protest, the same person held an ex parte inquiry and submitted a report where he found him guilty of the charges. In reply to the final show-cause notice, the appellant, inter alia, referred to the denial of a reasonable opportunity to show cause against the allegations levelled against him and the holding of ex-parte inquiry by an officer who was patently biased and inimical towards him. Eventually, he was dismissed from service, on the basis of that report with immediate effect on the ground of inefficiency and misconduct. The order of dismissal was set aside by the High Court in a constitutional petition, inter alia, on the ground "that the inquiry was vitiated" because of the bias that the Inquiry Officer had against the petitioner and that report of such inquiry could not in law, be considered by the competent authority, nor could it base its finding upon it, particularly when representations had, time and again, been made to it against the very appointment of such officer.

28. The following observations made by the High Court are in point: "When a public authority is directed under a law to make an "enquiry" and the competent authority has to take action on the basis of its report and recommendation it cannot carry out a grotesque caricature of it but, on the contrary, has to conduct it in a manner which does not violate the basic rules of natural justice. One of these rules, of course, is that there shall be a fair enquiry into the truth of the alleged facts. If it is held by a biased person, the element of fairness is bound to disappear and with it will vanish the validity of the enquiry itself which will stand vitiated. To hold the opposite would amount to attributing fraud to the Constitution and the Law and to suggesting that the provisions meant to afford security to Government servants were enacted merely as a cloak and the intention was just the opposite."

29. The appellant's learned counsel, relied upon the following authorities in support of his case: (1) Mohammad Mohsin Siddiqui v. Government of West Pakistan (P L D 1964 SC 64). (2) Haji Ghulam Mustafa v. Secretary, Government of Punjab, Agriculture Department 1973 P L C Lah. 308. (3) Muhammad Abdullah Khan v. National Bank of Pakistan and two others (1980 P L C (C.S.) 105) (4) Province of Punjab through Secretary, Home Department, Lahore and others v. Malik Mukhtar Ahmad (1989 S C M R 551). (5) Malik Mukhtar Ahmad v. Superintendent of Police, Attock and two others (1982 P L C (C.S.) 238). (6) WAPDA through its Chairman v. Saeed Ahmad 1985 S C M R 1887.

30. In Mohammad Mohsin Siddiqui's case, the appellant sought, by means of a writ petition, an order for the quashment of his dismissal by the District Judge of Hyderabad from the post of permanent Stenographer he held under the District Judge, which had followed. upon a finding by the same District Judge in an inquiry held on a charge framed by himself that the charges were of "very serious nature", that he had "misbehaved and misconducted himself and therefore there was no reason "to take lenient view of the sentence". Mr. Siddiqui appealed against the order of dismissal on the administrative side of the High Court as well to the Government, but without success. The writ petition in the High Court also failed. Of the several grounds upon which the rejection was based, the only one relevant for the purpose of appeal was 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 explanation submitted by Mr. Mohsin Siddiqui and the report of the District Judge, Hyderabad, has decided that the retention of Mr. Mohsin Siddiqui in the Judicial Department will serve no useful purpose. Hence in order not to prejudice Mr. Siddiqui's future prospects the Administration Judge has been pleased to alter the order of dismissal passed by the District Judge, Hyderabad to one of discharge with no bar to future employment by Government."

31. Leave to appeal against the judgment of the High Court in the Writ Petition was granted to consider whether the District Judge was not disqualified from trying Mr. Siddiqui, because firstly, the charges had been framed by himself which 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 inquiry upon the charges, Mr.Siddiqui had forwarded a representation to the High Court complaining against the, District Judge.

32. The appeal was allowed with the direction that a writ should issue from the High Court quashing all the proceedings before the District Judge with the effect that all consequential proceedings were rendered void and of no legal effect.

33. The Supreme Court took notice of the total effect of all the charges against the appellant which were summarized by the District Judge himself in the following words: "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 language 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 Sindh Civil Services Conduct, Discipline and Appeal Rules."

34. The following observations made by the Court are in point: "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 Siddiqui 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 arid 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 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 m 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,"

35. The facts of cases cited at the bar as 1973 P L C 30S and 1980 P L C (C.S.) 105 are distinguishable. In the case of WAPDA v. Saeed Ahmad (1985 S C M R 1887), the respondent who was the Chief Auditor of the Authority, made a statement before the Summary Military Court as defence witness in a case against one Abdul Qayyum Arif Contractor of WAPDA, where, according to the Authority, he levelled defamatory and baseless allegations against the Chairman and other officials of the Authority with the malicious intention of defaming them. Disciplinary proceedings were initiated and on 31-7-1980 he was served with a notice under Rule 5(iv)(a) of the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978. Instead of submitting a reply, the respondent asked the Authority to provide him with the report on the basis of which the notice had been issued. He also requested for permission to see various files and other record. None of these documents was either supplied or shown to him on the ground that his request was nothing more than a dialatory tactic. On 26-1-1981, without further ado, he was dismissed from service under rule 4 of the Rules on charges of misconduct.

36. The Supreme Court upheld the following observations made by the Federal Service Tribunal in this case: "Besides, while the allegations levelled against the Chairman and his colleagues by the accused in the trial before the Summary Military Court were sub-judice, the Chairman who was himself an interested party, decided to use the full weight of the powers of the Authority to punish the appellant who had deposed against him in the case; thus, in a way making himself a judge in his own cause. Simultaneously, having decided to punish the appellant for his alleged misconduct, he also closed the doors of appeal on him by getting the matter decided by the Authority itself, in the very first instance. For the above infirmities both on merit and in law, from which the action of WAPDA suffers, we hold that the impugned order cannot be sustained." The appeal was accordingly dismissed by the Supreme Court.

37. In Province of Punjab v. Malik Mukhtar Ahmad (1989 S C M R 551), which was on appeal against the judgment of Punjab Service Tribunal reported as 1982 P L C (C.S.) 238, Ch. Mushtaq Ahmad Superintendent Police, Attock recovered Rs. 2,000 from the respondent which amount was alleged to have been extorted by him from various truck Drivers as illegal gratification. The Superintendent Police issued show-cause notice to him containing six charges and after giving him a personal hearing, dismissed him from service under rule 6(3) of the Efficiency and Discipline Rules. While accepting the appeal, it was observed by the Tribunal that the principle of natural justice had been violated, as the Superintendent Police, was himself the most important witness, prosecutor and judge all at the same time. The Supreme Court upheld the Tribunal's decision by placing reliance on the case of Mr. Siddiqui (P L D 1964 SC 64) where the following observations were made: (1989 S C M R 551). "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 complainants, merely on the ground that the power of removal is vested in them as appointing authorities under the Rules."

38. In the end, we might as well take notice of plea that order of appellant's removal from service in the present case was passed, not by respondent No.3 but by the Director General "in his capacity as Authority after carefully going through the record, keeping in view the pleas and explanation of the appellant and taking into consideration all aspects of the case." It was contended at the bar during the course of arguments that since the impugned order was passed by an impartial competent authority, there has been no miscarriage of justice.

39. Even in Malik Mukhtar Ahmad's case it had been contended on behalf of the Province of Punjab that the case was considered by two appellate authorities and the defect was cured. While repelling this contention it was ruled that the circumstances of consideration of the case by two appellate Authorities "would not cure the jurisdictional defect in the order passed by the biased Superintendent Police." This contention was also considered in the case of Mohammad Mohsin Siddiqui and it was observed by the Court that the effect of initial irregularity "will be that all consequential proceedings will be rendered void and of no legal effect."

40. In the present case, like in those we have examined, the relations of respondent No.3 with the appellant left everything to be desired and we do not hesitate to hold that he should have not acted as Authorised Officer to decide about the necessity of an inquiry and that his finding in this respect and subsequent recommendations are tainted and prejudiced against the appellant; which circumstance was sufficient to vitiate the entire proceedings and render them void and of no legal effect.

41. For these reasons, the appeal is accepted and the impunged order of appellant's removal from service dated 29-11-1987 is set aside, with the direction that he shall be reinstated in service. Respondents Nos. 1 and 2 shall, however be within their legal right to start the disciplinary proceedings afresh, from the stage when the mistake can be rectified. He shall be entitled to all back benefits in case fresh disciplinary proceedings are not initiated; but in case they are initiated the question of whether he is entitled to such benefits shall depend upon the result of those proceedings. There will be no order as to costs. Parties to be informed. M.Y.H./556/Sr.F Appeal accepted.