P L D 1960 (W (PLP)

KAYANI, C. J.‑

The petitioner, Mr. Imtiaz Muhammad Khan, was appointed Executive Officer of the Municipal Com mittee, Rawalpindi, for a period of five years, and his appointment was approved by the Government on the 2nd March, 1954. On the 6th November 1958, he was " removed " by the Government in exercise of power under section 3 (7), Punjab Municipal (Executive Officer), Act, 1931, " for reasons of serious complaints of dishonesty and misconduct against him ". This was done of the recommendation of the Divisional Screening Committee, a non‑legal body. The petitioner prays for the issue of a writ of certiorari or mandamus on the ground that he was not given any opportunity to defend himself. The Government's reply in the written statement is that it was unnecessary to give him any such opportunity, since he was removable under the Act.

2. Section 3 (7) is to the following effect :‑

" The Executive Officer may at any time be suspended or removed from office by the Local Government and shall be so suspended or removed if at a meeting of the committee convened to consider the question of his suspension or removal not less than five‑eighths of the total number of members constituting the committee for the time being vote in favour of his suspen sion or removal, and if the Executive Officer is suspended, the committee shall appoint some person with the approval of the Local Government to officiate as Executive Officer."

3. This gives a clear power of removal to the Government, but it has always been held by English Courts that, in the absence of any contrary provision, the principles of natural justice demand that a person should not be condemned unheard. From Dr. Bentley's case in 1721 downwards, there is an established line of authority to that effect. Dr. Bentley, who is the subject matter of The King against the University of Cambridge (88 E R 111), had refused to appear before the Vice‑Chancellor in the University Court to answer a cause, and was suspended and deprived of his degree without being heard. It was agreed that there was a custom in the University to assemble the masters of the Colleges in a " congregation " and that such a congregation had power to deprive any person of his degrees. Pratt, C. J, said : " It is agreeable to law that a man shall not be deprived of his property without being heard, unless it be by his own default ; but it is hard that it should be in the power of one man to suspend or degrade another without an appeal, for if he should err, as all men are subject to error, then the person suspended or degraded has no remedy," And Fortescue, J. said ; " I heard a learned civilian say that God himself would . not condemn Adam for his transgression until he had called him to know what he could say in defence. Genesis iii 9". In the result a mandamus was granted, restoring Dr. Bentley to his degree.

4. The only case on which the respondent's counsel has relied is the Tariq Transport Co. v. Sargodha‑Bhera Bus Service (P L D 1958 S C (Pak.) 437= P L R (1958) 1 W P 588), and it is a matter for regret that this case has been cited on different occasions, quite erroneously in our view, as though it had cut down the long arm of certiorari. In that case the principal question was whether a Regional Transport Authority, when granting route permits under the Motor Vehicles Act, 1939, acts in a quasi‑Judicial or purely administrative capacity. Any person may apply for a permit and all applications are published and a day fixed for a public hearing of objections, if any, at which the applicant has an opportunity of being heard. If the application is refused, reasons are to be given for the refusal. Under section 47, the granting authority is required to take into consideration a number of matters such as the interest of the public generally, the advantages of the service to be provided, the saving of time, the adequacy of existing services. It was held that such an authority does not act judicially when it grants or refuses to grant a permit. The learned Chief Justice observed: " In the case of an administrative tribunal, however, the emphasis is on policy, expediency and discretion to enable it to achieve the object with which it was set up. In the case of such a tribunal the approach in determining the relevant facts is therefore often subjective and not objective, there being generally no lis before it in which the parties are arrayed against each other for the enforcement of a private right or liability and who for that purpose are entitled to produce evidence and adduce legal argument. The word ` quasi' as prefixed to the word `judicial ' may either indicate that the tribunal is not acting purely administratively or that it is acting in a manner in which a judical tribunal is expected to act."

5. Then, referring to Mr. Brohi's Fundamental Law of Pakistan, his Lordship quoted the following passage from page 481 with approval:‑-- " In other words, if the law permits a subjective approach to the determination of the conditions limiting the exercise of power and constitutes the officer exercising the power as a sole judge as to their existence, writ of certiorari will not lie but if, on the other hand, those conditions have themselves to be determined objectively then they become ` conditions prece dent ' to the exercise of the power and their existence cannot be said to be conclusively demonstrated merely because the officer exercising the power says that such conditions exist."

6. These passages would seem to support the petitioner's case, because, firstly, there is no question of policy here. The petitioner's record has been examined and he has not been asked to explain the unfavourable remarks against him. He may have been able to say why a particular officer made unfavourable remarks. If, however; in addition to those remarks any witnesses were examined, then they were examined in his absence. Secondly, the law in the present case does not provide for any subjective approach, which is generally indicated by some such words as If in the opinion of Government * * * * " etc. But even in those cases the opinion must be based on material.

7. Even in respect of purely administrative acts, it seems to have been strongly felt that such acts should be controlled by certiorari where they affected rights and liberties. Thus when the Privy Council held in Nakkuda Ali's case ((1950)61TLR214: PLD1950PC102) that the cancellation of a licence to trade was in administrative act, an illuminating article by Mr. H. W. R. Wade, entitled "The Twilight of Natural Justice " appeared in the Law Quarterly Review of January 1951. (page 103) from which we cannot help reproducing the following instructive passage: " Now no one could fairly dispute the statement that the cancellation of the licence was an administrative act. But that is not the question; for a long line of decisions, extending back for more than a century, show that the Courts have review ed administrative decisions affecting any individual's rights or liberties, and have quashed them if the party to be affected has not first been given a fair opportunity to make objections. The Court could not, of course, review the substance of the decision; but it could control the procedure preparatory to the decision, and require a certain standard of fairness. This, as may be seen from the frequent and emphatic statements in the reports, was regarded as a wide and important general principle, which would yield only to a plain intention to the contrary in a statute creating a power. And the Judges who developed it must surely be credited with the adoption of a rule both enterprising and beneficent, which can prevent much injustice at negligible cost to the efficiency of good administra tion. Granted that the discretion in exercising an administra tive power belongs to the administrator: Yet the Courts can insist that before acting he shall at least find out the facts, and find out in particular whether there is another side to the case. The wielding of power would indeed be arbitrary if this were neglected; and the Courts have provided a legal sanction to a canon of good administration by holding that unless the other side is first considered the power is improperly exercised. It is quite wrong to suppose that the rule is of little value in practice because it gives merely an opportunity, as the Attorney General has put it, for the objector to `blow off steam '. Legally, the administrator is entitled to disregard all that is said to him and exercise his free discretion. But the Courts well know that that is not how responsible officials act. The rule is a safe‑guard not against perversity but against well meaning ignorance or carelessness‑a much more likely danger. The official, endowed with power, is kept in the light leading‑strings of fundamental justice. If he is only made to look fairly at the facts, that is the best security against an unreasonable decision."

8. But a judgment which would seem to support the petitioner's case completely is contained in a more recent decision of the Supreme Court in Chief Commissioner, Karachi v. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45 =P L R (1959)1 W P 1130), where the question was whether the Chief Commissioner, while hearing an appeal against a Rent Controller's order, requisitioning a house under the Sind (Requisitioning of Land) Act, 1947, could do so without giving an opportunity to the appellant of being heard in person or through an Advocate. The answer was in the negative, and it is not the facts of that case, but the observations made or quoted from English cases, (which have been relied upon before us also by the petitioner's counsel) that we wish to emphasise here. " It cannot be disputed ", ‑says Shahabuddin, J., who wrote the judgment, " that it is a principle of natural justice that no one should be dealt with to his material disadvantage or deprived of his liberty or property without an opportunity of being heard and making his defence."

9. His Lordship then reproduce the following paragraph from Russel v. Russel (14 Ch. D 571) in which Jessel M. R. reproduces a passage from Wood v. Wood: " With regard to Blissat v. Deniel I have known it for years, but with regard to Wood v. Wood, L am sorry to say that my acquaintance with it has begun today. I must say it contains a very valuable statement by the Lord Chief Baron as to his view of the mode of administering justice by persons other than Judges who had judicial functions to perform, which I should have been very glad to have had before me in both of those club cases that I recently heard. The passage I mean is this, referring to a committee: " They are bound, in the exercise of their functions, by the rule expressed in the maxim, audi alteram partem, that no man shall be condemned to consequences resulting from alleged mis conduct unheard and without having the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals."

10. We are clearly of the opinion that the decision to remove the petitioner, particularly on the grounds of dishonesty and misconduct, without giving him an opportunity to explain anything, was contrary to the principles of natural justice and that consequently the removal should be set aside. We set it aside and direct that the petitioner be restored to his office, subject to the terms of his appointment. The petition is accepted with costs. M. S. Petition accepted.