1985 PLP (C (PLC(CS))

(l) That there is no legal requirement to supply the detailed orders to the petitioner. The "substance of the order" was com municated to the petitioner.

9. I have carefully gone through the written arguments of the parties, have also heard the learned counsel for the parties in my Chamber (when they were asked to clarify certain points raised by them) and perused both the files and documents attached with the two Writ Petitions.

10. The following points of controversy fall for determination in two Writ Petitions :‑ (i) Was the Secretary Law/Authorised Officer competent to pass order dated 20th March, 1982 himself as an Authorised Officer ? (ii) Did the Enquiry Officer/Authorized Officer suffer from `bias' and, therefore, both the enquiries were tainted ‑and defective on that score ? (iii) Was it proper for the Enquiry Officer (Secretary Law) to refer the cases for the appointment of another Authorized Officer/Enquiry officer under law ; (iv) Could the Enquiry Officer/Authorized Officer penalise the petitioner without affording an opportunity of being heard after obtaining his explanations and before proposing the action to be taken by him or the Government for the alleged misconduct in both the cases ? (v) Do the allegations made against the petitioner amount to "misconduct" as defined under rules 2(d) of Effciency and Discipline Rules of 1977 ? (vi) Did the petitioner submit to the jurisdiction of the non‑petitioner No. 2 and was, therefore, estopped to challenge, the jurisdiction and competency of the Secretary Law to pass the impugned orders ? (vii) Was the enquiry 'mala fide' and hence without jurisdiction? (viii) Can the High Court quash the impugned orders (in service matters) under its extraordinary writ jurisdiction ? (ix) Do the Civil Servants Efficiency and Discipline Rules of 1977 give uncontrolled and unbridled powers to the Authorised Officers to pass any orders they like or deem fit and proper and whether their powers to pass minor penalties are immune from review by the Superior Courts of the country ? (x) What it the value and importance of the Rules of Business ? Do they prevail qua the Efficiency and Discipline Rules of 1977 if and when there is a clash between the two ? (xi) Whether the petitioner is entitled to get the impugned orders quashed ?

11. Now I would like to express my opinion on some of the points formulated above.

12. I would like to take points Nos. 1, 2 and 3 together. It is the settled law that an Inquiry Officer/Authorised Officer who has to make an inquiry and arrive at a conclusion should be fair and impartial. The person against whom he has to hold an Inquiry should have full confidence in him. If the Officer is not on good terms with the person proceeded against or has expressed his adverse opinion against him prior to the holding the inquiry or developed bad relations with him, should not hold the inquiry himself and refer the matter to the Government or the appoint ment of another Authorised Officer. I would like to produce from Page 29(t), Service Laws Manual by M. Z. Khan Edition. "(t) Enquiry should not violate basic rule of natural justice.‑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 is that there shall be a fair enquiry into the truth of alleged facts. If it is held by a biased person, the element of fairness is hound 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 to afford security to Government servants were enacted merely as a clock and the intention was just the opposite (Muhammad Nawaz v. Pakistan P L D 1970 Lah. 81, per Mushtaq Hussain, J. Ghulam Sarwar's case P L D 1962 S C 142 ; Ridge v. Baldwin (1963) I Q B 539 and Abdul Wassey v. Pakistan P L D 1957 Kar. 363 referred).

13. In this case, "bias" was alleged by Syed Akram Sbah the petitioner in para. 6 of both the writ petitions. The affidavit of Syed Muhammad Akram Shah has not been controverted by a counter‑affidavit from the other side and this fact cannot be ignored when "bias" comes under discussion. The question arises why no counter‑affidavit was produced in both the writs by the non‑petitioners. It has peen admitted by the Secretary Law that he opposed his promotion before the Selection Board. The Secretary Law might have done so in good faith but nobody can deny that it generated reasonable apprehension in the mind of the petitioner that he would not get justice from the Secretary Law. It is also on the file that the petitioner also raised some filth and Law, when criticised in such a way by a subordinate or by a person who was once his subordinate might, have consciously or unconsciously engendered some had feeling or hostile attitude. The Secretary Law should have avoided to be an Authorised Officer himself and referred the matter to the Government for the appointment of another Authorised Officer/Inquiry Officer. There was no justification, whatsoever, to retain the enquiry after 10th March, 1982. A separate application for transfer was not necessaries because the Law Secretary is supposed to know the law. He should have stayed after 10th March, 1982 if not earlier. The reply of the petitioner No. Corp 812/82, dated 10th March, 1982 has already been referred to by me. (Annexure `G').

14. It has been held in various authorities that even a domestic inquiry should be made by a person who is not an interested person. In this respect, I am fortified by a plethora of authorities :‑ (i) M. P. O. WA PDA Workers' Union, Hyderabad v. M. P. O . WAPDA, Lahore 1967 P L C 251 ; I reproduce a small para. from page 258 :‑ "I may also and that the enquiry was held by Mr. Malik who was an interested person. Under these circumstances the law is quite clear, In Industrial Dispute Rs. 72.65, published in the Gazette of West Pakistan, Extraordinary issue, dated 21st September, 1966, I have held that the enquiry by an interested person cannot be said to conform to the principles of material justice, equity and good conscience." (ii) The other case is Pakistan Cables Employees' Union v. Messrs Pakistan Cables Limited, Karachi 1967 P L C 446 :‑‑ I would like to reproduce from page 450 :‑ Before parting with the case papers, I may, however, add 'that the domestic enquiry has not been done properly and does not inform to the principles of natural justice, good conscience and equity. Dismissal of a workman amounts to his economic death. Before this extreme penalty is awarded, the person who had the authority to dismiss the worker, should at least hear the worker personally and ask for the explanation on the enquiry submitted by the Enquiry Officer. In the present case, firstly the Enquiry Officer was not a disinterested person." As regards to the `bias' I would like to refer to :‑ (a) Cases from Indian Jurisdiction, and (b) Cases from Pakistan Jurisdiction.

16. First of all I shall cite authorities from the (Indian) Jurisdic tion :‑ (i) The case of Manak Lai Advocate P L D 1957 S C (Ind.) 436= AIR 1957SC425; (ii) A I R 1959 S C 1376 (Andh. Pra.) ; (iii) A I R 1961 All. 571, and (iv) A I R 1962 Cal. 460.

17. From the case of Manak Lal, Advocate v. Dr. Prem Chand Singhvi and others (P L D 1957 S C (Ind.) 346). I would like to reproduce from pages 351 and 352 :‑ "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 effected 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 Co. v. Bath Justice (1926 App. Cas. 586 at 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." 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 proceed ings, 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 or 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 Helsbury, nemo debet esse judex in causa propria sua prcludes a justice who is interested in the subject- matter of a dispute, from acting as a justice therein" (Halsbury's Laws of England, Yol. XXI, p. 535 para. 952). 1n 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."

18. From the case Nageswardarao v. State of Andh. Pra. (A I R 1959 S C 1376), I would like to quote from page 1376 :‑ "The principles governing the `doctrine of bias' vis‑a‑vis judicial tribunals are well settled and they are : (i) no man shall be a judge in his own cause, (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The two maxima yield the result that if a member of a judicial body is subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that a bias must be assumed to exist, he ought not take part in the decision or sit on the tribunal ; and that any direct pecuniary interest, however small, in the subject- matter of inquiry will disqualify a judge, and any interest, though not pecuniary, will have the same effect, if it he sufficiently sub stantial to create a reasonable suspicion of bias. The said principles are equally applicable to authorities, though they are not Courts of justice or judicial tribunals, who have to act judicially in deciding the rights of others i.e. authorities who are empowered to discharge quasi‑judicial functions."

19. From the case of Hukam Chand v. S. T. A. Tribunal (A I R 1961 All. 566), I would like to reproduce from paras. 8 and 9 :‑ "The general principle governing the conduct of judicial and quasi -judicial proceedings is : If a member of a body engaged in a proceeding is subject to a bias (whether financial or other) in favour of or against either party to a dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal 19?8 A C 586, foil. A I R 1959 S C 1376 ref" 'The proceedings of the authorities who are empowered to discharge quasi‑judicial functions such as the Regional Transport Authority constituted under section 44 of the Motor Vehicles Act should not be tainted or affected by bias. Even the existence of a reasonable suspicion of bias is enough to effect the proceedings. Hence, a person participating in the decision of the Regional Transport Authority, if found related to an applicant applying for a permit, is disqualified from participating in that decision A I R 1959 S C 1876, Rel. on (1955) I Q B 41 ref. (Para. 9).

20. From the case of Kawsar Alam v. State of West Bengal (A I R 1962 Cal. 460), I would like to reproduce from page 468, para. 43 :‑ "The learned Trial Judge did not deal in this case with the question of bias at all. For his views on the subject, reference has to be made to the decision in Matter No. 140 of 1958 (see A I R 1958 Cal. 232) which forms an appendix to the paper book. This order was the subject of appeal, being Appeal from Original Order No. 87 of 1958 (Cal.) Palriwala Brothers Ltd. v. Collector of Customs, Calcutta). The appeal was disposed of by this Bench. My Lord the Chief Justice in delivering the judgment, to which I had the honour of being a party, held after an elaborate citation of authoritative judicial pronouncements that the views expressed from time to time by the Judges in England on the question of bias were to be accepted in preference to the views expressed by the American Courts in this regard. The view accuser cannot be permitted to act as judge and the purity of such hearing can only be maintained by excluding participation as Judges of all who might reasonably be suspected of being biased."

21. Jurisdiction. Now I would like to cite authorities from Pakistan.

22. The case of Mansoor Hussain v. The State (P L D 1963 (W. P.) Lah. 20) I reproduce from pages 21 :‑‑‑ "The learned counsel, however, contends that the record should not be allowed to stand as it is, because the learned trial Court conducted the trial with certain preconceived notions and theories which it seems to have formed at a fairly early stage of the trial. This contention of the learned counsel appears to be well rounded."

23. The case of Anwar and another v. The Crown (P L D 1955 F C 156). This is an important case in which the view taken in case of Khairdi Khan case was reviewed. In that case, leading judgment was written by Justice Munit. C. J. but Justice Cornelius who was one of the Judges who decided the case of Khairdi Khan (P L D 1953 F C 223) stuck to his guns and supported the rule laid down in the case of Khairdi Khan. However, we shall consider the law laid down by the Majority. Six rules mentioned in that case are important. In the case of Hadi Ali v. Government of West Pakistan (P L D 1956 Lah. 824), it was observed at page 838 by Kaikaus, J:‑ "My conclusion is that even in respect of purely administrative acts, there is a duty to act justly, fairly and reasonably, and if the order impugned be one which could not possibly have been passed by a person acting justly, fairly and reasonably, the order will be invalid to law." Referring to the case of A 1 R 1950 Bom. 363, it was observed at page 839 :‑ the High Court can in the exercise of this (Constitutional) jurisdic tion pass all such orders as are suited to the circumstances of a case. The object of Article 170 of our Constitution is to enable the High Courts to enforce observance of law by Public Officers and whenever there is violation of law by such officers an appropriate order can be passed to compel observance."

25. In the case of Abdul Wassey v. Pakistan (P L D 1957 (W. P.) Kar. 363), the case of a civil servant came up for consideration before the Karachi High Court by way of a Writ Petition. The petitioner Abdul Wassey who was a Superinten dent in the Pakistan Legation‑at Jeddah was dismissed after an enquiry and service a charge‑sheet by an officer of the Foreign Ministry who had expressed an opinion prejudicial to the petitioner in correspondence proceeding the inquiry. It was held that the rules of natural justice demand that the Inquiry Officer should be a person with an open mind. I would like to reproduce from pages 365 and 366 :‑ "It is contended that as the Enquiry Officer had expressed an opinion prejudicial to the accused before he was asked to hold the enquiry, the proceedings are vitiated by reason of his bias. the Public Service Commission brought this fact to the notice of the Government and the petitioner stated that the enquiry should be entrusted to the Enquiry Officer appointed on the 23rd January 1954. We consider that the bias is apparent from the fact that the petitioner was refused inspection of documents on which the findings of the Enquiry Officer were based. Though no question of demanding production or inspection of documents, can arise in terms of the Classification Rules we consider the principles of natural justice cast a duty upon the Government to specify and produce for inspection the documents asked for and relevant to enable an officer to defend himself. We consider that the rules of natural justice demand that the Enquiry Officer should be a person with an open mind, a mind which is not biased against the delinquent Eaherlu v. Mersey Docks and Harbourd Board (1894) 2 Q B 667, R. v. Susses Justice (1924) 1 K B 256), R. v. Camborne Justice‑(1866) I Q B 230 ; (1926) A C 586, King v. Essex Justice (1954) All E R 850, R. v. London Country Council (1927) 2 K B 475, Cooper v. Silson 66 L T 168 : (1931) 2 K B

215. He should not have prejudged the issue. In Ghulam Rasul v. The Crown (1987) 2 K B 309 Legal Remembrancer advising Crown to file appeal against order of acquittal was sub sequently appointed Judge of High Court and the appeal was decided by a Bench of which he was a member. Their Lordships held that the constitution of the Bench was illegal. The same principles would apply to administrative tribunals. In this case the Deputy Secretary was closely associated with that branch of the Ministry which had correspondence with the petitioner against whom he had given his opinion, giving rise in the mind of the petitioner to an apprehension that the course of justice will be deflected. We, therefore, hold that this is a fit case in which the writ should be issued against the respondent as prayed in clause (a) of para. 32 of the petition. This is without prejudice to the appointment of a proper Enquiry Officer. The respondent will bear the costs of the petitioner." In the case of Muhammad Mohsin Siddiqi v. Government of West Pakistan (P L D 1964 S C 64), the case of dismissal of a Government servant went up to the Supreme Court. The charge against the Government servant was of misbehaviour and misconduct. As the dismissal was passed on a finding in an inquiry which was faulty, as the whole proceedings in the depart mental inquiry were quashed. I would like to refer to a few lines from pages 67 and 68 : ‑ "The whole proceedings in a departmental enquiry are 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 framework 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. 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."

27. In the case of Abdul Huq alias Abdul Huq Munshi and others v. Abdul Matleb (P L D 1967 Dacca 305), it was held that if there is an apprehension of bias in the mind of the accused, the case should be transferred.

28. In the case of Major Muhammad Nawaz v. Pakistan (P L D 1970 Lah. 811) bias was alleged and it was held in the writ petition that an inquiry should not violtate the basic rules of natural justice. The biased enquiry could not be sustained. In that case, so many authorities were discussed and at page 920, the case of Abdul Wassey v. Pakistan was also referred to and relied upon. The case of Ridge v. Baldwin ((1963) 1 Q B 539) was also referred to and a passage from the English authority was produced. The learned Judge Mushtaq Hussain (as he then was) observed in para. No.

28. Pages 819 and 820 :‑ "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. So important is the necessity for a fair hearing where the inquiry is quasi‑judicial, that, in any case where there is any reason able chance that it might have altered the result, the Court must insist on it."

29. In the case of Crescent Textile; Mills Ltd. v. Khaliq‑uz-Zaman (1976 P L C 779), it was held that even in a domestic inquiry, the Inquiry Officer must be an independent person, otherwise the finding of inquiry would be perverse. I would like to reproduce from page 780 :‑ "In his application before the Junior Labour Court, the respondent pleaded that his removal was due to Trade Union activities and that finding of the Inquiry Officer was erroneous because he did not record the defence witnesses and did not take into consideration the defence version. The learned Junior Labour Court was of the opinion that the Inquiry Officer was not independent because he himself had seen the workers and as such he should not have been appointed as Inquiry Officer in this case, I agree with the finding of the lower Court. The Inquiry Officer admitted while appearing before the lower Court, that he was present at the scene of occurrence with the Mills Manager. It is provided in Standing Order No. 15 that the employer shall institute independent inquiry before dealing with the charges against a workman. An officer who himself was a witness of the scene of occurrence cannot be termed an independent Inquiry Officer. The Junior Labour Court was, therefore, justified to annul the inquiry."

30. The question of 'Biss' again came up before the Lahore High Court in the case of General Manager, Lyallpur, Cotton Mills, Lyallpur v. Sardar Muhammad and others in a writ petition (1977 P L C 139). I would like to reproduce para. 3 of that judgment : "A perusal of the impugned order would show that it was observed that it had contended that 'the second enquiry was held by the same enquiry officer and that the enquiry proceedings were recorded by the same persons who was a prosecution, witness against him in the first enquiry and as such the enquiry officer was prejudiced against him as he had found him guilty previously. In my view this contention has great force'. The facts are that the first enquiry which resulted in the dismissal of the respondent had been held by Dr. Khalil Ahmad in which the evidence was recorded by one Mr. Maqsood who was also a prosecution witness against the respondent in the enquiry. The respondent challenged those proceedings on the grounds inter alia that Mr. Maqsood recorded the proceedings when he himself was a prosecution witness against the respondent. His plea was finally accepted and it was for this reason that his application was allowed and be was re‑instated, although with the permis sion to the employer, the petitioner, to hold a fresh enquiry. The petitioner ordered fresh enquiry. This time too, the enquiry was held by the same officer and in the same way. He, again, allowed Mr. Maqsood to record the proceeding whereas the letter was a prosecution witness. The contention of the learned counsel for the petitioner that there was no law or any agreement between the parties as regards the mode of enquiry and since section 25‑A of the above‑mentioned Ordinance only protects rights has no force whatsoever. His rights are in respect of the service or termination thereof. These have been protected by the aforesaid provision of law. It is quite obvious that before those rights could be taken away that has to be done in a just and legal manner. This argu ment raised by the learned counsel for the petitioner that since the proceedings were not before a Court of law and were domestic in character, therefore, any irregularity in the conduct thereof is imma terial is devoid of force. Even when the proceedings are taken by a domestic tribunal or by bodies other than Courts of law, the mini mum these have to do consistently with elementary justice and fair play is to show that they are acting on their own i. e. independently and impartially between the parties arraigned before them. An ex facie partially or irregularity knocking out the minimum norms of law and justice would be of no consequence. It is quite elementary that a person who is a witness cannot function as a Judge or on behalf of the Judge, it is quite obvious that the recording of evidence or proceedings is part of the judicial function. A party to the proceedings or its witness cannot take part in the recording of evidence or proceedings nor in actual decision making. The position and the place of the parties and the witness on the one hand, and of the person making decision or taking part in the proceedings culminating in the decision on the other, are mutually exclusive and distinct, 'justice has not only to be done but has to be manifestly seen to be done' ."

31. For "bias" the following more authorities are cited : (i) 1979 P L C 250, para. 17. (ii) 1979 P L C 250, para. 18. (iii) 1979 P L C 250, paras. 17, 18 and 19. (iv) 1981 P L C 812.

32. Let it be remembered that justice should not only be done but it should appear to have been done. A fair, impartial and unbiased enquiry is a must. It would here like to refer to the oft‑quoted observations of Lord Newart. C. J. made in Rex v. Sussex Justices ((1924) 1 Q B 256). "it is not merely of some importance but of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." Justice Siddiky, J. has observed in P L D 1969 Dacca 741 :‑ `Justice should not only be done but it should appear to have been done so that people may have confidence in the administration of justice."

33. The other question that was agitated before me was that the enquiry was mala fide and hence it was without jurisdiction.

34. It is the settled law that a mala fide act is an act jurisdiction. No Legislature when it grants power to take action pass an order contemplates a mala fide exercise of power. A order is a fraud on the Statute. In this respect, I am fortified by following authorities P L D 1958 S C (Pak.)

41. PLD1963SC

382. P L D 1964 Kar.

599. PLD 1965SC

671. PLD1965SC

698. P L D 1968 Kar.

599. PLD1969SC

14. P LD 1973SC

49. P L D 1974 S C

151. P L D 1980 Pesh. 281. 1980 C L C 508.

35. Now I come to the point whether the Inquiry Officer/Authorised Officer penalised the petitioner without affording an opportunity of being hard after obtaining his explanation and before taking the proposed action either himself or by the Government for the alleged misconduct.

36. It is the settled law that the proposed action should be put the accused Government Servant and his explanation should otherwise, the whole action will be illegal because it will against the rule of audi ateram partem which rule stems from the Jurisprudence.

37. The petitioner thought that his case would be referred to Government under the Rules of Business of 1975 (Schedule) in the authority competent to award "any punishment" in respect of senior Class One Officers other than the Secretaries and Heads of Departments is the Government. This part of the Rules of Business 1975 stands unamended up till now although the Secretary Law very easily get this provision amended by the Government. We that the Rules of Business, issued under section 58 of the Azad Kashmir Interim Constitution Act of 1974, were promulgated to and many amendments have been made therein since 1975. The Secretary Law knows better than anybody else that there is a clash between this provision of the Rules of Business and the Azad Jammu and Kashmir Civil Servants Efficiency and Discipline Rules of 1977 issued under the Civil Servants Act of 1976. The Rules of Business of 1975 empower only the "Government" to take "any action" against a Class 1 Officer while a "minor penalty" can be awarded by an Inquiry Officer/Authorised officer under the Azad Jammu and Kashmir Civil Servants Efficiency and Discipline Rules of 1977. This controversy or conflict in law could be very easily resolved/removed, had an amendment in the above‑mentioned portion of the Rules of Business made/passed by the Azad Jummu and Kashmir Government. Mr. Sarfraz Hussain Siddiqi, the Chief Secretary of the time, in his "Forward" to the Rules of Business, para. 3 has clearly mentioned that :‑‑ "The strict observance of the Rules of Business which have statutory import cannot be over‑emphasized. The Departments are expected to bring to the notice of the Services and General Administration Department changes in their functions as a result of enforcement of these Rules and in the event of any doubt they should not hesitate to consult the Services and General Administration Depart ment."

38. In the instant case, the action proposed should have bee communicated and put to the accused officer and his explanation duly obtained. On the violation of the rule of audi alteram partem, Khawaja Muhammad Saeed Advocate has cited the following authorities :- (1920) 3 K.B.L.

334. PLD1959SC

45. PLD 1961 SC

437. PLD1964SC410. (1965) I.Q.B.D.

456. P L D 1966 Kar.

427. P L D 1966 S C

536. PLD1977S.C.(AJ&K)1. 1980 P L C (C. S.) 418. 1980 C L C

508. PLJ1981SC185. 1981 C L C 1654. PLD1982SC(AJ&K)124. 1984 C L C

318. There is no doubt that the violation of this time honoured principle which stems from the Muslim Jurisprudence. makes the enquiry as void and ineffective and any action based upon such an enquiry is without jurisdiction.

39. Moreover, if an order is void and nullity in the eye of law subsequent orders are also void as held in P L D 1958 S C (Pak.) 104 and P L D 1967 Kar. 295.

40. In the instant case the petitioner was not heard before the proposed penalties were inflicted upon him. A person must be given an opportunity of explanation before the proposed action. In this respect the verdict of the Supreme Court of Pakistan in the case of Mir Muhammad v. N.‑W. F. P. Government (P L D 1981 S C 176), is very clear, "such a requirement cannot be brushed aside by saying that it would amount to a second show -cause notice". This opportunity is also given when the shorter procedure is followed (page 187).

41. A Government functionary cannot say that he has got unfettered powers to punish the accused officer and has done it and, therefore, his action cannot be called in question by the High Court.

42. Let it be known very clearly that wherever there is power, there are responsibilities and the greater the power is, the greater are the responsibilities otherwise the absolute power corrupts absolu tely.

43. In the case of S. K. Gosh. v. Vice‑Chancellor, Utkil University (A I R 1952 Orissa 1) the Syndicate of the University cancelled an examination on the ground of leakage of examination papers. The act was regarded as a wholly administrative act. But it was held that a body exercising statutory powers was not protected merely because it acted bona fide. It must also act reasonably and with due care. The learned Judge said :‑ "But a body exercising statutory powers cannot rely on good faith alone for escaping the jurisdiction of this Court under Article 228, however arbitrary or capricious its actions may be if want of good faith be held to be the only ground for interfering with the exercise of statutory powers, the primary object of the writ of mandamus namely to supply defects of justice would be frustrated. The field in which the question of bad faith arises is "such that the reservation for the case of bad faith is hardly more than a formality" per Lord Redcliffe 'Nakkuda Ali M. F. De. S. Jayarante (1951) I A C 66 (77). It must further be shown that the statutory powers were exercised reasonably with due care (See Halsbury, 2nd Edition, Vol. 31, p. 533). As early as 1864 in Galloway v. Corpora tion of London (1864) 46E R 356 L. J, Turner observed "Powers, such as those which are given to the Corporation by this Act of Parliament, are at all times to be exercised bonafide and with judgment and discretion." This observation was quoted with approval in Mayor and C of Westminter v. L & N. W. Rly. Co. (1905) A C 416 where Lord Mac Naughton said. "It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably." In Sanitary Commissioners of Gi6ralter v. Orfils (1890) 15 A C 500, Lord Watson emphasised the same aspect by saying :‑ "It is an implied condition of statutory powers that when exercis ed at all, they shall be executed with due care." After discussing many English and Indian authorities, Kaikaus, J. (as he then was) was pleased to observe at page 838 of Hadi Ali Khan's case P L D 1956 Lah. 824 :‑ `My conclusion is that even in respect of purely administrative acts there is a duty to act justly, fairly and reasonably, and if the order impugned be one which could not possibly have been passed 10 by a person acting justly, fairly and reasonably, the order will be invalid in law ...."

44. So I cannot validate the invalid enquiries which suffer from many defects. The enquiries and unjust, unfair, biased and mala fide and liable to be quashed under the Constitutional writ jurisdiction.

45. The best course for the Secretary Law should have been to stay his hands and refer the matter to the Government for the appointment of another Inquiry Officer/Authorised Officer. Due care and caution, fairplay, I reasonableness and justice all demanded that.

46. I have pondered over the argument of the learned Advocate -General that the petitioner has submitted to the jurisdiction of the Secretary Law, and therefore, cannot challenge the action taken against him.

47. This argument is misconceived because the petitioner refused to submit his explanation to the Authorised Officer and wrote to him that he would submit his reply to the competent authority and not to him. How can a person who refuses to give an explanation to the Secretary Law, can be said to have submitted to his jurisdiction ? Three or four cases have been cited by the learned Advocate‑General, but they are not applicable to the facts of the instant case. Therefore, I do not find such submission to jurisdiction, weaver or estoppel in this case. The mere submission of two replies to two show‑cause notices do not mean submission to the jurisdiction of the said Authorised Officer.

48. It cannot be denied that when the order of a statutory body is impeached on the ground that it was wholly unjust partial, and mal fide, the High Court in exercise of its writ Jurisdiction has got wide power to grant relief to the aggrieved person, even if another remedy is open (P L D 1972 S C 279, 1972 S C M R 257).

49. Let me make it clear here that there is no alternate remedy available against "minor penalties". The remedy lies in writ Jurisdiction.

50. It was laid down in P L D 1974 S C 151 that where the acts, orders or proceedings in service matters are done, taken or made without jurisdiction, mala fide, or coram non judice they are open to scrutiny by the High Court in writ jurisdiction.

51. No charges of "misconduct" can be established on the basis of tainted and biased enquiries. A charge of wilful misconduct must have been established by a fair and impartial inquiry.

52. As the impugned orders are based on mala fide and based enquiries and as no reasonable opportunity was given to the petitioner before the action taken against the petitioner in both the cases, the impugned orders are liable to be quashed being without jurisdiction and of no legal effect. I need not reply the other questions because they are not important. I would like to leave the other questions open. Under these circumstances, both the writ petitions are accepted and both the impugned orders passed by the non‑petitioners (i) Order dated 20th March, 1982, and (ii) Order dated 13th April, 1983. are hereby quashed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974 as being unlawful, without jurisdic tion, ineffective and void. The petitioner shall be entitled to his increments, dues, privileges etc. to which he is entitled to under rules. Before parting with the case, I would like to quote para. 6 from P L D 1981 Journal 19 (20), reply to address of welcome by Mr. Justice Raja Muhammad Khurshid Khan as the acting Chief Justice of Supreme Court of Azad Jammu and Kashmir :‑ "Judiciary is the guardian of the conscience of the people as well as the law of the land. It sits aloof and detached from the political arena or the seats of the executive business‑away from the storms and stresses which so often assail them. Its decisions are, there fore, more apt to reflect unbiased justice and' traditional impartiality than political expediency or the dictates of political exigencies. It is rooted and grounded in the fundamental instincts of humanity in respect of equity and good conscience. This is why our Holy Prophet (peace be upon him) has said that one hour of justice is worth prayers of 60 years. Hazrat Ali‑has said :‑ "Be fair, just and impartial in your dealings ; so that even the influential may not take an undue advantage and the uninfluential and the poor may not be disappointed in your justice and fairness. M.B.A Petitions accepted.