1988 PLP (C (PLC(CS))

IHSANUL HAQ CHAUDHRY (CHAIRMAN).‑‑This is appeal by Naseer Ahmad, S.I., who was posted in Traffic Staff, Rawalpindi, in the year 1986, when following adverse remarks were recorded in his A.C.R.: Integrity . . Controversial The remarks were communicated to the appellant through memo dated 28‑3‑1987. The appellant feeling aggrieved by the adverse remarks submitted a representation to the D.I.G. for expunction of the same. It was requested in the end of the representation that in case the report containing adverse remarks had been countersigned by Respondent No.2, then his representation may be forwarded to Respondent No.3 for decision. The representation is dated 2‑3‑1987 and attached as Annexure 'B' with the memo of appeal. The grievance of the appellant is that the Respondent No.2 was the Countersigning Officer of this Report and in spite of clear request the Respondent No.2 proceeded to decide the representation himself. The result thereof was conveyed to ‑the appellant through memo dated 9‑6‑1987. The appellant this way was constrained to invoke the jurisdiction of this Tribunal through the present appeal under section 4 of the Punjab Service Tribunals Act, 1974.

2. The appeal came up for preliminary hearing on 21‑7‑1987 and same was admitted to regular hearing and notices issued to the Respondents. The Respondents have contested the appeal.

3. We have heard the learned counsel for the appellant and gone through the relevant law, rules and precedent cases.

4. Learned Counsel for the appellant in support of the appeal has argued following points:‑ Firstly, (i) that Respondent No.2 being countersigning authority of the report for the year 1986, in which adverse remarks were recorded, in disentitled to decide the representation of the appellant for expunction of these adverse remarks. In this behalf learned Counsel for the appellant has referred to the following cases:‑ (a) Haji Ghulam Mustafa v. Secretary to Government of the Punjab reported as 1973 P L C 308. (b) Nazir Ahmad Swati v. Establishment Secy. Government of Pakistan and one other reported as 1984 P L C (C.S.) 183, (c) The decision in Nazir Ahmad Swati s case was upheld by Supreme Court and appeal of the Government was dismissed. The decision is reported as 1986 S C M R 2001. (ii) Secondly, the remarks reflected disciplinary proceedings, which were initiated against the appellant and ultimately the appellant was exonerated. Therefore, the adverse remarks should not have found their way in the A.C.R. It is concluded that the remarks are without basis.

5. On the other hand learned District Attorney has argued that according to Appendix VIII attached with "Revised Inspector‑General's Standing Order 32", the Respondent No.2 was fully competent to decide the representation. The learned District Attorney in this behalf has referred to entry in serial No.21 which reads as under: Sr. No Designation of post Initiating Authority Countersigning Authority/Final Authority Authority for communication of adverse remarks Expunction 21 Offg. S. Is. on list E'/ASIs. S.P./Principal/P T. C./ Incharge/. R. T. C. D. I. G D. I. G D. I. G

6. It is argued on merits that although the appellant was exonerated of the charges yet the initiation of inquiry against the appellant left a blot on the character of the appellant, therefore, the remarks were correctly recorded and fully justified.

7. We have given our anxious considerations, to the arguments of both the sides and the judgment of the Supreme Courts. We will not be touching the second argument in view the judgment we propose to deliver. Now we proceed to decide the first plea raised by the learned counsel for the appellant in support of the appeal.

8. Now we refer to the cases relied upon by the learned counsel for the appellant. The first in the series is the case of Haji Ghulam Mustafa. Relevant portion reads as under:‑‑ "The law in this country is well settled that where a person has expressed his opinion about a matter at some stage while dealing with it in one capacity, he is disqualified from hearing and taking part in the decision of the same matter in some other capacity. In Ghulam Rasul v. Crown (1) the facts were that the Legal Remembrances after having advised the Crown to file an appeal from an acquittal in a 4nurder case was subsequently appointed a Judge of the High Court and was a member of the Bench who heard the appeal and an objection: was taken to the constitution of the Bench. The Federal Court observed that‑it was highly undesirable that a judicial officer, whatever 'be his rank or position, should act judicially in a case in which he had occasion to investigate extra‑judicially and in which he had formed an opinion adversely to a party against whom he had. directed a prosecution or the institution of an appeal or revision. It was further observed that nothing should be allowed to happen in a case which may give rise to a reasonable apprehension in the mind of an accused person that he would not or did not have a fair trial."

9. The other case in the series is that of Nazir Ahmad Swati. The relevant portion of the judgment of the Federal Service Tribunal reads as under:‑ "Since the Judges could not sit in judgment over their own adverse remarks, we are of the opinion that a decision taken by them entirely on the basis of these adverse remarks cannot be treated as a very sound decision, specially when it invoked the premature cutting short of the career of an officer who had otherwise a satisfactory service record and who had still at least 26 years more of service before him." The Government filed appeal which was dismissed with the following observation: ‑ "The order of the Service Tribunal is unexceptionable."

10. The learned counsel for the appellant has challenged these instructions being illegal and ultra vires because the same were not noted in accordance with provision of law and in this behalf placed reliance on cases of Allah Bakhsh and 13 others v. A.I.‑G. of Police and 8 others reported as 1971 P L C 75 and Khalilur Rehman and others v. Province of Punjab and others reported as P L D 1985 S C 19

5. We are leaving this point for the purpose of the present appeal.

11. The service matters are to be decided not only in accordance with the law and rules but also in accordance with the principles of natural justice. The principles of natural justice are unwritten like British Constitution. The source of these principles is judgment of Honourable Supreme Court of Pakistan in various cases. These principles of natural justice enunciated by Honourable Supreme Court are deemed to be integral part of each and every statute until specifically excluded by positive words in the statute. These principles which are applicable to the service matters at all levels are enlisted as under:‑ (a) NO BODY SHOULD BE CONDEMNED UNHEARD: Reference can conveniently be made to case of 1987 S C M R 1189 where the Honourable Supreme Court of Pakistan has taken the entire law on the point into consideration once again and relevant portion of the judgment reads as under:‑ "It is, however, established law that any action which may affect the person or property or other right of any party concerned in a dispute can only be taken after giving the person to be affected thereby a reasonable opportunity of showing cause. See Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak PLD 1959 SC

45. Here, it was inter alia, observed:‑ The rule of justice embodied in the maxim audi alteram partem; "No man shall be condemned unheard" is not confined to proceedings before Courts but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of judicial proceedings though administrative in form." This principle was reiterated in Messrs Farid Sons Ltd. and another v. Government of Pakistan and another P L D 1961 S C 537, Commissioner of Income‑tax, East Pakistan v. Fazalur Rehman P L D 1964 S C 410, Sh. Abdur Rahman v. The Collector and Deputy Commissioner, Bahawalpur and others P L D 1964 S C 461, Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and another." The Punjab Government, keeping in view, the dictums of Supreme Court also issued a circular dated 10‑9‑1979 taking note of the principle of natural justice and clarified that accused must be apprised of offences with which he is charged and must not be condemned unheard. (b) NO BODY SHOULD BE JUDGE OF HIS OWN CAUSE In this behalf learned Counsel for the appellant has referred the case of Haji Ghulam Mustafa v. Agriculture Department reported as 1973 P L C

308. We have already referred to relevant portion of the judgment dealing with the proposition. In this behalf we can refer to case of Muhammad Mohsin Siddiqui v. Government of West Pakistan reported as P L D 1964 S C

164. The relevant portion of the judgment reads as under:‑ "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 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." The Government was fully conscious of this legal drawback and it issued memo. dated 22‑11‑1980, Subject, the special channel of Reporting 'initiating and 'Countersigning' Authorities for Communication and Expunction of Adverse Remarks. The relevant portion for our purposes reads as under:‑ 2(iii) In adherence to the principle of natural justice known as "Nemo Judem in cause sue protest", the authority for expunction of adverse remarks should be the authority next above the authority which last countersigned the A.C.R.

3. In view of section 10(2) of the PAV Commission Ordinance, it is for the Commission to adopt these principles or to evolve their own rules prescribing the chart of confidential reporting on the work and conduct of its officers and employees. We are conscious of the fact that the Police Department is not following the instructions issued by the Provincial Government and ACRS of Police Personnel are maintained under Standing Order 32 issued by the I.‑G.P. but the legal position remains the same and the principles of law laid down by the Supreme Court are equally binding on all. It is for the Respondent No.3 to take into consideration the principles of law laid down by the Supreme Court of Pakistan and to give them effect. The Respondents should have followed the pursuit. (c) MALA FIDES Thirdly, the mala fide order is void. In this behalf reference can be made to case reported as P L D 1974 S C

151. The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others. The relevant portions read as under:‑ (i) "Mala fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes is not authorised by the law under which the action is taken or action taken in fraud of the law is also mala fide. The other relevant portion reads as under: "Indeed, mala fide acts stand on the same footing as acts done without jurisdiction. Similarly, acts coram non judice also stand on the same footing, because, these words literally mean that they have been done by an authority or a body exercising judicial or quasi‑judicial powers which was not properly constituted even under the law under which it was .set up and that its decision is not a decision of a competent authority." The conclusion reads as under;‑ "For the reasons given above we have come to the conclusion that the High Court rightly decided the preliminary objection. Actions or proceedings taken without jurisdiction or mala fide or orders of a judicial or quasi‑judicial nature which are coram non judice are not validated by either clause (2) of Article 281 of the Interim Constitution as amended by the President's Order No.3 of 1973 or by clause (2) of Article 269 of the permanent Constitution."

12. There is clear conflict between the dictums of Supreme Court of Pakistan and the instructions issued by Respondent No‑

3. The question is whether the rules of natural justice enunciated by the Supreme Court of Pakistan are binding or not. We have, to find the reply, to refer to the Constitution of the Republic of Pakistan 1973 and to be more precise Article 189 of the Constitution which reads as under:‑ "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle o law, be binding on all other Courts in Pakistan. "

13. It is, therefore, clear that this conflict is to be resolved in accordance with principles enunciated by the Supreme Court of Pakistan. The schedule is, therefore, ultra vires and illegal. The Respondent No.3 owes his duty to the Constitution to bring his instructions in accordance with the dictums of the Supreme Court of Pakistan. We hold that the instructions are not binding and the Respondent No.2 was debarred to decide the representation submitted by the appellant being part and cannot sit in judgment for his own cause.

14. This appeal was liable to be accepted on a short ground alone that the appellant was not supplied with complete copy of report it which adverse remarks were included. This practice itself violated the principles of natural justice.

15. The copy of the complete A.C.R. should be made available to the concerned Police Officers because in the absence of the complete report, not only they are handicapped to take proper legal grounds but Tribunal is also not in a position to fully appreciate the report, We have to send for dossiers in all such matters. The practice of not supplying the complete report is not only against principles of natural justice but also not conducive to proper administration of justice.

16. The Respondent No.3 should take steps to modify appendix VIII and also issue necessary instructions for supplying complete copy of the report to official concerned.

17. The result is that we accept this appeal, set aside the impugned order of Respondent No.2 dated 28‑3‑1987 and remand the case to Respondent No.3 to decide the representation of the appellant for expunction of adverse remarks afresh in accordance with law. There is no order as to costs. S.Q/188/Sr.P Appeal accepted