P L D 1966 Dacca 325 (PLP)

Mr. Huda at that time submitted a bill for Rs. 500 in the office of the Superintendent of Police, Faridpur. The petitioner as the Head Clerk submitted a note objecting to the passing of the said Bill on grounds of some defects, and on account of his notes, the Bill was ultimately rejected by the Inspector‑General of Police. It is said that for that reason Mr. Huda bore a grudge against the petitioner. On the 1st May 1962, Mr. Huda, who was then the Superintendent of Police, Kushtia, served a show-?cause notice on the petitioner asking him to submit explanation within twenty four hours why disciplinary action should not be taken against the petitioner for alleged false propaganda against the local administration and making aspersion against Deputy Commissioner, the Superintendent of Police and Local Adminis?tration. The petitioner submitted a detailed explanation to the said show‑cause notice. Thereafter, respondent No. 4, by his D. O. No. 1051 dated 5th May 1962, placed the petitioner under suspension and communicated the said order to the petitioner on the 6th May 1962. It is said that the suspension order was passed without jurisdiction as the Superintendent of Police was not the Appointing Authority of the petitioner. Thereafter, the petitioner, on the 9th June 1962, was served with a copy of three charges, namely: (1) that he had falsely and unnecessarily caused reflection on the Deputy Commissioner, Superintendent of Police and the local Administration; (2) that he issued a notice calling for tender, for construction of a house to Mr. Mohiuddin Ahmed, a contractor, though the said contractor bad failed to execute the said work previously and his contract had been cancelled by the Superintendent of Police, and (3) that the petitioner stated before the Deputy Commis?sioner, Kushtia, that he had applied for a revolver licence which he expected to get free of costs from the said contractor Mr. Mohiuddin Ahmad. The petitioner submitted his explanation and he objected to any enquiry being held by Mr. M. N. Huda. In spite of that, Mr. M. N. Huda enquired into the charges and examined himself as a witness. He thereafter found the petitioner guilty of all the three charges and recommended his dismissal to the Deputy Inspector-?General of Police. The Deputy Inspector General of Police, Mr. Haidar, on a consideration of the proceedings of the enquiry, came to a finding that, so far as the charge No. 1 was concerned, it was not proved against the petitioner. He, however, found the petitioner guilty of the second and the third charges and came to the conclusion that the petitioner should be reduced in rank. He then served a show‑cause notice as to why the petitioner should not be reverted to the rank of the Accountant. The petitioner submitted his explanation but the Deputy Inspector General did not accept the explanation and passed final order on the 20th of February 1963 reverting the petitioner to the rank of Accountant from that date. An affidavit‑in‑opposition has been filed on behalf of the respondents and this affidavit has been affirmed by Mr. Abdul Aziz, Section Officer, Police Directorate, East Pakistan. For the purpose of disposal of the points raised in this case, we do not think it is necessary to set out al' the statements contained in this affidavit. We shall have occasion to refer to relevant portions of the affidavit as and when necessary. It has been contended on behalf of the petitioner that, as Mr. M. N. Huda, the Superintendent of Police, had a bias against the petitioner, he was incompetent to hold the enquiry, and as such the entire proceeding is liable to be quashed. The allegation of bias is based on the assertion made by the petitioner that he, as the Head Clerk of the office of the Superintendent of Police, Faridpur, objected to a bill which Mr. Huda had submitted when he had been S. D. P. O. Madaripur. In the affidavit‑in‑opposition, with regard to this statement, it has been stated that the bill referred to in this connection was in connection with expenses which Mr. Huda had incurred for the treatment of his family. The said bill was to be forwarded by the Superintendent of Police and approved by the Government. It has then been said that the Head Clerk had very little role to play in this connection, and even if the petitioner had given any unfavourable note, he had done so within prescribed rules and that it was done in course of his duties. The matter, it is said, is too insignificant to be remembered by Mr. Huda for long eight years. It will be seen that this objection was taken also before Mr. Huda in the course of the enquiry and in dealing with the same Mr. Huda has observed as follows:‑-- "In his written defence the delinquent has come out with a plea that the Enquiring Officer, the present S. P. Mr. M. N. Huda, P. S. P. reared a grudge against him since 1954, because he did not get the reimbursement of the cost of the treatment of his wife which was held at Karachi due to the note submitted by the delinquent who was then Head Clerk, Police Office, Faridpur. This is partially false and partially imaginative. In 1954 Mr. M. N. Huda, P. S. P. was not the S. D. P. O. He was probationer under training in other districts of the Province. In the early part of 1955 he joined Madaripur. The treatment of his wife was held at Karachi in 1956 for which he submitted a bill praying to reimburse the cost of the treatment of his wife. As it was not in consonance with the rules it was not allowed by the Government. If anything at all which I do not remember now, the delinquent had to do in the matter, it was very trifling and the matter itself was trifling, but it is nonetheless dangerous that such trifling matter still would bear scar in the heart of a ministerial staff which he will carry with him for the long last 8 years. It is dangerous for the administration and it is dangerous for all concerned." These are the facts in connection with the contention relating to bias. Learned Advocate, in support of his contention that such bias vitiates the proceeding involved, has relied upon a number of decisions. We feel that it is not necessary to refer to these decisions as it is now settled that, in order to succeed on the ground of bias, it is not necessary to go as far as proving actual bias. It is however equally true that it would not be enough for a party to succeed in getting a proceeding quashed on the ground of bias if it only succeeds in showing a bare possibility or a mere suspicion of bias. In order successfully to impugn a decision on the ground of bias, real likelihood of bias must be established. The question that falls for consideration, therefore, is: Whether the facts, stated above, clearly point to the likelihood of bias on the part of Mr. M. N. Huda. The incident on the basis of which bias has been alleged, we have already seen had taken place at least eight years before the enquiry in question was held. To us it appears that the bill by Mr. Huda was refused presumably on the ground that the treatment of his wife took place outside this Province. This is a well known rule which perhaps was not known to Mr. Huda as he was then new in service. He, therefore, submitted a bill and evidently it could not be accepted. It is difficult to hold that it was likely that for this Mr. Huda, after a. lapse of so many years and occupying the position of the Superintendent of Police of a District would bear grudge against a subordinate Officer. We are therefore of the view that we find no ground to interfere with the order in question on the ground of bias. Mr. Gholam Hafez has then argued, that, since Mr. Huda examined himself as a witness with regard to the first and the second charges in conducting the enquiry, the principles of natural justice have been violated. We have gone through the findings arrived at by Mr. Huda against the petitioner. He has, in course of his report referred to the evidence that he himself gave in this enquiry. The fact that Mr. Huda examined himself as a witness is not in dispute. Learned Advocate‑General, however, has argued that, though Mr. Huda examined himself as a witness and referred to the evidence that he gave in the course of his report, the evidence was not of any consequence in regard to the charges of which the petitioner has been found guilty by the Deputy Inspector‑General of Police. He has also argued that the Deputy Inspector‑General of Police has himself come to his findings with regard to charges Nos. 2 and 3, and in that connection the evidence of Mr. Huda is rather inconsequential. It is true that the Deputy Inspector‑General of Police has given his own findings with regard to all charges to which the petitioner has been found guilty and we may further point out that the evidence of Mr. Huda in connection with the same was not of much consequence. The question still remains whether, in view of the fact that Mr. Huda examined himself as a witness in this case, the proceedings against the petitioner are liable to be quashed. In support of his contention, Mr. Gholam Hafez has firstly relied upon the decision of the Supreme Court in the case of Muhammad Mohsin Siddiqui v. Government of West Pakistan (PLD 1964SC64). In this case, the order of dismissal of the appellant and the proceedings started in that connection were quashed by the Supreme Court on the ground that the District Judge who found him guilty had presented charges against the appellant which were wholly based upon his personal dissatisfaction with appellant's behaviour towards, and in respect of himself. Moreover, he was the complainant in the case and undoubtedly the most important witness. Learned Advocate‑General has argued that the facts of the reported decision are clearly dis?tinguishable from the facts of the present Case. It is undoubtedly so. It has however to be noted that there are certain observations in this judgment which clearly go to support the contention of Mr. Ghulam Hafez. The next case relied upon by Gholam Hafez in this connection is the decision in the case of Bejoy Chandra Chatterjee v. State of West Bengal (58 C W N 988). In this case, it has been held that where an enquiry officer in a departmental proceeding followed the extraordinary procedure of giving evidence himself before himself and a report was made after consideration of the evidence, inter alia, of himself, the entire proceedings were vitiated. It may be noted that it was so found as, according to the learned Judge, who decided this case, it clearly violated the principles of natural justice. Learned Advocate‑General has tried to distinguish this case from the facts of this case on the ground that in the reported decision the report of the Enquiry officer was accepted in toto by the Superintendent of Police who passed the order of dismissal of the petitioner. In the present case, he has pointed out, Mr. Haider, the Deputy Inspector‑General of Police, has not gone by the report of Mr. Huda but has come to his own independent decision with regard to the two charges in question and that on the basis more or less of admitted facts. The argument advanced by learned Advocate‑General was also advanced in this reported case where it was pointed out that the evidence of the Enquiry officer was of no consequence so far as the charge against the petitioner was concerned and therefore no prejudice was caused to him. It was further pointed out that in that case the evidence of the Enquiry officer had to be recorded because the petitioner himself asked for the same and therefore the petitioner could not complain that the Enquiry Officer himself gave evidence before himself. In repelling these arguments, Sinha, J. observed as follows: "I do not think that such considerations are at all relevant. Whether the delinquent had asked for it himself or not, there is no excuse for allowing the enquiring officer to give evidence before himself and then solemnly considering it and coming to a decision. It is not so much the actual prejudice that has to be considered, as the violation of the fundamental principles according to which proceedings, including depart?mental enquiries, should be conducted. I have already pointed out in a previous decision that although a departmental enquiry need not be carried out strictly according to the rules applicable to judicial proceedings, still the principles of natural justice should be followed. It is one of fundamental principles of natural justice that a Judge cannot give evidence before himself and weigh the same while coming to a decision." The principle that a person cannot be a judge of his own cause or that he cannot to a competent witness in a case in which he is the judge of law and fact with reference to judicial proceedings, has received statutory recognition in section 556 of the Code of Criminal Procedure. This is nothing but an embodiment of' the principle of natural justice that justice must not only be done but must also appear to have been done. In this view of the matter therefore, we are unable to accept the contention of the learned Advocate‑General that, since the petitioner has not in any way been prejudiced by the fact that Mr. Huda examined himself while holding the enquiry, the proceedings are not liable to be quashed. Mr. Gholam Hafez has argued lastly that so far as the charges to which the petitioner has been found guilty go, they do not amount to misconduct within the meaning of the East Pakistan Government Servants Efficiency and Discipline Rules, 1960, and therefore the punishment that has been awarded to the petitioner could not be given under the said rules. "Misconduct", according to these rules, means conduct prejudicial to good order or service discipline or unbecoming of an officer and gentleman We are unable to accept the contention of the learned Advocate for the petitioner that the charges, to which the petitioner has been found guilty, do not fall within the definition of misconduct in the said rules. As, however, we have accepted the second ground on which the order has been challenged, the Rule is made absolute and it is declared that the order of reduction passed against the petitioner has been passed without any lawful authority. Regard being had to the facts of this case, the parties will bear their own costs. SIKANDAR ALI, J.‑I agree. K. B. A. ????????????????????????????????????????????????????????????????????????????????? ??????????? Petition accepted.