P L D 19,82 Karachi 537 (PLP)

AJMAL MIAN, J.‑This petition is directed against the order dated 6‑10‑1980, passed by the learned Sind Labour Appellate Tribunal (respondent No. 2) in Appeal KAR‑468/80, setting aside the order dated 29‑5‑1980 of the Sind Labour Court, and re‑instating respondent No. 1 with the option to the petitioner to hold a fresh inquiry by an independent Inquiry Officer.

2. The brief facts leading to the filing of the above petition are that respondent No. 1 was working as a crane‑driver at the relevant time with the petitioner. On 13‑2‑1979, one Syed WW addressed a complaint to the General Manager of the :petitioner alleging therein, that about 1,.40 p.m. on the same day while he was with one Mr. Bhatti, respondent No. 1 came and started abusing him filthily, and that as soon as he came out of the room of Mr. Bhatti respondent No. 1 attacked him and took out his shoes. It was also alleged in the complaint that the whole incident occurred in the presence of Messrs' Mir Bhatti, Rafiq Ahmed, Ghulam Akbar and Mir Hashmi, who heard everything and witnessed the same. It seems that on the above com plaint, Major Iqbal Ahmed, Manager, Services and Coordination, in the petitioner Company, passed the following order;

"Issue show cause forthwith. (Sd.) 3 p.m. 13‑2‑1979" In pursuance of the above order, a show‑cause notice dated 13‑2‑1979 was issued by Mohammad Quasim, the Chief Engineer of the petitioner‑Company to respondent No. 1 (Annexure A‑I to this petition). It seems that said Major Iqbal Ahmed was appointed as the Inquiry Officer. After holding an inquiry, the Inquiry Officer gave a finding against the respondent No.

1. It further semis that, on the basis of the above finding and after issuance of a second show‑cause notice respondent No. 1's services were terminated by an order dated 26‑3‑1979 of the petitioner‑Company. Respon dent No. 1 being aggrieved by the above dismissal order, after serving a'' grievance notice. filed an application under section 25‑A of the Industrial Relations Ordinance, 1969 before the Sind Labour Court at Karachi. In the above application, it was inter alia alleged that since Major 1qbal Ahmed had ordered issuance of the show‑cause notice, he was biased and was not qualified to act as the Inquiry Officer. The finding of the Inquiry Officer w vas also attacked on merits. However, the Second Sind Labour Court, after recording evidence, through its order dated 29‑5‑1980 dismissed the respon dent No. I's above application under section 25‑A of the

1. R. O. and; inter alia,' held that from the evidence on record he was satisfied that there was no prejudice or bias in the mind of the said Inquiry Officer. The respon dent No. 1, being aggrieved by the aforesaid Order of the Labour Court, filed the aforesaid appeal before the Sind Labour Appellate Tribunal, which allowed the same solely on the ground that said Major Iqbal Ahmed was not, qualified to act as the Inquiry Officer as he had initiated the proceedings against respondent No. 1 by ordering issuance of show‑cause notice. The learned Sind Labour Appellate Tribunal also ordered re‑instatement of the respondent No. 1 with the option to the petitioner to hold a fresh inquiry by an independent Enquiry Officer on the basis of the show‑cause notice dated 13‑2‑1979. Petitioner‑Company being aggrieved by the above order has filed the present petition.

3. In support of the above petition, Mr. Hassan A. Sheikh, learned counsel for the petitioner, has urged that simpliciter ordering issuance of a show‑cause notice by said Major Iqbal Ahmed would not disqualify him to act as the Inquiry Officer in the absence of any evidence of bias or prejudice reflected from the inquiry record. On the other hand, it has been vehemently contended by Mr. Shahani, learned counsel for respondent No. 1, that since the basis of the inquiry was the show‑cause notice issued on the orders of said Iqbal Ahmed bias/prejudice is to be presumed, and that he was disqualified from acting as such.

4. In support of his above contention Mr. Hasan A. Shaikh has referred to the case of the President v. Mr. Shaukat Ali P L D 1971 S C 585, the case of Hyderi International Finance Ltd.‑v. State Bank of . Pakistan, Lahore P L D 1980 Lah.658, the case of Muhammad Siddique v. Premier Tobacco Co. Ltd. 1981 P L C 670 and the case of Crescent Jute Products Ltd. v. Muhammad Yaqoob P L D 1978 S C

207. On the other hand, Mr. M. L. Shahani, learned counsel for respondent No. I has referred to the case of Ghulam Rasool v. Crown P L D 1951 F C 62, the case of Majiklal v. Dr. Premchand A I R 1957 S C 425 the case of Muhammad Abdullah District Manager v. Road Transport Corporation, Lahore1964 P L C

717. He has also relied upon passages from two books, namely, "Bias and Mala fide" by A. S. Misra, 1978 Edition, and "Natural Justice" by G. A. Flick, 7th Edition. (i) With reference to P L D 31971 S C 585, it may be mentioned that, while dealing with the question of bias, the following observations were made :‑ "The mere assertion of bias can never be sufficient to disqualify a Judge in hearing a cause or matter. In. the absence of any pecuniary or pro prietary interest in the subject‑matter of the proceeding, it is essential that a real likelihood of bias must be shown. The mere fact that the counsel had scrutinised the declaration of assets is not sufficient to establish such likelihood of bias, for, if it were so, then no Judge, who issues a rule in a motion or issues a notice to show cause in any other proceeding or frame a charge in a trial, can hear that matter or conduct that trial. The reason is that a preliminary inquiry intended to determine whether a prima facie case has been made out or not is a safeguard against the commencement of wholly unwarranted final proceedings against a person. To say that a charge should be framed against a person amounts to saying nothing more than that .the person should be tried in respect of it. Anybody who knows the difference between a prima facie case and its final trial would reject the objection as misconceived. There is furthermore, in this case, another exception which should not be lost sight of, namely, that `the rule of disqualification must yield to the demands of necessity, and a Judge or an officer exercising judicial functions may act in proceeding wherein he is disqualified even by interest, relationship or the like, if his jurisdiction is exclusive and there is no legal provision for calling in a substitute, so that his refusal to act would destroy the only tribunal in which relief could be had and thus prevent a termination of the proceedings'." (ii) Referring to the case reported in P L D 1980 Lah. 658, it may be stated that in that case a learned Single Judge of the Lahore High Court held that a show‑cause notice by itself cannot do any harm to any one and that one could even elect to ignore it, and that it is in fact issued for the benefit of the person to whom it is issued. It was urged in the above Lahore case that the State Bank of Pakistan was precluded from holding an inquiry against the petitioner‑Company, as it had already issued a show‑cause notice and, thereby disqualified itself from holding the inquiry. The above con tention was rejected and reliance was placed on the above cited case reported in PLD1971SC585. (iii) The case reported in 1981 P L C 670 was decided by the learned Sind Labour Appellate Tribunal itself and it is pertinent to observe that on the question of bias the following observation was made by the Sind Labour Appellate Tribunal :‑ "It was next urged by Mr. Wasiullah Qureshi that since admittedly the report by the Security Officer regarding the alleged theft of cigarettes by the appellant was made to the Personnel Manager, Mr. Mazharuddin, and further according to the appellant he had reported the incident to the Production Manager, in the presence of the Personnel Manager, the latter cannot be deemed to be impartial and competent to have been appointed as Enquiry Officer. Mr. Zahiruddin admittedly had no personal knowledge of the incident nor was he directly connected with the allegation of theft made against ‑the appellant. A person is not disqualified from being appointed as Enquiry Officer merely because in the course of his official duties a report of the incident is made to him or is brought to his notice." (iv) Referring to P L D 1978 S C 207, it will suffice to observe that in that case the Supreme Court held that a Labour Court, under section 25‑A (5) of I. R. O., 1969, is competent to go behind a dismissal order and see for itself whether on facts, and in circumstances of the case, the dismissal order was or was not justified both on merits as well as law. (v) With reference to P L D 1951 F C 62, it may to stated that in the above case a Legal Remembrancer of the Government of Punjab had given advice to the Crown to file an appeal against the acquittal order in a murder case. He was subsequently elevated to the Bench of the Lahore High Court. 1t happened that the Bench who heard the above appeal comprised of the above Judge, who, while acting as Legal Remembrancer gave the aforesaid advice to the Crown for filing the appeal against the acquittal order. In the background of the above facts, it was held by the Federal Court that the aforesaid learned Judge was not competent to sit and hear the above appeal. It was also 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. (vi) As regards A I R 1957 S C 425, it may be stated that certain proceedings for professional misconduct were initiated against the appellant Advocate. The respondent who was also an Advocate was a member of the Tribunal hearing the above misconduct case, and gave a finding against the appellant and recommended his removal. The above recommendation was accepted by the High Court. The appellant being aggrieved by the above order filed an appeal before the Supreme Court of India. It was urged that the respondent Dr. Premchand who also happened to be an Advocate was not qualified to act as a member of the aforesaid Inquiry Tribunal. The Supreme Court of India accepting the above contention observed that :‑ "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 the essence of judicial decisions and judicial adminis tration that Judges should be able to act impartially, objectively and without any bias." (vii) Referring to case reported in the 1964 P L C 717, it may be observed that iii the above case an inquiry was conducted by one Akbar Khan in respect of the dispute relating to the shifting of certain bus stand and he gave a finding. After that the matter was placed before a Board, which comprised of two members, and one of the members was said Akber Khan. It was observed by the High Court that said Akber Khan was not qualified to sit as a member of the Board as he had already given a finding in the matter against the petitioner. (viii) Passages in the two books cited by the learned counsel for the respondent No. 1 contain general discussion on bias, mala fide and the principles of natural justice, which reed not be reproduced here.

5. In our view the solitary fact that aforesaid Major 1qbal Ahmed had ordered the issuance of the first show‑cause notice against the respondent No. 1 would not itself be sufficient in law to disqualify him from acting as an Inquiry Officer, in the absence of any evidence or indication from the inquiry record or otherwise that he was prejudiced or biased or had a pre determined mind. In the instant case, the Sind Labour Court, after perusing the record of the Inquiry, had come to the conclusion that no bias or prejudice could be inferred against said Major Iqbal Ahmed and that the finding given by him was correct on merits. In our view the learned Sind Labour Appellate Tribunal was competent in law to reverse the above finding of fact if it were to come to the conclusion that there was sufficient indica tion or evidence on record to infer that in fact said Major 1qbal Ahmed was prejudiced, biased or had a predetermined mind. In the absence of any such finding, the learned Appellate Tribunal was not justified in reversing the order of the Labour Court merely on the ground that said Major Iqbal Ahmad had ordered issuance of the first show‑cause notice.

6. It may also be pertinent to refer to the case of Messrs Gabol Brothers v. Government of Pakistan P L D 1972 Kar. 51, in which in the arbitration clause of a building contract, a particular officer was named as the sole arbitrator to resolve the dispute if any arising between the parties. The Quarter‑Master‑General, Government of Pakistan, was the person named in the aforesaid arbitration clause. He rescinded the contract on the ground that the plaintiff had refused to meet the department's demand. The plaintiff filed a suit in which the Government of Pakistan filed an application under section ?4 of the Arbitra tion Act for the stay of the suit which application was opposed by the plaintiff and, inter alia, it was urged that the officer named in the arbitration had already expressed his opinion by issuance of notice of rescinding the contract. However, the above contention was negatived by the learned Single Judge of this Court and it was held that mere issuance of the termina tion notice would not disqualify the named officer from acting as an arbitrator. The judgments reported in P L D 1971 S C 585, P L D 1980 Lab. 658 and P L D 1972 Kar. 515 support the contention of the learned counsel for the petitioner that ordering issuance of the first show‑cause notice alone is not sufficient to disqualify said Major Iqbal Ahmed to act as the Inquiry Officer. Even the earlier view of the learned Sind Labour Appellate Tribunal in the case reported in 1981 P L C 670, appears to support the case of the petitioner. The Judgments relied upon by Mr. Shahani are clearly distinguish able and do not help the contention raised on behalf of respondent No. 1.

7. Since the learned Sind Labour Appellate Tribunal has reversed the order of the Second Sind Labour Court solely on the ground that said Major Iqbal Ahmed was not qualified to act as an Inquiry Officer for the reason that he had ordered the issuance of a show‑cause notice to respondent No. 1, we are inclined to hold that the above order cannot be sustained for the reasons recorded hereinabove. We, therefore, declare the impugned order as without lawful authority and of no legal effect but remand the case to the learned Sind Labour Appellate Tribunal to rehear the case afresh and to give its finding as to whether from the inquiry record or from the evidence on record any prejudice/bias of predetermined mind can be attributed to aforesaid Major Iqbal Ahmed. There will be no order as to cost:. M. Y. M. Case remanded.