P L D 1966 (W (PLP)

Nemo for Respondent No.

2. Date of bearing: 24th March 1966. S. A. MAHMOOD, J. Mahmood Ahmad petitioner was an Electrical Foreman in the Lahore Omnibus Service under the West Pakistan Road Transport Board, when on the 31st January 1963 the Chief Technical Officer (hereinafter called the C. T. O.) called for his explanation on certain allegations. He submitted his explanation, on the 25th July 1963, the C. T. O. served a charge‑sheet on him. Major Ataullah, Additional Works Manager, having been appointed Enquiry Officer, held an enquiry, and on the basis of his finding, the C. T. O. issued a notice to the petitioner on the 1st February 1964, to show cause why he should not be dismissed from service. The petitioner showed cause. On the 30th March 1964, the C. T. 0. passed an order of dismissal of the petitioner, who filed an appeal before the Chairman of the Road Transport Corpo ration on 15th August 1964. The appeal was heard and dismis sed by the Corporation, i.e. the Chairman and two members, who form the requisite quorum for holding a meeting of the Corporation under rule 10 of the Road Transport Corporation Rules, 1963. This is a petition under Article 98(2) of the Constitution of Islamic Republic of Pakistan to challenge the validity of the orders of his dismissal and rejection of his appeal, as being without lawful authority.

2. The learned counsel for the petitioner contends firstly that as the order of dismissal of the petitioner was made by Mr. Muhammad Akbar Khan, as C. T. O., an appeal against his order of dismissal lay to the Chairman under rule 11(5)(c) and not to the Corporation, and secondly that if even an appeal lay to the Corporation, the decision of the Corporation is vitiated, because Mr. Muhammad Akbar Khan attended and participated in the deliberations of the meeting, in which it was decided to dismiss the appeal.

3. By the notification of the Government of West Pakistan dated the 17th May 1963, Mr. Sharif Khan was appointed as Chairman and Mr. Mehdi Hassan, C. S. P. and Mr. Muhammad Akbar Khan as Members of the Road Transport Corporation, which was constituted with effect from the 18th May 1963. From 18th May 1963, Mr. Muhammad Akbar Khan was given additional charge of the Post of Chief Technical Officer, which was lying vacant for sometime, on 'the 1st November 1963, the Government of West Pakistan conveyed the approval of the Government to his holding the additional charge of the Post of C. T. O. from 18th May 1963. Thus on the 30th March 1964, when Mr. Muhammad Akbar Khan passed the order of dismissal of the petitioner, he was not only a Member of the Corporation but was also C. T. O. The order of dismissal was however, made by him as C. T. O., and the question which falls for determination is: which is the authority to which, an appeal lay? On a plain reading of rule 11(5)(c) of the Road Transport Corporation Rules it would appear that an appeal from the original order of C. T. O., lay to the Chairman or a Member of the Corporation. As Muhammad Akbar Khan was A also a member of the Corporation, the Corporation decided that the petitioner's appeal lay to, and had to be decided by the Corporation, which was not an unreasonable view to take by wav of abundant caution, but because of this a difficulty was created. Since the presence of the Chairman and both the members of the Corporation was necessary to constitute a meeting of the Corporation under rule 10 of the Road Transport Corporation Rules, Mr. Muhammad Akbar Khan attended the meeting to decide the petitioner's appeal, which was directed against hip, order. By his presence, the decision of the Corporation is vitiated, because he could not sit in judgment in appeal on hip own order. There was an inherent disqualification in him to be a member of the appellate tribunal to hear the appeal. As he had judged the issue, he was an interested party, who could not participate in the disposal of the appeal. By his being a member of the Committee, there was a reasonable apprehension created in the mind of the petitioner of grave prejudice to lie caused to him. It has been pointed out in Mian Muhammad Abdullah, District Manager, Government Transport Service, Lyallpur v. The Road Transport Corporation, Lahore, through its Secretary and others (P L D 1964 Lah.743) that justice should not only be done but it should manifestly and undoubtedly be seen to be done. If one of the members of a tribunal is biased or, which is the same thing, has prejudged the issue against a party, it is bound to cause a reasonable apprehension in the mind of the party that he is not likely to get a fair and impartial deal at the hands of tribunal. If one of the authority or any one of the authorities hearing a case has any pecuniary or otherwise substantial interest or is biased, the defect goes to the root of the constitution of the tribunal, which becomes improperly constituted. The mere presence of a member who is disqualified from taking part in the proceedings of the tribunal renders it incompetent to function as such, and it is immaterial what part that particular member played in the proceedings of the tribunal and how far he was able to influence its decision in the case. In Rex v. Meyer (1876 Q B D 173) though it was contended that Mr. Meyer took no part until the other justices had unanimously determined to convict the petitioner, it was held that Mr. Meyer had such an interest as might give him a real bias in the matter in dispute, and con sequently he ought not to have sat as a Justice and that it was immaterial what part he really took in the matter. We hold that the tribunal which decided the appeal was improperly constituted, and its decision is no decision in the eye of law.

4. For the reasons given above we set aside the order of dismissal of the appeal of the petitioner, and direct that the appeal shall be beard by the Chairman ‑of the Road Transport Corporation, as desired and prayed by the petitioner before us. We have questioned the learned counsel for the petitioner with regard to the forum of appeal, and he insists that the appeal should be disposed of by the Chairman of the Corporation.

5. Before parting with the case, we would like to point out that rule 10 of the Road Transport Corporation Rules, 1963 needs amendment, because under this rule the Chairman and the two members shall form a quorum for a meeting of the Corporation, so that if a Member has taken a decision, an appeal from his order under rule 11 (5) (c) cannot be validly decided by the Corporation, as held by us above. If rule 10 is not altered, the appeal will have to lie to another forum, and rule 11(5)(b) will have to be amended.

6. We, therefore, accept this writ petition, quash the order of the Corporation dismissing the appeal and direct that it be re-decided. We leave the parties to bear their own costs. K. M. A. Petition accepted.