P L D 1967 Lahore 1112 (PLP)

ATAULLAH SAJJAD, J.‑This writ petition is for a declaration that the order of respondent No. 3, Mrs. S. Saadat, Deputy Directress, Industrial Training for Girls, West Pakistan, Lahore, dated the 13th of December 1963, dismissing the petitioner from service and the subsequent order passed in appeal by respondent No. 5, Captain Kabir Ahmad Sheikh, Additional Director of Industries, West Pakistan, Lahore dated 15‑6‑64 directing the compulsory retirement of the petitioner, are illegal, without lawful authority and of no consequence as against the petitioner.

2. The petitioner Mrs. Saeeda Tasneem Ara was the Head Mistress of the Government Vocational School for Women, Multan, when she was suspended on the 20th of November 1962, in connection with the departmental enquiry, which culminated in her compulsory retirement as mentioned above. A charge- sheet was served on her on the 21st of January 1963, and certain objections having been raised by her, a revised charge‑sheet was again served on the 14th of March 1963. Both these charge- sheets were signed by Mrs. S. Saadat, respondent No.

3. The petitioner sent a reply to the charge‑sheet on the 22nd of March 1963 to the Director of Industries, West Pakistan, Respondent No. 2 and her reply having been found unsatisfactory, Mr. S. I. Jafri, Chief Statistician, Directorate of Industries, West Pakistan, Lahore, was appointed as Enquiry Officer. The Enquiry Officer by his report copy of which is Annexure 'D' with the writ petition held that out of eleven charges levelled against the petitioner ten had been proved. The eleventh charge which was held not to have been proved related to her failure to see the Director of Industries in spite of his orders. After the receipt of this report, respondent No. 3 issued a show‑cause notice to the petitioner on the 9th of October 1963, to which the petitioner sent a very lengthy reply. The Deputy Directress by order dated the 13th of December 1963, ordered her dismissal from service. The petitioner filed an appeal which was heard by respondent No. 5, Captain Kabir Ahmad Sheikh, Additional Director of Industries, Lahore, who on the 15th of June 1964, accepted her appeal to the extent that he converted the order of dismissal into one of compulsory retirement. She then filed the present writ petition.

3. It would be necessary for appreciating the points raised in this writ petition to make mention of some of the charges levelled against the petitioner. Charge No. 7 related to the disclosure of confidential remarks recorded by respondent No. 3 in the annual confidential report of Mr. Ahmad Sher Khan, Junior Clerk, Government Vocational School for Women, Multan. This disclosure according to the charge resulted in a notice of damages for payment of Rs. 10,000.00 sent to the Deputy Directress by Mr. Shakil Ahmad, the husband of the petitioner through a lawyer Mr. Arshad Mahmood. It is not clear from this record how the alleged disclosure of the confi dential remarks affected the husband of the petitioner in a manner that he was compelled to serve respondent No. 3 with a notice for damages for loss of reputation. Charge No. 8 related to an allegation made by the petitioner that she had purchased from her own pocket a Railway air‑conditioned Ticket from Multan to Lahore for the Deputy Directress in the year 1960 when the latter visited the Women's Vocational School at Multan. This allegation according to the charge had been proved to be false and amounted to making uncalled for aspersions by the petitioner on her Superior Officers. In charge No. 11 it was alleged that the petitioner had lodged a first information report Annexure `M' against respondent No. 3 on the 19th of October 1962. This first information report contains grave allegations of embezzlement and destruction of records against the Deputy Directress. It was alleged in the F. I. R. that the records had been destroyed by respondent No. 3 with the help of Ahmad Sher Khan, the clerk of the Vocational School for Women, Multan, who had been allegedly called to Lahore by the Deputy Directress for this purpose and kept there for about 10 days. In her reply dated the 22nd of March 1963, to the charge‑sheet the petitioner while replying to charge No. 1, repeated the allegation that some original records had been destroyed with the connivance of the Deputy Directress. As to the charge of lodging the first information report against the Deputy Directress she said that ` it was a cognizable case of grave moral turpitude involving the embezzlement of Government money falling under sections 409, 420, 467 and 477‑A/109, P. P. C.", and that the Superintendent of Police had himself registered the case. She also in her reply repealed the allegation that she had purchased a Ticket from Multan to Lahore for the Deputy Directress and also alleged further that the Deputy Directress during the tenure of her office always stayed with the Head Mistresses and never reserved a rest house or a Dak Bungalow either at Multan or any other station. She further alleged that she had "defrayed huge expenses" during the stay of the Deputy Directress at Multan and also asserted that the Deputy Directress had raised subscriptions from all Head Mistresses through a circular, a copy of which had already been sent to the higher officers for perusal. It is desirable here to quote the last two paras of her reply: "In the light of the above statements, I totally deny the truth of any charge. These charges have been motivated by bias and vindictiveness in so far as I levelled allegations against the worthy Deputy Directress. In the end I have the honour to submit that my case be very graciously construed in its accurate perspective, as an impartial and just officer like the worthy Director himself. I do hope that the worthy Director will allow me to be heard in person."

4. During the enquiry she offered to produce defence and gave a list of 9 witnesses, among them being the Secretary Industries Department Government of West Pakistan and the Director of Industries Department, Lahore. The Enquiry Officer agreed to summon two out of them and ordered that so far as the Secretary Industries, Director of Industries and five other witnesses were concerned she should produce their affidavits. Site then decided not to produce even Mr. Fazli who had been ordered to be summoned and put in an application Annexure R/3 on the 24th of June 1963, to that effect and stated therein that since the Secretary Industries had not been summoned by the Enquiry Officer, she would like to drop Mr. Fazli also. On the 27th of June 1963, she produced her written statement and made the statement Annexure R/4 before the Enquiry Officer that she did not want to produce any other evidence.

5. In her reply to the show‑cause notice the petitioner again laid stress on her strained relations with the Deputy Directress and while dealing with charge No. 2 and charge No. 3 (iv) she reasserted that the Deputy Directress was inimical towards her. She also made a grievance of the fact that the Enquiry Officer did not give her reasonable opportunity to defend herself, and her defence witnesses were not summoned. The Deputy Directress however passed a brief order of dismissal without dealing with each charge or giving her own findings in regard to the questions involved in the charges.

6. During the argument before us Mr. Munir Hussain learned counsel for the petitioner raised the following three points: (i) That the order of dismissal having been passed by the Deputy Directress who was involved personally at least in three charges was vitiated because of bias and was no order in the eyes of law; (ii) that reasonable opportunity was not given to the petitioner inasmuch as defence witnesses cited by her were not summoned. (iii) that after the issue of show‑cause notice dated the 9th of October 1963, an opportunity for producing evidence should have been given to the petitioner.

7. Before we proceed to decide the first point mentioned above we would like to deal with the two other contentions raised by the learned counsel. Under Rule 6 (iii) (b) of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, the accused has to be given an opportunity to bet heard in person and to lead evidence. The Enquiry Officer may' under sub‑rule (iv) (c) of rule 6 for reasons to be recorded refuse to call a particular witness or to summon particular evidence but the right of the respondent in a departmental enquiry, to summon defence evidence is beyond all doubt. The above sub‑rule regulates the procedure of enquiry and lays down that evidence is to be heard orally at the enquiry and the accused is entitled to cross‑examine the witnesses appearing against him and to give evidence in person and to have such witnesses called for the defence as be may wish to produce.

8. We are clear in our mind that the order of the Enquiry Officer directing the petitioner to produce the affidavits of seven of her defence witnesses is not proper, firstly, because under the rules the enquiry has to be oral and the petitioner had a right to summon her defence witnesses, and secondly, the Enquiry Officer did not give any reasons for adopting the course that he did. The Enquiry Officer in fact burdened the petitioner with the performance of a duty which the rules enjoined on him and in her position of a subordinate it would not have been possible for her to obtain the affidavits of such high officers as Secretary Industries and Director Industries. The Efficiency and Discipline Rules have a judicial pattern and the rule‑making authority has not only made provision for are oral enquiry, cross‑examination of witnesses, summoning of defence witnesses but also for rehearing of the evidence by introduction of a new rule 8‑A in case one enquiry officer is replaced by another. The Enquiry Officer was bound to observe these rules strictly and could not relax the procedure to the disadvantage of the petitioner. His order, therefore, amounted to a refusal to summon defence witnesses and we would have certainly considered it as a ground for interference if the petitioner herself had not acquiesced in the order by filing application Annexure R/3, dated the 24th of June 1963 and by making the statement of 27th of June 1963, Annexure R/4 referred to above. In view of these two documents it is reasonable to draw an inference that she had ultimately decided to drop her defence witnesses. We cannot, therefore, hold the enquiry to be defective on this ground in view of petitioner's own attitude off acquiescence and waiver.

9. The learned counsel in support of his second contention referred to the case of Muhammad Ihsan Khan v. The Province of West Pakistan (1), which lays down that a departmental enquiry is divided into two parts and an accused person has a right to show his or her innocence even after the issuance of the show -cause notice. He contends that in view of the grievances mentioned to the show‑cause notice the Deputy Directress herself should halve again, gone into the whole matter and invited the petitioner to produce fresh evidence. We do not think that the authority relied upon by the learned counsel goes so far as to place the initiative with the punishing authority. We agree that the expression reasonable opportunity to show cause is a substantial provision of law and is intended to provide an opportunity to the accused officer to show cause against the proposed action. This would certainly include production of evidence but we maintain that it was for the petitioner herself to move the punishing authority in this behalf if she wanted to rebut the allegations by production of any evidence. We, therefore, do not think that the petitioner was in any way deprived of the opportunity to show cause against her dismissal because she never asked for any opportunity except submitting a lengthy reply and laying emphasis on her strained relations with the punishing authority.

10. The most substantial contention of the learned counsel however is that the punishing authority being herself the accuser (1) P L D 1963 Lah. 295 and being personally involved in at least three charges could not been expected to bring about a detached mind to the considera tion of this case. She was at one and the same time a prosecutor and a Judge in her own cause. The counsel in order to support his argument relied on the Supreme Court authority Muhammad Mohsin Siddigi v. Government of West Pakistan (P L D 1964 S C 64). In this case the petitioner Muhammad Mohsin Siddiqi was dismissed for insolence and insubordination to the Sessions Judge under whom he was working. The learned Sessions Judge himself framed the charge, held the inquiry and ultimately dismissed the appellant. The Administrative Judge of the High Court dismissed his appeal and another appeal to the Government met the same fate. Muhammad Mohsin Siddiqi thereupon filed a writ petition in the High Court which was dismissed on the ground that the High Court could not issue a writ to itself. The Supreme Court, however, quashed the whole proceedings and their Lordships observed in the concluding part of the judgment: "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 frame‑work 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 com plainant must give his evidence in support of the complaint before such officer."

11. Mr. Muhammad Bashir, the learned Assistant Advocate‑General appearing for respondents submitted that the case of Muhammad Mohsin Siddiqi was distinguish able because in that case the enquiry had been held by the same officer who had framed charges and who had ordered the dismissal of the appellant in that case. He also said that this is an Administrative order and that the considerations which apply to judicial proceedings are not attracted to the present case especially when the Deputy Directress had the authority under the rules to dismiss the petitioner. He further asserted that the petitioner having gone in appeal and the appellate authority having reduced the sentence to compulsory retirement, the petitioner should have no complaint about any bias by which the mind of the punishing authority is said to have been affected.

12. We cannot agree with any of these contentions. It is too late in the day for Mr. Muhammad Bashir to claim for the proceedings of Administrative Tribunals complete immunity from the Judicial Review. The Supreme Court has repeatedly laid it down that Administrative Tribunals, particularly those who have to take decisions after ex post facto investigation into facts, which would result in consequences affecting a person adversely, are under an obligation to observe the elementary and essential principles of fairness. Reference in this connection may be made to the cases of Chief Commissioner Karachi and another v. Mrs. Dina Sorab Katrak (P L D 1959 S C (Pak.) 45), Ikram Bus Service and others v. Board of Revenue, West Pakistan and others (P L D 1963 S C 564) and The University of Dacca through its Vice‑Chancellor and another v. Zakir Ahmad (P L D 1963 S C 564).

13. This is the short answer to the main contention of the learned Assistant Advocate‑General but since the question of the effect of bias in a departmental enquiry has been specifically raised before us we would like to examine this matter at some length.

14. We find the following observations made in Administrative Law by J. F. Garner, 1963 Edn. at page 104:‑ "Not only is a person affected by an administrative decision entitled to have his case heard by the agency seized with its determination, but he may also insist on his case being heard by a fair Judge, one free from "bias"." Again on the same page we find the following lines:‑ "As Professor De Smith has shown, the rule that a Judge must be free from bias was developed in our legal system through the supervisory jurisdiction of the High Court over inferior judges. By the present century it had become clear that an administrative tribunal or other authority (for example a Ministry inspector at an inquiry) acting judicially must be free from bias and must not be judge in his own cause."

15. Again on page 143 of the Book entitled "Judicial Review of Administrative Action" by S. A. De Smith, 1959 Edition, we come across the following passage:‑ "Indeed, a duty to act in good faith and with a mind that is not wholly closed to argument rests upon every authority empowered by law decide questions that directly affect the interests of others. It rests upon domestic bodies that exercise powers to expel or dismiss, upon licensing and other admi nistrative tribunals, and upon Ministers who consider objections and determine appeals; and it is generally immaterial whether the function in question be formally characterisad as judicial or administrative."

16. The rules of natural justice and fairness cannot, be bye‑passed simply because a tribunal although it is performing an act of judicial nature has basically an administrative comp lexion. We need not refer in detail to the chain of English authorities on this subject but we feel that it would be of some interest to quote some passages from the judgment of the House of Lords in Frome United Breweries Company, Limited and another v. Keepers of the Peace and Justices for County Borough of Bath ((1926) L R A C 586). 1n this case an application to the Licensing Justices of a County Borough for the renewal of an old‑licence was made and the matter was referred to the compensation authority of the Borough under section 19 of the Licensing (Consolidation) Act, 1910, and at a further meeting the Justices resolved that a solicitor should be instructed to appear before the compensation authority and oppose the renewal on their behalf. The solicitor duly appeared and opposed, and the compensation authority refused the renewal, subject to payment of compensation. Three of the justices who sat and voted as members of the compensation authority had been parties to the resolution of the licensing justices authorising the solicitor to appear on their behalf. The appellants obtained an order nisi against the respondent for the removal of the order refusing the renewal of the license to the Kings' Bench Division for the purpose of having it quashed. The Divisional Court discharged the order and the Court of Appeal by a majority, affirmed the order of the Divisional Court. Appeal was taken to the House of Lords where most of the case‑law was reviewed and it was held that the licensing Justices may not be acting as Judges in the real sense of the term but they were deciding the right of a person to carry on his trade and, therefore, they were bound to act on established judicial principles. Lord Viscount Cave, L. C. answered the question of law raised in the following terms: "If there is one principle which forms an integral part of the English law, it is, that every member of a body engaged in a judicial proceeding must be able to act judicially; and it has been held over and over again that, if a member of such a body is subject to a bias (whether financial or other) in favour of or against either party to the 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. 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." Lord Atkinson in his separate judgment referred to the following passage from the case of Lesson v. General Council of Medical Education (43 Ch. D 379): "Though not in the ordinary sense judges, they have to decide judicially as to whether or not the complaint made is well founded. In our judgment, when so acting, they are not emancipated from the ordinary principles upon which justice is administered in this kingdom, and which are, as it has been said, founded on its very essence. It is conceded by Mr. Poland that, if the London County Council adjudicated in a matter of a music and dancing licence against an applicant without hearing him, such an adjudication could not stand. He also admitted that, if any of the council adjudicating had a pecuniary interest in the subject‑matter, such adjudication also could not stand. Then why is an adjudication in which gentlemen have acted both as judges and accusers at the same time to be upheld?"

17. The question to be considered in such cases is whether there was or was not under the circumstances a basis for think ing that the matter could not have been decided fairly and impartially keeping in view the personal interest which, the authority concerned appeared to have in the result of the case. The character of the action taken in a departmental case and the nature of the judicial proceedings are akin and the purpose of observing fairness in both such cases is to maintain public confidence. It is as much necessary in a departmental enquiry as in a judicial proceeding that the mind of the officer who a ultimately responsible to draw conclusions from the record of a case should travel in the straight furrow of detached and objec tive thinking and there should be no apprehension of its deflection on account of personal bias or ill‑will. An officer who has to decide about the culpability of a Government servant in a case of misconduct is under an obligation to give his decision in view of the facts of the case in good faith. If there is any ground for saying that his mind in coming to a decision may have been affected by some personal dislike or rancour his action is liable to be set at naught.

18. The rule that no person can be permitted to be judge in his own cause would apply with full force to departmental enquiries where orders have to be passed to the disadvantage of the functionaries of the State. Bias and good faith are contra, dictions in terms and proceedings taken and orders passed by officers whose mind appears to have been suffering from personal bias will be avoided by superior Courts of the country.

19. We quote with great respect from the majority judgment of Federal Court in the case of Anwar and another v. Crown (P L D 1955 F C 185) which though directly relates to the judicial proceedings will in our humble opinion apply to proceedings of judicial nature such as a departmental enquiry of the present nature: "There is a species of bias which vitiates judicial proceedings irrespective of the correctness or otherwise of the result, but that is not because bias, whatever form it may assume, avoids the result of judicial proceedings, but because the Judge with that kind of bias is, on grounds of public policy, disqualified to be a Judge. Thus no Judge can be a Judge in his own cause, or in a cause in which he is personally interested, not because his decision must invariably be in his own favour but on the principle that justice must not only be done but seem to be done, and however right the Judge deciding a cause in his own favour may be, neither the public nor the aggrieved party will be satisfied with the adjudication, and its result will be vacated by the Court of Appeal at the instance of the dissatisfied party."

20. In the view that we have taken of the matter we are supported also by the two judgments of the Division Bench, of this Court, namely, Abdul Wassey v. Pakistan (P L D 1957 Kar. 363) and Muhammad Murtaza Kazi v. University of Sind and others (P L D 1960 Kar. 500), In the first case it was found that the officer who had conducted the enquiry against the petitioner was prejudiced against him as he had before entering upon the enquiry expressed an opinion prejudicial to the petitioner in correspondence preceding the enquiry. Their Lordships adverted to the dictum of the Federal Court in Ghulam Rasul v. The Crown (P L D 1951 F C 62) and observed that the principles enunciated in the above judgment of the Federal Court would apply also to Administrative Tribunals. The pro ceedings were quashed on this ground. In the other case a Reader of the University of Sind was dismissed by the Syndicate of the University where nine members were present. Five of these members including the Chairman who happened to be the Vice‑Chancellor of the University were shown to have acted against the Reader. It was said that any verdict given by these persons who were prejudiced in one way or the other stood clearly vitiated and must be set aside.

21. The Deputy Directress Mrs. S. Saadat was present in Court at the time of arguments and she told us that she did not want to pass an order in this case but she had to do so because under the rules only she could have passed the impugned order. This argument is of no avail to the respondents. If this argument could prevail then persons with prejudicial bent of mind would be free to impose penalties on public servants and the whole purpose of the constitutional guarantees enshrined in the Con stitution against imposition of penalties of dismissal etc. without affording reasonable opportunity would be completely, nullified and such enquiries will become futile and farcical.

22. We have yet to deal with the argument of Mr. Muhammad Bashir, Assistant Advocate‑General, that the peti tioner having filed an appeal was heard by the appellate authority and that, therefore, any prejudice if caused to her had been removed by the fact that her case was considered by a disinteres ted officer. We are of the opinion that where a decision is vitiated by bias or has been arrived at in violation of the rules of fair play and natural justice an appeal is not the proper remedy.

23. The learned Assistant Advocate‑General should have known that a complete answer to his argument was contained in the case of Muhammad Mohsin Siddiqui where their Lordships of the Supreme Court observed :‑ "The fact that this was seemingly ratified by subsequent actions of the Administration Judge and of the Government does not seem to us to possess any efficacy to cure the patent defect by which the enquiry proceedings were allegedly affected." We may also refer in this connection to a case from American Jurisdiction Berger v. U. S. A. (U S S R 65 Lawyers Edn. p. 481), where persons of German descent were tried for espoinage in U S A and had filed an affidavit under section 21 of the Judicial Code against Judge Landis alleging that he had extreme anti‑German views which he had frequently expressed and view of his bias against the Germans he should not preside over their trial. This case was noticed by the present Chief Justice of the Supreme Court in his Lordships' dissenting judgment in Anwar and another v. The Crown (P L D 1955 F C 185). The relevant portion is reproduced here:‑ "The remedy by appeal is in adequate, it comes after the trial, and if prejudice exists, it has worked its evil, and a judgment of it in a reviewing tribunal is precarious. It goes there fortified by presumptions and nothing can be more elusive of estimate or decision than a disposition of mind in which there is a personal ingredient.

25. After consideration of all the aspects of the case we have come to the conclusion that the order of dismissal passed by respondent No. 3 and the subsequent order passed in appeal by respondent No 5 directing her compulsory retirement should be quashed. We, therefore, set aside the orders passed by respondent No. 3 and respondent No. 5, on the 13th of December 1963, and 15th of June 1964, respectively, and we also direct that the inquiry report should be now placed before another officer of competent rank who would issue fresh show‑cause notice to the petitioner and decide the case according to the evidence on the record and the rules governing the petitioner in this respect. S. A. H. Petition accepted.