1995 PLP 765 (CLC)

Ch. Bashir Ahmad, for Respondents Nos. 2 to 5. ?Azmat T. Saeed for Respondent No.6. Respondent No. 7 in person. Dates of hearing: 29th November; 12th and 13th December, 1994. Petitioners through this Constitutional petition have taken exception to the order dated 2‑10‑1994 passed by respondent No.2 Mr. Muhammad Naeem Siddiqui, Deputy Registrar, removing Mr. Muhammad Iqbal Butt petitioner No. 2 from the office of Secretary-ship and appointing Circle Registrar as Secretary till further order.

2. Facts briefly are that the Government Employees' Cooperative Housing Society Ltd. was registered in the year 1956 under the Cooperative Societies Act, 1925 (hereinafter referred to as Act) having more than 1500 members. Elections of the Society are held every three years. In the year 1989, respondent Mr. Muhammad Naeem Siddiqui, Deputy Registrar who has passed the impugned order, contested the election of the society under the umbrella of opposite group i.e. `Mujahid Group' for the post of Member Managing Committee and lost the same against petitioner No.2 who contested election on the panel of Ittefaq Group. Again in the year 1992 elections were held wherein though he himself did not contest the election but his group opposed the petitioner group and again lost the election. It is the case of the petitioners that in order to dislodge them a complaint was made by one Sheikh Munib Usmani, Member, Anti‑Corruption Committee to the Deputy Commissioner, Lahore making allegation respecting the alleged eva4on of the stamp duty by the Society. The matter was initially enquired into by ADC(G) Headquarter, Lahore, who suggested that a committee be constituted to probe into the matter in detail. Accordingly on 31‑5‑1994 the Deputy Commissioner, Lahore, to view of the interim report of the ADC(G), Headquarter constituted a committee consisting of Ch. Talib Hussain, A.C., Model Town, Lahore, Ch. Muhammad Ashiq, Joint Sub‑Registrar and the complainant Sheikh Munib Usmani with a further direction for the seizure of the record. The committee submitted an interim report making recommendations for the registration of criminal case. The Deputy Commissioner after the opinion of the District Attorney sent a reference to the Registrar Cooperative Society on 11‑7‑1994 directing that respondent No.2 Muhammad Iqbal Butt, Secretary, Government Employees' Housing Society Ltd., be dismissed and a suitable substitute/Adminsitrator be appointed with intimation to the office. On receipt of this reference, a show‑cause notice was issued to respondent No.2 on 30‑8‑1994 calling upon him to appear in the office of the Deputy Registrar, Mr. Naeem Siddiqui on 8‑9‑1994 for personal hearing. A further notice was issued on 20‑9‑1994 for his personal hearing for 2‑10‑1994. Since petitioner No.2 did not appear on 2‑10‑1994 as such an ex parte proceedings were taken against him and the impugned order removing him from the Secretaryship was passed by the Deputy Registrar in exercise of his powers under section 44‑C of the Act and appointing Circle Registrar as Secretary in his stead. Hence this Constitutional petition. It is argued by the learned counsel for the petitioners that the impugned order has been passed in an arbitrary manner without providing any opportunity of hearing. It is stated that petitioner No.2 was not served any notice and on 2‑10‑1994 counsel for petitioner No.l Mr. Manzoor Hussain Butt was present in other cases and on coming to know about the fixation of the case under section 44‑C of the Act, filed his memo of appearance on behalf of petitioner No.2 which the Deputy Registrar refused to entatain. An affidavit of Mr. Manzoor Hussain Butt, Advocate is appended to this effect. It is further argued that the Deputy Registrar Mr. Muhammad Naeem Siddiqui is biased as he had contested election under the umbrella of Mujahid Group opposing the petitioners' group in the year 1989 wherein he lost the election and he again announced the petitioners' group in the election held in the year 1992. A further argument has been advanced that the impugned order has been passed in a mechanical manner under the dictates of the Deputy Commissioner without advancing any reasons at all. It is also argued that the petitioners Society never transferred any property and the Senior Inspector of Stamp, Board of ?P_ Punjab through its letter dated 15‑8‑19 appended with this petition has already written to the Deputy Commissioner, Lahore, asking for appropriate amendment in bye‑laws of the society. Learned counsel for the petitioners has placed reliance on Government of West Pakistan v. Begum Agha Abdul Karim Shorish Hashmiri (PLD 1969 SC 14), Federation v. Saeed Ahmad Khan (PLD 1974 SC 151), Abdul Rauf v. Abdul Hamid Khan (PLD 1965 SC 671), Muhammad Tufail v. Province (PLD 1978 Lahore 80), Akbar Ali v. The State (PLD 1954 SC 251), Muhammad Ibrahim v. Ehsanul Haq (1992 MLD 164 (D.B.), Fazal Din etc v. Commissioner, Lahore Division (PLD 1968 Peshawar 30), Iqbal Yousaf v. Khawar Jehan (1991 SCMR‑864), Haji Ibrahim v. Rehmatullah (1985 SCMR 241), Semco Salavage PTE v. Capt. Yousaf Kalkavan (1993 SCMR 593), Ahsan Kausar v. Ahmad Zaman Khan (1986 SCMR 1799), Ms. Benazir Bhutto v. The Federation of Pakistan (1992 SCMR 140), High Court Rules and Orders, Chapter IJ, Rule 6, Vol. I; (PLD 1976 Lahore 498) and Din MuharlMad v. Abdul Rehman (1992 SCMR 127). ??????????? Learned counsel appearing for the respondents has taken preliminary objection that petitioner No.2 filed an appeal before the Secretary against the impugned order under section 64 of the Cooperative Societies Act, 1925 and the Secretary having already been notified as an Appellate Authority under section 44‑C(4) of the Act, the present writ petition would not be maintainable. It is stated that petitioner No.2 in spite of service did not attend the proceedings as such there was no option left with the Deputy Registrar except to proceed in the matter ex parte. It is further stated that the Deputy Registrar has got the power to appoint the Circle Registrar Cooperative Society after the removal of the incumbent as the removal under section 42‑C read with section 71‑G as well as other provisions of the Act presupposes the power to appoint during the interregnum. As far as the involvement of respondents in the election is concerned the same has not been denied. However, it is stated in the comments that Mr. Naeem Siddiqui, Deputy Registrar supported the petitioners' side in the 1992 election. Mr. M.R. Ahmad Dar has also supported the impugned order. Learned counsel for the respondents has placed reliance on Muzaffar Ali Shah etc. v. Registrar, Cooperative Societies, Karachi etc. (PLD 1968 Karachi 422) and Pakistan Express Cooperative Bank Ltd. v. Registrar, Cooperative Societies, Lahore etc. (1970 SCMR 55). I have considered the contentions. It is true that petitioner No.2 after the passage of the impugned order dated 2‑10‑1994 filed an appeal under section 64 of the Act before the Secretary but since he was not clear whether the Appellate Authority as envisaged under section 44‑C, subsection (4) of the Act has been constituted, he resorted to this Constitutional proceedings. He even made an application before the Secretary, Cooperative Society for the clarification of this issue whether the Appellate Authority as envisaged under the Act has been constituted or not. The comments of the respondents also demonstrates that they were not sure about the constitution of the Secretary as Appellate Authority. Had they been clear that the Appellate Authority has been constituted the same would have been mentioned in clear terms in the comments filed in this Constitutional petition. Even otherwise the remedy of appeal as envisaged under section 44‑C(4) is available to the "Officer aggrieved" under the Act and petitioner No.1 Government Employees' Cooperative Society has got no remedy whatsoever under the, law. In this view of the matter, the petitioners cannot be non‑constituted simply on the ground of availability of appeal to petitioner No.2 particularly so when the order impugned is stated to have been passed completely without lawful authority in clear violation of the established principles. The ground that the respondent Deputy Registrar, Mr. Naeem Siddiqui, contested election aga9lst the petitioners' group in the year 1989 has not been denied. The plea that he supported the petitioner's side in the subsequent election in the year 1992 does not advance his case any further. If it is so, then it certainly demonstrates partisan disposition of respondent No.4 and in these circumstances, he should have avoided to sit at the judgment of the case of this nature. It is settled law that no person should be judge of his own cause. From the pleadings of the parties, this fact is amply clear that respondent Deputy Registrar has been siding with different groups of the Society in the election apart from the fact that he himself participated in the election in the year 1989. It is also established principle of law that justice should not only be done but should manifestly and undoubtedly be seen to be done. In this respect I am supported by the dictum of Supreme Court lying down the principles disqualifying a person to sit as a Judge in a case reported in Ms. Benazir Bhutto v. The President of Pakistan and another (1992 SCMR 140). The principles laid down are as under:‑‑ (iv)?????? That "the basis of the disqualification, therefore, is" personal bias or prejudice of such a nature as would necessary render a Judge unable to exercise his functions impartially in a particular case and this must be shown as a matter of fact and not merely as a matter of opinion". (Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57). (vi)?????? That if a person exhibits/demonstrates hatred to a particular class of persons in public speeches and projects views to the detriment of the said class of persons publicly, he would be disqualified to act as an arbiter in a judicial or quasi‑judicial proceedings relating to them on the ground of bias (Chairman, Federal Land Commission and another v. Sardar Ashiq Muhammad Khan Mazari and 37 others (1985 SCMR 317). Reference may also be made to Muhammad Ibrahim and 2 others v. Ihsanul Haq and 2 others (1992 MLD 164) wherein a Division Bench has held as under:‑‑ "As Aristotle said, as long ago as 322 B.C. men have recourse to a Judge when disputes occur, to go to judge is to go to justice, for the ideal Judge is so to speak justice personified. Also, men require a Judge to be a middle term or medium, for they think that if they get the mean, they will get what is justice. Thus, the just is a sort of mean, inasmuch as the Judge is medium between the litigants and restores equality (see the Great Legal Philosphers by Clarence Morris at page 19). It was, therefore, for the learned Civil Judge to strike a balance between those competing interests and to be fair to both the parties. Indeed, the need to be fair is the greater where by reason of the status in life of one of the parties, the other party apprehends, or is likely to apprehend that he will not be dealt with fairly:' The doctrine of bias has also been considered by a Larger Bench in Fazal Din etc. v. Commissioner, Peshawar Division etc. (PLD 1968 Peshawar 30) and it was held as under:‑‑ Reference may also be made to Muhammad Ibrahim and 2 others v. Ihsanul Haq and 2 others (1992 MLD 164) wherein a Division Bench has held as under:‑‑ "As Aristotle said, as long ago as 322 B.C. men have recourse to a Judge when disputes occur, to go to judge is to go to justice, for the ideal Judge is so to speak justice personified. Also, men require a Judge to be a middle term or medium, for they think that if they get the mean, they will get what is justice. Thus, the just is a sort of mean, inasmuch as the Judge is medium between the litigants and restores equality (see the Great Legal Philosphers by Clarence Morris at page 19). It was, therefore, for the learned Civil Judge to strike a balance between those competing interests and to be fair to both the parties. Indeed, the need to be fair is the greater where by reason of the status in life of one of the parties, the other party apprehends, or is likely to apprehend that he will not be dealt with fairly." The doctrine of bias has also been considered by a Larger Bench in Fazal Din etc. v. Commissioner, Peshawar Division etc. (PLD 1968 Peshawar 30) and it was held as under:‑‑ "It is well‑settled that no one can be a Judge in his own cause and this is based on the principle nemo debet esse judge in propria causa. These decisions are based on the doctrine of bias which is one of the important principles of natural justice. In respect of judicial or quasi-?judicial Tribunals, it is well‑settled that (a) no man shall be a Judge in his own cause and (b) that justice should not only be done, but manifestly seem to be done. The same principles apply also to administrative authority though they are not the Courts of Justice but perform quasi‑judicial functions inasmuch as they may have to decide the rights of others:' A further argument of the learned counsel for the petitioners that the order has been passed in a mechanical manner has also got substance. The Deputy Registrar has not advanced a single reason whatsoever for the removal of petitioner No.2. He has mechanically acted upon the direction of the Deputy Commissioner who of course does not figure in the act. The argument of the learned counsel for the respondents that since, the allegations levelled in the reference sent by the Deputy Commissioner went unrebutted as such the impugned order is sustainable is devoid of any force. The petitioner No.2. was not provided any opportunity. It is true that Sub‑Inspector Falak Sher and Inspector Maqsood Ahmad stated in their report dated 4‑9‑1994 that petitioner No.2 did not accept the notice but there is an affidavit of the learned counsel Mr. Manzoor Hussain Butt that he filed memo. Of appeal on behalf of petitioner No.2 on coming to know about the fixation of the case which the respondent Deputy Registrar refused to accept. It is settled principle of law that the matters be decided on merits instead of resorting to technical knock out which is sparingly adverted to. The Deputy Registrar, as earlier mentioned, has not given his own reason for the removal of the Secretary and simply followed the direction/ dictates of the Deputy Commissioner without providing any opportunity of hearing. Reference may be made to Muhammad Ibrahim and 2 others v. Ihsanul Haq and 2 others (1992 MLD 164) wherein it is held as under:‑‑ "All that remains to be considered is the effect of fact, involving as they do the violation of one of the first principles of justice, namely, that no man shall be condemned unheard also called the principle of fairness, which was described in Kandas' case (1962) A.C. 332 as one of the twin pillars supporting natural justice. It is now well?-established that it is not merely an acceptable but an essential part of the philosophy of our law that `this conception of natural justice should at all stages guide those who discharge judicial functions". (Wiseman v. Borneman (1969) 3 All ER 275; also see Muhammad Ramzan Oureshi's case PLD 1986 FSC 200 and Pakistan v. Public‑at‑Large PLD 1986 SC

240. It has long been settled that a decision which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision making authority. (A.Q. v. Ryan (1980) A.C. 718, 729, 730) and, therefore, the purported decision so arrived at is a nullity." Even otherwise after the removal of the Secretary, the Deputy Registrar was not competent to appoint Circle Registrar as Secretary in the presence of the Society which was still in existence. The constitution and bye?laws of the Society have taken care of this aspect. In view of what has been stated above, the Constitutional petition is accepted and order dated 2nd of October, 1994 passed by the Deputy Registrar, Mr. Muhammad Naeem Siddiqui, is declared to have been passed without lawful authority and of no legal effect. There shall be no order as to costs in the circumstances of this case. Since the impugned order inter alia has been set aside due to the bias of the Deputy Registrar, as such, this order shall not be taken as a bar by respondent No.l Secretary, Cooperative Society, Government of the Punjab, to proceed in this matter in accordance with law and rules. Copy Dasti on payment of usual charges. AA./G‑254/L?????????????????????????????????????????????????????????????????????????? ??????????? Petition accepted.