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Case No. 500/189 of 1970, decided on 5th May 1971.
Ordinance (IV of 1970), S. 10(4)‑Hearing of appeal‑Constitution of Tribunal‑Ad hoc appointments‑Chairman, having already appeared as State Law Officer before High Court in writ petition involving matter being agitated before Tribunal‑‑Chairman, in circumstances, observing that justice must not only be done but must also appear to be done, with drew to avoid a feeling entertained by appellant that complete justice with impartiality pray not be done to him‑One of Members of Tribunal already not participating in hearing of appeal‑Care, in circumstances, referred to Government for nominating an ad hoc Chairman for hearing of appeal.
Manak Lal v. Dr. Prem Chand Singhvi P L D 1957 S C (Ind.) 346; Ghulam Rasul and others v. Crown P L D 1951 F C 62; Ahmad v. Crown P L D 1951 F C 107; Mohd. Abdullah v. Road Transport Corporation, Lahore P L D 1964 Lah. 743 and Muhammad Mohsin Siddiqi v. Government of West Pakistan P L D 1964 S C 64 rel.
M. H. Khondkar v. The State P L D 1966 S C 140: Muhammad Ashraf and others v. Buta Mal and others A I R 1944 Lah. 400 and do re: Sham Lal, Advocate A I R 1932 Lah. 502 ref.
A. G. Hamayun, Government Pleader for Respondents Nos. 1 and 2.
Muhammad Ilyas for Respondent No. 3.
When this case was taken up on 5th May 1971, an objection was raised on‑ behalf of the appellant that as the Chairman of the Tribunal had appeared as a counsel for the State in Writ Petition No. 351 of 1956 before a Division Bench of the High Court of the West Pakistan, the Tribunal will not be properly constituted if the Chairman participates in the proceedings of the Tribunal. The case was adjourned to today for hearing of arguments. The matter has been argued by Mr. Murtaza Hussain, Advocate for the appellant and Mr. Mohammad Ilyas, Advocate for the respondent. The learned counsel for the appellant relied on P L D 1957 S C (Ind.) 346. Their Lordships observed in this case
"This is well settled that every member of the Tribunal that is called upon to try an issue in judicial proceeding must be able to act judicially; and it is of the essence of judicial decision and judicial administration that a Judge should be able to act impartially, objectively and without any bias. In such a case, the test is not whether in fact a bias affects a judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributed to a member of the Tribunal might have operated against him in the final decision of the Tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done."
The learned counsel for the appellant also relied on:
P L D 1965 Pesh. 30, P L D 1951 F C 62, P L D 1951. F C 107, P L D 1964 Lah. 743 and P L D 1964 S C 64.
Mr. Mohammad Ilyas has on the other hand argued that as the Chairman of the Tribunal appeared in the case of Mr. M. S. Minhas in his capacity as Law Officer of the State and had no personal or pecuniary interest in the matter, he is not debarred from acting as Chairman to hear the case. He relies on P L D 1966 S C 140, A I R 1944 Lah. 400 and A I R 1932 Lah. 502. It has also been argued that as Mr. Minhas was present throughout the proceedings and did not raise any objection earlier, he should not be allowed to do so at such, a late stage, but we are unable to give effect to this contention as objection was raised as soon as the case of Mr. Minhas was taken up for hearing by us.
Having heard arguments on either side, we are influenced by the fact that justice must not only be done but must also appear to be done. As the Chairman appeared before a Bench of the High Court in opposition to the prayer made by Mr. Minhas In his writ petition, there may be a feeling entertained by him that complete justice with impartiality may not be done to him. On, this aspect of the case, the Chairman would not like to sit as al member of the Tribunal to hear the case.
The presence of Mr. Bashir Ahmad Khan, the learned member of the Tribunal having been objected to, he has already withdrawn from hearing of this case, there will be left only Prof. Ashfaq Ali Khan, so that the strength of the Tribunal is reduced to below strength. It is, therefore, necessary to make an ad hoc appointment of a person to act as Chairman of the Tribunal under subsection (4) of section 10 of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970. We, therefore, refer this case to the Provincial Government for a request to be made to the learned Chief Justice of the Lahore High Court to nominate an ad hoc Chairman for the purpose of hearing of the appeal by Mr. M. S. Minhas (Case No. 500/189 of 1970).
Mr. Mohammad Saadat Ali has applied to the Tribunal for being impleaded as a party in the appeal. This application should also be placed before the Tribunal for necessary orders. A copy of the application will ‑be given to the appellant so that them is no adjournment of the case when the newly‑constituted Tribunal takes up the hearing of this appeal.
This appeal is adjourned sine die pending the appointment of an ad hoc Chairman to dispose of this appeal.
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