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Civil Appeal No.35 of 1985, decided on 18th February, 1989.

(On appeal from the judgment of the Azad Jammu and Kashmir High Court dated 28 2 1985, in Writ Petitions No.6 and 7 of 1984]

(a) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977

8. 2(3) Civil servant charged with misconduct Authority or authorised officer when personally interested in the result of proceeding would be debarred from acting as such Word "interested" used in R.2(3) not to be given restricted meaning Act performed in violation of mandatory provisions to vitiate whole proceedings. If an "authorised officer" is disqualified to act as such, he is to bring the matter into the notice of the authority who shall appoint another officer. The cases where an "authorised officer" can be regarded personally interested in the proceedings may be numerous and each case is to be decided in view of its peculiar facts. Needless to say that word "interested" used in the aforesaid rule should not be given restricted meanings. The "authorised officer" may be regarded as interested in the result of the proceedings for innumerable reasons. The test as to whether the particular act might have caused "bias" in the mind of the concerned officer is whether a man of ordinary prudence would have a reasonable cause to entertain the belief that the officer concerned might not act impartially and fairly in his case. Once the possibility of presence of annoyance or" a certain degree of bitterness is assumed in the mind of concerned officer, it would be deemed that he was personally interested in the result of the proceedings against the respondent. Even otherwise, it is settled principle of law that if the law directs a particular act to be done in a certain manner, the act should be performed in the said manner. If the act is performed in violation of the mandatory provisions, it would vitiate the whole proceedings. Metropolitan Properties Co. (FGC) Ltd. v. Lannon (1969) 1 QB 577; The Discipline of Law" at page 87 (Edition 1983); Manak Lal, Advocate v. Dr. Prem Chand Singhvi and others PLD 1957 SC (India) 346; Frome United Breweries Co. v. Bath Justices 1926 App. Cas. 586; Halsbury"e Law of England: Vol. XXI, p.535 para. 952; Nageswararao and others v. The State of Andhra Pradesh and others A I R 1959 SC 1376; Mir Dost Muhammad v. Government of Baluchistan and 3 others P L D 1980 Quetta 1; PLD 1978 SC (AJ&K) 37; Atta Muhammad Qureshi v.The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 and Ghulam Abbas v. The Additional Commissioner and Election Tribunal, Khairpur Mirs and 3 others P L D 1965 Kar. 625 rel.

(b) Azad :Tammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977

8. 2(3) Civil servant charged with misconduct on two counts On one charge punishment awarded by authorised officer who had a bias against civil servant, while on the other punishment was awarded by authority Effect Punishment awarded by authorised officer was in violation of R.2(3) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 Although in the other case punishment was awarded by Authority, yet in that case too, authorised officer had conducted enquiry Punishment by Authority can only be awarded if jurisdiction assigned to authorised officer was exercised in conformity with rules Where a part of proceeding was found to be violative of law, the whole structure of proceedings would collapse Thus case in which Authority awarded punishment does not stand on better footing. Sardar Rafique Mahmood Khan for Appellants. Kh. Muhammad Saeed for Respondent.

This appeal has been directed against the judgment of the High Court dated 28 2 1985, whereby the writ petitions filed by the respondent were accepted and the punishments awarded to him under the provisions of The Azad Jammu and Kashmir (Efficiency and Discipline) Rules, 1977, (hereinafter to be referred as Rules) were set at naught.

2. The brief facts giving rise to the present appeal are that Muhammad Akram Shah, respondent, was served with two separate notices Nos. 226/82 and 227/82 on 11 2 1982, wherein certain charges were levelled against him and was called upon to explain as to why he should not be punished for committing misconduct under the relevant law. The said notices were issued by the appellant No. 2 in his capacity as "authorised officer" as envisaged under Rules. The respondent submitted his explanation to the charges and denied to have committed any misconduct. He also took the stand that the appellant No.2 was not legally competent to act as "authorised officer" because his relations with the respondent were strained and thus the charges levelled against the respondent were the outcome of bias in the mind of appellant No.2. The "authorised officer" after considering the explanation of the respondent in one of the aforesaid two cases, found the respondent guilty of misconduct and awarded him the punishment of stoppage of promotion for 5 years and of censure. So far as the charges pertaining to the other notice were concerned, the matter with the explanation of the respondent was submitted to the authority which also found the respondent guilty of misconduct and awarded him the punishment in terms of stoppage of increment for two years. The appeal and review petition preferred by the respondent to the authorities concerned were also dismissed. Consequently, the respondent invoked the writ jurisdiction of the High Court by filing two separate writ petitions. The High Court, through a consolidated judgment, set aside the orders of punishment in both the cases; mainly on the grounds that the appellant No.2 was not competent to act as "authorised officer" in view of the bar contained in rule 2(3) of the Rules; and that in view of the circumstances of the case the existence of the element of bias in the mind of the appellant No.2 could not be excluded. The present appeal, by leave, has been filed against the aforesaid judgment of the High Court.

3. We have heard the arguments and gone through the record. It has been contended by Sardar Rafique Mahmood Khan, the learned counsel for the appellants, that the impugned judgment of the High court is not sustainable; because in one case the order of punishment was passed by the "authority" and in the other the appeal or review filed by the respondent was dismissed by the "authority". Thus, according to the learned counsel for the appellants, the final orders of punishment were not passed by the appellant No.2. He has also argued that rule 2(3) of the aforesaid rules is not attracted in the present case because it cannot be said that the "authorised officer" was personally interested in the result of the proceedings against the respondent. The learned counsel has argued that even if it is assumed for the sake of argument that relations between the appellant No.2 and the respondent were not cordial, it would not justify the inference that the appellant No.2 was interested in the result of the proceedings or he was biased against the respondent. The learned counsel for the appellants has strenuously argued that the expression "the authorised officer would personally be interested in the result of the proceedings under rules", used in rule 2(3) cannot be interpreted to mean that the strained relations between the appellant No.2 and the respondent, if any, would create bias in the mind of the appellant to such a degree that he would resort to punish the respondent without any genuine cause, disregarding his moral and legal obligations.

4. In reply Kh. Muhammad Saeed, the learned counsel for the respondent, has contended that if a law directs that an act should be done in a particular manner, the act should be done in the same manner or not at all. He has maintained that if the mandatory provisions of law are violated, the proceedings taken and order passed in pursuance of any such proceedings would stand vitiated. He has further argued that irrespective of the fact as to whether there was any bias in the mind of the "authorised officer" or not, the fact remains that even if there is a remote possibility that the "authorised officer" may be interested in the result of the proceedings, he is debarred from acting as such under Rule 2(3). The learned counsel has maintained that in the instant case the respondent acting in his official capacity brought the extracts of the report of Inquiry Commission to the notice of the authorities concerned showing that the promotion of the appellant No.2 to the next higher grades was Violative of the rules and thus was irregular. The learned counsel has maintained that the aforesaid act of the respondent engendered "bias" in the mind of the appellant No.2 and consequently baseless charges were levelled against the respondent. The learned counsel has urged that the fact that one of the charges levelled against the respondent was that he violated the provision of the secret act by divulging the secret report pertaining to the promotion of appellant No. 2 to the higher grades, shows that the appellant No. 2 was personally interested in the result of the proceedings initiated against the respondent.

5. We have given our due consideration to the arguments raised at the Bar. The first question which needs to be resolved is as to whether the appellant No.2 was not qualified to act as an "authorised office" in the cases against the respondent in view of the bar contained in rule 2(3) of the Azad Jammu and Kashmir (Efficiency and Discipline) Rules, 1977. For the sake of convenience the relevant part of the said rules. is reproduced as under:

"2.(1) xxx xxxx xxxx xxx

(2) xxx xxxx. xxxx xxx

3) Save in cases where Government is to act as "authority" or "the authorised officer", notwithstanding, anything to the contrary contained in rule 2, where "the authority" or the authorised office would personally be interested in the result of proceedings under these rules, the authority or e au orise o icer" shall not proceed with the case and shall:

(1) in the case of "authorised officer" report the matter to "the

;.,fit authority" which shall appoint and authorise another officer of

:; _; the corresponding rank or status to act as "authorised officer"

and ...._:y. :::c

(ii) in the case of "authority", report the matter to the appellate authority to which the orders passed by the "authority" are ordinarily appealable ,and such appellate authority shall appoint and authorise another officer of the corresponding rank and status to act as "the authority".

(4) xxx xxxxx xxx

xxx

(5) xxx xxxxx xxx xxx

6. It is evident from the relevant rule reproduced above that I where an "authorised officer" is personally interested in the result of[ the proceedings under rules, the "authority" or "authorised officer" debarred from acting as such. If an "authorised officer" is disqualified to act as such, he is to bring the matter into the notice of the authority who shall appoint another officer. The cases where, an "authorised officer" can be regarded personally interested in the proceedings may be numerous and each case is to be decided in view of its peculiar facts. Needless to say that word "interested" used in the aforesaid rule should not be given restricted meanings. The authorised officer" may be regarded as interested in the result of the proceedings for innumerable reasons. It is on the record that respondent communicated the extracts from the report of the Inquiry Commission which pertained to the promotion of the appellant No.2, who acted as an "authorised officer" in the case. Irrespective of the fact as to whether the said communication was violative of any provision of law and thus constituted misconduct or not, the fact remains that the act of the respondent pertained to the promotion of appellant No.2 and the possibility that the said communication might have caused annoyance to the appellant No 2 cannot be excluded. The test as to whether the particular act might have caused "bias" in the mind of the concerned officer is whether a man of ordinary prudence would have a reasonable cause to entertain the belief that the officer concerned might not act impartially and fairly in his case. The question as to whether in fact the officer concerned was biased or not is not material in such case. We are fortified in our view from the following authorities Lord Denning in a case reported as Metropolitan Properties Co. (FGC) Ltd. v. Lannon [1969] 1 QB 577 while dealing" with the question of bias observed as under: "A man may be disqualified from sitting in a judicial capacity on one of two grounds. First, a "direct pecuniary interest" in the subject matter. Second, "bias" in favour of one side or against other. So far as "pecuniary interest" is concerned, I agree with the Divisional Court that there is no evidence that Mr. John Lannon had any direct pecuniary interest in the suit. "So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr. Lannon, and no want of good faith. But it was said that there was, albeit unconscious, a real likelihood of bias. This is a matter on which the law is not altogether clear: but I start with the repeated saying of Lord Hewart, CJ in R v. Sussex Justices. ex parte McCarthy: "It is not merely of some importance but is of fundamental importance that justice should not only be done, but_ should manifestly and undoubtedly be seer, to be done." Again Lord Denning dealing with the question of bias has observed in his book entitled "The Discipline of Law" at page 87, (Edition 1983) as under:

"...in considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likel that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does it, his decision cannot stand: Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking: The judge was biased."

In Manak Lal, Advocate v. Dr. Prem Chand Singhvi and others P L D 1957 SC (India) 346; it was observed:

"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 of the essence of judicial decisions and judicial administration that Judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable 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. As Viscount Cave L.C. has observed in Frome United Breweries Co. v. Bath Justices 1926 App. Cas. 586 at p. 590. " 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."

In dealing with cases of bias attributed to members constituting tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest however small it may be in a subject matter of the proceedings, would wholly disqualify a member from acting as a Judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. The principle, says Halsbury, "nemo debt esse judex in causa propria sua precludes a justice who is interested in the subject matter of a dispute, from acting as a Justice therein". (Halsbury"s Laws of England; Vol. XXI, p.535 para. 952). In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that this principle applies not only to the justices as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties."

In Nageswararao and others v. The State of Andhra Pradesh and others AIR 1959 SC 1376, it has been observed that the principles governing the "doctrine of bias", via a via judicial tribunals, are well settled and they are: (i) no man shall be a judge in his own cause; (ii) justice should not only be done but should manifestly and undoubtedly be seen to be done. It was also observed that if there are circumstances which create a reasonable suspicion in the mind of the litigant that the authority who had to act was biased the proceedings, even if those were quasi judicial, would be vitiated.

7. After giving our due consideration we have come to the conclusion that in the circumstances of the present case it cannot be said that the respondent was unreasonable to assume that the appellant No.2 might have had bias in his mind against the respondent. Once the possibility of presence of annoyance or a certain degree of bitterness is assumed in the mind of concerned officer, it would be deemed that he was personally interested in the result of the proceedings against the respondent. Even otherwise, it is settled B principle of law that if the law directs a particular act to be done in a certain manner, the act should be performed in the said manner. If the act is performed in violation of the mandatory provisions, it would vitiate the whole proceedings. We are fortified in our view from the following authorities: In Mir Dost Muhammad v. Government of Baluchistan and 3 others PLD 1980 Quetta 1, it was observed as under:

"It is well settled principle of law that in a case where Statute provides a procedure for doing of a thing in a particular manner, that thing should be done in that manner and in no other way or it should not be done at all. Indeed such Statute impliedly prohibits doing of that thing in any other manner particularly when the procedure is laid down for taking proceedings before a Tribunal or a Court where such procedure before a Court or Tribunal is usually construed to be an imperative one as doing of the act or a thing under that Statute is a condition precedent to conferring jurisdiction on a Court or a Tribunal as the case may be. The compliance of such act or thing in no way could be either ignored or dispensed with. Their non compliance would certainly invalidate all proceedings, orders made or passed by the same authority or any other authority either superior or inferior thereto in respect of the same." Again in re: Reference No.l of 1977 by the President, Azad J K P L D 1978 SC (Azad J&K) 37, it has been observed that a statute prescribes a particular method for the performance of an act, the said act should be done according to the prescribed method alone or not at all.

In Atta Muhammad Qureshi v. The Settlement Commissioner Lahore Division, Lahore and 2 others PLD 1971 SC 61, it was observed as under: "It is well settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision."

Identical view was taken in Ghulam Abbas v The Additional Commissioner and Election Tribunal Khairpur Mirs and 3 others PLD 1965 Kar. 625. It is amply clear from the authorities cited above that once it is found that mode of performance of an act is mandatory and not directory, its violation renders the proceedings as invalid. In the instant case the very wording of rule 2(3) and the fact that the proceedings relate to the question of punishment of a civil servant, leave no room for the argument that the said provisions are directory and not mandatory in nature. It may be observed here that even if it is assumed for the sake of argument that no bias can be attributed to the appellant No.2 in the instant case, the fact that he could not act as an "authorised officer" in view of the bar contained in the aforesaid rule, the proceedings, taken in the case would still vitiate as being violative of law.

8. The learned counsel for the appellants has argued that violation of rule, if any, can only be pressed in the case the appellant No.2 awarded the punishment and not in the case in which the authority awarded the punishment to the respondent. We have given our due consideration to the matter and we are not persuaded by the argument advanced by the learned counsel for the appellants for the reasons that even though in one case the order of punishment was passed by the authority, but the fact remains that in that case too the appellant No.2 acted as an "authorised officer". In view of the relevant rules the punishment by the authority can only be awarded if the jurisdiction assigned to the authorised officer under rules 6 and 7, as the case may be, is exercised in conformity with the rules. It is well settled C principle of law that if a part of the proceedings is found to be violative of law, the whole structure of the proceedings would collapse. Thus, the case in which the authority awarded the punishment does not stand on better footings.

In the light of what has been stated above finding no force in this appeal it is hereby dismissed. In the circumstances of the case we make no order regarding costs.

A.A./252/S.C.A. Appeal dismissed.

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