' RAHMAT HUSSAIN JAFFERI (MEMBER).---The present appeal under section 4 of the Sindh Service Tribunals Act, 1973 is directed against the order dated 3-7-1998 passed by the Authority by which the appellant was removed from service in a departmental enquiry. The Registrar High Court of Sindh vide order dated 3-7-1998 communicated the said order to the appellant.
2. Brief facts giving 'rise to the present appeal are that on 8-1-1998 Mr. Justice Kamal Mansur Alam Authorising Officer issued final show-cause notice under Proviso to rule 5(4)(b) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 to the appellant after dispensing with the regular enquiry. The final show-cause notice reads as under:-- "THE HIGH COURT OF SINDH KARACHI ' No. /RHC/CONF/VIZ.23(3)/JM Karachi Dated 8th January 1998.
' To, ' Mr. Muhammad Sabir ' Judicial Magistrate (under supension) Karachi-West.
'FINAL SHOW-CAUSE NOTICE UNDER THE PROVISO TO RULES 5(4) OF THE SINDH CIVIL SERVANTS (EFFICIENCY AND DISCIPLINE) RULES, 1973, ' Whereas show-cause notice was issued against you under the provisions of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 (received by you on 26-2-1997) on the grounds of 'misconduct' and 'inefficiency' and reply thereof was submitted by you on 17-3-1997.
' And whereas after personal hearing and on considering the following adverse remarks, particularly, in respect of your 'Integrity' and the report dated 15-12-1996 of the District and Sessions Judge Karachi West, the Authorised Officer is of the view that one of the major penalties under rule 4(1)(b) ibid, be recommended to the Authority against you.
' A.C.R. 1992 PART V(b) He has been advised to conduct himself and behave in a way befitting to a Counselling Judicial Officer by developing sense of responsibility. ACR-1993 (January to August)
Part V(a) Pen Picture: PartV (b) Counselling: He was reputed to be dishonest Judicial Officer. In the last month of his stay here the gentleman was suffering from credibility crisis. People like him give bad name to the institution. He was repeatedly advised to improve his integrity but he failed. ACR 1993 (September to December)
Part V(a) Pen There are general complaints about his Picture: integrity. He should be kept under watch. ACR 1995 (April to August)
Part-V(a) He did not enjoy a good reputation as Pen Picture: Judge/Magistrate.
Part V(b) Despite counselling he never improved Counselling: during short period. Part VI(a) Overall Meets bare minimum stands (Below Grading (iv): Average)
ACR 1996 (March to October)
Part V(a) Pen He'lacked public confidence and failed Picture: to make friends with bar. Part V(b) He was orally advised to mend his Counselling: fences towards bar and infuse confidence in litigants.
ACR 1996 (October to December)
Part V(a) For service as judicial officer he will Pen Picture: have to be careful about his inteirity and shall have to dispel the impression tarnishing his integrity.
Except from the report dated 15-12-1996 of the District and Sessions Judge Karachi (West)
"However, the general reputation of the Magistrate is that he is not a man of Integrity as required of a Judicial Officer. Case-files of his Court were also examined and many irregularities indicating malpractices of the Magistrate have been found. Some instances are submitted along with this report.
' During, a visit of his Court on a working day (11-12-1996) at 8.30 a.m. The Magistrate was found absent and the staff 'informed that he had not reached the office, but the attendance register was bearing his signature showing his attendance on that date. This indicated that the Magistrate had signed the attendance register in advance. In the chamber of the Magistrate 65 Criminal Cases were found lying on a chair, list whereof is 'attached. Examination, of these cases revealed that they were peltding cases in which the accused were absconders. They were without diaries for the last 2/3 months period,. In some cases signatures of Process Servers were obtained on blank pro forma, deposition sheets. Process was not properly exhibited and no further diary was available. In some other cases statement of Process Server had been recorded. No further diary was available in, the file nor any order under section 512, Cr.P.C. Has been passed. These cases were not placed in daily cause list nor they have been shown in disposal, Mr. Sabir has a general reputation of a corrupt Magistrate and the cases mentioned above provid evidence of his corruption.
' Now therefore, you are hereby finally called upon to show cause within 14 days of receipt of this Notice why one of the major penalties under rule 4(1)(b) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, be not recommended to the Authority for imposition on you.
' You may also be stated whether you wish to be heard in person.
(Sd)
(Justice Kamal Mansur Alam) AUTHORISED OFFICER"
3. The appellant submitted the reply. After considering the said reply and giving opportunity of personal hearing the Authority (Mr. Justice Kamal Mansur Alam) passed the impugned order. The respondents filed their comments and supported the impugned order.
4. We have heard the Advocate for the appellant, Mr. Ahmed Pirzada Addl. Advocate-General and perused the record very carefully.
5. The learned Advocate for the appellant has not challenged the merits of the appeal but has stated that Authorised Officer was Mr. Justice Kamal Mansur; that he was senior Puisne Judge and thereafter he became Chief Justice of High Court of Sindh, while exercising powers of authority he passed the impugned order; that one and same person (Mr. Justice Kamal Mansur Alam) cannot exercise the powers of Authority and Authorising Officer and cannot sit as Judge in his own cause, therefore, the impugned order is illegal.
6. On the other hand the learned Addl. Advocate-General has stated that there is no illegality in exercising the powers of Authority and Authorising Officer by one and same person because after becoming the Chief Justice of High Court of Sindh Mr. ,Justice Kamal Mansur Alam was the only Authority to exercise such powers, hence the impugned order is legal and proper. He has relied upon the case of Federation of Pakistan v. Muhammad Akram Sheikh PLD 1989 SC 689).
7. There is no cavil to the proposition that no man can sit as a Judge in his own cause but this rule has exception due to necessity. After examining various authorities on the above subject the Hon'ble Supreme Court of Pakistan in the case of Federation of Pakistan v. Muhammad Akram Shaikh (Supra) at page 718 has observed as under: "24. I would like to re-summarise the principle for the sake of brevity and clarity.
'As re-summarised, the rule of exception due to "necessity" would read as follows:- ' No man can sit as a Judge in his own cause;
(a) Unless there is"
(i) Statutory authority; or
(ii) Consensual agreement; or
(iii) It becomes necessary to do so;
(b) A Judge who would otherwise be disqualified, may act in a case of necessity, when no other Judge has jurisdiction to hear the case;
(c) a Judge who is otherwise disqualified because of having interest in the case may justifiably be required to sit;
(i) If there is no other competent Tribunal or forum, to hear the case; or
(ii) A quorum cannot be formed without him.
(d) Similarly, if proceedings were brought against all the superior Judges they would be obliged to sit asti Judges in their own cause, because in such a case no Judge will be left to form a Bench."
8. In the present case Mr. Justice Kamal Mansur Alam was senior Puisne Judge when he exercised the powers of Authorised Officer. Then he became Chief Justice, therefore, it was his statutory obligation and authority to exercise the powers of "authority" as there was no other Chief Justice who could have jurisdiction to hear the matter , as such the above action of the authority is saved and the general rule is not applicable in the present circumstances of the case. More particularly no motive, partisan or partiality was alleged, and the action was based on sound principles of law, the appellant was dealt with quite justly and fairly. Furthermore, it will be noticed that Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 permit the exercise of powers of Authorised Officer and authority by ' one and same person, Sub rule 2 of rule 4-A deals with the above subject which is as follows:-- "4-A(2) notwithstanding anything contained in these rules the .Authority may in any case exercise all powers of authorised officer or give. Any direction to the Authorized Officer as it may deem fit: ' Provided that such directions shall be given by the Chief Minister alone if Chief Secretary is the Authorised Officer."
9. From the above rule it is clear that the authority can exercise the powers of Authorised Officer and he can give any direction to Authorised Officer as it may deem fit.
10. After examining the record and legal position we are of the considered view that there' is no illegality or irregularity in the impugned order as such it does not require any interference.
11. Above are the seasons of our short order dated 2-4-2005 by which we had dismissed the appeal.