M. Akhtar Shabbir, Chairman.--This service Appeal has been filed under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991, against the dismissal order dated 31.1.2001 passed by the Administration Committee Lahore High Court, Lahore, vide Notification No, 25/RHC/CJJ/ENDST No, 90/RHC/CJJ dated 31.1.2001.
2. The facts giving rise to the present appeal are to the effect that the appellant joined the judicial service as Civil Judge on 1.4.1978 and has been serving at various places of postings and then he was upgraded as Civil Judge First Class. In the year 1990, while posted at Gujranwala, the appellant has entertained a civil suit on 31.12.1990, which was been decreed ex-parte within a period of one month on 27.1.1991. The defendant/judgment-debtor in that suit was a lady and her husband namely Muhammad Ashraf while posing himself as special attorney made a complaint against the appellant on 9.2.1991 leveling allegation that the appellant being a civil Judge entertained the civil suit on 31.12.1990 and marked the same to his own Court and within a period of one month, he decreed the said suit ex-parte and a fictitious report from the Process Server was obtained showing the judgment-debtor that she had declined to accept the summons issued to her by the Court. On receipt of the said application, an inquiry was conducted against him by Mr. Muhammad Aslam Khan, District & Sessions Judge, Toba Tek Singh, who held the appellant as guilty under the provisions of Rule 3 (b) and (c) of the Punjab Civil Servants (Efficiency and Discipline) Rules 1975, and recommended the major penalty to him.
3. Mr. Justice Khalil-ur-Rehman Ramday, the Hon'ble Judge of this Court, as he then was, was appointed as an Authorized Officer under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, who charge-sheeted the appellant and the following charges were leveled against him:--
(a) That while posted as Civil Judge Ist Class, Gujranwala during the year 1990-91 you entertained a civil suit for specific performance titled Ijaz Ahmad vs. Begum Rashida Ashraf on 31.12.1990 as Duty Judge and entrusted the same to your own Court.
(b) That you exhibited undue haste in decreeing the said suit ex-parte on 27.1.1991 within a period of one month.
(c) That you passed this decree on the fictitious report of Process Server qua refusal of service by the defendant lady.
(d) That you decreed the suit in collusion with the plaintiff Ijaz Ahmad to thwart the proceedings in ejectment petition titled Begum Rashida Ashraf vs. Doctor Zafar Chaudhry, a relative of the plaintiff.
(e) That you violated the High Court Rules and Orders in not recording the order sheet and the evidence in the civil suit in your own hand.
(f) That in the order dated 9.1.1990 you tampered with the date for which notice was ordered to be published in daily "Wafaq" to make it read as 20.1.1991.
(g) That you failed to record the order dated 27.1.1991 in the order sheet.
(h) That you passed the decree ex-parte in favour of the plaintiff for extraneous considerations.
(i) That you conduct was unbecoming of a gentleman more so a judicial officer; The Authorized Officer while declaring him to be guilty of misconduct and considering him to be corrupt falling within the ambit of Rule 3(b) and (c) of the Punjab Civil Servant (Efficiency & Discipline) Rules, 1975, was directed to submit his written defence before the Inquiry Officer. Mr. Muhammad Aslam Khan, District and Sessions Judge, Mandi Baha-ud-Din within a period of fourteen days.
4. The appellant submitted his written reply to the Inquiry Officer on 3.6.1999 whereby he denied the allegations leveled against him. The Inquiry Officer recorded the evidence of Muhammad Ismail PW-1, Clerk of Court to the Civil Court Gujranwala. Muhammad Yaqoob PW-02, Bailiff Civil Courts Nranwala, Muhammad Akram PW-3, Ahmad to the Court of Senior Civil Judge, Gujranwala, and Mahmood Anwar PW-4, Reader Sessions Court. Neither the complainant nor her alleged attorney namely Muhammad Ashraf, husband of Mst. Rashida Ashraf, defendant/judgmentdebtor, appeared before the Inquiry Officer to prove the charges leveled against the appellant. However, the Inquiry Officer on the statements of the four PWs, mentioned above found all the charges, except No, (f), proved against the appellant, found him guilty and recommended major penalty.
5. On 17.6.2000, the Authorized Officer issued show cause notice to the appellant and directed him to appear before him on 24.6.2000 at 12.00 noon at Lahore.
6. The appellant made a written reply to the show cause notice on 17.6.2000 and also offered for his personal appearance at the relevant date before the Authorized Officer, who agreeing with the report of the Inquiry Officer imposed a major penalty of dismissal from service of the appellant, but the Hon'ble Chief Justice and the Judges of the High Court after perusing the record of the proceedings and recommendation of the Authorized Officer had ordered for issuance of final show cause notice to the appellant and he was directed to file his explanation within a period of ten days from the receipt of the notice with a further direction to appear before Mr. Justice Mian Nazir Akhtar-J for personal hearing on behalf of the Authority on 5.8.2000 at 11.00 a.m. Mr. Justice Mian Nazir Akhtar, as he then was, also sided with the opinion of the Inquiry Officer as well as the Authorized Officer affirmed the penalty of dismissal of the appellant from service.
7. Learned counsel for the appellant contends that on the date when the prosecution evidence was closed, the appellant was directed to produce his defence, which was not possible for the appellant. It was the requirement of natural justice that the appellant should have been provided an opportunity to lead his evidence to rebut the allegations leveled against him. Further contends that the applicant/complainant and his wife/defendant judgment-debtor did not appear before the Inquiry Officer to support the allegations. Learned counsel submits that the Inquiry Officer has recommended major penalty while it was not his function, rather it was the power of the Authorized Officer. Further submits that the case of the appellant was an act of only omission and it was not a case of mis-conduct, Therefore, he is entitled to reinstatement in service with back benefits. He placed reliance on the case of Muhib Ali, Chairman, State Life Insurance Corporation of Pakistan and 6 others (2003 PLC 316). Further submits that all the charges leveled against the appellant have arisen out of one allegation that the appellant entertained the suit tilted; Ijaz Ahmad vs. Begum Rahsida Ashraf, on 31.12.1990 and entrusted the same to his own Court, which was decreed ex-parte within a period of one month. Learned counsel argues that the main allegation against the appellant does not cover within the ambit of misconduct and thus no major penalty could be imposed upon him. Further argues that the Inquiry Officer was not within his powers to recommend the penalty of dismissal of the appellant which is the major penalty and it was the competent Authority which could impose the same. Reliance in this context has been placed on the case of Monmatha Nath Ghosh vs. Director of Public Instructions Government of West Bengal and others (AIR 1958 Calcutta 49). He further argues that the appellant has not admitted several charges framed against him. Although, he was asked for personal hearing yet he was not provided an opportunity to rebut the statement of the prosecution evidence and the application of relevant rules is not attracted to the case of the appellant. Reliance in this behalf is placed on the case of Dadarao Shegoji Tidke vs. State of Madhya Pradesh and another (AIR 1958 Bombay 204). He further argues that no charge of corruption and corrupt practices has been leveled or proved and the case for mis-conduct against the appellant is not made out in the facts and circumstances of the case, therefore, the major penalty has been illegally imposed upon him. Lastly argues that Article 129 of the Qanun-e-Shahadat Order have also not been complied with. Learned counsel contends that the appellant is entitled to the benefit of doubt also which was his legal right.
8. On the other hand, learned counsel appearing on behalf of the High Court vehemently opposed the arguments of the learned counsel for the appellants contending that the appellant made hurry in decreeing the suit ex-parte against the defendant/judgment-debtor which is sufficient to infer that he obtained some ill-gotten benefits arid he also violated the High Court Rules and Orders in performing the procedure for hearing of the suit. He further contends that the allegation leveled against the appellant are proved against him and two Hon'ble Judges of the High Court concurring with the Inquiry Officer who imposed a major penalty of dismissal from service. In this context, reliance has been placed on the case of Abdullah vs. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others (1994 PLC (C.S.) 111) and Allah Yar vs. Ge.neral Manager, Railways Headquarters Lahore and another (2001 S.C.M.R. 256).
9. We have heard the learned counsel for appellant as well as the learned counsel for the respondent and perused the record with their kind assistance. On 31.12.1990, the appellant was the Duty Judge at Gujranwala and no other Judicial Officer/Civil Judge was available due to winter vacation and the appellant was directed to entertain the matters during the vacations. The said suit titled; Ijaz Ahmad vs. Begum Rashida Ashraf was filed by the plaintiff and the appellant entrusted the same to his own Court, as not other Court was functioning on the said date. The entertainment of the suit by the appellant himself is neither an offence nor irregularity/ illegality.
10. The main allegation against the appellant is that he had decreed the suit within a shortest period of one month without performing the formalities of law. The suit was fixed on 9.1.1991 and notice was issued to the defendant for the said date, but the Process Server has reported that the defendant/respondent has refused to accept the service, therefore, the Court adjourned the case to 20.1.1991 and the publication was issued in the daily "Wafaq" for 20.1.1991. On the said date, no one entered appearance, therefore, ex-parte proceedings were initiated against the defendant/ respondent and after recording ex-parte evidence on 27.1.1991, the suit was decree ex-parte. The allegation against the appellant is that the defendant party was not residing at the given addres rather in those days the defendant was residing in United Kingdom. The record itself belies the stand of the prosecution, because the application for setting aside ex-parte decree had been filed by the defendant through Ch. Mahmood Bashir Virk, Advocate, on 9.2.1991, wherein it has been stated that the defendant was owner of Kothi No, 15 measuring 7 Kanals consisting of nine rooms situated at D.C. road Gujranwala. She is the joint owner of the said property with Muhammad Ikram, younger brother of his husband. She further stated in the application that her husband has left for United Kingdom where he was doing his own business and in the month of August, 1987, she also went to England to reside with her husband in Manchester and rented out this bungalow through his general attorney Ch. Ziafat Ali Khan Advocate to Dr. Zafar Chaudhry on monthly basis and her tenant Dr. Zafar Chaudhry stopped payment of rent due to one pretext or the other and the applicant/defendant on 25.9.1989 returned from England alongwith the other family members and stayed in some portion of the said bungalow and on 30.9.1989 she filed an ejectment-petition against Dr. Zafar Chaudhry, her tenant, which was pending at the time of filing of the civil suit against her. She admitted that the next date of hearing in the ejectment petition before the Rent Controller was fixed on 6.2.1991. She further stated in the application that the said Dr. Zafar threatened her to the dire consequences and she sought the help of the police for her protection and got recorded four FIRs Bearing Nos, 36/90 dated 9.2.1990, 4.4.1990 and 15.2.1990 at Police Station Civil Lines and FIR No, 1/91 dated 3.1.1991 and 7/91 dated 6.1.1991 at Police Station Peoples Colony, Gujranwala, Which shows that at the time of institution of the civil suit, when the process was issued against her, she was residing in Pakistan. The allegation that she was not residing in Pakistan in those days is totally contrary to the record.
11. The allegation that the date of the suit i,e, 9.1.1991 was tampered with by the appellant is also not proved and the Inquiry Officer had opined that this allegation was not proved. In nutshell, the main allegation against the appellant is that he entertained the suit himself to his own Court and decreed the same within a period of one month, therefore, his case is covered within the purview of Section 3 (b) and (c) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, and he was declared to be guilty of misconduct and corrupt practices.
12. As to the allegation of decreeing the suit within a period of one month, it is not a case of misconduct or it was not the only suit which was decreed by him ex-parte or he was the only person/Judicial Officer who passed the ex-parte decree. This fact cannot be ignored that usually every Presiding Officer passes many ex-parte decrees in those cases where either the parties refuse to accept the service or despite service did not appear in Court. The law has not restrained the Courts to pass the ex-parte decree in such like circumstances. If the Court is competent to pass ex-parte decree, it cannot be termed that it was an act of misconduct or corruption. The prosecution has not been able to bring on record that the appellant has passed only the aforesaid ex-parte decree and all other decrees have been passed on merits after hearing the parties.
Neither any material has been placed on record to establish that in the subordinate judiciary, he was the only presiding Officer who passes the ex-parte decrees.
13. There is also no evidence on record that while passing the expert decree within a period of one month, the Presiding Officer has secured illegal or ill-gotten gains from the plaintiff. No such allegation has been leveled against the appellant, only it has been inferred that since the decree was passed ex-parte within a period of one month, therefore, he passed the decree for securing illegal benefits and committed misconduct and corruption. This is only the inference which was drawn by the Inquiry Officer as well as the Authorized Officer. It is settled proposition of law that the principle of Qanun-e-Shahadat Order will apply to all executive, judicial and quasi-judicial proceedings. The application of the principle of Qanun-e-Shahadat Order/Evidence Act cannot be oversight especially by the Judicial Officers, while punishing or prejudicing his subordinate. If case against an accused is not proved beyond any shadow of doubt in accordance with provision of Qanun-e-Shahadat Order, he is liable to be acquitted. It is the basic principle of Islamic Jurisprudence that an innocent person cannot be punished even if alongwith him ten guilty are benefited.
14. The most important feature of the case is that the complaint was filed through special attorney Haji Muhammad Ashraf, the husband of the defendant Begum Rashida Ashraf. Neither his complaint was exhibited by the Inquiry Officer nor the special attorney or the defendant appeared before the Inquiry Officer or the Authorized Officer to substantiate the allegation leveled against the appellant. The Inquiry Officer recorded the evidence of four witnesses, the employees of the subordinate Judiciary. Muhammad Ismail PW-1, clerk of Court to the Civil Courts, appeared before the Inquiry Officer. He stated that the summons was issued by the appellant against the defendant for 9.1.1991 on the given address and the address in the summons was shown "D.C. road Gujranwala". According to him, this D.C. road was a pretty long road of 3-4 furlongs but it did not mean that the summons was issued on a wrong address. The summons were entrusted to Muhammad Yaqoob Process Server, who reported that the defendant had refused to accept the same and the report was verified by the Reader of the Court of Senior Civil Judge at that time. No action whatsoever has been taken if, for the sake of arguments, the report of the Process Server was maneuvered by the plaintiff and inquiry against him was initiated but the Process Server was exonerated in that inquiry and later on he was promoted. In this case, it was the Process Service who created the mischief by reporting that the defendant had refused to accept the service but he was not punished, the reasons best known to the Authority. The inquiry against the Process Server was conducted by Syed Akhtar Hussain Zahid, Civil Judge, who exonerated the said Process Server from the charge and the Senior Civil Judge also agreed with the report of the Inquiry Officer and inquiry against him was dropped and he was subsequently promoted as Bailiff. Muhammad Yaqoob, Process Server, while appearing before the Inquiry Officer as PW-2 admitted that the summons was entrusted to him for effecting service upon Begum Rashida Ashraf, who was the resident of D.C. road Gujranwala. He want to her bungalow, but she refused to accept the service and accordingly he reported. He admitted the report and signatures on the same. He has, in his examination-in-chief, nowhere stated that he was directed by the appellant/Presiding Officer to furnish report of refusal by the defendant. PW-3 Muhammad Akram Ahlmad in the Court of Senior Civil Judge has stated that it is the duty of the clerk of the Court of Senior Civil Judge to maintain the Register and enter the institution of the suits. It was never the duty of the Presiding Officer to maintain the Register and if any entry has not been made in the Register, it was the fault of the concerned clerk and not the Presiding Officer. PW-4 Mahmood Anwar Reader Sessions Court, Gujranwala, in his cross-examination admitted that according to Paishi Register on 9.1.1991, the case titled; Ijaz Ahmad vs. Begum Rashida Ashraf, the report to refuse the summons was received and substituted service through newspaper was ordered for 20.1.1991 and this date is clear and without any overwriting. He is also supported this version that it is not the duty of the Judge to record the entries in the institution of cases register and Paishi register. He has stated that the clerk of the Court used to record the entries in the institution of the cases register. He has admitted that on the page of 20.1.1991 of the Paishi register, the case titled; Ijaz Ahmad vs. Begum Rashida Ashraf, was posted at Serial No, 11 and on the page of 24.1.1991, the case titled above was posted at Serial No, 28 and on that date, fifty-one cases were fixed whereas 20.1.1991, sixty-two cases were fixed. He also admitted that on 27.1.1991 of the Paishi register, the said case was posted at Serial No, 49 whereas fifty-one cases were fixed that date.
15.From the minute scrutiny of evidence of these four PWs. no allegation of misconduct or corruption has been leveled or proved on record against the appellant. If, for the sake of arguments, on the very first day when the service was refused, the Court had issued process for substituted service, therefore, it cannot be termed or inferred that the Judge was in collusion with the plaintiff and he was in haste in decreeing the suit ex party. This factual position also cannot be ignored that on the application for setting aside ex-parte decree, the same was set aside and during this period, the suit was withdraw by the plaintiff and the property was sold out by Begum Rashida Ashraf through her husband in favour of Dr. Zafar Chaudhry for a consideration of Rs, 12,92,000/-.
16.From the above circumstances, we find that the applicant or the defendant had never been prejudiced or caused any financial loss by the Presiding Officer of the Court and the Inquiry Officer had relied upon the witnesses without going into details of reasons on the basis of which he arrived at the conclusion and the findings of the Inquiry Officer in the circumstances are contrary to the evidence available on record is not sustainable in law. Neither the complaint was exhibited nor the complainant was examined in evidence. Furthermore, the chance of cross-examination of such complainant by the accused/appellant had not been provided to him. Rule 7(1) of the Punjab Civil Servants (E & D) Rules, 1975, provides that on receipt of the record and the explanation of the accused referred to in the preceding true the Inquiry Officer or the Inquiry Committee, as the case may be, shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused, as may be considered necessary, the either party shall be entitled to cross-examine that witness and in case where the complainant did not appear in support of his allegation and he was not examined by the accused, the inquiry in such circumstances would be illegal and violative of the mandatory provisions of the Rules and one such inquiry, no punishment can be imposed upon the accused persons.
17.The complaint against the appellant was received by the District & Sessions Judge on 9.2.1991.
The appellant was charge sheeted in the year 1999. He filed his reply to the charge-sheet and statement of allegations made on 3.6.1999. The Inquiry Officer completed the statements of the prosecution witnesses on 13.11.1999 and submitted his Inquiry report and thereafter the Authorized Officer issued show-cause notice to the appellant on 3.6.2000 and reply whereof was furnished by the appellant on 17.6.2000 to the Authorized Officer and final show cause notice was issued to him on 19.7.2000 by the Hon'ble Chief Justice and Judges of the High Court/the Authority. According to Rules 7(6) of the Punjab Civil Servants (E & D) Rules 1975, provides that the Inquiry Officer or the Inquiry committee, as the case may be, shall complete inquiry within a period of sixty days commencing from the last date of submission of the written defence by the accused and shall within ten days of the expiry of the said period of sixty days or within such further period as may be allowed by the authorized officer, submit his finding and grounds thereof to the authorized officer.
18.We cannot ignore that the application levelling allegations against the appellant was filed on 9.2.1991 and the disciplinary proceedings against him remained pending for about more than seven years. It was a hanging sword on the head of the appellant, who suffered mental agony as a result of these inquiry proceedings, therefore, this fact cannot be lost sight of that if a simple application levelling some false allegations is filed against a civil servants, he cannot have a sound sleep unless the application is decided in his favour. This aspect of the case has also not been attended to by the Authorized Officer or the competent Authority that pendency of the disciplinary proceedings is also a punishment and the appellant suffered this agony and mental torture for such a long period. It was the duty of the competent Authority and Authorized Officer to appoint the Inquiry Committee or the Inquiry Officer without wastage of time to thrash out the allegations leveled against the appellant, but it was kept pending for more than seven years without any sufficient reasons and there is no answer to this factual aspect of the case. Neither the learned counsel for the Prosecution could satisfy this Court nor advanced any reason for prolonged pendency of the inquiry proceedings. Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, provides a procedure for proceeding against a civil servant, whether these were mandatory or directory cannot be ignored and the application of the same is attracted to the present case. Rule 5 of the ibid. Rules provides that if on the basis of its own knowledge or information placed before it the Authority is of the opinion that there are sufficient grounds for proceeding against a civil servant, or where in a case in which Anti-Corruption Committee as defined in the Punjab Anti- Corruption Establishment Rules, 1974, has decided to take departmental action, it shall direct the Authorized Officer to proceed against such civil servant and where no Authorized Officer stands designated in respect of the accused civil servant, the authority shall simultaneously appoint an officer, senior in rank to the accused to perform the functions of an authorized officer.
19. There is nothing on the record to show that in accordance with the aforesaid provisions of Rules on receipt of the application-levelling allegation against the appellant, the Authorized Officer has been appointed immediately by the Authority. Furthermore, the charges framed against the appellant have not been supported by the facts on record, which could from sufficient basis to justify awarding of major penalty of termination of his service. Therefore, in the circumstances, the appellant is entitled for his reinstatement in service on the following grounds:--
(a) There is no evidence of corruption against the appellant nor any record is available inferring his intention to obtain illegal benefits from the plaintiff.
(b) If he has not adopted the procedure provided in the High Court Rules and Orders, it was only an omission and not an act of mis-conduct. Furthermore, the applicant or the defendant had never been prejudiced or caused any financial loss by the appellant.
(c) The evidence of four prosecution witnesses/officials of the Subordinate Judiciary has not in any way supported the allegation of the applicant/complainant. They deposed only with regard to the procedure of entertaining or disposal of the civil suits.
(d) The strict compliance of the provisions of Punjab Civil Servants (Efficiency & Discipline) Rules, 1975, have not been complied with the Inquiry Officer as well as the Authorized Officer.
(e) The observations made by the Hon'ble Judge of Lahore High Court, Mian Nazir Akhtar-J, as he then was, are not based on record or sufficient material. He has drawn the inferences only on the basis of the inquiry report and his own thinking. For instance, the learned Judge has observed that the appellant has not passed a short order in 'Urdu' on 27.1.1991. It is suffice, to observe, that the appellant though not passed a short order on 27.1.1991 when he passed the judgment and decree, but he passed a detailed judgment in English. The learned Judge has further observed that the decision of the case was not without any motive. This observation is not supported by any other evidence. His further observation that the publication in daily "Wafaq" was made, which was not widely circulated among the people, suffice it to say that there is also a condition recognized by law that the citation be issued in any daily publication which is approved by the High Court. There is nothing in law or Rule that the daily "Wafaq" if approved for publication by the High Court, then the appellant has not committed any illegality. This Tribunal cannot support these observations in absence of strong and convincing reasons. No person without the evidence can be declared as corrupt person unless it is proved by cogent and sufficient evidence.
(f) The pendency of the disciplinary proceedings against the appellant for such a long time is punishment, mental agony and torture, therefore, the appellant is entitled for the benefit of the same.
(g) Neither the special attorney of Begum Rashida Ashraf nor she herself appeared before the Inquiry Officer on whose behalf charges have been leveled against the appellant and if the complainant fails to appear before the Inquiry Officer, it would certainly mean that the allegations have not been proved in accordance with law. Learned counsel for . the respondent/prosecution has also not been able to answer or satisfy this Court regarding this legal defect of the case.
(h) Although, there was not time limit for the competent Authority to give its verdict under the Efficiency and Discipline Rules, however, it was not the intention of the law-makers that the agency of an aggrieved government servant should prolong for an indefinite period, in case the Authority failed to decide the matter within a reasonable time.
20. In view of the above discussion, we find that it is not a fit case for imposing major penalty upon the appellant, therefore, we while accepting this appeal, set aside the dismissal order of the appellant and direct his reinstatement in the Judicial Service with back benefits.