' JUSTICE (RTD.) MUHAMMAD MOOSA K. LEGHARI (CHAIRMAN).---This service appeal is directed against the order dated 23-1-2003, whereby penalty of removal from service as prescribed under Rule 4 (1)(b)(iii) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 was imposed upon the appellant.
2. Precisely stated that facts of the case are that while serving as Senior Civil Judge, Karachi South, the appellant was issued a show-cause notice dated 31-12-2001 for the acts of the gross misconduct and inefficiency by learned Senior Puisne Judge/Authorized Officer. The appellant submitted a reply to the said show-cause notice on 4-2-2002.
3. Later on the appellant was issued another show-cause notice dated 15-1-2002, for the alleged acts of inefficiency and misconduct by the learned Senior Puisne Judge/Authorized Officer. The appellant submitted the reply of said show-cause notice on 25-1-2002.
4. As the Authorized Officer was not satisfied with the replies submitted by the appellant therefore, he was issued a final show-cause notice dated 28-5-2002, in pursuance of the show-cause notice issued to him on 15-1-2002. After going through the reply to the show-cause notice furnished by the appellant and considering the facts of the matter, the Authorized Officer reached the conclusion that the appellant was guilty of the charges and, therefore, required the appellant, through a final show-cause notice to show cause as to why imposition of a major penalty of dismissal from service be not recommended to the Authority, Through this final show-cause notice, the appellant was advised to appear in person before the Authorized Officer on 23-6-2002 for personal hearing.
The appellant submitted a reply to the said show-cause notice on 19-6-2002.
' The learned Authorized Officer after considering the facts of the case, examining the replies of the show cause notices, submitted by the appellant and on examination of the record, arrived at a conclusion that the orders passed by the appellant while acting as a Judicial Officer were tainted with ulterior motives and that he had displayed reckless inefficiency and that his retention in service against a responsible position might be detrimental to the Institution of Judiciary.
' The learned Authorized Officer further observed that his Reporting Officer was also not satisfied with his reputation as to integrity. In the circumstances learned Authorized Officer recommended the removal of the appellant from service.
' On receipt of such recommendation a Final Show-cause notice under the Proviso to Rule 5 (4)(b) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, was served upon the appellant by the learned Chief Justice/Authority.
' Through this final show-cause notice the appellant was called upon to show cause in writing within a fortnight from the receipt of notice as to way major penalty of removal from service be not imposed upon him. He was also advised to state whether he wished to be heard in person. The appellant submitted a reply to the said show-cause notice to the learned Chief Justice/Authority on 23-9-2002. He also prayed for a personal hearing.
' The appellant was accordingly afforded an opportunity of personal hearing by the Authority.
However, on examination of entire material placed before the Authority, Honourable Chief Justice/Authority arrived at a conclusion that the appellant was guilty of the charges levelled against him and accordingly decided to impose major penalty of removal from service upon him.
The appellant was accordingly removed from service vide Notification of January 23, 2003. The appellant seems to have submitted a representation which was dismissed, hence this appeal.
5. It was mainly contended by Mr. Kamal Azfar, advocate appearing on behalf of the appellant that in the facts and circumstances of the case, recourse to shorter procedure of show cause was not justified. He contended that while imposing major penalty of removal from services, holding of a full-fledged departmental inquiry was necessary as the allegations levelled against the appellant required to be proved by way of recording evidence. Since such an opportunity was not afforded to the appellant, he was deprived of his fundamental right as such the action of imposing major penalty was bad in law as well as in contravention of the verdict of the Supreme Court on the above point. Specific emphasis was laid on the case of Saiful Haq Hashmi reported in 1993 SCMR
956. Besides that learned counsel placed on record the synopsis of the arguments, wherein the following case-law was relied upon:--
(2) 2004 SCMR 1476
(3) 2004 SCMR 294
(4) 1993 SCMR 1440
(5) 2003 SCMR 207
(6) 2004 SCMR 316
(7) PLD 2002 SC 667
(8) 2001 SCMR 1566
(9) PLD 1977 SC 24 at 274
(10) 1993 SCMR 603
(11) PLC 1994 SC 222
(12) 1996 PLC (C.S.) 868
(13) 1993 SCMR 956.
6. Conversely it was contended by learned Additional Advocate General Sindh, that when the charges were apparently clear and borne out from the record, it was not, in all circumstances necessary to hold an inquiry and the Authorized Officer in such circumstances was competent to dispense with the holding of regular inquiry, through an Enquiry Officer or Enquiry Committee.
7. We have taken into consideration the material placed on the record, the synopsis of the written arguments, furnished by counsel for the appellant which are available on record and benefited from the relevant case-law on the point.
8. At the outset it must be stated that the factum that we are dealing with the case of a Senior Judicial Officer could not be lost sight of. The conduct of the Judicial Officer must not in any case be ventured to be equated with the conduct of an ordinary civil servant, as the Judicial Officers are bestowed with the Power to adjudicate to rights of the people and the matters involving life and liberty of citizens. By very nature of the duty cast upon the judicial officers, they are not only expected, but required to demonstrate unimpeachable character, high A integrity, and transparency in their actions coupled with nobility and dignity, as compared to other civil servants.
The Judicial Officers found/and/or believed to be involving in corrupt practices, and those infested with inefficiency could not be allowed to go scot-free, as it is essential to rid the subordinate judiciary of mess and pollution.
9. One can do no better than to quote from the judgment of the apex Court in the case of Ch. Shabbir Hussain v. Registrar Lahore High Court, Lahore reported in 2004 PLC (C.S.) 236, wherein it was observed as under:-- "5. The contentions raised by the learned counsel for the parties have received our anxious consideration. However, before proceedings to determine the questions involved in these appeals we deem it necessary to observe that although all the civil servants are bound to be honest having unblemished integrity, the Judicial Officers are supposed to excel in this trait of character in view of the sacred and sensitive nature of their duties and the pivotal position which justice occupies in Islam according to the following verse of the Holy Qur'an:- "'9' You who believe, the maintainers of justice bearers of witness for Allah's sake though it may be against your own selves or your parents or near relations, be he rich or poor, Allah is most Competent to deal with them both, therefore, do not follow your low desires lest you deviate, and if you swerve or turn aside then Allah is aware of what you do" (Sura 4 Verse 135)."
' Islam also enjoins that those who perform the functions of Judges must not only possess profound knowledge and deep insight but also be men of integrity and capable of holding the scale of justice even under all circumstances. We, therefore, cannot help remarking that Judicial Officers are expected to guard their reputation jealously and the Reporting Officer/Countersigning Officers are obliged to assess their conduct after careful consideration and without being led away by any prejudice or bias."
10. Having regard to the principles laid down by Hon'ble Supreme Court, the case of the appellant has to be examined in the light of the above verdict.
11. So far, as the contention raised on behalf of the appellant regarding the in validity/illegality of the order of imposing major penalty without holding full-fledged inquiry is concerned, the law on the point is well-settled.
' Indeed the charges which required evidence for their proof certainly necessitated holding of a regular inquiry, nevertheless, if the allegations are apparent on the face of record then we are afraid in every case the command of holding regular inquiry could not be enforced.
12. The issue came to be discussed by the apex Court in Government of Sindh v. Saiful Haq Hashmi 1993 SCMR 956, wherein it was ruled as under:-- "The nature of proof required depends upon the facts and circumstances of each case. In every case it is not necessary to produce oral evidence. Cases which are clearly dependent on documents alone on which both the parties rely, hardly require any oral evidence unless shows to be needed by any party. There were no disputed questions of fact with regard to pleadings of the parties, applications and the orders passed by the respondent. Only assessment of the record was to be made by the 'authorized officer' before deciding the course of action. In such cases depending on facts, if inquiry officer or inquiry committee is not appointed it would not amount to illegality".
' The same position was re-asserted in Nawab Khan and another v. Government of Pakistan PLD 1994 SC 222.
13. In order to appreciate the provisions of Rules regulating the Enquiry procedure and/or the powers of Authorized Officer to dispense with the inquiry, it will be advantages to reproduce hereunder Rule 5 of the Sindh Civil Servants (Efficiency and Discipline) Rules 1973:-- "(1) In case where a civil servant is accused of subversion, corruption or misconduct, the authorized officer may require him to proceed on leave or, with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
(2) The authorized Officer shall decide whether in the light of fats of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in rule 6 shall apply.
(3) If the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall:--
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) give him a reasonable opportunity of showing cause against that action: ' Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
4. ..
14. The Legislature, in its own wisdom has bestowed the powers of dispensing with the holding of regular inquiry upon the Authority/Authorised Officer and in the circumstances in which the Authority/Authorised Officer has justified reasons for arriving at a conclusion that no regular inquiry is necessitated the Authority/Authorised Officer can dispense with the same. In the case of Dy.
Inspector General of Police Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134, Full Bench of Honourable Supreme Court expressed the view that a discretion has therefore been conferred on the competent Authority to decide whether a departmental inquiry is necessary or not. The exercise of this discretion is not controlled by any pre-requisite or guidelines. Indeed competent Authority is the best Judge to decide, wherein facts and circumstances, an inquiry was necessitated or not. We may also refer to the case of Executive Engineer v. Zahid Sharif reported in 2005 SCMR 824, wherein it has been held as under:-- "All that the rule requires is that the competent authority should make a decision on the question whether an inquiry should be held or not, and if it decides not to hold an inquiry, it is bound to inform the accused in writing of the action proposed to be taken in regard to him and the grounds of such action."
15. Adverting to the facts and circumstances of the present case, it may be stated that in the first instance the appellant was issued a show-cause notice dated 31-12-2001 on the ground that one Muhammad Imlak who was a tenant of one Mst. Afshan who had filed Rent Case No,1645 of 1998, in the Court presided over by the appellant which was decided against the complainant/tenant, who being an aggrieved party filed First Rent Appeal bearing No,48 of 2001 which was pending adjudication. The landlady also filed an Execution Application No,31 of 2001 before the Executing Court but no notice was served upon the complainant/respondent. In the meantime R&P was called by the High Court vide letter dated 15-2-2001 but the appellant deliberately did not comply with the directives of the High Court and passed a collusive and mala fide ejectment order, adopting fully unfair attitude towards the tenant and by giving undue favour to the landlady.
' In this very show-cause notice, the appellant was specifically intimated and informed that it has been decided that it was not necessary to have an inquiry conducted through an Enquiry Officer or Enquiry Committee, and that the action was proposed to be taken under Rule 5 (3) of Sindh Civil Servants (E&D) Rules, 1973 for dismissal from service.
16. The appellant in his reply has stated that the matter was fixed on 20-1-2001 for filing objections by J.D. But since the J.D. Failed to attend on the above date, Execution Application was allowed as prayed and a writ of possession was issued for the subject property. In his explanation he however, stated that in the meanwhile the J.D. Appeared before the Court through his counsel, when this Court had already ordered for breaking open of the locks with Police Aid to the Decree-holder on his application. He has further stated in his reply that. "The J.D./Complainant Imlak through his counsel referred pendency of F.R.A. No,48 of 2001, in the Honourable High Court of Sindh and produced photocopy of the letter whereby Honourable High Court had wanted this Court to produce and submit the R&Ps in the instant case No,1645/1998, as Judgment/Order of this Court was impugned in an appeal under the aforesaid F.R.A. The undersigned in obedience of the orders of Honourable High Court immediately sent the R&Ps notwithstanding that execution application was allowed and the Decree-holder was provided usual assistance of this Court in performance of execution of the order of this Court." It was however, claimed that the appellant did not exceed any lawful limit in deciding the matter and performed his duties by passing legal and judicial orders.
' With regard to the letter of the High Court for sending the R&Ps with said case on account of pendency of appeal it was stated "I humbly submitted that in fact the letter was never placed before me by the office or the same was ever received by me through any other communication. I came to know for the first time when the counsel for the complainant Imlak pointed out before me as to the pendency of the appeal before the Honourable High Court and no sooner had this fact was known to me than I immediately got photo copy of that letter and made compliance of the order of Honourable Court accordingly." He however took the deference that when there was no stay from the High Court, the appellant was justified in issuing the writ of possession in execution application. So far as the observations with regard to non-holding of regular inquiry as communicated to the appellant through show-cause notice, he submitted that there was no substantial evidence warranting ex parte action against him. He claimed that whatever he has done was within his right and therefore, prayed for withdrawal of the show-cause notice.
17. The second show-cause notice dated 15-1-2002 was issued to the appellant on the ground that he illegally admitted Civil Suit No,30 of 2001 (Muhammad Amjad v. Khalid Brothers and Trading Corporation of Pakistan), despite clear position show in the plaint itself that it was beyond his pecuniary jurisdiction. Not only that the appellant entertained the suit beyond his pecuniary jurisdiction but also granted an ad interim order against defendant No,2 (which is a government owned corporation) despite the fact that it was evident from the plaint that no privity of contract existed between the plaintiff and the said Corporation. The appellant was, therefore, charged for gross inefficiency coupled with the allegation that the order was passed with corrupt and mala fide motives.
' In this show-cause notice also the appellant was communicated the decision of the Authorized Officer not to hold any regular inquiry.
' In reply to the above show-cause notice, the appellant took the plea that the Civil Suit was disposed of by him in terms of Order VII, rule 10 C.P.C. On 17-2-2001. The appellant explained in the reply that ad interim injunction was granted by him on the basis of tentative assessment of the matter in question as well as considering the contention of the plaintiff's counsel that whole suit is to become infructuous if the interim relief is not granted. Besides the appellant claimed that throughout service he had been enjoying good reputation. In the reply he admitted that he was grateful for providing him an opportunity of personal hearing on 23-6-2002.
18. Since the Authorized Officer was not satisfied with the replies to the show cause notices submitted by the appellant, he passed the following order:- "ORDER ".
' This officer was issued two separate show-cause notices in respect of two orders, one passed by him as Rent Controller and the other as Senior Civil Judge. His explanations to both the 'notices were not found satisfactory and he was served with final notices requiring him why the penalty of dismissal from service should not be recommended. I heard personally in respect of both the notices.
2. In the first case, initiated on the complaint of tenant Muhammad Imlak, on 3-4-2001 this officers passed an order allowing the bailiff to break open the lock for delivering possession to the Landlady. The very same day an application was moved by the complainant (it is available on the record) stating that he had no notice of the execution application (which is evident inter alia from the order dated 10-3-2001) to the effect that service had only been effected through publication in Daily Jisarat and he came to know of the same only when the bailiff visited the premises on 2-4- 2001 (which is incorporated in the bailiff's report). WhiJe praying that the writ of possession be recalled it was clearly stated in the application that the order of ejectment had been questioned by the complainant in F.R.A. No,48 of 2001 and that the Court had issued notice to the other side, called for R and P and the matter was fixed on 9-4-2001.
3. This officer however instead of attempting to find out why calling for the R and P had not been complied with or attempting to maintain status quo till the truth of the assertions of the complainant was found out only issued notice of the complainant's application for 10-4-2001 so as to render any interim order that could be passed by this Court on the date of hearing would become ineffective.
4. The record further reveals that though the decree-holder's application was allowed on 3-4-2001 a direction to provide necessary police aid was issued by the Court three days thereafter i,e, on 6- 4-2001 and by that time not only an application stating all facts regarding pendency of proceedings and directions of this Court had been brought to the notice of this officer but he had even verified the same as has been admitted in his reply to the show-cause notice. Nevertheless he only dispatched the R and P to this Court after assuring that the complainant was duly ejected before the matter could be considered by this Court. From the above narration of facts it is quite clear that this officer flouted the orders of this Court requiring him to send the R and P and by doing so helped the physical ejectment of the complainant on 6-4-2001.
5. The only explanation offered is that the directions were not brought to his notice. However, it has neither been alleged that such directions had not been received in his office nor he has stated that he attempted to take the concerned staff to ask for defiance of such directions. I specifically questioned him as to what action he took against his staff members for failing to comply with the directions of this Court and he only stated that he reprimanded them orally. Even if the earlier orders passed by him prior to the complainant's application dated 3-4-2001 are held to be passed in good faith there could be no justification whatsoever for his inaction in that even after being informed of the pendency of the appeal and the directions of this Court to send the R&P, he took no measures in even temporarily suspending the orders passed by him the very same day. On the contrary while dispatching the R&P to this Court he ensured that before the date of hearing of the appeal the order of dispossession of the appellant should take full effect.
6. In the circumstances, it can be safely inferred in terms of the pronouncement of the Honourable Supreme Court in Saiful Haq Hashmi's case (1993 SCMR 956) that the order passed on the complainant's application was tainted and was passed for ulterior motives. Moreover he appears to be guilty of gross misconduct.
7. In the second matter proceedings were initiated against this officer on the complaint of Chairman Trading Corporation of Pakistan (T.C.P) a private company wholly owned by the Federal Government. It appears that T.C.P. Had entered into a contract for sale of sugar with one Khalid Javed and Co., but the buyer failed to make payment within the agreed time. The T.C.P. After giving several opportunities to the buyer by final notice dated 8-1-2001 (copy available on record) called upon him to make payment for unpaid stock by 11-1-2001 failing which the stock would be sold at their risk and costs. Upon failure of the buyer to pay a tender notice appeared in the press on 13-1- 2001 whereby T.C.P. Invited public offers for purchase of sugar. One Muhammad Amjad filed a suit for declaration and permanent injunction against the buyers (Khalid Javed and Bros.) as well as T.C.P. In the Court of said officer alleging that he had entered into a contract for purchase of 5000 metric tons of sugar from the former, paid Rs,3 millions in advance but was not being supplied the requisite quantity of sugar, He claimed that both the defendants be restrained from disposing of the sugar stock lying with T.C.P. And the T.C.P. Be permanently restrained from calling the tenders of the notice appearing in the press.
8. Without going into the question of maintainability of the suit and the pecuniary jurisdiction of the Court, an order directing maintenance of status quo without notice was passed by this officer on the day the plaint was presented i,e, 17-1-2001. A counter affidavit as well as an application under Order VII, rule 11, C.P.C. Was move on behalf of T.C.P. On that date and again on 3-2-2001, 8-2-2001 and 12-2-2001.
9. Apart from suspecting that the suit could possibly be a result of collusion between the plaintiff and the defendant No, 1. (Khalid Javed & Bros.) this officer did not even bother to notice that the matter was clearly outside his pecuniary jurisdiction as the plaintiff himself had asserted that breach of contract for sale of 5000 metric tons of sugar at the rate of Rs,24,000 per ton involving 120,000,000 was involved and Rs,3 millions had already been advanced by him. He also ignored the fact that according to the plaintiff himself there was no privity of contract between him and the T.C.P. Obviously even if the plaintiff's claim was genuine he could only recover damages for breach of contract on the part of defendant No,1 and a suit for declaration and permanent injunction restraining T.C.P. From disposing of the stock, was ex-facie incompetent. Moreover interim injunction could not be granted against a Government owned organization without notice. In the circumstances, I am inclined to consider that this order was not passed in good faith either. During his personal hearing his only explanation was that T.C.P. Was a private limited Company and in his view Order XXXIX, rule 3, C.P.C. Did not apply to it. He could not furnish any explanation for entertaining a suit far beyond the limits of his pecuniary jurisdiction or not applying a judicial mind as to its maintainability. He attempted to explain that he had eventually returned the plaint under Order VII, rule 10, C.P.C., but apparently this was done after Chairman T.C.P. Had made a complaint to this Court.
10. In the circumstances, I am inclined to think that both orders passed by this officer were tainted with ulterior motives. Even otherwise he had displayed such reckless inefficiency that his retention in service against a responsible position might be detrimental to the institution of judiciary. His reporting officer is also not satisfied with his reputation as to integrity. In the circumstances I would humbly recommend his removal from service.
(Sd.)
(Justice Sabihuddin Ahmed)
Senior Puisne Judge/Authorized Officer."
19. It would be seen that the Authorized Officer has afforded ample opportunity to the appellant to vindicate his position but he miserably failed to rebut the allegations. The replies submitted by him were given due and anxious consideration, but those were found to be neither convincing nor plausible.
' Resultantly, after considering all the material available on record and the facts and circumstances of the case Authorized Officer recommended the major penalty of removal from service.
20. The replies to the two show cause notices submitted by the appellant himself adequately reveal that he has not categorically denied that, before the writ of possession was issued by him in the execution application, the High Court, in its appellate jurisdiction, has already summoned for R & Ps of the case. There is nothing on record to presume that the appellant was unaware of the order with regard to the summoning of the R&Ps. Even otherwise he has admitted that on the day when he has passed the order for issuing the writ of possession with police aid, the counsel for the tenant has produced before him the letter of the High Court. It seems that after ensuring that the act of ejectment had been accomplished, he submitted the R&Ps of the case to the High Court.
Ulterior motive on the part of the appellant and the disobedience of the orders of the Court coupled with the mala fide action on the part of the appellant is apparent from the above facts and as such no inquiry was necessitated.
21. So far as the second incident is concerned the appellant has not denied that the suit was entertained by him beyond his pecuniary jurisdiction. It seems that when the matter came on surface it became conspicuous and was brought to the notice of the High Court, he thought it fit to pass orders for return of the plaint to the plaintiff after the plaintiff has already enjoyed the fruits of the ad-interim injunction illegally granted by the appellant. He has not denied that the ad nterim injunction in a matter in which no irreparable loss was to be suffered to a party was granted ex parte. This by itself is sufficient to show that the action of the appellant was not only tainted with malice but injudicious and unbecoming of a Judicial Officer.
22. Above narrated the facts and circumstances would make it abundantly clear that the acts of misconduct on the part of the appellant were obviously evident. There appeared no need to hold an inquiry, as per the rule laid down in the case of Saiful Haq Hashmi (Supra) and Nawab Khan (Supra).
' Consequently the decision of the Authorized Officer with regard to dispensing with the holding of regular inquiry, in the given circumstances, was just, fair, appropriate and legally valid, having been taken after proper application of mind.
' The scrutiny of the record reveals that learned Authorized Officer dealt with the case quite judiciously, fairly and impartially. Even no bias, partisan, ill-will, malice or hostility was alleged against him, at any point of time.
23. It will be seen that after the Authorized Officer has passed a detailed order after hearing the appellant and considering all the material available on the record including the replies submitted by the appellant, the Authority issued a final show-cause notice to the appellant. Vide this final show-cause notice a copy of the recommendations made by the Authorized Officer were forwarded to the appellant to submit his explanation. He submitted his explanation to the final show-cause notice which was duly considered by the Authority. Not only that, but the authority provided an opportunity of hearing also to the appellant irrespective of the fact that the Authorized Officer has already provided ample opportunity to the appellant.
24. After hearing the appellant and allowing him full, reasonable and fair opportunity to vindicate his position, competent Authority formed an opinion that holding of regular inquiry was not necessary. Consequently the Authority concurred with the findings of the Authorized Officer and passed the order imposing penalty of removal from service upon the appellant as the appellant has failed to convince the Authority about his innocence.
25. We have minutely scrutinized the record and have considered the defence taken by the appellant. We are of the considered view that full and fair opportunity of defence was provided to the appellant to explain his position and to put his defence. He has miserably failed to controvert the charges levelled against him. Consequently, we are of the view that the action of the Authority of imposing the penalty of removal from service upon the appellant was valid, proper absolutely in accordance with the provisions of law. No illegality or perversity and/or infringement of any right is found in the impugned order. In the circumstances the appeal being without merit is dismissed.