Ijaz-ul-Hassan, J.--This Appeal, with leave of the Court, arises out of the judgment dated 08.5.2006 passed by the N.W.F.P. Subordinate Judiciary Service Tribunal High Court Peshawar, whereby, appeal preferred by appellant Muhammad Alamzeb Khan, was dismissed and order of his removal from service was maintained.
2. Facts of the case have been mentioned elaborately in the impugned judgment hence reproduction whereof would be of no use. Suffice is to state that appellant was proceeded against for malpractice, misconduct, misappropriation and embezzlement. On receipt of complaint, the Chief Justice, Peshawar High Court, as 'Authority' under the N.W.F.P. Civil Servants (Efficiency and Discipline) Rules 1973, nominated Mr. Justice Nasir-ul-Mulk, (as he then was) as "Authorized Officer to probe into the matter, in pursuance whereof, appellant was served with the charge-sheet containing the following allegations:-- "(i) That while posted as Senior Civil Judge, Kohat, you on 21.4.1991 by an order in Civil Suit No, 117/1 of 1991, titled Wazir Muhammad V. Government of Pakistan and others ordered the representative of the defendants (L.A.C.) to assess the share of the plaintiff and present a cheque for the share so assessed to the Court and after a cheque for Rs, 41,88,905/-was deposited, you on 24.4.1991 released the cheque to the plaintiff without any legal justification whatsoever as neither any award was drawn nor any decree granted in favour of the plaintiff
(ii) That as the cheque was paid to the plaintiff without any award or decree your afore-stated orders were patently illegal and irregular and passed with ulterior motives, causing loss of Rs, 41,88,905/- to the Federal Exchequer. You therefore appear to have misconducted yourself under Rule 3 of the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 and have rendered yourself liable to one or more penalties specified in Rule 4 of the said Rules.
You are, therefore, required to put in your written defence, within fourteen days of the receipt of this charge sheet, as to why disciplinary action, as aforesaid, should not be taken against you and also state whether you want to be heard in person.
If no written reply is received from you within the period specified above, it shall be presumed that you have no defence to offer and ex-parte action shall be taken against you without any further correspondence".
3. A perusal of the record would reveal that the Authorized Officer appointed Syed Musaddiq Hussain Gillani, the then District and Sessions Judge, Bannu, as Inquiry Officer under the NWFP Government Servants (Efficiency and Discipline) Rules, 1973. After going through the record, the Inquiry Officer found the appellant guilt' of 'misconduct' in terms of Rule-4-A(b) of the NWFP Government Servants (Conduct) Rules, 1987 and recommended his removal from service. The Chief Justice vide order dated 21.12.1998 removed the appellant from service. The appellant made a representation but the same was rejected. Feeling aggrieved the appellant filed appeal before the Tribunal, which did not succeed. Hence the instant appeal.
4. We have heard at length, Syed Iftikhar Hussain Gilani, Advocate, for the appellant, Sh. Riazu1 Haq, Advocate, for Respondent No, 1 and Mr. Qaiser Rasheed, learned Additional Advocate General N.W.F.P., for Respondent No, 2, on Court notice. We have also perused the record minutely with their assistance.
5. The learned counsel for the appellant at the very outset of his arguments submitted that he will not press the objection regarding jurisdiction of the Tribunal and confine his arguments to the merits of the case. The learned counsel bitterly criticized the impugned judgment and contended with vehemence that nothing incriminating was available on record to substantiate the allegations of malpractice, misconduct. misappropriation and embezzlement levelled against the appellant: that appellant was exonerated in the first inquiry, conducted by Mr. Mohammad Jehangir Khan, the then District and Sessions Judge, Kohat, so initiation of 2nd and 3rd inquiry was unjustified and amounts to double jeopardy; that the wrong done. if any, was un-done as such, there remained no grievance for action against appellant and that there was no reason to proceed against the appellant under N.W.F.P. Civil Servants (Efficiency and Discipline) Rules, 1973, on account of judicial order passed by him justly, honestly, fairly and without any ulterior motives. Concluding the arguments, the learned counsel asserted that appellant was afforded no opportunity to cross- examine the prosecution witnesses and refused to produce defence witnesses, and even otherwise, complaint against the appellant after about 3 years and 3 months of payment to the plaintiff was made without any basis and legal justification. To substantiate the contentions, reliance was placed on Deputy Director, Food, Bahawalpur and others versus Akhtar Ali and others, (1998 SCM R 597), Inspector-General of Police, Police Headquarters Office, Karachi and 2 others versus Shafqat Mehmood, (2003 SCM R 207). Muhammad Idris Khan versus Secretary/Chairman, Ministry of Railways, Islamabad and 5 others, (2006 SCM R 104), Salman Faruqui versus Javed Burki, Authorized Officer, Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and another, (2007 SCM R 693) and Chairman, Syndicate University of Peshawar and another versus Dil Nawaz Khan, (2007 SCM R 703).
6. The learned counsel for Respondent No, 1, while controverting the contentions raised by learned counsel for the appellant, contended that the conduct of the appellant is clearly indicative of the fact that appellant had received illegal gratification and the Authorized Officer has rightly held that circumstances lead to conclusion that the appellant could not have ordered payment to the plaintiff but for ulterior motives and reasons other than judicial. The Learned Additional Advocate General, N.W.F.P for Respondent No, 2, adopted the arguments of learned counsel for Respondent No, 1 and supported the impugned judgment, maintaining that there is no infirmity or illegality in the impugned judgment, same is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither, there is misreading, non-reading of material evidence, nor misconstruction of facts and law, justifying interference of this Court.
7.The appellant, a senior judicial officer having more than 12 years of service to his credit, is accused of having, indulged in favoritism, abuse of process of the Court and misuse of powers, as a result of which, the State was deprived by huge amount and its profit. The act was found prejudicial to the good order of service and unbecoming of an officer, resulting in the removal of the appellant from service. The allegations are serious in nature and were required to be proved through direct positive evidence. A perusal of the record would indicate that except the bare allegations, there is nothing incriminating on the file to connect the appellant with the guilt. The record does not demonstrate that the appellant has received any illegal gratification/consideration for passing orders on 21.4.1991 and 24.4.1991. In the inquiry report, it has also been observed that "there is no allegation nor any evidence that the accused had accepted illegal gratification for ordering payment to the plaintiff." It may be recalled that in the first two inquiries conducted against the appellant, no involvement was found. Even in the 3rd inquiry the charges of misappropriation and embezzlement could neither be proved by the complainant nor any finding to this effect given by the two inquiry officers. Again the loss, if any, to the government was not due to the fault of the appellant but by the act of the officials of Land Acquisition Coilector/DC, Kohat. They appear to have not been taken to task. Further, the wrong done, if any, was un-done and as such there remained no grievance for action against appellant and there was no reason to proceed against him. We also find our-selves in agreement with learned appellant's counsel that appellant was allowed no opportunity to cross-examine the witnesses produced against him and as such, he has been condemned unheard and refused to produce defence witnesses, prejudicing his interest. It may not be out of place to mention here that orders dated 21.4.1991 and 24.4.1991 regarding payment to the plaintiff have not been appealed against and same have attained finality. When attention of learned counsel for respondents was drawn to this aspect of the matter, they had no plausible reply to make.
8. Having considered the matter from all angles, in the light of the material on the file, we are of the opinion that appellant has been condemned unheard and major penalty of removal from service has been imposed upon him, contrary to the material on record and without adopting the required and mandatory procedure, resulting in manifest injustice. In the circumstances, impugned judgment cannot be allowed to remain intact.
9. Pursuant to above, this appeal is accepted, impugned judgment is set aside and appellant is reinstated in service. However, we make no order as to costs.
10. These are the detailed reasons of our short order dated 04.6.2008.