Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgment dated 3.5.2006 passed by Sindh Subordinate Judiciary Service Tribunal (hereinafter to be called the Tribunal") established under Section 3-B of Sindh Service Tribunals Act, 1973, whereby the appeal filed by the appellant against his removal from service under Rule 4(1)(b)(iii) of Sindh Civil Servants (Efficiency & Discipline) Rules, 1973, (hereinafter, to be referred as the Rules'), was dismissed.
2. The appellant, while serving as Senior Civil Judge, Karachi South, was served with show-cause notice on 31.12.2001 as under :-- 'You, Mr. Saad Salam Ansari, Senior Civil Judge, Karachi, South are hereby informed that on the ground mentioned hereunder, it is proposed to take disciplinary action against you for gross misconduct and inefficiency and to impose on you major penalty of dismissal from service prescribed under Rule 4(1)(b)(iv) of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973.
GROUNDS
1. That one Muhammad Imlak s/o Muhammad Sultan r/o Karachi has complained that he was the tenant of one Mst. Afshan who had filed Rent Case No, 1645/1998 in the Court of IX-Senior Civil Judge/Rent Controller, Karachi-South, presided over by you, which was decided against the complainant, who being the aggrieved party filed First Rent Appeal Bearing No, 48/2001 which was pending adjudication. The landlady Mst. Afshan and others also filed an Execution Application No, 31/2001 before your Court, but no notice was served upon the complainant/ respondent. In the meantime, the High Court called the R & Ps of the case vide letter dated 15.2.2001 but you deliberately did not comply with the directives of the High Court and passed collusive and mala fide ejectment order, adopting fully unfair attitude towards the tenant Muhammad Imlak giving undue favour to the landlady.
2. That your above conduct relating to the case file/Record and Proceedings amounts defiance of the order of High Court calling for the R & Ps till the eviction orders.
3. That an explanation in this respect furnished by you was totally un-satisfactory.
That your above stated acts, prima-facie, amount to gross misconduct and inefficiency warranting penalties prescribed under Rule 4 (1) of Sindh Civil Servants (Efficiency & Discipline) Rules, 1973. And since it has been decided that it is not necessary to have an Enquiry conducted through an Enquiry Officer or Enquiry Committee and action of dismissal from service has been proposed under Rule 5(3) of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973. You are, hereby called upon to show-cause in writing within a fortnight from the receipt of this Notice, as to why action mentioned above should not be taken against you on the above said grounds. You may, however, state whether you wish to be heard in person."
3. The appellant filed reply to the show-cause notice on 4.2.2002 and meanwhile, he was served with another show-cause notice on 15.1.2002 for similar charge as under :-- "You, Mr. Saad Salam Ansari, Senior Civil Judge, Karachi South, are hereby informed that on the grounds mentioned hereunder, it is proposed to take disciplinary action against you for gross inefficiency and to impose on you one or more penalties prescribed under Rule 4(1) of the Sindh Civil Servant (Efficiency & Discipline) Rules, 1973.
GROUNDS
1. That the report made against you by the District & Sessions Judge, Karachi (South) shows that you illegally admitted the Civil Suit No, 30/2001 (Muhammad Amjad V/s Khalid & Brothers and Trading Corporation of Pakistan (Pvt) Ltd) despite clear position shown in the plaint itself that it was far beyond you pecuniary jurisdiction.
2. That you not only entertained a suit beyond your pecuniary jurisdiction but also granted an ad- interim order against the Defendant No, 2 Trading Corporation of Pakistan (which is a government owned Corporation) despite the fact that it was evident from the plaint that no privity of contract as existed between the plaintiff and the said Corporation.
3. That the above order not only reflects gross inefficiency but also prima-facie indicates that it was passed with corrupt and mala fide motives. That the above stated acts primalacie amount to inefficient and misconduct calling for penalties prescribed under Rule 4(1) of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973 and since it has been decided that it is not necessary to have an enquiry conducted by an Enquiry Officer. You are, hereby called upon to show-cause in writing within fortnight from the receipt of this notice, as to why one or more penalties prescribed under Rule 4(1) of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973 may not be imposed on you. You may, however, state whether you wish to be heard in person."
4. The learned senior puisne Judge of the High Court of Sindh, at Karachi, in exercise of his power as authorized officer having found the replies of the appellant submitted by him to the above referred show-cause notices, not satisfactorily served upon him, final show-cause notice proposing imposition of major penalty of removal from service by dispensing with the regular inquiry. In pursuance of the reply filed by the appellant to the final show-cause notice, the authorized officer provided him personal hearing and after considering the matter in the light of relevant material, formed an opinion that the conduct of the appellant was unbecoming of a judicial officer to retain him, in judicial service. Consequently, learned Chief Justice of the High Court of Sindh in exercise of the powers as competent authority agreeing with the authorized officer, called upon the appellant to show-cause as to why he may not be awarded major penalty of removal from service and after providing him personal hearing, passed the order accordingly. The appellant having availed the remedy of departmental representation, filed an appeal before the Sindh Subordinate Judiciary Service Tribunal which was dismissed vide judgment under challenge before us in the present appeal in which leave was granted vide order dated 7.7.2006 as under:-- 'Petitioner--Judicial Officer seeks leave to appeal against judgment dated 31.5.2006 of the Sindh Service Tribunal for Subordinate Judiciary dismissing his appeal against departmental order of removal from service passed by learned Chief Justice of the Sindh High Court.
2. Petitioner while serving as Senior Civil Judge, Karachi South, was proceeded against on the charge of misconduct for having acted dishonestly and recklessly while deciding an execution application arising out of an ejectment order and for passing an order of status quo in a civil suit against the Trading Corporation of Pakistan which was ultimately recalled and plaint returned for want of jurisdiction. He replied to the two show-cause notices and explained his conduct justifying having acted fairly and bona fide in the exercise of his jurisdiction. His explanation however, did not find favour with the authorities whereupon after dispensing with regular enquiry into the allegations against him lie was issued with second show-cause notices culminating in the order of his removal from service. The petitioner invoked the jurisdiction of Service Tribunal constituted for Subordinate Judiciary but without any success, hence this petition for leave to appeal.
3. We have heard Mr. Muhammad Farogh Naseem, learned ASC for the petitioner at some length, and gone through the record.
4. It is, 'inter alia contended that the petitioner having. acted in his judicial capacity, there was no justification for proceeding against him departmental by and taking exception to the impugned orders passed by him bona fide and in good faith; that the allegations leveled against the petitioner imputing acts of recklessness and lack of integrity necessarily called for a regular enquiry which was dispensed with at the time of issuing of first show-cause notice without recording any reason and disclosing any justification for adopting a summary procedure.
5. After hearing learned counsel, we are inclined to grant leave to consider, inter-alia, the questions whether the conduct and performance of the petitioner was such which warranted major penalty of removal from service without holding a regular enquiry into the allegations against him. Order accordingly.
6. Record of the rent case as well as civil suit dealt with by the petitioner shall be summoned through the High Court at the stage of hearing of appeal which may be made ready at an early date."
5. The main question requiring determination in the present appeal would be as to whether in the light of nature of allegation and charge of misconduct, the dispensation of regular inquiry was justified and summary procedure adopted for the conclusion of the departmental proceedings against the appellant was in consonance to the spirit of law.
6. Learned counsel for the appellant has contended that no evidence, oral or documentary, was brought on record in support of charge of misconduct or inefficiency against the appellant and he was also not provided a fair opportunity to rebut the allegation on the basis of which he was held guilty of misconduct. The conclusion of the authorized officer that the judicial orders passed by the appellant in the execution petition as well as in the civil suit were tainted with ulterior motive and extraneous consideration or that he exercised judicial powers in a reckless manner was not based on any evidence rather the, authorized officer having formed a negative opinion regarding the integrity of the appellant on the basis of fake allegation, raised a presumption of guilt. The learned counsel added that nothing was brought on record to prove that appellant having knowledge of the order of the High Court of calling the record of the ejectment petition proceeded in the execution petition with undue haste for ulterior motives and similarly, despite having no jurisdiction, entertained civil suit and passed an interim order in it for extraneous consideration.
7. The learned counsel asserted that except in the extraordinary and exceptional circumstances, the dispensation of the regular inquiry in a case involving factual controversy would amount to withhold the right of fair opportunity of a person to rebut the charges and argued that the jurisdictional defect or error in exercise of the judicial power by a Court or Tribunal may not constitute misconduct or an act of inefficiency. The order of calling of the record by the High Court in the rent case would not ipso facto restrain the Rent Controller from proceeding in the execution petition and similarly, the judicial order passed in the civil suit under the impression that suit was triable by the Court, was not a valid ground to proceed against the appellant for the charge of misconduct and in any case the order passed in the civil suit was vacated on the disposal of the application moved by the defendants for rejection of the plaint in which plaint was returned for presentation before the proper forum. The learned counsel emphasized that the circumstances leading to the passing of the above orders would not suggest any element of mala fide or ulterior motive to constitute an act of misconduct, therefore, there was no justification to proceed against the appellant under the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973. Learned counsel while concluding his arguments submitted that be that as it may, in the light of the nature of allegation, the removal of the appellant from service without regular inquiry was in utter disregard to the concept of fair treatment before the law.
8. Learned counsel for the respondent on the other hand, having taken us to the order of dispensation of regular inquiry passed by the authorized officer, argued that in the light of nature of allegation, the authorized officer having formed an opinion on the basis of judicial record that no other evidence was required to prove the change of misconduct, proceeded to dispense with the regular inquiry and recommended for the removal of the appellant from service. The learned counsel submitted that authorized officer, having found the reply of the appellant to the show- cause notices not satisfactory and also taking into consideration his admission of the charges during the personal hearing, held him guilty and the competent authority, on the basis of recommendations of authorized officer, passed the final order of his removal from service quite in accordance with law. Learned counsel argued that the manner in which the appellant proceeded with the case and passed the order in the execution petition as well as in the civil suit being not expected by a judicial officer, would lead to a strong inference that he in discharge of his judicial functions, acted in a reckless manner, for ulterior motive and extraneous considerations. The last submission of the learned counsel was that the authorized officer was not required to give reason for the exercise of his discretionary powers under Rule 5 of the ibid rules for dispensation of the regular inquiry and the objection of the appellant in this behalf was without any foundation.
9. The expression 'misconduct' has been defined in Rule 2 (4) of Sindh Civil Servants (Efficiency & Discipline) Rules, 1973, as under:-- "misconduct" means conduct prejudicial to good order of service discipline on contrary to the West Pakistan Government Servants (Conduct) Rules, 1966 or unbecoming of an officer and a gentleman includes, any act on the part of a Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Government servant;"
In the light of the definition of misconduct and the nature of the charge of misconduct against the appellant, we having considered the contentions raised by the learned counsel for the parties and also perused the record with their assistance deem it proper to reproduce Rule 5 of the ibid Rule for better appreciation of the proposition involved in the present case.
"5. Inquiry Procedure. The following procedure shall be observed when a civil servant is proceeded against under these rules :--
(1) In case where a civil servant is accused of subversion, corruption or misconduct, the authorised 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 authorised officer shall decide whether in the light of facts 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 of 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 action; and (b)given 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) On receipt of the report of the Inquiry Officer or Inquiry Committee or where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any the authorised officer shall determine whether the charge has been proved and--
(a) if it is proposed to impose a minor penalty, he shall pass orders accordingly;
(b) if it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegations served, on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendation regarding the penalty to be imposed, and the authority shall pass such orders as it may deem proper;
(5) The orders passed by the authority will be communicated to the accused or notified in the official Gazette by the authorised officer or the department concerned.
(6) If two or more civil servants are proceeded against jointly, the authority or authorised officer in respect of the senior most civil servant amongst them shall be the authority or authorised officer, as the case may be, in respect of all such civil servants."
This is correct that authorised officer had to decide that which of the two procedures provided in the rules, was to be adopted and if he is in favour of adopting the summary procedure, he must have exercised this discretion with extra care so that no prejudice is caused to the civil servant facing departmental proceeding for the charge of misconduct. The decision regarding dispensation of regular inquiry always depends on the nature of charge and circumstances of the each case. This is settled law that in a case in which charge could not be established without recording evidence and providing a proper opportunity to the civil servant to cross examine the witnesses and also produce evidence in defence, the dispensation of regular inquiry is not justified except in extraordinary circumstances.
10. The precise allegation against the appellant was that he knowingly and deliberately passed the order of delivery of possession in the execution petition with undue haste and in an unfair manner for extraneous consideration. The appellant in his reply to the show-cause notice categorically stated that he had no knowledge of the order of the High Court regarding the calling of the record in the ejectment petition and proceeded with the execution petition in accordance with the requirement of law. The factual controversy regarding the knowledge of the order of the High Court could not be ascertained without recording the statements of the concerned officials of the Court or the tenant or his counsel, as the case may, be with right of cross examination to the appellant and thus in absence of such an evidence, the knowledge of the order of High Court, could not be attributed to the appellant. The presumption of law to the extent that an order or notice sent by registered post, must have reached to its destination, could be conveniently raised but the question whether such notice or order was in the knowledge of a particular person, is a question of fact which cannot be presumed without adducing evidence and providing a fair opportunity of cross-examination to the witnesses and production of evidence in rebuttal. The law is that except in the special circumstances, in the departmental proceedings the procedure of the regular inquiry should be followed to prove the charge of misconduct which may have the consequence of major penalty of dismissal or removal from service and such an inquiry may not be dispensed with in normal circumstances. The charge of misconduct based on allegation of misuse of powers for extraneous consideration involving factual inquiry was required to be proved through evidence and dispensation of the regular inquiry in the facts of the present case, would amount to condemn the appellant unheard and refuse him right of defence. The perusal of record would surely suggest that in consequence to the dispensation of regular inquiry, the appellant could not get a fair chance to make his defence and rebut the allegation of mala fide and ulterior motives. This may be pointed out that Tribunal was also of the view that in the light of nature of allegation in the present case, regular inquiry was necessary. The relevant part of the judgment, containing the above observation is reproduced hereunder:-- "Indeed the charges which required evidence for their proof certainty 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."
11. In the light of forgoing reasons, the judgment of Sindh Subordinate Judiciary Service Tribunal under challenge as well as the order of removal of the appellant from service, passed by the competent authority, is set aside and he is reinstated in service with observation that the competent authority may, if so desire, hold a proper inquiry into the matter against the appellant within a period of four months and pass the appropriate order in accordance with law. The question relating to the back benefits shall be subject to the result of inquiry and in case no such inquiry is held, the appellant shall be deemed to have been reinstated in service with all back benefits. This appeal stands allowed in the above terms with no order as to costs.