' ABDUL AZIZ KUNDI, J (CHAIRMAN).--- This judgment shall also give reasons for dismissal of S.J.
Service Appeal No,6 of 2001, both by the same appellant and which were jointly heard today and dismissed through the following short order:- "Arguments heard. For reasons to be recorded, this appeal is dismissed."
2. S.J. Service Appeal No,3 of 2002 is directed against the rejection of appellants' representation conveyed vide Registrar High Court letter dated 10-1-2002 filed by him against the Registrar's letter No,8736-8741/Admn:Brh: dated 7th December, 2001, whereby he was conveyed the orders passed by Authority dismissing him from service as Additional District and Sessions Judge.
3. S.J. Service Appeal No,6 of 2001 is directed against the communication of adverse entries recorded in his ACRs/PERs for the year 1998 by the Countersigning Authority and against which his representation was also dismissed. The entries conveyed are reproduced as under:--- "We do not agree with the grading made by the Reporting Officer and would rank him as an average officer. Besides, he was counselled to guard against his arrogant behaviour."
4. Taj Muhammad Khan, appellant while posted as Additional District and Sessions Judge, Mardan was served with memo No,4717, dated 1-8-2001 by the Registrar, Peshawar High Court, Peshawar, directing him to furnish his explanation to the complaint, copy of which was enclosed with the said memo and filed against him by one Mst. Sabira Ruhi daughter of Muhammad Hussain.
5. On 1-8-2001, the lady aforestated while accompanied by Muhammad Tahir Num son of Muhammad Shafique Siddiq, her ex-husband moved a complaint before the Chief Justice of the High Court complaining against the appellant and levelling serious allegations of moral and financial corruption against him. On the receipt of said complaint, the Member Inspection Team was directed by the Chief Justice to record statement on oath of both the complainant and her companion, which were accordingly recorded and thereafter explanation of the appellant called for.
6. His reply/explanation having not been received even by the extended date i.e, 11-8-2001, the Chief Justice of the High Court in his capacity as Authority suspended the appellant and appointed Mrs. Justice Khalida Rachid, as Authorized Officer to proceed against appellant under N.-W.F.P Civil Servants (Efficiency and Discipline) Rules, 1973, who issued him charge-sheet dated 25-8-2001 along with statement of allegations and directed him to submit his reply to the charges within seven days of the receipt of charge sheet failing which it shall be presumed that he has no defence to offer. Appellant's reply having not been found satisfactory it was decided to proceed in the matter in accordance with law.
7. Syed Musaddiq Hussain Gilani, District and Sessions Judge, Abbottabad was appointed as Inquiry Officer, who conducted inquiry against him and submitted his report along with his findings to the Authorized Officer. After fulfilling all the codal formalities, the authorized officer recommended imposition of major penalty of removal from service and ultimately the honourable Chief Justice of High Court in his capacity as Authority imposed the major penatty of dismissal from service.
8. Learned counsel for the appellant vehemently argued that the charge of "Nikah" of the appellant with the complainant was held by the inquiry officer to have not been proved and that the charge of any association of the appellant with complainant was never referred to Inquiry Officer and thus Inquiry Officer exceeded his limits by entering into that aspect of the matter; that no proper show cause notice was given to the appellant and further that the explanation of the appellant and the addenda to the same against recommendations for imposition of the major penalty of removal from service was not considered in its true perspective and that during the days when appellant was called for personal hearing, he was admitted in DHQ Hospital, Mardan and later on shifted to Lady Reading Hospital, Peshawar on 6-12-2001 and thus could not avail the chance of personal hearing, thus condemned unheard; that both the Authorized Officers and Authority were prejudiced against the appellant for some other reasons and lastly that Authorized Officer had recommended removal from service while the Authority imposed penalty of dismissal from service in disregard of proviso to Rule 7-A of NWFP Civil Servants (E&D) Rules, 1973.
9. Learned counsel, to substantiate his submissions placed reliance on the following case law:---
(1) PLD 19C1 SC 176, (2) 1985 PLC (C.S.) 523, (3) 1997 SCMR 1543, (4) PLD 1971 SC 681, (5) 1987 SCMR 602, (6) 2007 SCMR 1008, (7) 1994 PLC (C.S.) 63, (8) 1996 MLD 2045, (9) 1992 PLC (C.S.) 670, (10)
2003 SCMR 1140 and (11) 2003 PLC (C.S.) 317.
10. As against that, learned Advocate General, representing respondents argued that as a result of very fair and impartial inquiry, in which the appellant fully participated, he was found guilty of misconduct and that it is not his case that he has not been afforded fair chance of participation in the inquiry or producing his defence and that even if the allegations of the complainant are kept apart, the record produced by appellant in his defence fully connects him with the complainant, who as per his own version was a lady of questionable character and thus for a Judicial Officer having any connection with such a lady is enough of misconduct on his part. It was further argued that before passing final order Authority provided the appellant with a fair chance of personal hearing, but he deliberately avoided that on the false pretext of being ill and admitted in hospital, where on query by the Registrar, he was not found present and instead the room where he was shown as admitted found locked. Reliance was placed on the following case law:---
(i) 2003 PLC (CS) 1078, (ii) 2008 SCMR 1144, 1241 and (iii) 2004 SCMR 540.
11. Arguments heard, record perused.
12. Inquiry against the appellant under the provisions of N.-W.F.P Civil Servants (E&D) Rules, 1973 was conducted by District and Sessions Judge, Abbottabad in a most fair and transparent manner, where the appellant fully participated and given full chance to cross-examine the witnesses against him and also produce evidence in his defence. During the course of arguments, no grievance was shown against the inquiry proceedings. On conclusion of the inquiry, the Inquiry Officer in his detailed report held as under:--- "The alleged Nikah of Mst. Sabira Roohi with the accused-officer has also not been proved by any verbal, or documentary evidence. However, the complainant proved the association of accused officer with the complainant party since 1992. Accused-officer was unable to deny this fact.
Admittedly, the accused-officer decided the first suit of the complainant party in the year, 1993, copy of judgment Exh.D.A. After this judgment, he remained in contact with the complainant party, because he entertained their suit in Swabi as Senior Civil Judge against Muhammad Riaz, Inspector, who had registered a `Zina' case against the complainant party vide F.I.R., copy Exh.D.A./14. The copy of the plaint of that suit is Exh.PB/4, in which damages to the tune of Rupees one crore were demanded from the Inspector of Police. Not only this, the accused-officer also entertained, and decided a suit of Saddaf Tahir, daughter of complainant, instituted against Education Department in Kohat. Vide this judgment dated 5-11-1998, copy Exh.P.B. /10, the accused- officer passed an ex parte decree in favour of the daughter of the complainant for correction of date of birth in the academic record. Similarly, in the record of Board of Intermediate and Secondary Education, Saidu Sharif, copy Exh.P.B./9, the address of accused-officer as Senior Civil Judge, Batkhela was given, and the centre for the examination was chosen to be Government Girls High School, Sakha Kot. Accused-officer was unable to rebut this documentary, and oral evidence produced by the complainant party regarding his association with them. No doubt, accused pleaded that he was being black-mailed at the instance of his enemy, Shah Wazir XEN, who is absconding these days, but the accused-officer in his reply to the charge sheet had not taken this plea specifically, and it was an afterthought. It is also clear that Mr. Muhammad Tahir Num admitted, during his cross-examination, that if the Court, or Jirga pays him Rs,25,00,000 or whatever deems fit, the matter will be settled. Admittedly, Mst. Sabira Roohi and her ex-husband had made complaints against other officers, who remained posted at Abbottabad, previously. The complainant also admitted, during cross-examination that Mr. Muhammad Tahir Num had asked Mr. Nasir Mahfooz, Advocate for the conditional withdrawal of complaint on payment of Rs,25,00,000. Thus, the question of blackmailing could not be excluded. But the words "blackmailing", and "weakness or secrets" co-exist. Always where there is blackmailing, there is weakness or secrets of the person blackmailed, with the blackmailer. There is also a saying that the snake, how poisonous and dangerous may be, would not bite unless it comes under the foot. The long standing liaison of the accused-officer with the complainant has been established. The nature of liaison is in itself evident. According to the prescribed code of conduct, a Judicial Officer was not expected to establish liaison (lawful or unlawful) with the complainant party, as a result of pendency of suit of the complainant party in his Court. This act of the accused-officer is highly objectionable, and unbecoming of a judicial officer, which amounts to misconduct as defined by the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973. The word 'misconduct' as defined in Rule 2(e) means, "conduct prejudicial to good order, or service, or discipline, or contrary of the NWFP Government Servants (Conduct) Rules, 1987, or unbecoming of an officer, and a gentleman." A gentleman, or Judicial Officer is not expected of such indecorous conduct.
Undoubtedly, the accused-officer has exposed himself to severe criticism, made not only against him, but against the institution as well. The conduct of the complainant party was also not above board, and they are liable to be dealt with in accordance with law for teaching them a lesson for the future.
' The inquiry report is hereby submitted for further necessary action.
' (Sd.)
' Dated: 26 October, 2001.
' District and Sessions Judge, Inquiry Officer, Abbottabad."
' (The underlining is by us to highlight the findings)
13. On receipt of said report, the Authorized Officer called for explanation of the appellant under Rule 5, read with Rule 6 of the N.-W.F.P. Civil Servants (E&D) Rules, 1973 and also provided him copy of inquiry report with permission to obtain copies of other record forming part of inquiry proceedings. Even the Authority before imposing major penalty of dismissal from service allowed the appellant chance for personal hearing, but the appellant did not avail that.
14. Appellant, a Judicial Officer was found guilty of "misconduct" as defined in clause (e) of subsection 1 of section 2 of N.-W.F.P. Civil Servants (E&D) Rules, 1973, which reads as under:--- "(e) "misconduct" means conduct prejudicial to good order of service discipline or contrary to the [N.-W.F.P. Government Servants (Conduct) Rules, 1987] or unbecoming of an officer and a gentleman and includes any act on the part of Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on 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."
15. In the case of Ch. Shabir Hussain and others v. Registrar, Lahore High Court, Lahore and others PLD 2004 SC 191, the honourable apex Court drew distinction between civil servants holding posts other than Judicial Officers and held that though all 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 and that the Judicial Officers are expected to guard their reputation jealously.
16. The case-law relied upon by the learned counsel representing the appellant mostly relates to disciplinary actions against civil servants and not Judicial Officers except PLD 1981 SC 176. However, over all appraisal of the record of the present case would show that the principles of law laid down in the case law relied upon by the appellant have been followed in the instant case and there is no departure from the same.
17. In the instant case, as held in the earlier part of the judgment that the record introduced by the appellant himself in his defence sufficiently connects him with the complainant lady and who according to his own saying was a lady of questionable character. In the case of Qari Ahmad Jan v. Government of Balochistan through S&GAD Quetta and 3 others 2003 PLC (C.S.) 1078, it was held 'by the honourable apex Court that Judicial Officers are holding very sacred office as custodian of rights of people and being required to be extra vigilant in judicial matters, was not supposed to pass such orders against the policy of law without hearing the opposite party and that though no direct evidence in the said case was available in proof of the charge against the Judicial Officer, but the manner in which he exercised the jurisdiction (here in this case the manner in which the appellant conducted himself in relations with the complainant during his posting at various stations as a Judicial Officer) would by itself be a sufficient proof of his being not fair and independent in the judicial affairs and such conduct was held to be unbecoming of Judicial Officer.
18. Similarly, the cases reported as 2008 SCMR 1144 titled Fazal Ahmad Naseem Gondal v. Registrar, Lahore High Court, Lahore and 2008 SCMR 1241 titled Noor Muhammad Khan. v. Registrar Lahore High Court, Lahore, also pertain to disciplinary action against Judicial Officers and approved by honourable apex Court.
19. The charges leveled and proved against the appellant are more serious in nature than those involved in the reported cases above.
20. We have minutely gone through the record of the case and even reproduced the concluding portion of the finding of the Inquiry Officer. There is more than sufficient evidence against the appellant to hold that his conduct was unbecoming of a Judicial Officer and fully covered by the "misconduct", as defined in N.-W.F.P. Civil Servants (E&D) Rules, 1973. We have not been able to persuade ourselves to interfere with the impugned order, passed by the Authority, dismissing the appellant from his service as Additional District and Sessions Judge. Accordingly, his appeal No,3 of 2002 being without merit is dismissed.
21. S.J. Service Appeal No,6 of 2001, as stated in the opening part of this judgment, pertain to entries in ACRs/PERs of the appellant for the year, 1998, which have also been reproduced in the opening part. So far his being "average officer" is concerned, the same is not adverse. However, the latter portion of the entries "besides he was counselled to guard against his arrogant behaviour", was by the countersigning authority, which happens to be the Administration Committee of the High Court, comprising of the honourable Chief Justice and senior most Judges. When the appellant had been counselled, then there was no reason for him not to mould himself and act in a manner as he is required as a Judicial Officer. Prior to the impugned entries, the comments furnished by respondent No,1 would show that there had been advisory remarks in his ACRs/PERs, 21A.The honourable apex Court has very exhaustively dealt with such entries in respect of Judicial Officers in the cases reported as Qari Ahmad Jan. v. Government of Balochistan through S&GAD, Quetta and 3 others 2003 PLC (C.S.) 1078, Ch. Shabbir Hussain and others. v.
Registrar, Lahore High Court, Lahore and others PLD 2004 SC 191 and Mehar Khan Meo v. High Court of Sindh 2007 SCMR 632. The case law relied upon by learned counsel for the appellant mostly pertain to ACRs/PERs of civil servants and not of Judicial Officers. A clear line of distinction has to be drawn between the two. True that all servants are bound to be straightforward, honest and men of integrity but because of sacred and sensitive nature of their duties, Judicial Officers are supposed to excel.
' Since we have dismissed appellant's appeal against his dismissal from service bearing No,S.J.
Service Appeal No,3 of 2002, therefore without going deep into this appeal (S.J. Service Appeal No,6 of 2001), the same is also dismissed for the above reasons.