JUDGMENT JUSTICE (R) MUHAMMAD JAHANGIR ARSHAD, CHAIRMAN - This appeal is directed against order dated 30.8.2008 -passed by learned D&SJ, Khanewal/competent authority whereby penalty of compulsory retirement was imposed on the appellant. As the departmental appeal of the appellant was not decided by the Hon'ble Lahore High Court/appellate authority, therefore the appellant filed the present appeal after expiry of statutory period.
2. Facts in brief are that while attached with the Court of Mr. Mahmood Ahmad Shakir Jajja, learned ASJ, Khanewal as Ahmad, the appellant was served with a show- cause notice dated 15.5.2008 issued. By the learned D&SJ, Khanewal, as authority whereby the appellant was charged with keeping Court file relating to proceedings under Section 514, Cr.P.C, against Zafar Hayat surety in his custody for about two years without any cause and did not place the same before the Presiding Officer for further proceedings and was further called upon to show cause as to why major penalty be not imposed on him for committing gross misconduct: The appellant was further directed to submit written reply within 7 days before Ch. Shabhir Hussain, learned AD&SJ, Khanewal who was appointed as Inquiry Officer for conducting discreet inquiry into the matter. The appellant filed reply to the show cause whereupon he was given following charge-sheet:-- "That on 26.5.2006 your were posted as Ahmad in the Court of Mr. Mahmood Ahmed Shakir. Jajja, the there learned AD&SJ, Khanewal. The Court had initiated proceedings u/S. 514, Cr.P.C, against one Zafar Hayat in case titled Zafar Hayat Vs. State. On 26.4.2006, the Court ordered for auction of the property of Zafar Hayat and adjourned the case for 27.5.2006 for auction report but ..After 26.5.2006 the file was not placed before the Presiding Officer for further proceeding as the same was concealed/withheld by you in connivance with Zafar Hayat. Hence, the order of the Hon'ble High Court passed in Crl. Revision No. 195, dated 6.2.2006 due to non-availability of the file could not be complied with.
By reasons of the above you appeared to be guilty of the misconduct within the meaning of Rule 3(6) of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1999 and as such are liable to disciplinary action under Rule 4 of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1999 which may include imposition of one or more of the penalties prescribed by Rule 4 of the said Rules."
3. The Inquiry Officer after recording necessary evidence and collecting the material finally concluded the same on 21.7.2008 and recommended imposition of one of the major penalties as envisaged under Rule 4(b) of the E&D Rules, 1999 to offer explanation. The appellant submitted reply to the said show cause whereupon the matter was sent to the competent authority namely learned D&SJ, Khanewal who after giving personal hearing to the appellant ultimately while agreeing with the report of Inquiry Officer awarded major penalty of compulsory retirement on the appellant i.e.f. 31.8.2008 (A.N.) through order dated 30.8.2008. It is stated by the learned counsel for the appellant that against the above-noted of the competent authority the appellant filed departmental appeal before the Hon'ble Lahore High Court, Lahore but the same was not decided within time, therefore the appellant had to file this appeal after expiry of statutory period.
4. Notices in this appeal were issued to the learned D&SJ, Khanewal as well as Registrar, Lahore High Court, Lahore. On behalf of Registrar, Lahore High Court, Lahore one Syed Mohsin Hussain Shah, Jr. Clerk, Lower Courts Estt. Lahore High Court, Lahore appeared as Departmental Representative and stated that as the. Original file of the appellant was lost, therefore after proper permission from the. Competent authority entire record was re-constructed but there was no likelihood of decision of the departmental appeal of the appellant in the near future due to some administrative reasons, therefore this Court feels unnecessary to waif further for the decision of the departmental appeal of the appellant and. Proceed to decide the matter as it is.
5. The facts culminating to these proceedings briefly stated are that one Muhammad Ashraf accused in case F.I.R. No. 370/05, dated 12.11.2005 under Sections 337-A(ii)j 506, 379, 148/149, PPC, P.S. Sadar Khanewal was allowed bail before arrest subject to furnishing bail bonds in the sum of Rs. 50,000/- and the surety bond to the extent of this amount was also deposited in the Court by one Zafar Hayat. However, as during the proceedings of the said matter Muhammad Ashraf accused absented, therefore in terms of Section 514, Cr.P.C, has learned Additional Sessions Judge vide order dated 6.5.2006 directed Zafar Hayat surety to deposit total amount of Surety i.e. Rs.
50,000/-. The said Zafar Hayat assailed the above-noted order of the learned ASJ before the Hon'ble Lahore High Court, Multan Bench through Crl. Rev. No. 195/06 which was ultimately partly allowed and the amount of surety was reduced to Rs. 25,000/- which Zafar Hayat, surety was directed to deposit in the Government Treasury within 60 days from the date of said order, It appears that the said amount was never deposited by the surety and in the meanwhile learned ASJ started proceedings for ensuring appearance of Zafar Hayat surety seeking compliance of the above-noted order of the Hon'ble High Court. Ultimately Zafar Hayat surety when was produced under arrest of 28.6.2008 stated that order of High Court regarding deposit of Rs. 25,000/- stood compelled with and also submitted original receipt of Government Treasury regarding deposit of the said amount whereupon he was directed to be released forthwith, It is not out of place to mention here that per receipts the said amount was deposited in two instalments, one relating to Rs. 10,000/- on 19.6.2008 and second Rs. 15,000/- on 28;6.2008 whereas per direction of the order of High Court passed-some time in the year 2006 the same was to be deposited within 60 days and it is not made out from the record as to how the amount deposited in the year 2008 was considered by the learned ASJ as correct compliance of the order of the Hon'ble High Court.
6. So far as the present proceedings are concerned, in the light of above-noted facts during thb pendency of original proceedings under Section 514, Cr.P.C, the learned ASJ, Khanewal on 26.5.2006 passed the following order:-- "As per report submitted by the D.D.O.R., Khanewal the property of the surety has been attached.
Therefore, warrants for auction of the property of the surety be issued. The D.D.O.R., Khanewal is directed to conduct the auction of the property of the surety namely Zafar Hayat son of Muhammad Raneef, caste Rajpur R/o Chak No. 41/10-R, Tehsil and District Khanewal, for recovery of surety amount of Rs. 50,000/-. The auction notice be affixed at the sight/residence of the surety on 8.6.2006. Mushtri Manadi be conducted on 13.6.2006 and auction of the property on 24.6.2006. File be put up for report on 27.6.2006. "
7. According to the above-noted order, 27.6.2006 was fixed as the next date of hearing, however, appellant per allegation by the competent authority while attached as Ahmad to learned ASJ intentionally withheld the said file and kept the same with him without any justification and ultimately the same was put up before the Court on 16.5.2008 on which date the learned D&SJ, Khanewal recorded following order:-- "The file of the case was not placed before Mr. Mahmood Ahmad Shakir Jajja, learned ASJ, Khanewal on 27.6.2006 as per direction contained in the order dated 26.5.2006. In this respect Muhammad Ismail, the then Ahmad of the Court has produced the file today stating that it was misplaced. Separate' departmental inquiry has been ordered against Muhammad Ismail Ahmad.
This file is now sent to Mr. Muhammad Rafique Sheikh, learned ASJ, Khanewal being successor Court of Mr. Mahmood Ahmad Shakir Jajja, learned ASJ for proceedings in accordance with law and for the implementation of order of Hon'ble High Court recorded in Criminal Revision No. 195/06, copy of which is being provided alOngwith this file. File be sent today to the Court for further proceedings."
8. This act of the appellant was considered as misconduct by learned D&SJ, Khanewal/competent authority and as noted above the appellant was ultimately issued notice on 15.5.2008 and had to face the above-noted disciplinary proceedings resulting into imposition of major penalty of compulsory retirement from service.
9. The learned counsel for the appellant has .Argued that although th appellant cannot deny the charge of not putting up the file before the Court after 26.5.2006 being a question of fact yet the same was inadvertently and not intentionally on his part which is further supported by the fact.
That from 26.5.2006 to 16.5.2008 neither the complainant of the said case nor the surety appeared before the circumstances complaining against misplacement of the said file: His further contention is that there was no mala fide on the part of the appellant because compliance of order of the Hon'ble High Court was the duty of Zafar Hayat, surety who did not comply with the said order till 28.6.2008 and on 28.6.2008 for the first time when he was produced before the learned ASJ, Khanewal under arrest he informed the Court that the compliance had been made but as is evident from the deposit receipts the amount was deposited after more than two years of the time of 60 years as fixed by the Hon'ble Judge of Lahore High Court and that lapse on the part of surety was condoned by the learned ASJ, Khanewal vide his order dated 28.6.2008 reproduced below without seeking any extension of time from the Hon'ble High Court:-- Present: Surety Zafar Yab Zafar Hayat under custody DDPP on behalf of State.
In compliance of Court order he has been arrested and produced before the Court. Due to non- payment of amount of surety as settled by the Hon'ble Lahore High Court, Multan Bench, Multan.
On behalf of surety learned counsel has submitted that due to misunderstanding as surety was not present in Khanewal, the delay in compliance of order has been caused. Any how, he has submitted that in compliance of order of Hon'ble Lahore High Court, Multan Bench, Multan amount as settled @ 25,000/- rupees has been deposited in the Government Treasury and original receipts have been submitted before the Court. Learned counsel prayed that such order of Hon'ble High Court has been complied with, therefore surety may be released in such , circumstances.
I have considered the contention of learned counsel for surety.
The execution of order remained pending since long. As compliance of order of Hon'ble Lahore High Court, Multan Bench, Multan, has not intentionally been violated, rather it has been complied with.
Zafar Hayat is discharged from such surety. He is under custody. He is directed to be released forthwith. Original receipts would be kept on record and a copy of this order be sent to worthy Sessions Judge, Khanewal for record. File be consigned to record after due completion.
10. It is further argued by the learned counsel for the appellant that no where it is established from the record that the order of Hon'ble High Court was ever received either in the Court of learned D&SJ or the learned ASJ, Khanewal before whom the proceedings were pending. The learned, counsel further argued that on one hand the appellant was punished for allegedly extending benefit to Zafar Hayat surety but on the other hand the act of non-compliance of order of Hon'ble High Court by Zafar Hayat was condoned by the learned ASJ through the above-noted order dated 28.6.2008, therefore imposition of extreme and harsh penalty of compulsory retirement from service on the appellant despite having rendered more than 20 years of service in the Department was neither justified nor proportionate to the gravity of the offence i.e: not putting up the file for more than 2 years.
11. On the other hand, this appeal has been opposed by the learned Deputy District Attorney on the ground that appellant having retained/kept the judicial file in his custody without any justification for more than two years was rightly dealt with by the competent authority and thus he is not entitled to any concession and his appeal is liable to be dismissed.
12. Arguments, considered, record perused.
13. As noted above the explanation offered by the appellant in reply to the direction by the learned D&SJ, Khanewal dated 10.5.2008 with regard to not putting up the file in the Court for a period of 2 years is neither satisfactory nor appeals to a person of ordinary prudence, therefore to this extent the conduct of the appellant being unbecoming of an official and a gentleman within the contemplation of the definition of word 'misconduct' in Rule 2(e) of the Punjab Civil Servants (E&D)
Rules, 1999 and he has to this extent rightly been found guilty of misconduct by the Inquiry Officer and affirmed by the competent authority. However, the question requiring determination is as to whether the misconduct shown by the appellant is of such a grave nature that the competent authority had no option except to impose the extreme and harsh penalty of compulsory retirement from service despite rendering more than 20 years of service to the Department with no complaint of any nature and the conduct of the present nature in the past. For finding out the answer to the above question, I have gone through the entire material and after conscious application of mind have come to the conclusion that the penalty as imposed by the competent authority on the above-noted charge is too harsh and disproportionate to the gravity of charge for the-Following reasons:--
(i) Neither the complainant of the case nor even the surety ever, approached the learned Court for more than two years complaining missing of said file.
(ii) Admittedly the surety amount as reduced and determined by the learned Judge of High Court was never deposited within period of 60 days as fixed by the Hon'ble High Court in its order and it was only when warrants of arrest of 'surety namely Zafar Hayat were issued by the learned ASJ on 19.6.2008 it was brought to the notice of the Court on 28.6.2008 that amount of Rs. 25,000/- as determined by the High Court was deposited in two instalments, one on 19.6.2008 i.e. Rs. 10,000/- and second on 28.6.2008 i.e. Rs. 15,000/- but it is not made out from the record how the said compliance was considered by the learned ASJ in his order dated 28.6.2008 as sufficient compliance of order of the High Court without any order of extension of time. This in-action on the part of complainant as well as surety also indicate that either they were previ to the missing of the said file or they intentionally did not bring the matter to the notice of the Court. If the matter had been brought to the. Notice of Court at The earliest stage not only the file would have been traced out but the matter would have ended in the year 2006 and the benefit of such lapse on the part of complainant as well as surety must be given to the appellant in the matter. Of penalty despite the fact, as to how the learned ASJ in his order dated 28.6.2008 without any further order of the Hon'ble High Court regarding extension of time could treat the compliance in the year 2008 as a proper and sufficient compliance of order of the High Court.
(i.e) It is also observed that besides appellant being Ahmad, Reader is also responsible for ensuring that the files relating to each day proceedings are properly put up on respective date of hearing and on receiving the files of the daily proceedings from Ahmad, he has to verify the same with Peshi Register of the said date and in case if some file relating to the proceeding of the said date is missing, it was the duty of Reader also to have pointed out about the missing of file. This in-action on the part of Reader was neither taken notice of by the Inquiry Officer nor the learned D&SJ while deciding the matter.
(iv) Another important fact in taking lenient view on the question of penalty is that the Inquiry Officer miserably failed to determine the question as to whether order of Hon'ble Lahore High Court was ever received in the office either by learned D&SJ or the concerned Court and for .That purpose if the matter had been probed into at an early stage not only the question of. Non- compliance of order of the" Hon'ble High Court would have come to the notice of the competent Court within time but its non-compliance within the stipulated period of 60 days would have also entail further penal consequences against the surety.
(v) Another important fact is .That on one hand Inquiry Officer in Para-7 of the report which is reproduced below held the appellant guilty of withholding the judicial file for causing benefit to Zafar Hayat, surety but on the other hand the act of Zafar Hayat for non-deposit of surety bond within time was condoned through order dated 28,6.2008 which finding of the Inquiry Officer is not based on valid justification:- "The unambiguous factual and legal position which emerge out to float on the surface of record before the undersigned is that as per order of the Hon'ble High Court Zafar Hayat surety was required to deposit surety amount of Rs. 25,000/- but he did not therefore the Court, was left with no alternative save to initiate proceedings of attachment. On 26.5.2006 after the Court work was over, the file was delivered back to the accused official to be put up on 27.6.2005 but the file was; withheld by the accused official till 14.5.2008. As a matter of fact the accused official has not denied the charge against him. The allegation against the accused official is that he has withheld the judicial file and ultimate beneficiary was Zafar Hayat surety. Obviously the file was withheld , by the official accused with ulterior motive just to facilitate surety Zafar Hayat whose property was going to be auctioned. Judicial file was deliberately withheld by the accused official as he has not probably colluded with surety Zafar Hayat. The wilful act amounting to misconduct as he also had intention, ulterior motive according, to validly assumed from his conduct. The only inference that can safely be drawn from the attending circumstances was deliberate and intentional misconduct to make it impossible for the Court to proceed with the administration of justice. The accused official in the present case had not behaved in a decent, responsible and sincere manner which may hallmark of the judicial service by his on words and those of the witnesses recorded during the course of inquiry proceedings, a web had been woven around the accused official and he had none other to blame but himself for that had knowingly and wilfully chosen that path and committed himself to such a predicament unlike a civil servant of Judicial Department (Reliance 2008 PLC (CS) 465). Position being so, the accused official is held to be guilty of misconduct as defined under Rule 2(c) of E&D Rules, 1999. The accused official being custodian of public record was supposed to guard it . Diligently, performing his basic and primary obligations ultimately helping the Court in discharge of administration of justice. There is overall recession in , cadre, intellectually and sophistry, prevailing in the class of the accused official. Like Judges, all their staff is expected to perform their duties dispassionately, legally, honestly and without any consideration, as they both have delicate position of vulnerable nature on whom eyes from both sides are set.
Each step of officials of the judicial Department demonstrate the integrity, honesty bona fide, impartiality. The propriety or impropriety of conduct is to be determined with reference to work, duties and service discipline."
(vi) Lastly I am not satisfied with the way the Inquiry Officer dealt with the matter, in Para-8 of the inquiry report rather the findings of the Inquiry Officer are contradictory and in contrast with the charge-sheet. According to charge- sheet noted above the appellant was proceeded with the charge of misconduct but the Inquiry Officer in his report appears to have laboured under the impression that the appellant was guilty of corruption which is contradiction to the charge-sheet.
To be a guilty of corruption is different from the charge of misconduct, In Para-8 although the Inquiry Officer tried to find the appellant not only guilty of corruption and also came out with the solution of getting rid of such type of corrupt official without referring to the single instance of corruption which usually involves element of extending financial benefit or gain to some person while dealing with some official business but throughout report no where it has been held that the appellant by keeping said file with him or not putting up the same before the Court for more than two years did so by deriving financial benefit from the surety namely Zafar Hayat, however, no such allegation was ever made even by the complainant against the appellant, It is due to these reasons; always stressed that the matter , must be decided in a judicious and unbiased manner but especially in Para-r of the inquiry report the Inquiry Officer does not appear to " have decided the question of misconduct in an unbiased and judicious Officer but therely as a social reformer.
The findings of the Inquiry Officer to this extent must have held the field if there was allegation of corruption against the appellant but in the present case the charge- sheet was only of misconduct which does not include the charge of corruption, therefore the findings of the Inquiry Officer in Para-8 of the 'inquiry report were not only unjustified but highly uncalled for.
14. As held above since the appellant failed to justify his act of misconduct i.e. Not placing the file before the Court for a period of 2 years and in the absence of any previous complaint against him of whatsoever nature and further keeping in view the. Above-noted conduct of complainant as well as surety for remaining silent for such a period, further non-compliance of order of Hon'ble High Court by the complainant for a period of two years and condoning his such act by the learned ASJ vide order dated 28.6,2008 without any extension of time by the Hon'ble High Court and lastly in view of length of service of the appellant. I feel that major penalty as provided in Section 4(b)(1) i.e. Reduction of two stages in pay scale for a period of three years would be sufficient and most appropriate penalty instead of harsh and extreme penalty of compulsory retirement which is accordingly set aside and reduced into one as noted above. However, as the appellant had got sufficient leave to his credit at the time of imposition of penalty of compulsory retirement on the appellant, therefore,, intervening period shall be treated as leave of the kind due. It is further made clear that in case if the appellant has recovered entire retirement financial benefits, he will have to surrender the same before the competent authority within 60 days from today failing which the order of competent authority i.e. Penalty of compulsory retirement shall stand revived.
15. The original record produced by the Departmental Representative on behalf of Registrar Lahore High Court, Lahore as well as learned D&SJ, Khanewal is returned.