JUSTICE (R) MOHAMMAD JAHANGIR ARSHAD CHAIRMAN --- As common questions of law and facts are involved in the following two appeals, hence the same are being disposed of through this single order:---
(i) Hafiz Muhammad Younas v. District & Sessions --Judge, D.G. Khan etc. (Service Appeal No. 2574/2010);
(ii) Abdul Karim v. District & Sessions Judge, D.G. Khan, etc. (Service Appeal No. 2597/2010).
2. Both the appellants are aggrieved of order dated 13.11.2008 whereby the competent authority i.e. Learned District and Sessions Judge, D.G. Khan imposed penalty of removal from service on the appellants and the departmental appeals filed by them were also rejected on 11.6.2010 by the learned Admin. Judge of Lahore High Court, Lahore.
3. The facts giving rise to both these appeals briefly stated are that one Mazhar Hussain alias Mazhri accused, of case FIR No. 491/08 under sections 371-A & 371-B, 496-B/4,11, PPC registered with Police Station, Sadar D.G. Khan filed his bail after arrest in the Court of Sh. Allah Bakhsh, learned Civil Judge 1st Class/Magistrate Section-30, D.G., Khan. As the earned Civil Judge in the meanwhile had relinquished his charge on transfer, therefore the said bail application was entertained by Mr. Lmran Khursheed, the then learned Civil Judge 1st Class/Magistrate Section 30 as Duty Magistrate.
The said bail application was filed on 23.7.2008 and notices were issued on the said application .
For 25.7.2008 which was then adjourned to 26.72008, 27.7.2008 and 28.7.2008. On 28.7.2008 the matter was postponed to 30.7.2008 by Mr. Lmran Khursheed as Duty Magistrate ' without passing any final order on the same. However, the case, of the Authority is that both appellants namely Abdul Karim, Reader and Hafiz Muhammad Younus, Naib Qasid attached with the Court of said learned 'Civil Judge got the bail bonds (Ex.P5) of said accused signed, by, the said Magistrate on 28.7.2008 with the result that the said accused was released on bail from judicial lock-up or 28.7.2008 but without any formal order to this ,effect. It is stated that both the appellants in connivance with each other got the, bail bonds (Ex-P5) of Mazhar Hussain accused signed by the said learned Magistrate and thus made good of release of said accused from the jail without any formal order of bail by the learned Magistrate. However, the rhatter was brought on the lim-line on the same or next day and Mr. Lmran Khursheed, the, very learned Magistrate brought the same to the notice of the then learned District & Sessions Judge, DG Khan on 31.7.2008 and the learned District & Sessions Judge namely Mr. Irshad Ahmed Sipra directed Mr. Muhammad Akhtar Bahadur, learned ASJ on 2.8.2008 to hold preliminary inquiry for fixing the responsibility upon the official involved in the said occurrence. It would not be out of place to mention here that when the above- noted occurrence surfaced his learned Counsel namely Mr. Shahzad Sher Khan, Advocate voluntarily produced the accused namely Mazhar before the Court on 29.7.2008 who was then sent to Hawalat where he remained kept till 2.8.2008 when he was released after passing of proper order of bail by the Court.
4. Mr. Muhammad Akhtar Bahadur, learned ASJ, thereafter held preliminary inquiry and completed the same on 13.8.2008 but strange enough submitted the said report on 10.10.2008 after the transfer of Mr. Irshad Ahmad Sipra, before successor of learned District & Sessions Judge, D.G. Khan. The learned District & Sessions Judge on 10.10.2008 appointed Ch. Muhammad Nawaz, learned ASJ, D.G. Khan directing him to hold regular inquiry into the matter under the E&D Rules, 1999. The Inquiry Officer thereafter proceeded against both the appellants and after holding regular inquiry submitted his report dated . 4.11.2008 holding both the appellants guilty of the charge and proposing major penalty against them under the rules. Both the appellants were afforded opportunity of hearing under rule 7(b) of E&D Rules, 1999 to offer their explanation against recommendation of imposition of major penalty. The record indicates that both the appellants filed their reply. On receipt of above-noted report learned District & Sessions Judge/Authority issued show-cause notice to both the appellants but the learned District & Sessions Judge not satisfied with the explanation offered by both the appellants while agreeing with the recommendation of Inquiry Officer awarded major penalty of removal from service on both the appellants on 13.11.2008 though through separate orders yet containing the same language. The order of learned District & Sessions Judge is reproduced in extenso as follows:--- "WHEREAS Muhammad Younis, Naib Qasid to the vacant Court of Mr. Abid Zubair, Civil Judge, D.G. '
Khan was 'proceeded against under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 on the charge of misconduct.
AND WHEREAS, Ch. Muhammad Nawaz, Addl. District & Sessions Judge/inquiry Officer, D.G. Khan found that the aforesaid charge stood proved against the accused official and recommended to award the major penalty of removal from service to the accused official.
AND WHEREAS, the accused official was afforded an opportunity of personal hearing by the undersigned.
NOW, THEREFORE, I being the Authority having found the accused official guilty of the above-said charge and award major penalty of removal from service to the accused official Muhammad Younis, Naib Qasid to the vacant post of Mr. Abid Zubair, Civil Judge, D.G. Khan as recommended by the Inquiry Officer."
5. As noted above both the appellants filed departmental appeals before the Hon'ble Lahore High Court and the same were dismissed on 11.6.2010 by the learned Admin. Judge of Lahore High Court, Lahore. Hence these appeals.
6. Before recording my finding, I would like to bring on record some salient features of the inquiry as well as inquiry report:-
(i) The learned District & Sessions Judge vide order dated 2.8.2008 appointed Mr. Muhammad Akhtar Bahadur, learned ASJ,DG Khan to hold preliminary inquiry for fixing the responsibility who completed his preliminary inquiry on 13.8.2008 but kept the report with him and put up the same before the learned District & Sessions Judge on 10.10.2008 without disclosing the reason for non-sending the same to the learned District & Sessions Judge after preparation of report dated 13.8.2008 and why the same was kept by him till 10.10.2008. Neither Mr. Akhtar Bahadur, learned ASJ nor Ch. Muhammad Nawaz, learned ASJ in his final inquiry recorded statement of Mr. Imran Khursheed, Civil Judge 1st Class/Magistrate Section 30, D.G, Khan, nor put him, in the witness.-box before determining the guilt of the appellants. In the opinion of the Tribunal alongwith appellants Mr. Imran Khursheed, Civil Judge 1st Class/Magistrate Section 30 D.G. Khan who not only signed the bail bond dated 28.7.2008 (Ex.P5) but even not cared to peruse the said bail bonds which even did not contain the amount of surety rather before the amount of surety only 000 are mentioned. In the assessment of the Tribunal the said Magistrate was equally responsible of the matter alongwith appellants for which he must have also been proceeded against and punished.
(ii) Ch. Muhammad Nawaz, learned ASJ in Para- 10 of his report cast his serious reservations/aspersion about the conduct of learned Magistrate but recommended no action against him by adopting a usual attitude of the higher officers from the clutches of law and putting the entire brunt on the lower staff. It is therefore proposed that the conduct of Mr. Imran Khursheed, Magistrate 1st Class/Magistrate Section-30, D.G. Khan is also to be got inquired into and he should also be. Given given deserving punishment as according to the view of Tribunal further retention of suchlike judicial officer was not in the public interest, as well while performing his duty in the judicial service of Pakistan (might be he had acted negligently and without any male fide).
(iii) Another important feature of the matter is that on receipt of report from InquiryOfficer the learned District and Sessions Judge/Authority Notice for personal hearing both and appellant on 2.11.2005 for 13.11.2008 and on 13.11.2008 the learned District '& Sessions Judge issued order of removal from service against both the appellants in the prescribed form as reproduced in the beginning ,above,
7. Now the question is whether" this order of learned District & Sessions Judge dated 13.'11 :2008 can be considered as correct, application of Rule 10 _of the Rules which is reproduced below:--- "In the case of any proceedings the record of which has been reported for orders under sub-rule (7)(b) of rule 7, the authority may pass such orders as it deems fit, but before' imposing a major penalty, the authority shall afford the accuse an opportunity of being heard in person either before himself or before an officer senior in rank to the accused designated for the purpose, after taking into consideration the record of such personal hearing prepared by the officer so designated: Provided that where the authority' is satisfied that inquiry proceedings have not been concluded in accordance with these rules Of facts and merits of the , case have been ignored, it &lay ,order initiation of de novo inquiry through a .Speaking' order by giving the reasons thereof within a period of 14 days."
8. The perusal of above-noted rule 10 indicates that the learned Sessions Judge before passing final order especially imposing major penalty should have afforded appellants opportunity of being heard in person but the said rule does not say that while passing final order the competent authority would not pass a speaking order keeping in view the facts, circumstances, record and the finding of inquiry report and rather merely followed the recommendation of the Inquiry Officer without conscious application of mind and also without recording his own veasons especially after inclusion of Section 24-A of General 'Clauses Act which makes it compulsory for the public functionary to pass speaking order after affording opportunity hearing and through application of mind. Prima facie the above-noted order of learned District & Sessions Judge is not only violative of the principle of natural justice as well as provisions of Section 24-A of General Clauses Act but also the law declared by the apex Court in the case known as Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCM R 2268) and the subsequent judgments passed by the apex Court in the context of Section 24-A of the General Clauses Act, some of which are 2010 SCM R 511 & recent one as 2010 SCM R 1301.
9. The learned Counsel for the appellants have vehemently argued that the allegation of preparing forged and false document is not proved against the appellants and the brunt of charge was thrown on the appellants merely to save Mr. Imran Khursheed, Magistrate Section-30 who firstly signed the bail bonds as well as Robkar without proper application of mind and when the matter disclosed reported the same to the learned District & Sessions Judge on 31.7.2008 knowingly that bail application was not' decided rather kept adjourned for 30.7.2008 and further the accused got released on 28.7.2008 pursuant to the bail bond/Robkar dated 28.7.2008 was produced on the very next date 1.e, 29.7.2008. According to the learned counsel the said Magistrate tried to' hush up the matter in the meanwhile by making efforts and seeking advice from his colleagues who having failed in his object submitted his report to the learned District & Sesions Judge on 31.7.2008 by involving the appellants and also one Ahlmad Abid Hussain but later on Abid Hussain was dropped and only appellants were held guilty of the charge.
The learned Counsel also expressed their dissatisfaction over the attitude of Inquiry Officer who despite recording above-noted remarks against Imran Khursheed, Civil Judge 1st Class/Magistrate.Section-30 did not recommend any action against him because it was the Magistrate who admittedly had signed the bail bonds as well as Robkar and could not have been exonerated at all under any circumstances. The learned counsel for the appellants also found fault with the contents of order passed by learned District & Sessions Judge as reproduced above by arguing that the same was in violation of Section 24-A of General Clauses Act as well as the judgments of the apex Court noted above. Lastly the learned Counsel for Abdul Karim appellant tried to put the entire brunt on Hafiz Muhammad Younas appellant by arguing that it washe who put up the papers . Before the Magistrate for signatures whereas the case of Hafiz Muhammad Younas appellant is that he was handed over papers by Abdul Karim appellant for putting the same before the Magistrate in his Chamber for his signatures.
10. On the other hand learned Assistant District Attorney as well as Departmental Representative have opposed these appeals by arguing that as the charge against the appellants stood proved beyond any shadow of doubt and in view of conduct the appellants involved in preparing false document and getting same signed by the Presiding Officer badly damaging the presumption of truth attached to judicial record are not entitled to any concession and they have rightly been dealt by the learned District & Sessions Judge, therefore both these appeals be dismissed.
11. Arguments considered, record perused.
12. In the light of above-noted laid down salient features of the matter as well as inquiry proceedings I feel that every possible effort was made not only by two Inquiry Officers but also by learned District & Sessions Judge for saving Mr. Lmran Khursheed, Magistrate Section-30 for his omission or commission whether intentionally or unintentionality by holding appellants alone guilty of the. Charge. Initially the responsibility of submitting bail bonds (Ex.P5) and Robkar for obtaining the signatures- of the Presiding Officer was that of Abdul Karim appellant being the Reader attached with the said Court but he appears to be a cunning civil servant who in order to save his skin handed over both the documents to Hafiz Muhammad Younas appellant for getting the signatures of the said Magistrate. If the contention of Abdul Karim appellant that he never handed over both the documents to Hafiz Muhammad Younas appellant is accepted as correct for the sake of arguments even then it was his responsibility to have checked up and, verified from the record before both the documents were being sent to the learned District '& Sessions Judge for onward transmission to the Superintendent District Court, D.G. Khan who after attestation had to send the same to the Jail Authorities, therefore by no stretch of imagination responsibility of Abdul Karim appellant can either be ignored or minimized. According to the opinion of the Tribunal Abdul Karim devised a method for saving his skin and as held by, the Inquiry Officer used Hafiz Muhammad Younas appellant who in his explanation as well as reply in clear terms admitted to have put up both the documents for signatures before the Magistrate at the request of Abdul Karim appellant. The evidence produced before the Inquiry Officer is sufficient to connect both the appellants with the commission of the charge complained against them and to this extent this Court does not feel any hesitation in holding both of them guilty of charge. However, the question is as to whether despite the salient features noted above, imposition of extreme penalty of removal from service was .Justified or not. According to record Abdul Karim appellant has got 13 years service to his credit whereas Hafiz Muhamrnad Younas has so rendered 18 years' service. The manner in which the final order was. Passed by the learned District & Sessions Judge, D:G. Khan as reproduced above cannot be approved with legal sanctity. The learned District. & Sessions' Judge merely dittoed the recommendation of the Inquiry Officer and without conscious application of mind to the facts and circumstances .Of the present case as well as giving any reasons in terms of Section 24-A of General Clauses Act and the law declared by the apex Court in the above-noted judgments and on this score his order, is liable to be set aside and the matter 'can be remitted to him for fresh decision. Further the attitude of Inquiry Officers in not recommending or proposing any action against lmran Khursheed, Civil Judge 1st. Class/Magistrate Section, 30, D.G. Khan despite holding him guilty sheer negligence on his part (See Para-10 of the inquiry report) and further keeping the preliminary inquiry report pending for near, about two months do not reflect judicial attitude of two learned Judicial Officers of the rank of Addl. Sessions Judges and ' merely throwing entire brunt on petty judicial officials/appellants persuaded me to take some lenient view in the" matter of punishment especially in view of length of their service, therefore while maintaining conviction of the appellants by the competent authority, I would like to convert the penalty of removal from service into compulsory retirement. With this modification ''both the appeals are dismissed. 7'
13. Office shall send copy of this judgment to the Registrar, Lahore High Court, Lahore who shall place the same before the Hon'ble Chief Justice, Lahore High Court, Lahore who is out to launch crusade ;against corruption in judiciary and may' if so desire initiate proceedings against, Mr. Imran Khursheed,. Civil Judge 1st Class/Magistrate Section-30, D.G. Khan keeping in view the findings of the Inquiry Officers as well as above-noted facts and circumstances of the case.
Similarly the Registrar of Lahore High Court would issue direction to the learned District & Sessions Judges for passing speaking orders after conscious application of mind in terms of Section 24-A of General Clauses Act as well as the law declared by the apex Court in the above-noted judgment.