Justice Ijaz-ul-Ahsan, Chairman--This appeal arises out of an order dated 25.10.2010 ("Impugned Order") passed by the Competent Authority whereby Appellant was removed from service.
2. Brief facts of the case are that the Appellant was appointed as a Civil Judge/Judicial Magistrate in the year 2000. In 2010 after announcement of the National Judicial Policy, on some complaints being received against the Appellant that he was not writing judgments/ orders despite having announced the same, the District and Sessions Judge visited the chamber of the Appellant. He allegedly found case files of 31 cases lying in his cupboard. The matter was reported to the High Court. Consequently, charge sheet was issued to the Appellant under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 for misconduct and inefficiency.
3. The Appellant filed his reply to the said charge sheet. He took the position that files lying in his cupboard related to cases in which he had dictated judgments/orders, however, on account of rush of work and load shedding of electricity, his Stenographer could not type the orders/judgments. Subsequently, an Inquiry Officer was appointed. He conducted an inquiry against the appellant and submitted his report on 22.06.2010. The Inquiry Officer found that the charge of misconduct could not be proved against the Appellant. However, the second charge namely inefficiency stood established. The Inquiry Officer observed that the record, as well as, statement of the then District & Sessions Judge, Faisalabad under whom the appellant was performing services indicated that the Appellant was an honest Judicial Officer. He also noted in his report that the Appellant had tendered an apology praying that his lapse be condoned. The Inquiry Officer therefore, observed as follows:-- "Now the question arises as to what quantum of punishment would commensurate with the gravity of guilt/lapse of the Officer complained against. I may mention here that Officer complained against has tendered apology and has also stated that his lapse may be condoned. He has also assured to be more vigilant in future. This shows that Officer complained against has intention and commitment to ameliorate himself, it was the first complaint of this nature against the Officer complained against. The Officer complained against [sic] is a young Judicial Officer. He should be given opportunity to improve himself. He has excelled in disposal of cases as well. Therefore, while taking a lenient view, I will propose to impose minor penalty of `CENSURE' upon the Officer complained against."
It is obvious that the Inquiry Officer considered all material facts, circumstances and relevant record. Lfter due application of mind, he considered it appropriate to take a lenient view by recommending imposition of minor penalty of Censure upon the Appellant.
4. The recommendation of the Inquiry Officer was sent to the Lahore High Court. However, vide Show Cause Notice dated 19.07.2010, the Appellant was directed to explain why the penalty of Censure recommended against him may not be enhanced.
5. The Appellant again filed his reply to the Show Cause Notice. He was granted, personal hearing by a "Hearing Judge" of the High Court. The Hearing Judge recommended imposition of major penalty against the Appellant. The recommendation of the learned Hearing Judge placed before the Hon'ble Members of the Administration Committee ("A.C.") of the High Court. Vide order dated 25.10.2010 the A.C. imposed major penalty against the Appellant and he was removed from service with, immediate effect.
6. The learned counsel for the appellant submits that the Appellant has an unblemished service record. Even according to the observations made by the Inquiry Officer, who had obtained first hand information about the personal conduct and professional performance of the Appellant, he had 10 years of untainted reputation. He further submits that the penalty awarded to the Appellant is disproportionate to the charge. He adds that there is nothing on record that can even remotely establish that the Appellant is inefficient. He finally maintains that there is no finding in the report of Inquiry Officer, which could have furnished basis for a legally sustainable enhancement of penalty by the Hearing Judge.
7. The learned counsel for the Respondent, on the other hand, has defended the impugned order dated 25.10.2010. He submits that the Appellant had admitted the charge of inefficiency. He, therefore, argues that the learned Hearing Judge and later on the A.C. was justified in enhancing the penalty and rightly removed the Appellant from service.
8. We have heard learned counsel for the parties and gone through the record.
9. At the very outset, we have observed that the charge of misconduct has nowhere been proved.
There is not an iota of evidence on record that Appellant was either dishonest or had committed any act which fell within the definition of misconduct.
10.As far as, the allegation of inefficiency is concerned, after perusal of the Report of the Inquiry Officer, we find that the allegation against the Appellant was that he had 31 judicial files lying in the cupboard of his Chamber. However, the veracity of the defence taken by him that all 31 judicial files did not relate to matters in which final judgments had been announced and that a number of short orders had been dictated in Court but could not be typed was not deeply probed or out rightly rejected by the Inquiry Officer. It is further apparent from the record that all 31 files were not individually examined by the Inquiry Officer. However, from a perusal of the various replies to the show cause notice filed by the Appellant from time to time, it is apparent that some orders passed by the Appellant, despite being announced in Court, were not typed and remained unsigned. As a judicial officer, it was the Appellant's duty to take steps to ensure that the said situation was remedied. We have not found anything in the record that may show that the Appellant made any effort to remedy the situation and acted carelessly in this regard. The Inquiry Officer was therefore, justified in finding some degree of inefficiency on the part of the Appellant to justify a recommendation to impose minor penalty of Censure.
11. The main question for determination before us is, whether the facts and circumstances of the case justify enhancement of the minor penalty of Censure to a major penalty of removal from service.
12. "Major Penalty" as the term suggests is a serious and extreme punishment. In the context of service laws as in the instant case, it could mean the end of a person's career. Such penalty cannot be imposed lightly and without proof of serious allegations. Even where there is a charge of inefficiency, such inefficiency must 'be of a lasting character. A single slip or lapse on the part of a government servant would not justify inference of his being inefficient. Further, the punishment awarded must be proportionate to and commensurate with the magnitude of the offence. In A. U.
Musarrat v. Government of West Pakistan (PLD 1977 SC 24), the Hon'ble Supreme Court of Pakistan examined this question and held: "A Government servant before being visited with penalty prescribed under law must be found inefficient and that such inefficiency is of a lasting character and not likely to be got rid of A single slip or error not to be straightaway construed as amounting to inefficiency."
In the Case of M.A. Rehman v. Federation of Pakistan and others (1988 SCM R 691), it was held: Nothing on record was available to show that past service record of such Government servant revealed instances of inefficient handling of cases--Service Tribunal was not justified on the basis of such a charge to reach a finding that said Government servant was guilty of inefficiency--A single slip or lapse, if any, on the part of a Government servant with a consistently good record would not invariably justify inference of his being inefficient.
In Secretary to Government of the Punjab Food Department, Lahore and another v. Javed Iqbal and others (2006 SCM R 1120), Iftikhar Muhammad Chaudhry J. (now the Hon'ble Chief Justice of Pakistan) writing for Court held: Charges of guilty of misconduct or corruption were always considered at higher pedestal than the charge of inefficiency--Competent authority had jurisdiction to award any of the punishments mentioned in law to the Government employee but for the purpose of safe administration of justice such punishment should be awarded which is commensurate with the magnitude of the guilt otherwise the law dealing with the subject would lose its efficacy--Civil servants were not guilty of the charge of misconduct or corruption, therefore, extreme penalty of removal from service for the charge of inefficiency or negligence was on higher side."
13.We have also gone through the report submitted by the learned Hearing Judge. We notice that in the last paragraph of his report, the learned Hearing Judge observed that the proposed minor penalty of Censure against the Judicial Officer was insufficient to meet the ends of justice. However no reasons were recorded by the learned Hearing Judge which formed the basis for such conclusion. A perusal of the report of the learned Hearing Judge suggests that it is solely based on the material before and findings recorded by the Inquiry Officer. Further the recommendation of the learned Hearing Judge does not disclose any basis for disagreeing with the recommendations of the Inquiry Officer and arriving at a diametrically different conclusion on the same material.
14.We have already observed that findings of the Inquiry Officer were correct to the extent of supporting the minor penalty of Censure. On re-evaluation of the material available on record and on the basis of law laid down by the Hon'ble Supreme Court of Pakistan we are unable to hold that this material is sufficient to support a recommendation for imposition of major penalty. In addition, we find that imposition of major penalty in the facts and circumstances of this case is disproportionate to the magnitude of the charge.
15. It was observed by the Inquiry Officer that the Appellant I had a good service record spanning over ten years of judicial service. There was no charge of dishonesty or corruption and the charge of misconduct was not proved. Further his professional performance in the past was upto the mark.
Tie was charged with inefficiency for the first time in his career. There is no finding on the record that such inefficiency is of a lasting character.
16.After going through the material before us, we do not find this to be a fit case for enhancement of penalty. At the same time as discussed above, there is adequate material on the record to justify and support the recommendation of the Inquiry Officer to the extent of awarding minor penalty of Censure to the Appellant.
17. For the reasons recorded above, this appeal is allowed. The order dated 25.10.2010 passed by the competent Authority is set aside. Consequently, the Appellant is reinstated into service with all back benefits. However, the penalty of Censure recommended by the Inquiry Officer is upheld and shall remain intact.