Justice M. Tabassum Aftab Alvi, Member.--Through the supra titled appeal an order dated 04.07.2011, passed by the competent authority of the High Court, whereby appellant was removed from the position of Senior Civil Judge B-19, on the grounds of inefficiency and commission of misconduct, has been challenged for having been issued without lawful authority.
2. Precise facts forming background of the instant appeal are that appellant, herein, was removed from position of Senior Civil Judge B-19 by the competent authority of the High Court vide impugned order dated 04.07.2011. It is stated that the aforesaid order was issued as a result of inquiry made against the appellant vide order dated 26.04.2011. The appellant was charge sheeted with statement of allegations by the competent authority on 26.04.2011. It is averred that allegation levelled by the learned Chief Justice against appellant was that being on leave he had decided a case titled Muhammad Latif V. Muhammad Hussain and others for want of jurisdiction and non- prosecution vide judgment dated 10.01.2011. The appellant in response to the aforesaid charge sheet, submitted his detailed reply before the Inquiry Officer while refuting the allegation levelled against him. After probing into the matter, the Inquiry Officer submitted his report with regard to proving allegation against appellant as true and recommended for his removal through detailed report dated 10.05.2011. A show-cause notice was also served upon the appellant by the competent authority on 13.05.2011. In reply of the aforesaid show-cause notice, the appellant submitted his detailed explanation. The appellant was then informed orally to appear before the authority for personal hearing. After due process, the appellant was removed from service through the impugned order dated 04.07.2011. Feeling aggrieved from the above order, the appellant availed remedy, under Section 9 of the Removal in Service (Special Powers) Act, 2001 before the Prime Minister of Azad Jammu & Kashmir Government and after negative reply on 06.08.2011 has preferred the instant appeal.
3. The respondents have resisted the appeal by filing written statement, wherein it is stated that appellant has no cause of action to file the captioned appeal. It is alleged that appellant is unable to hold the post of judicial officer due to his inefficiency and conduct because from every station wherever he was posted, several complaints were received against him and previously he was also removed from service, however, reinstated in light of judgment of the Service Tribunal which was passed on technical ground. It is claimed that grounds taken by the appellant have already been resolved by the apex Court in another identical case and repelled, hence, prayed for dismissal of appeal.
4. The learned Advocates for appellant have filed written arguments, wherein it is submitted that the impugned order dated 04.07.2011 was passed by the competent authority on the report of Inquiry Officer, which is against true facts, law and principle of justice. It is further submitted that appellant was charged-sheeted for misconduct, however, the authority passed the impugned order on the basis of inefficiency, hence, the same is against law. It is emphasized that the allegation against the appellant was that he had decided a case titled Muhammad Latif vrs.
Muhammad Hussain & others on 10.01.2011 for want of jurisdiction and non-prosecution when he was on leave which allegation was not true because judgment in the said case was announced on 11.01.2011. It is urged that in this regard appellant besides his statement produced four witnesses as well as cause list dated 11.01.2011 which were not considered by the authority. It is also stated that on the basis of a wrong judgment neither an inquiry can be held against a judicial officer or suspended nor he can be terminated on such like ground. It is submitted that charge-sheet and statement of allegations were served by the authority and less than 07 days time was granted for filing reply, hence, the proceedings are had in law. It is further urged that an opportunity of hearing was not provided by the authority before passing the impugned order and submitted for acceptance of appeal.
5. The learned counsel for respondents submitted that as appellant was previously removed from service on the grounds of inefficiency and misconduct who was reinstated by the Service Tribunal on technical ground, hence, he is not capable to remain as judicial officer.
The learned counsel further submitted that there were lot of complaints received by the competent authority against appellant who was time and again warned, however, he failed to improve himself, hence, there was no choice for the authority except to remove him from service. The learned counsel further submitted that appellant has used disrespectful and discourteous language in reply of show-cause notice, memo of appeal and written arguments which makes it clear that he is misfit for judicial service. The learned counsel for the respondents further submitted that removal of appellant from service was made in the interest of judiciary after obtaining written answer from him pertaining to charge-sheet and providing full opportunity of inquiry as well as granting an opportunity of hearing. The learned counsel vehemently argued that competent authority also recorded statement of appellant wherein he admitted that according to judgment the case of Muhammad Latif vrs. Muhammad Hussain & others was decided on 10.01.2011. Even interim order also clarifies that the suit was dismissed for want of jurisdiction and non-prosecution on 10.01.2011 and not on 11.01.2011 as alleged by the appellant. The learned counsel emphasized that on the given point witnesses were produced by appellant who remained subordinate to him and even cause list was procured later on through the concerned employees to defend the instant case and prayed for dismissal of appeal.
6. We have gone through the contents of appeal, examined written arguments filed on behalf of appellant as well as oral arguments of the learned counsel for respondents and perused the record. The appellant while performing his duties as Senior Civil Judge, Kahutta Haveli, was admittedly on casual leave, from 06.01.2011 to 10.01.2011. It appears from record that it was brought into the notice of competent authority that while the appellant was availing leave he decided a case titled Muhammad Latif V. Muhammad Hussain & others and dismissed the same for want of jurisdiction limitation and non-prosecution vide A judgment dated 10.01.2011. The authority, while considering the seriousness of the allegation, issued an order for proceedings against appellant under the Azad Jammu & Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001 (hereinafter to be called as Act). To probe into the allegation, while exercising powers under Section 5 of the said Act, Mr. Abdul Rasheed Sulehria, Judge Shariat Court, was appointed as an Inquiry Officer by the competent authority. The appellant was served with charge sheet and statement of allegations with direction to file reply before the Inquiry Officer directly, on 26.4.2011.
The appellant submitted his reply on 05.05.2011. It was admitted by the appellant that he was on casual leave on 10.01.2011, hence, all the cases fixed on the above date were adjourned by the Clerk on that ground. The defence of the appellant is that as a matter of fact, the case was decided by him on 11.01.2011, however, it was mistake of Stenographer/ Computer Operator who wrote the date as 10.01.2011. The Inquiry Officer and the authority reached at the conclusion that case was requisitioned by the appellant when he was on leave and decided the same for non-prosecution and merit vide judgment dated 10.01.2011. Therefore, on the basis of inefficiency and misconduct appellant was removed from the position of Senior Civil Judge vide impugned order dated 04.07.2011. The assertion of the appellant that case was decided by him on 11.01.2011 is belied from the record. A glance perusal of cause list dated 10.01,2011 of the Court reveals that case titled Muhammad Latif V. Muhammad Hussain and others was fixed for 10.01.2011 and in the relevant column of cause list supra, it was inserted as "dismissed". The claim of the appellant is also belied from judgment dated 10.01.2011 coupled with decree of the case which too was framed on 10.01.2011.
The appellant also admitted in his statement made before the Inquiry Officer on 06.05.2011 that the case supra vide order dated 10.12.2010 was fixed for framing issues on 10.01.2011. The appellant further admitted before the Inquiry Officer in cross-examination that he dictated order to Stenographer of District & Sessions Judge, Kahuta Haveli, and admitted his signature on the judgment dated 10.01.2011. However, judgment is hand written which is neither typed nor composed.
It seemed from sequence of interim orders that the same was written on 10.01.2011 and then signed by the appellant on the same day. The cause list dated 11.01.2011 also does not support the claim of appellant as after writing the title of case in question the same was crossed while the cause list dated 10.01.2011 of the Court is crystal clear that the suit was "dismissed" on 10.01.2011. The appellant also relied upon statements of his two Stenographers namely Ehsan-ul-Haq and Haider Ali as well as statements of Muhammad Safeer Khan Reader, and Ali Asad Stenographer of District & Sessions Judge, Kahuta Haveli dated 9.05.2011. The statement of Muhammad Safeer Khan, Reader of Senior Civil Judge dated 09.05.2011 is against the appellant, who stated in examination-in-chief that there were as many as 18 files on 10.01:2011 out of which, 17 cases were adjourned due to leave of Senior Civil Judge, while one case was dismissed for non-prosecution. It is astonishing that to prove one hand written order dated 10.01.2011 the appellant produced three subordinate Stenographers.
However, the statements of witnesses supra cannot be relied upon, who were working under the appellant and were directly subordinate to him whose statements are against documentary evidence. It is settled principle of law that in presence of documentary evidence which is of primary nature the oral evidence has no value. The above point came under consideration before the Hon'ble Supreme Court in a case titled Muhammad Shafi & another Vrs. Sardar Ali and 03 others [2002 SCR 435]. At page 441 of the report it was held as follows: "It may also be stated that it is a settled principle of law and rightly observed so by the High Court that in presence of documentary evidence which is of primary nature, the oral evidence has no value as compared to the documentary evidence".
An identical view was expressed by the apex Court of Pakistan in a case titled Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin [1988 SCMR 753]. At page 754 of the report it was observed as under: We have heard the appellant who is present in person and the learned counsel for the respondent.
The appellant has contended that the learned Judge of the High Court has erred in law by failing to ascertain the age of the appellant from the National Identity Card. The National Identity Card is issued under Section 5, of the National Registration Act of 1973. It is issued after full inquiry is made.
It is a public document and has got probative value. Presumption of truth is attached to it and can be considered as an evidence. The assertion of the appellant herein is supported by the identity card as a corroborative evidence. On the other side, the respondent did not produce any evidence that the appellant is below 60 years of age. Mere oral assertion is not sufficient to rebut the documentary evidence. The respondent initially denied the ownership and now has come with the argument, which was never raised before the High Court, that the appellant is occupying another shop. As such the points never raised before the High Court cannot be permitted to be raised before this Court. (1975 SCMR 178 refers). For personal use of the premises, the statement of the appellant along with the documentary evidence is sufficient to prove the good faith for requirement of the premises in question."
The similar view was also expressed by the Karachi Court in a case titled Zahoor Ali V. Dr. Haji Abdul Sattar through his legal heirs [1987 CLC 2337], wherein at page 234] of the report it was held as follows: "In this case, there is oral word of one party against oral word of other party. The Court, therefore, has manly to rely upon the documentary evidence and other circumstantial evidence to find as to which party is speaking truth. In this respect documents Exhs. P/13, P/15 and P/16 are very material.
They are certified copies of the public documents and, therefore, their genuineness and authenticity cannot be disputed.
7. The claim of the appellant that case was fixed on 11.01.2011 and the same was decided by him on the above date, as observed earlier, belied from the judicial record of his own Court i,e, judgment dated 10.01.2011, decree dated 10.01.2011, cause list dated 10.01.2011, an application for grant of certified copy of judgment dated 10.01.2011 as well as statement of Reader Muhammad Safeer Khan dated 09.05.2011. Therefore, it can be safely held that file was requisitioned by the appellant in colourable exercise of powers on 10.01.2011, when he was on leave and case was decided for non- prosecution as well as on merit vide judgment and decree dated 10.01.2011. The act supra of the appellant is mismanagement, improper, conduct unbecoming of an officer, prejudicial to good order as well as service discipline and consisting of inefficiency. We, therefore, upheld the findings of the Inquiry Officer and the competent authority on the above point.
8. The appellant is mistaken to believe that he was removed from service on ground of passing wrong judgment. As a matter of fact competent authority levelled charge against him that by colourable exercise of powers he decided/dismissed the case titled Muhammad Latif v.
Muhammad Hussain and others for want of prosecution etc. when he 'was on casual leave. The authority in detailed order dated 04.07.2011 merely observed that according to version of appellant the case was fixed for framing issues on 10.01.2011 which was adjourned by Reader for 11.01.2011.
However, according to him the Reader failed to write down interim order on 10.01.2011. Therefore, it was observed that as the case as fixed for framing issues and on previous date the same was according to claim of the appellant which was not accepted, adjourned by ffice which could not be dismissed for non-prosecution, want of jurisdiction and on the ground of limitation without hearing.
Therefore, removal of the appellant was made on the charge of dismissing the suit for want of prosecution etcetera on the date when he was on leave which is an unbecoming conduct of a judicial officer of the status of Senior Civil Judge, hence, could not be ignored.
9. The appellant in routine has levelled allegation of mala fide in Para 13(F) of memo. of appeal, against an honest learned Judge of the Shariat Court who was appointed as an Inquiry Officer, however, failed to bring any thing on record that what malice was of the learned Judge against him. The point of biased was also not raised before the Inquiry Officer which is an after thought, hence, cannot be raised at this stage. Even the claim of immunity to Judicial functions under the provisions of Judicial Officers Protection Act, 1850 is also baseless, as the same clearly connotes immunity to the extent of civil liability with the condition that if the acts are done in good faith, however, there is no immunity for disciplinary actions, misconduct proceedings and criminal liability postulated under law. An identical point was considered by the Full Bench of the apex Court of Pakistan in a case titled Lahore High Court, Lahore through its Registrar Mrs. KM. Sohel (2001 PLC (C.S) 1253). At page 1259 of the report it was held as under: "As far as a judicial officer is concerned in fact he remains constantly under supervision of his superiors through his judgments which are generally examined by higher forums while occupying elevated position like the appellate or revisional Courts. To assess/evaluate the work of judicial officer there could not be any other parameter except his own judicial performance which can speak a lot itself. Possibility of settling of factual controversy as well as interpretation of law could vary between two judicial forums acting under same hierarchy but application of relevant law remains same and if an inherent deviation from it is committed it would show that either the officer is inefficient or for some extraneous considerations law was misquoted and such act on his part is sufficient to unfold true picture about conduct of the said officer. As it is now well-settled that a judicial officer exercising an authority under a law is bound to deliver correct and lawful judgment.
Reference in this behalf may be made to PLD 1987 SC 427 and 2001 SCMR 424. Therefore, if any judicial officer exercising powers under whatever capacity pronounces a wrong decision by applying incorrect law on the subject he makes himself liable for answer to his superiors as per Rules."
10.The assertion of appellant that charge-sheet and statement of allegations were served upon him by the competent authority, therefore, proceedings are liable to be vitiated is also not tenable.
Although under Section 5 of the Act, it was enjoined upon Inquiry Officer to communicate the charges and statement of allegations. However, according to our considered view communication of charges and statement of allegations by the authority does not affect proceedings for the reason that charge-sheet was served upon the appellant on 26.04.2011 who filed his reply on 05.05.2011. The appellant, therefore, was granted 09 days time for filing reply whereas according to Section 5(1)(b) of the Act, the accused officer was bound to file reply within 07 days. As more than prescribed period of 07 days was provided to the appellant for filing reply, hence, the proceedings are accordingly not liable to be vitiated. The assertion of providing lesser time than 07 days was never raised by the appellant in memo. of appeal which is an after-thought point raised in written arguments, that too against principle of pleadings and relevant documents appended with the appeal by the appellant himself, hence, repelled.
11.The contention, of the appellant that the competent authority failed to provide him an opportunity of personal hearing raised in written arguments is belied from Para 10 of memo. of appeal wherein he stated that 'instead of hearing the appellant in detail, his statement was recorded" which means that he was granted an opportunity of hearing. Even it reflects from page 03 of detailed order dated 04.07.2011 of the competent authority that before passing the order of removal from service the appellant was provided an opportunity of hearing which has got presumption of truthfulness. The appellant himself appended order supra along with the memo. of appeal as (Annexure PA/1) however, failed to controvert the same. The assertion is also against the principle of pleadings. It is well settled principle of law that a party cannot be permitted to argue the case against the principle of pleadings. In a case titled Sheikh Javed lqbal vrs. Muhammad Bashmir & 5 others (2010 SCR 208), at page 114 of the report it was held by the apex Court as follows:-- "It is a celebrated principle of law that no party can travel beyond its pleadings. Respondent No, 1 has categorically taken a stand in Para 9 of memo of appeal before the Service Tribunal that no adverse order was communicated to him and he got knowledge of all the orders passed by the departmental authorities on service of order dated 18.9.2003. This factual assertion of the respondent has not been denied by the present appellant and pro-forma respondents."
The similar view was expressed by the apex Court in case titled Azad Jammu & Kashmir Government and 04 others vrs. M/s. Spintex Limited (1998 SCR 167), wherein at page 183 of the report it was observed as follows: "The second procedural mistake is that a Court has to go by the pleadings of the parties and should not allow the parties to travel beyond them. The order of the Prime Minister which the learned Judge has ordered to be implemented does not find mention in the writ petition. The mere fact that a photostat copy of the order was appended with the writ petition does not warrant that it should have been brought under consideration."
The aforesaid view was reiterated by the Hon'ble Supreme Court in case titled Raja Muhammad Saeed Khan vrs. Sardar Khani Zaman Khan & 11 others (2006 SCR 271), wherein at page 275 of the report it was laid down as under: "The crux of the above findings of the learned Judge of the High Court was that the possession of plot situate at Ratta Amral was not transferred to Defendants No, 2 to 12, therefore, it could not be said that any exchange has taken place. It stultifies us that in the plaint nowhere it was alleged by the plaintiff that the possession of plot was not transferred to Defendants No, 2 to 12, therefore, this exchange may be declared as a sale. It is well settled principle of law that the parties cannot go beyond their pleadings."
12. The contention of the appellant that he was charge sheeted on the ground of misconduct, however, he was removed from service on the ground of inefficiency as well is also misconceived.
The term misconduct as used in clause 'b' of Section 2 of Removal from Service (Special Powers)
Act, 2001 is reproduced as under: "(b) "Misconduct" includes conduct prejudicial to good order or service discipline or conduct unbecoming of an officer and a gentlemen or involvement or participation for gain either directly or indirectly in industry, trade or speculative transactions or abuse or misuse of the official position to gain undue advantage or assumption of financial or other obligations to private institutions or persons such as may cause embarrassment in the performance of official duties or functions."
The phraseology of the clause supra clearly conveys that the defination is not complete and comprehensive rather it speaks that other ingredients also include in the definition of misconduct.
Whereas, under clause (d) of Rule 2 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, the term misconduct is defined as follows: "(d). "Misconduct" means conduct prejudicial to good order or service discipline or contrary to the Government Servants (Conduct) Rules as applicable to the Azad Jammu & Kashmir or conduct unbecoming of an officer and gentleman and includes any act on the part of a civil servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Governments Officer in respect of any matter relating to the appointment, promotion transfer, punishment, retirement or other conditions of services of a civil servant."
The term misconduct, therefore, has very wide scope and it includes an act or omission prejudicial to good order or service discipline or contrary to the Government Servants (conduct) Rules, hence, according to our considered view inefficiency is included in the service discipline.
13. The previous history of the appellant is full of stained and sullied. The appellant was previously charge sheeted by the authority on the grounds of inefficiency plus misconduct and District Judge of the then time, Khalid Hussain Gillani, was appointed as an Inquiry Officer, under Section 5 of the said Act, vide order dated 13.08.2009. After thorough inquiry and due process of law, he was removed from service vide notification dated 5.12.2009. Against the above mentioned notification of the authority, appellant preferred an appeal before the Service Tribunal, who was reinstated on technical ground vide judgment dated 03.08.2010. However, it was observed by the Tribunal that the authority may proceed against appellant in accordance with disciplinary law afresh. It reflects from record that authority did not initiate proceedings against appellant, and granted him an opportunity to improve himself as a judicial officer. It is also liable to be observed here, that before regular appointment of the appellant he was appointed on ad-hoc basis as a Civil Judge, vide order dated 09.08.2003. The appellant during ad-hoc period, while performing his duties as a Civil Judge, Thorar, attacked, in the office, on a judicial officer namely Qazi Shabeer Ahmed and seriously injured him, therefore, disciplinary proceedings were initiated against him. The appellant, during the above proceedings resigned from the office of ad-hoc Civil Judge, whose resignation was accepted by the authority vide notification dated 06.09.2004. The appellant was treated sympathetically, and considering his youth career disciplinary proceedings were accordingly dropped. It is emphasized that points pertaining to removal of appellant from service previously, on the grounds of misconduct and inefficiency, receiving complaints against him time and again by the authority as well as his previous stained history were raised by the respondents in written statement, who despite availing an opportunity failed to rebut the same through replication which will be deemed under law as admission on his part, hence, we constrained to examine his service record. However, these are not the grounds for refusal of appeal which on the basis of charge levelled against the appellant and proved in accordance with cannons of law and justice.
14.The learned counsel for appellant, M/s. Asghar Ali Malik and Raja Sajjad Ahmed Khan, have referred to and relied upon a case titled Registrar Lahore High Court, Lahore v. Muhammad Naveed Hashmi and another (PLD 2011 SC 49) as well as unreported orders of this Court titled Sardar Sheraz Khan v. Muhammad Najeeb Khan and another passed in revision petition No, 129/2011, dated 28.01.2011, Irshad Ahmed Qadri and 6 others Vrs. Azad Govt. & 4 others, passed in Writ Petition No, 422/2004, dated 21.04.2011 as well as an unreported order of the Shariat Court of Azad Jammu & Kashmir in Civil Appeal No, 09/2009 titled Mst. Najma Anwar vrs. Muhammad Yasin Khan, dated 30.06.2010. The legal precedents supra referred to and relied upon on behalf of appellant have been considered by us, however, due to peculiar facts and distinguishable features, these have no nexus with the case in hand, therefore, any detail discussion will be a futile exercise. The unreported orders of this Court handed down by us related to clerical mistakes and on the basis of the same no relief can be extended to the appellant, against whom the allegation of misconduct has been levelled and proved,
15. Before parting it is liable to be observed that superior Courts of eubationtinent have repeatedly laid down that a Presiding Officer must know the adage that a Judge must wear all the laws of the country on the sleeves of his robe. Although all the civil servants are bound to be honest having unblemished integrity, however, the judicial officers are supposed to excel in this trait of character in view of the sensitive nature of their duties. It is the honesty, character and fairness of a Judge, necessarily different from other civil servants. In case of Ch. Shabbir Hussain & others v.
Registrar, Lahore High Court, Lahore & others (PLD 2004 SC 191) the apex Court of Pakistan while dealing on the given point with reference to Quranic Injunctions, at page 211 of the report it was observed as follows: "However, before proceedings to determine the questions involved in these appeals we deem it necessary to observe that although all the 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 according to the following verse of the Holy Qur'an: "0' You who believe, the maintainers of justice, bearers of witness for Allah's sake though it may be against your own selves or your parents or near relations, be he rich or poor, Allah is most competent to deal with them both, therefore, do not follow your low desires lest you deviate, and if you swerve or turn aside then Allah is aware of what you do." (Sura 4, Verse 135)
Islam also enjoins that those who perform the functions of Judges must not only possess profound knowledge and deep insight but also be men of integrity and capable of holding the scales of justice even under all circumstances. We, therefore, cannot help remarking that Judicial Officers are expected to guard their reputation jealously and the Reporting Officer/Countersigning Officers are obliged to assess their conduct after careful consideration and without being led away by any prejudice or bias."
16. For the reasons enlisted above, finding no substance in the instant appeal the same is hereby dismissed. However, due to peculiar facts and circumstances of the case, the parties shall bear their own costs.