Justice Shahid Waheed, Member.--Challenge in this appeal is to the Notification No. 301/RHC/D&SJ dated 17.11.2007 whereby a minor penalty of withholding of two annual increments was imposed upon Mehboob Elahi Sheikh, Ex-District & Sessions Judge; and, to a Letter No. 1015/RHC/C-I dated 15.7.2009 whereby review petition against the said Notification was rejected.
2. This appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 has arisen in the background that Mehboob Elahi Sheikh, original appellant, since deceased (hereinafter called "the Judicial Officer"), was served with a charge-sheet containing the following allegations:
(1) That while posted as Judge Banking Court, Rawalpindi and seized of execution proceedings arising out of judgment and decree dated 9.6.2004 in suit titled Muslim Commercial Bank versus B & B Oil Mills Limited etc, you allowed application under Order XXI Rule 58 read with Rule 62 and Section 15 of the Financial Industries (Recovery of Finances) Ordinance, 2001 filed by Muhammad Khalid (complainant) by order dated 17.12.2004 with further directions contained therein.
(2) That the complainant deposited the decretal amount of Rs. 39,43,244.78 through crossed Cheque No. 2029751 dated 20.01.2005, which was encashed from Union Bank, Islamabad on 01.02.2005, and the proceeds were deposited in Court's account.
(3) That on 29.6.2005, you entertained an application filed by Kashif Zubair Ahmad Sheikh, Advocate real brother of the complainant, and by two orders dated 4.7.2005 allowed return of the aforesaid amount to the applicant by conducting false proceedings in connivance with the above said Advocate to the grave detriment of interest of plaintiff/bank and the complainant on the basis of so-called statement made by the complainant on oath without his knowledge and signatures.
(4) That the proceedings conducted and orders dated 4.7.2005 passed on application of Kashif Zubair Ahmad Sheikh were ex-facie without jurisdiction, of dubious nature, gross judicial impropriety and for considerations other than legal.
' The Judicial Officer submitted reply to the charge-sheet and traversed the afore cited allegations.
The Inquiry Officer held a detailed inquiry and in his report recommended minor penalty of stoppage of two annual increments under Rule 4(1)(a)(ii) of the Government Servants (Efficiency & Discipline) Rules, 1999 (he reinafter called the Rules, 1999).The Authority under the Rules, 1999 agreeing with the recommendations of the Inquiry Officer imposed minor penalty of withholding of two annual increments upon the Judicial Officer vide Notification No. 301/RHC/D&SJ dated 17.11.2007. Feeling aggrieved, the Judicial Officer filed a petition under Rule 18 of the Rules, 1999 seeking review of the Notification No. 301/RHC/D&SJ dated 17.11.2007. This petition was rejected vide Letter No. 1015/RHC/C-I dated 15.7.2009. Hence, this appeal.
3. The moot point involved in this appeal is as to whether in the given facts and circumstances of the case a minor penalty of withholding of two annual increments could be imposed upon the Judicial Officer on the basis of allegations set out in the charge-sheet. The appellant's counsel urged that if anything was proved against the Judicial Officer, it was only an inadvertent bona fide negligence in performance of judicial duties; that said negligence alone could not be made basis of punishment particularly when the same was not prompted by any mala fide, or ulterior motive; that to err is human and law gives a fair deal of allowance to unintentional human errors; and, that unblemished service record of the Judicial Officer bears testimony to the effect that the lapse, whatever found against him was the first of its kind; and thus, the punishment was uncalled for.
Conversely, the learned counsel for the respondent has vehemently opposed this appeal and resisted the arguments canvassed by the appellant's counsel. He submitted that the Judicial Officer committed grave negligence while performing his judicial duty and, therefore, minor penalty was justified; and, that the learned Inquiry Officer taking a lenient view had recommended minor penalty of stoppage of two annual increments which was not harsh and, therefore, the impugned Notification and letter do not warrant any interference by this Tribunal.
4. The arguments advanced by the learned counsel for the respondent have not persuaded us to confirm the impugned Notification qua the imposition of minor penalty of withholding of two annual increments upon the Judicial Officer. In the present case, the Judicial Officer was charged for misconduct and corruption. The learned Inquiry Officer in the concluding paragraph of his report, that is, Paragraph No. 13 had observed that "the officer complained of has acted in excess of jurisdiction and was negligent in performance of judicial duties by not applying the procedural requirement in release of the amount to a stranger, thus, in my opinion, he is guilty of sheer negligence. Since, he has not received any illegal gain or benefit by release of the amount, the action performed by him could be termed as bona fide".' This observation shows: firstly, that the charge of corruption was not proved; and, secondly, there was an error or negligence in performance of judicial duties by the Judicial Officer but the same was bona fide. As the charge of corruption was not proved against the judicial officer so there is no need to dilate upon it. Apropos of alleged negligence, a question arises as to whether under the Rules, 1999 disciplinary proceedings could be initiated against the Judicial Officer or a punishment could be imposed upon him for a mistake committed by him in the course of adjudicating the matter when his action or decision was free from any taint of dishonesty or corruption. On examination of the Rules, 1999 we are of the view that an erroneous decision honestly arrived at in exercise of powers of judicial 6 nature does not constitute misconduct as defined in Rule 2(e) of the Rules, 1999. In this regard guidance may be had from the case of "M.A.Rehman vs Federation of Pakistan and others" (1988 SCM R 691) wherein it was held as follows:-- "Surely an honest mistake committed by an officer in such exercise of jurisdiction will not attract the ground of conduct prejudicial to good order or service discipline. Similarly it will not violate any rule of Government Servants (Conduct) Rules, 1964, because honest errors will not constitute willful abuse of office. Nor does such act fall within the category of conduct unbecoming of an officer and a gentleman.
' So that it is well settled that as long as the power is exercised in good faith and without ulterior motives the functionary in whom the power is invested cannot render himself liable to action for mistakes committed in the course of decisions taken by him."
' The principle governing bona fide mistake was reiterated by the Honble Supreme Court of Pakistan in the case of "Riaz Hussain vs Inspector General of Police, Punjab and 2 others" (2007 PLC(C.S) 182) in the following words: "The defect in the investigation may not be a valid ground for discharge of an accused but insufficiency of evidence is definitely a strong ground to discharge a person from criminal charge and it is clear from the order of Magistrate that accused was discharged for want of evidence and not only for the defect in the recovery memo, or in the investigation. The omission of the petitioner as an Investigating Officer of the case in not obtaining the signature of the witness on the recovery memo, may or may not be a factor to damage the prosecution case but in absence of any evidence that the omission of not obtaining the signatures on the recovery memo, was intentional, it would be treated as a bona fide mistake which may not constitute an act of misconduct".
In the light of findings of the learned Inquiry Officer and above stated principle of law it becomes clear that the alleged negligence being a bona fide mistake did not constitute misconduct and, therefore, no punishment could be imposed on the Judicial Officer. Thus, the impugned Notification and letter in the eye of law are not sustainable.
5. Notwithstanding the above, there is nothing on record to indicate that the past service record of the Judicial Officer revealed instances of inefficient handling of cases. The single instance of any incorrect behaviour of an individual in any discipline whatsoever can hardly furnish a ground for holding him guilty of incompetency or inefficiency. Thus, the unblemished service record of the Judicial Officer leads to the irresistible conclusion that the allegations levelled against him being the single slip or error could neither be construed as amounting to misconduct nor could be converted into gross inefficiency and carelessness and; therefore, the punishment awarded to him was uncalled for. In this context reliance may be placed on the case of A. U Mussarrat vs Government of West Pakistan (PLD 1977 S.0 24).
6. Upshot of the above discussion is that we accept this appeal and set aside the Notification No. 301/RHC/D&SJ dated 17.11.2007 and Letter No. 1015/RHC/C-I dated 15.7.2009.