' ABDUS SATTAR ASGHAR, J. MEMBER.--- This appeal under section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 is directed against impugned Notification No.84/RHC/AD&SJ dated 29.5.2012 whereby minor penalty of withholding of annual increments for a period of three years has been imposed against the appellant.
2. Brief facts leading to this appeal are that one Amjad Mehmood an accused of case FIR No.479/2010 under sections 457, 506, 148 and 149 PPC Police Station Township Lahore was allowed post-arrest bail by the learned Judicial Magistrate Lahore. Being aggrieved complainant of the said FIR lodged an application before the appellant then posted as Additional Sessions Judge Lahore for cancellation of bail. The appellant vide order dated 12.4.2010 cancelled the bail.
Consequently the said Amjad Mehmood accused lodged Cr I. Misc. No.5432-B of 2011 before the Hon'ble High Court seeking post-arrest bail which was allowed by the Hon'ble High Court vide order dated 16.6.2011 with the following observations/directions:- "7. Before parting with this order, I would like to observe that the judicial work of Rao Abdul Jabbar Khan, Additional Sessions Judge, Lahore needs a thorough scrutiny by this court. Accordingly, a direction is issued to Member Inspection Team of this Court to summon record of this case from his Court, hold an inquiry in the matter by joining the parties as well as in other criminal cases dealt with by him for the last three months, associate the parties thereto if he so wishes and formulate his opinion. The inquiry shall be completed within fortnight from the receipt of this order, where-after, report shall be placed before me on administrative side."
' In compliance of above order of the Hon'ble High Court, the learned Member Inspection Team summoned the original record as well as the parties concerned. After scrutiny of record and providing opportunity of hearing to the parties the learned Member Inspection Team submitted his report dated 12.9.2011 with the observation that 'cancellation of bail and modification of the order leads to suggest mala fide and exclude the possibility of inadvertence on the part of the appellant and that element of mala fide can be thrashed through a regular inquiry if approved. The report was placed before the then Hon'ble Chief Justice of Lahore High Court Lahore. The Hon'ble Chief Justice was pleased to place the report before the Administration Committee of the Hon'ble High Court. The Administration Committee in its meeting held on 15.10.2011 ordered as under:- "17. Disciplinary proceedings against the officer are initiated under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 by dispensing with regular inquiry as it is a matter of record having no disputed facts. Issue show cause notice to the Officer for imposition of one of the major penalties as provided in Rule 4(b) of the Rules ibid. Mr. Justice Sh. Ahmad Farooq is required to afford personal hearing to the officer and forward note on personal hearing for consideration by the Committee."
' Pursuant to the above order the appellant was served with a show-cause notice dated 02.11.2011 by the Registrar Lahore High Court under Rule 6(3) and Rule 4(b) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999. The appellant was also provided opportunity of personal hearing before Mr. Justice Rauf Ahmad Sheikh on behalf of the Authority. Mr. Justice Rauf Ahmad Sheikh in his note of the personal hearing dated 03.4.2012 observed and proposed as under:-
50. The order of cancellation of bail passed on 12.04.2011 (the date of announcement of the order is typed as 12.04.2010, which appears to be a typographical mistake) reveals that the bail was cancelled on the sole ground that the offence punishable under section 365-A, P.P.C. Was not triable by the learned Magistrate and he could have not extend the concession of bail. This finding was against the record. On 14.04.2011 (the date of announcement of the order is typed as 14.04.2010, which again appears to be a clerical mistake) reveals that the learned ASJ held in para-5 of order dated 12.04.2011 was result of typographical mistake and then proceeded on to cancel the bail on the sole ground that the complainant was not afforded an opportunity of being heard. This order was passed without giving a notice to the accused so the officer himself violated the principle on basis of which the order of the trial Court was set aside. It is true that the accused was in the Jail and his liberty might have not been taken away but the fact of the matter remains that no cogent reason was available to cancel the bail especially when the accused against whom the allegations were exactly of the same nature were extended the concession of bail before arrest by this Court. It was rightly observed in order dated 16.06.2011 that he dealt with the matter carelessly and adopted slipshod method in withdrawing the bail granted by the court of competent jurisdiction. No doubt the case law cited by him does provide that he was vested with the powers to cancel the bail but ills an established law that the bail granting order passed by the Court of competent jurisdiction should not be interfered with unless the same is fanciful or whimsical but in the instant case, the order passed by the accused civil servant by itself was fanciful. However, there was no allegation of monetary consideration in passing the impugned order. The officer otherwise enjoys good reputation as to his integrity as is apparent from order dated 28.03.2005 passed in Cr. Misc.No.48-T of 2005 passed by this Court and order dated 12.11.2004 passed by the learned Sessions Judge, Vehari, in transfer petition titled 'Muhammad Tahir v. The State'. In these circumstances, I am of the considered opinion that a lenient view should be taken in the matter. The minor penalty of withholding of annual increment for a period of three years as provided in Rule 4(a)(ii) of the Efficiency and Discipline Rules, 1999 will meet the ends of justice."
' Report of proceedings and note of personal hearing recorded by Mr. Justice Rauf Atice Rauf Ahmad Sheikh perused. Minor penalty of withholding of annual increments for a period of three years is imposed upon the officer, forthwith."
"Record of proceedings and Note on personal hearing recorded by Mr. Justice Rauf Ahmad Sheikh perused. Minor penalty of withholding of annual increments for a period of three years is imposed upon the officer, forthwith."
' Consequently the Authority issued the impugned notification dated 29.5.2012 imposing minor penalty of withholding of annual increments for a period of three years upon the appellant. Being aggrieved the appellant has lodged this appeal which is resisted by the respondent.
3. Arguments heard. Record perused.hmad Sheikh was placed before the Administration Committee in its meeting held on 12.5.2012. The Administration Committee of the Lahore High Court after considering the same ordered as under:- "Record of proceedings and Note on personal hearing recorded by Mr. Jus
4. Malice is a pure question of fact which can be proved only through reliable ocular or documentary evidence. I here is no iota of evidence on the record to substantiate the allegation of malice against the appellant. Needless to say that a judicial order cannot be termed as fanciful in the absence of any established malice. We have carefully perused the service record of the appellant and find that throughout his career he has received good A.C.Rs. And was always found fit for promotion by the competent authority at the relevant time. It will not be irrelevant to note that in Cr. Misc. No. 48-T-2005 Mr. Justice Nazir Ahmad Siddique dismissing the transfer application vide order dated 28.3.2005 observed as under:- "Petitioner seeks transfer of his petition for pre-arrest bail with reference to case FIR No.465/03 dated 27.11.03 under Sections 420, 468, 471, 489-F, P.P.C. Registered at Police Station City Burewala District Vehari, now pending in the Court of Rao Abdul Jabbar Khan, learned Additional District Judge, Burewala District Vehari to some other Court of competent jurisdiction outside District Vehari on the ground that the complainant being a senior member of Bar Association, Burewala has exerted influence on the members of the said Bar Association not to pursue the case of the petitioner.
2. I have noticed that the petitioner's aforesaid bail petition is being pursued by eminent Advocates from Lahore and Multan and there is no allegation whatsoever against the learned Presiding Officer who otherwise enjoys reputation of integrity among the knowledgeable circles. It is believed that he shall decide the matter expeditiously on merits without having been influenced from any extraneous considerations.
3. For what has been stated above, this petition stands dismissedin-limine. In another case titled 'Muhammad Tahir v. The State' learned Sessions Judge Vehari vide order dated 12.11.2004 observed as under:- "This is very sad aspect that people started leveling allegations on the courts merely on the basis of their own whims, especially against the Officer who did not accept any sort of interference in his judicial work. I am sure that Rao Abdul Jabbar Khan, Addl. Sessions Judge, Burewala will do justice and will dispose of the bail application purely on merits without being influenced by any sort of temptation. Apprehension of the petitioner is absolutely baseless and I condemn such like tendency. Petition stands dismissed in limning."
' The Hon'ble Chief Justice Lahore High Court in his order dated 18.10.2011 passed in CrI.Misc.No.211-T of 2011 withdrawing a criminal case from the Court of another Additional Sessions Judge Sheikhupura was pleased to entrust the same to the Court of the appellant which reflects that the Hon'ble Chief Justice himself reposed confidence upon the appellant in the following manner:-- "Though any specific allegation regarding partiality of the learned Judge has not been leveled but to lessen the anxiety of the accused petitioner I feel appropriate to withdraw the trial of the petitioner from the said court. Accordingly the application is accepted and the trial in case FIR No.279, registered at Police Station City A-Division Sheikhupura on 29.05.2003, for offences under sections 302, 324 and 34, P.P.C., pending in the Court of Mr. Haroon Latif Khan, Additional Sessions Judge, Sheikhupura, is withdrawn from the said Court and entrusted to Rao Abdul Jabbar, Additional Sessions Judge, Sheikhupura, who will conduct the trial in jail. Both the parties shall appear before the learned transference Court on the next date of hearing i.e.24.10.2011 where-after the learned transference court shall fix a date for holding the trial jail."
Afore referred instances manifest that appellant in his judicial career always .Enjoyed good reputation as well as confidence of the I Authority.
5. It will be expedient to note that Chapter III of the Punjab Civil Servants (Efficiency and Discipline)
Rules, 1999 regulates the procedure for inquiry and imposition of penalties. Rule 6 envisages that the Authority in the light of the facts of the case shall decide whether in the interest of justice an inquiry is necessary and if the Authority decides that it is not necessary to have an inquiry conducted against the accused it shall inform the accused forthwith by an order in writing of the action proposed to be taken in regard to him and the ground of the action and to give him a reasonable opportunity of showing cause against that action within a period of 14 days from the date of receipt of order under clause (a) of Rule 6(3) ibid. It is important to note that the Hon'ble Chief Justice of Lahore High Court in his order dated 16.6.2011 simply observed that the appellant has dealt with the matter carelessly. No smack of malice of the appellant was noticed by the Hon'ble Chief Justice in the order dated 16.6.2011. In view of all above in the absence of any evidence it will not be fair to suggest that bail cancellation order passed by the appellant was based on malice. In this case no material was available on the record to prove any malice of the appellant therefore respondent/Authority erred in law while dispensing with the regular inquiry and issuing show cause notice to the appellant in terms of Rule 6(3) ibid. It is important to mention that even in the note of personal hearing of the appellant recorded by Mr. Justice Rauf Ahmad Sheikh it is categorically observed that 'There is no allegation of monetary consideration in passing the impugned order. The officer otherwise enjoys good reputation as to his integrity. In these circumstances, I have considered opinion that a lenient view, should be taken in the matter. The minor penalty of withholding of annual increment for a period of three years as provided in Rule 4(a) (ii) of the Efficiency and Discipline Rules, 1999 will meet the ends of justice.'
6. We have no doubt in our mind to opine that malice cannot be presumed on the basis of surmises and conjectures. In this case no regular inquiry was conducted to prove any malice of the appellant. There was no reason to propose the penalty of withholding of annual increments in terms of Rule 4(a)(iii) ibid. Needless to say that right of due process and fair trial being a fundamental right is sufficiently safeguarded under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 which is apparently denied in this case therefore following the principle of fairness, equity and safe administration of justice the impugned notification being unfounded, without reasons, suffering from legal infirmity and vagueness has resulted into serious prejudices to the appellant and therefore same being untenable is liable to be set aside.
7. For the above reasons this appeal is accepted and impugned notification dated 29.5.2012 is set aside. However keeping in view the observation of Hon'ble Chief Justice of Lahore High Court dated 16.6.2011 that appellant dealt with the matter carelessly we think it appropriate to advise the appellant to remain careful in future. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.