MUHAMMAD SAJID MEHMOOD SETHI, J./MEMBER:- Through instant appeal, notification dated 17.11.2014 and order dated 13.03.2015, passed by respondent have been assailed, whereby major penalty of removal from service was imposed upon the appellant and his departmental representation was also dismissed.
2. Brief facts are that during appellant?s posting at Tehsil Kamalia as Civil Judge-cum-Judicial Magistrate, upon complaint of one Iftikhar Ali son of Bashir Ahmad, complainant of case FIR No.411/11, registered under Section 420/468/471/447 PPC at P.S. Peer Mahal, Toba Tek Singh, learned District & Sessions Judge, Sheikhupura was appointed as Inquiry Officer, who prepared charge sheet against appellant under the following heads:-
1. That the trial of case FIR No.542/2009 u/s 452/440/471/468/420/380/148/149 PPC against Muhammad Arshad etc. and of a connected private complaint titled "Iftikhar Ali Vs. Abdul Majeed" was pending before you and during trial you threatened and caused unjustified harassment to the accused of the said case and also delayed the trial by keeping the same pending, unnecessarily.
2. That trial of an another FIR No.423/10 u/s 468/420/447/471 PPC Police Station Peer Mahal was pending before you. There was evidence that said FIR was lodged on the basis of doubt but you, with malafide intention protracted the trial and unnecessarily delayed the same.
3. That while hearing the bail application in case FIR No.411/11 u/s 468/420/447/471 PPC, P.S. Peer Mahal (got registered by present complainant, Iftikhar), you demanded Rs.2,00,000/- from the complainant of the said FIR for dismissal of the bail application. Rs.2,00,000/- were received by you at different times from the said complainant. Thereafter a demand for the payment of additional amount was also made by you and on failure of the complainant to accede to the said demand you extended threats of dire consequences to the complainant.
Appellant filed reply to the charge sheet by denying the allegations. After recording of evidence, Inquiry Officer submitted its report dated 07.07.2012 recommending major penalty of removal from service under Rule 4(b)(iv) of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1999. Inquiry Officer issued show cause notice along with copy of the report requiring explanation from appellant as to why recommended penalty may not be imposed against him. Appellant tendered explanation. Personal hearing was also afforded to appellant and thereafter the competent authority imposed major penalty of removal from service vide notification dated 17.11.2014. Feeling aggrieved, appellant filed departmental representation, which was also dismissed vide order dated 13.03.2015. Hence, this appeal.
3. Appellant in person submits that none of the PWs supported the charge sheet, in particular, charges of misconduct. Adds that impugned penalty was imposed on the basis of call data of appellant which was neither communicated to him nor was substantiated by the authority. Further submits that since no evidence was available against appellant, therefore, major penalty could not have been imposed. He has relied upon Muhammad Tufail v. Divisional Forest Officer, Lahore and another [1983 PLC (C.S.) 790].
4. On the contrary, learned Legal Advisor of respondent submits that appellant remained in close contact with the complainant during the period from 01.09.2011 to 13.10.2011 through telephone calls as ninety six incoming and outgoing calls were made between them during aforesaid period, which leads to a strong presumption that they had close relations and likely to affect the pending litigation, therefore, major penalty in the given circumstances is justified.
5. Arguments heard. Available record perused.
6. Perusal of record shows that regarding charges No.1 & 2 i.e. levelling threats of dire consequences and unnecessary protracted delay in concluding the proceedings of cases mentioned therein, no cogent evidence has been brought on record to establish the same and main emphasis of the prosecution is upon charge No.3, which contains allegations of receipt of illegal gratification of Rs.200,000/- for dismissal of the bail application of accused in criminal case lodged by complainant Iftikhar Ali, demand of additional amounts and advancing threats to him.
The inquiry proceedings were also conducted in the said charge. Record shows that a list of witnesses containing nine witnesses was served upon the appellant, however, statements of only four witnesses were got recorded. Muhammad Arshad Gohar, PW-1 and Khalid Mahmood, PW-2 were declared hostile on the request of representative of respondent. These witnesses were also cross-examined but no incriminating material could be brought on record against appellant from their mouth. However, the complainant/PW-3 deposed that before September, 2011, appellant visited his Dawakhana and thus their interaction developed; that he gave details of his pending criminal litigation to appellant; that appellant received illegal gratification of Rs.200,000/- from him and also used his car for personal travelling. In cross-examination, he admitted that in his application, he did not mention name of any witness in whose presence he paid illegal gratification to appellant. Mr. Ijaz Hassan Awan, Additional District & Sessions Judge, Toba Tek Singh/PW-4 stated that he was instructed by the then District & Sessions Judge, Toba Tek Singh to submit special report about work and conduct of appellant; that he called meeting of Bar and Bench Coordination Committee and submitted report accordingly. In cross-examination, he stated that he never visited Kamalia during posting of appellant and no written complaint was received by him against appellant as such like complaints were filed before learned District & Sessions Judge.
In documentary evidence, Exh.P-5 is report about work and conduct of appellant submitted by the Additional District & Sessions Judge, Kamalia, which states that members of the Committee, except the Secretary Tehsil Bar Association, Kamalia, showed reservations about integrity of appellant.
Exh.P-1 is receipt dated 07.09.2011, issued by Gohar Electronics, Peer Mahal, which shows that payment of certain articles purchased in the name of appellant was made by complainant Iftikhar Ali, however, the proprietor of aforesaid shop Muhammad Arshad Gohar/PW-1 showed his ignorance about said receipt, purchase of articles from his shop or acquaintance with the complainant.
There is also a report dated 11.10.2011 from the District & Sessions Judge, Toba Tek Singh to the effect that appellant?s second posting in the same district was creating problems, who also proposed his transfer. Record reflects that the District & Sessions Judge was arrayed as a prosecution witness by the then Inquiry Officer, however, later on his name was deleted from the list of witnesses by the successor Inquiry Officer.
A careful examination of oral as well as documentary evidence produced by the prosecution clearly shows that prosecution has though established link of the appellant with the complainant (PW-3), but failed to establish the charges of receipt of illegal gratification or other gains and criminal intimidation. Hence, in these circumstances, major penalty of removal from service could not have been imposed.
7. The appellant in his statement as RW-1 also deposed that somewhere in July or August 2011, he interacted with the complainant and this interaction is also established by data summary of his mobile number, which disclosed that as many as 96 incoming and outgoing calls were exchanged between appellant/Judicial Officer and the complainant / litigant. It is universally acknowledged position that a Judge cannot develop terms with the litigants or maintain liaison with them.
Principles of Judicial Ethics framed by the General Council of The Judiciary (Working Group for the creation of a Code of Ethics for the Legal Profession) are available on the website of United Nations office on Drugs and Crime. Article 12 of these ethics specifically prohibits the judges from maintaining any contact with the parties appearing in their Courts. Said Article reads as under:
12. Judges cannot maintain any connection whatsoever to the parties nor can they show favouritism or preferential treatment that puts into question their objectivity, either when directing the proceedings or making decisions.
Article 111 of the Bangalore Principles of Judicial Conduct, which is also available on the website of United Nations office on Drugs and Crime, clarifies that speaking privately to the litigants by a judge, even when the conversation is on an unrelated topic, is against the propriety of his office.
Said article reads as:-
111. Propriety and the appearance of propriety, both professional and personal, are essential elements of a judge's life. What matters more is not what a judge does or does not do, but what others think the judge has done or might do. For example, a judge who speaks privately and at length with a litigant in a pending case will appear to be giving that party an advantage, even if in fact the conversation is completely unrelated to the case. Since the public expects a high standard of conduct from a judge, he or she must, when in doubt about attending an event or receiving a gift, however small, ask the question, "How might this look in the eyes of the public?"
8. In Timothy W. Miller v. Angela L. Carroll [925 N.W.2d 580 (2019)], the Circuit Court Judge granted the respondent's motion for custody and child support payments by the appellant and dismissed the motion made by the appellant. The appellant in appeal argued that the circuit court demonstrated objective bias by accepting a "Facebook friend request" from respondent after a contested evidentiary hearing, but before issuing a decision on respondent's motion. The Court of Appeals of Wisconsin held that Facebook connection between Judge Bitney and Carroll during ongoing litigation created a great risk of actual bias resulting in the appearance of partiality. It was also held that:- "21 First, the time when Judge Bitney and Carroll became Facebook "friends" would cause a reasonable person to question the judge's partiality. Although Judge Bitney apparently had thousands of Facebook "friends," Carroll was not simply one of the many people who "friended" him prior to this litigation. Rather, Carroll was a current litigant who reached out to Judge Bitney and requested to become his Facebook "friend" after testifying at a contested hearing, at which Judge Bitney was the sole decision-maker. Judge Bitney then took the affirmative step to accept this "friend" request before issuing his decision in this case.
22 This timing creates a great risk of actual bias and a resulting appearance of partiality because, even assuming that a Facebook "friendship" does not denote the type of relationship traditionally associated with the term "friendship," it is unquestionably evidence of some type of affirmative social connection. As explained above, two Facebook users may only become "friends" when one user accepts another user's "friend" request. Carrol's choice to send a "friend" request to Judge Bitney, combined with Judge Bitney's choice to accept that request before issuing his decision, conveys the impression that 10. Needless to say that the authority may, in its discretion, award major or minor penalty, but this power must be exercised Carroll was in a special position to influence Judge Bitney's ultimate decision--a position not available to individuals that he had not "Triended," such as Miller".
Review against that decision was filed in the Supreme Court of Wisconsin. The eleven member Bench of the Supreme Court in decision reported as Timothy W. Miller v. Angela L. Carroll [944 N.W.2d 542 (2020)], by a majority decision upheld the order of the Court of Appeals of Wisconsin and concluded that the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation. Judge Annette Kingsland Ziegler while concurring with the decision cautioned the judges to avoid using the Social Media to avoid the situation like that happened in that case. It was observed that:
67. I also write separately, in light of this case, to caution the Wisconsin bench about the hazards of electronic social media, and Facebook in particular. I caution judges to avoid using social media such as Facebook unless significant safeguards are in place to avoid a situation like that present here. If a judge chooses to participate in social media, then additional--not fewer--precautions must be taken. An appearance of impropriety is not itself sufficient to constitute a due process violation. But more is present here. As a result, I respectfully concur.
9. In the wake of above discussion, we are constrained to observe that interaction of a Judicial Officer with a litigant is questionable as it is against service discipline or conduct unbecoming of an officer and comes within the definition of misconduct? provided in Rule 2(e) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999. Since the allegations of receiving illegal gratification and criminal intimidation have not been established and appellant has also agreed not to claim any back benefits, therefore, in the given circumstances, major penalty of removal from service does not commensurate with the gravity of misconduct and same is converted into major penalty of reduction to three lower stages in his pay-scale. reasonably and is also justiciable by this Tribunal. The penalty should commensurate with the magnitude of the misconduct committed. The extreme penalty for an act of a lesser degree, depriving a person from right of hearing, would definitely defeat the reformatory concept of punishment in administration of justice. While punishing an employee found guilty of misconduct, the employer / competent authority is required to take into account the total length of service of the delinquent and his past record, the gravity of misconduct found proved and its impact on the organization or department. Reference can be made to M.C. Jena v. Commandant, Central Industrial Security Force Unit, VSP, Visakhapatnam and others [2008(4) SLR 138 Andhra Pradesh High Court], Muhammad Akbar Sajid Chaudhary v. Lahore High Court, Lahore through Registrar and others [2016 PLC (C.S.) 560 Punjab Subordinate Judiciary Service Tribunal], Shakir Ali and another v. National Accountability Bureau through Chairman, Islamabad and another [2021 PLC (C.S.) 683 Sindh DB] and Sabir Iqbal v. Cantonment Board, Peshawar through Executive Officer and others (PLD 2019 Suprem e Court 189).
11. For the foregoing reasons, we are thus inclined to partly allow this appeal. As a consequence, we convert major penalty of removal from service into reduction to three lower stages in his pay- scale.