ABID HUSSAIN CHATTHA, J. / Member: This Service Appeal is preferred by the Appellant under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 against the impugned Decision dated 20.09.2019 and Notification No. 127/RHC/AD&SJJ dated 26.09.2019, whereby, the Respondent while reconsidering its earlier decision of removal from service dated 14.04.2017 imposed the penalty of dismissal from service w.e.f. 25.10.2010 upon the Appellant.
2. The brief facts of this case are that the Appellant was appointed as Additional District & Sessions Judge vide notification dated 01.04.2004. He joined his service w.e.f. 13.05.2004 and performed his duty until 25.10.2010. During service, the Appellant granted post arrest bail to the accused in criminal case FIR No. 257 / 2009 dated 24.06.2009 registered at Police Station Kotwali, District Sialkot under Section 9 of the Control of Narcotic Substances Act, 1997 (the "CNSA") while relying on fake report of Chemical Examiner. Pursuant to Order dated 16.12.2009 passed by learned Division Bench of Lahore High Court (the "LHC"), recommendation made by another learned Judge of LHC and Orders of the Hon'ble Administration Committee (the "Authority") dated 09.02.2010 and 20.03.2010, disciplinary proceedings were initiated against the Appellant on the charge of misconduct under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 (the "Rules") and Inquiry Officer was accordingly appointed. After conducting regular inquiry, the Inquiry Officer recommended imposition of major penalty of dismissal from service upon the Appellant which was endorsed by the Authority in its meeting held on 19.08.2010 who ordered issuance of final show cause notice for imposition of major penalty of dismissal from service upon the Appellant requesting a learned Judge of LHC to afford personal hearing to the Appellant who in turn, after following due process of law, recommended imposition of major penalty of compulsory retirement from service. The same was accordingly imposed by the Authority in its meeting held on 16.10.2010 which was notified on 25.10.2010.
3. The Appellant filed Review Petition against the said Order which was held infructuous by the Authority in its meeting held on 08.07.2013 on the ground that the Appellant has availed next remedy by filing of Service Appeal before this Tribunal. Service Appeal No. 06 / 2011 of the Appellant was accepted vide Judgment dated 04.03.2016 on the ground that participation of the learned Judge of LHC previously associated with the case in the meeting of the Authority which awarded major penalty to the Appellant is not curable which has vitiated the whole proceedings. It was also observed therein that the Appellant had only completed six years service at the time of imposition of major penalty of compulsory retirement which means that the Appellant did not complete the requisite years of service, qualifying for pension or other retirement benefits, therefore, this question may also be considered. Accordingly, notification dated 25.10.2010 was set aside with the direction to the Respondent to place the matter before the Authority for considering the case of the Appellant afresh. The said Judgment dated 04.03.2016 was assailed by the Respondent in Civil Petition No.1336-L of 2016 before the Supreme Court of Pakistan which was dismissed vide Order dated 31.03.2017, whereafter, the Authority on 14.04.2017 reconsidered its earlier decision dated 16.10.2010 and proceeded to impose major penalty of removal from service upon the Appellant w.e.f. 25.10.2010 which was notified on 10.05.2017. Review Petition of the Appellant against the said Order was also declined by the Authority on 06.10.2017 which was conveyed to the Appellant vide letter dated 11.10.2017, whereafter, the Appellant preferred Service Appeal No. 08 / 2017 before this Tribunal which was allowed vide Judgment dated 15.02.2019 with the observation that final show cause notice was not given and incriminating material was not discussed by the Authority.
Resultantly, the Order and notification dated 14.04.2017 and 10.05.2017, respectively, were set aside with the direction to the Respondent to place the case of the Appellant before the Authority for its decision afresh after providing another opportunity of hearing to the Appellant before the Hearing Officer.
4. The Authority in its meeting held on 28.06.2019 after considering the Judgment dated 15.02.2019 passed by this Tribunal, opinion rendered by the Additional Advocate General, Punjab and request of the Appellant for reinstatement in service, requested a learned Judge of LHC to afford personal hearing to the Appellant on behalf of the Authority and record Note on personal hearing for consideration by the Authority. In the meanwhile, the Registrar, Supreme Court of Pakistan vide letter dated 13.09.2019 forwarded Orders passed by the Supreme Court of Pakistan in Civil Petition No. 2037 of 2019 dated 13.09.2019 conveying that it is expected from the Authority to decide the matter at least one week before the retirement of the Appellant and the Respondent was directed to place the said Order before the Hon'ble Chief Justice to convene the meeting of the Authority, decide the case and submit compliance report to the Registrar, Supreme Court of Pakistan.
Consequently, the Authority in its meeting held on 17.09.2019,after considering Order dated 13.09.2019 passed by the Supreme Court of Pakistan in Civil Petition No. 2037 / 2019, Judgment dated 15.02.2019 passed by this Tribunal and Note on personal hearing recorded by Hearing Officer disagreed with the recommendations of the Hearing Officer and resolved to issue show cause notice to the Appellant for imposition of one of the major penalties while directing him to submit reply thereto and appear before the Authority for personal hearing. In compliance thereof, the Appellant submitted reply to the show cause notice dated 18.09.2019 with the prayer that the same be withdrawn and he may be reinstated in service with all back benefits and consequential reliefs.
5. The Authority in its meeting held on 20.09.2019 after affording personal hearing to the Appellant and considering entire record, reconsidered its earlier decision dated 14.04.2017 qua removal of the Appellant and proceeded to impose major penalty of dismissal from service which was notified on 26.09.2019. Hence, this Appeal.
6. The Appellant submitted that the Respondent did not act in letter and spirit pursuant to the Judgments passed by this Tribunal and directions issued by the Supreme Court of Pakistan; the proceedings pursuant to final show cause notice were concluded in haste without providing proper opportunity to the Appellant to defend himself; the report of Hearing Officer was completely disregarded through which the Appellant had been exonerated; the penalty imposed upon the Appellant is harsh and does not commensurate with the judicially committed inadvertent mistake for which Judicial Officer is constitutionally and legally protected; there was no legal justification for the Authority to deviate from its earlier decision of imposition of penalty of compulsory retirement upon the Appellant; the entire record, particularly, affirmative PERs of the Appellant in the year 2009 were not considered; a judicial Order cannot be made basis for imposition of major penalty which does not involve an element of mala fide since the fake chemical report was accompanied with challan submitted by the District Public Prosecutor on behalf of the State; the protection accorded to the Judicial Officer under the Judicial Officers' Protection Act, 1850 (the "Act, 1850") and under Section 75 of the CNSA was not taken into consideration; the role of the police and Inquiry Officers has not been fair; and the Appellant was met with injustice which is liable to be cured by this Tribunal.
7. Learned counsel for the Respondent submitted that the Authority had complied with all the Judgments of this Tribunal and directions issued by the Supreme Court of Pakistan in letter and spirit. The Authority is not bound by the recommendation of the Hearing Officer. The Authority after consideration of the inquiry report and all the material on record has consciously reached to the conclusion each time that the Appellant was guilty of misconduct and is liable to be inflicted with major penalty. The discussion of the Authority reflected in the minutes of meeting dated 20.09.2019 elaborate the reasons for disagreeing with the recommendation of the Hearing Officer primarily because bail granting Order dated 07.09.2009 was passed on the basis of a photostat copy of the report of Chemical Examiner annexed with the incomplete challan without any formal Order of the Court and statement of the concerned Prosecutor. The pivotal issue involved in this Appeal is not a judicial bail granting Order which could be accorded sanctity but deviation from the prescribed procedure by a Judicial Officer in complete disregard of circular dated 3820- General/II.D.4 dated 19.04.1980 (the "Circular") which mandated the Judicial Officers not to take notice of photostat copy of the report of Chemical Examiner. The conscious departure from the prescribed procedure led the Appellant to rely upon the report of Chemical Examiner which later on proved to be a fake document as the same had not been placed on the record through proper channel i.e., through the District Prosecution Branch. Further, irrefutable evidence on record suggests that bail granting Order was procured based on extraneous reasons. In addition thereto, service record of the Appellant was not becoming of a Judicial Officer. In the year 2008 when he was posted at Faisalabad, the advocates twice lodged protest against him and the report for the first quarter of the year 2009 revealed that the Appellant did not show any improvement in the quality and disposal of work and remained at the minimum standard. Even in Appeal, remarks were also passed regarding the Appellant for non-application of mind. The Appellant was also reported to be corrupt in his PER for the year 2009 issued by the District & Sessions Judge, Sialkot. The Appellant conceded before the Inquiry Officer that the Appeal filed by the Appellant against the abovementioned entries in his PERs for the year 2009 has already been dismissed and the said dismissal Order attained finality. Moreover, the allegations of the Appellant qua role of police and Inquiry Officers are unsubstantiated and baseless and even otherwise, irrelevant qua decision of this Appeal. Hence, this Appeal is liable to be dismissed.
8. Arguments heard. Record perused.
9. The disciplinary proceedings in terms of regular inquiry were initiated against the Appellant on the basis of following charges:- "FIRSTLY. That you (Mr. Gabriel Francis Khan) while posted as Addl.District and Sessions Judge, Sialkot on 7.9.2009 granted post arrest bail to Muhammad Adil son of Ajab Khan and Rizwan Shahid son of Rafaqat Ali accused in criminal case FIR No. 257/2009 dated 24.6.2009 registered under section 9 of Control of Narcotic Substances Act 1997 PS Kotwali, District Sialkot involving transporting 3200 grams of Heroin by these two accused illegally relying on fake report of Chemical Examiner, Lahore showing that the sample sent for examination contained 02.95/grams percent of heroin.
SECONDLY. That you granted bail to both the above-mentioned accused in clear disregard to the embargo contained in section 51 of the Control of Narcotic Substances Act, 1997 and dictum laid down by August superior courts in respect of re-examination of narcotics and without taking due care/application of judicial mind.
THIRDLY. That you passed the bail granting order dated 7.9.2009 in above titled case in a quite sketchy manner and you have exercised your discretion for grant of bail in a most careless and indiscrete manner inspite of the fact that quantity of heroin recovered from the accused had exceeded from 03 kilograms.
FORTHLY. That your conduct as judicial officer has not been found to be above board and grant of bail to the above said accused was for extraneous consideration.
That in view of above mentioned charges your conduct as Judicial Officer has been prejudicial to good order and service discipline and is contrary to law relating to Control of Narcotic Substances Act, 1997 and dictum laid down by August superior courts in respect of re-examination of narcotics and amounts to mis-conduct as defined in Section 2(e) of Punjab Civil Servants (Efficiency & Discipline) Rules, 1999 and is liable for penalty under section 4 of the said Rules."
10. The minutes of meeting dated 20.09.2019 of the Authority reflects that the entire record pertaining to the case of the Appellant was minutely considered by focusing on the inquiry report dated 31.07.2010 including the report of Hearing Officer which had primarily recommended exoneration of the Appellant by holding that the allegation against the Appellant for exercising his judicial powers dishonestly was not established and that an improper or even an illegal order could be passed due to a number of other reasons such as, negligence, ignorance, incompetence, error of Judgment or misinterpretation of relevant laws, rather, than for dishonest intention alone.
11. The Authority noted that incomplete challan was furnished before the Trial Court on 01.07.2009, wherein, it was categorically mentioned that the report of Chemical Examiner was still awaited but the Appellant granted bail on 07.09.2009 based on a photostat copy of the report of Chemical Examiner in utter disregard of the Circular without giving any valid reasons. Normally the report of the Chemical Examiner does not show the percentage of morphine or diamorphine in the recovered narcotic, whereas, the photostat copy of the report of Chemical Examiner relied upon by the Appellant contained percentage of diamorphine in the recovered narcotic. The percentage of morphine or diamorphine is mentioned in the reports of Chemical Examiner, when it is so required by a Court and in order to cover the abovementioned lacuna, the Appellant being in league with the accused obtained an application from the accused through Malik Muhammad Riaz, Advocate of Lahore seeking a direction for summoning percentage of morphine in the narcotic recovered from the accused, however, the said application was not made part of the judicial record by the Appellant. The fact regarding moving of the referred application was brought into the notice of the Inquiry Officer by the District Police Officer, Sialkot while making his statement during the inquiry.
Upon being quizzed by the Inquiry Officer, the said application was produced by the Appellant himself before the Inquiry Officer, with reluctance. The Inquiry Officer exhibited the said application as Ex. CA. During the inquiry, the Appellant admitted his seal and signature on the said application.
The act of the Appellant of producing the said application from his own pocket before the Inquiry Officer speaks volumes against him. The Authority concluded that the Appellant procured the said application for extraneous considerations in order to justify the grant of bail to the accused of the case at some later stage or to counter the objection as to how the percentage of diamorphine was mentioned in the report of Chemical Examiner, when normally the said percentage is never mentioned therein or to use the same as part of his defence at a later stage. Most importantly, the said application was moved on 10.08.2009 and notice to the State was issued for 17.08.2009, whereas, that fake report of Chemical Examiner was prepared earlier i.e. on 09.07.2009 and later on, the Appellant being in league with the accused of the abovementioned case resorted to the exercise of receiving an application from the accused for determination of percentage of morphine or diamorphine and issuance of notice to the State on the said application. The Authority also noted that the concerned Assistant Chemical Examiner appeared before the Inquiry Officer and he categorically stated that the photostat copy of the report of the Chemical Examiner Mark "A" is a fake and bogus document.
12. The Authority observed that the Appellant cross-examined the Investigating Officer during the inquiry and the suggestions put by him to the Investigating Officer have established that the Appellant was hand in glove with the accused of the case. Relevant part of the statement of the Investigating Officer reads as under:- "I do not know if there was a tracker system in the car got recovered/taken into possession from the accused in this case. Neither someone else informed me about some tracker of the said car nor I investigated on that point. I know about the tracker. It is incorrect that I arrested the accused from Lahore and have shown their false arrest at Police Station Kotwali. It is incorrect that the car taken into possession in this case was parked inside Police Station Kotwali four hours prior to the registration of this case."
In this context, the Authority remarked that it is surprising that as to how the Appellant came to know about the tracker installed in the car of the accused and who had imparted the said information to him. It is not understandable that as to how the Appellant came to know about the arrest of the accused from Lahore and not from the jurisdiction of police station Kotwali, District Sialkot. It is by now well settled that inference can be raised from suggestions put forth by an accused. It is established from the above suggestion that the Appellant had privately been briefed by the accused of the case.
13. The Authority in its deliberations further stated that the Inquiry Officer served a show cause notice dated 14.07.2010 (Ex.CB) to the Appellant as required under Rule 7(vii)(b) of the Rules to explain his position within a period of seven days. The said notice was served upon the Appellant by the District & Sessions Judge, Bhakkar, who intimated the Inquiry Officer vide letter dated 20.07.2010 (Ex.CB/1) that the Appellant was served upon with the show cause notice and received the same at 12:00 noon on 19.07.2010. The Appellant till 26.07.2010 did not furnish reply to the show cause notice rather he moved different applications for extension of time which were turned down by the Inquiry Officer. Another application was moved by the Appellant on 27.07.2010 and the time was extended by the Inquiry Officer, however, the Appellant was asked to submit reply to the show cause notice till 29.07.2010 but despite lapse of said date, he failed to submit reply and as such, it was rightly concluded by the Inquiry Officer that the Appellant had nothing to offer in his defence to the show cause notice.
14. The Authority while considering other material mentioned that first Hearing Officer of this case in his Personal Hearing Note dated 12.10.2010 has mentioned that he earlier remained Inspection Judge of District Bhakkar where the Appellant was also posted as Additional District & Sessions Judge and before entrustment of the instant matter to him, some other matters were brought into his notice by the District & Sessions Judge, Bhakkar and there were chains of complaints against the Appellant and he was reported to be corrupt. The Appellant was given a chamber hearing and was asked to improve his working but even the said counseling did not bear any fruit and District & Sessions Judge, Bhakkar reported to the Inspection Judge / first Hearing Officer that things have not changed. First Hearing Officer also mentioned that District & Sessions Judge, Bhakkar also reported about the integrity of the Appellant as corrupt. He further mentioned in his Note that the Appellant joined the judicial service in the year 2004 and remained posted at different stations. In the year 2008, he was posted at Faisalabad when the advocates twice lodged protest against him.
The perusal of the report of the Appellant for the first quarter of the year 2009, revealed that he did not show any improvement in the quality and disposal of work and remained at the minimum standard. Even in Appeal, remarks were also passed about the Appellant for non-application of mind. He further mentioned in his Note that the Appellant was also reported to be corrupt in his PER for the year 2009 by District & Sessions Judge, Sialkot. The Appellant has conceded that the Appeal filed by him against the abovementioned entries in his PER for the year 2009 has already been dismissed and the said dismissal Order attained finality.
15. Finally, the Authority concluded that the Appellant is unable to justify his abovementioned bail granting Order dated 07.09.2009 and conduct. He only gave irrelevant and irrational explanations.
Citing reasons for disagreeing with the personal hearing Note dated 16.09.2019 of the Hearing Officer, the Authority observed that the findings qua exoneration of the Appellant rest on the premises that fake report was placed on the record by the Investigating Officer and as such, there was no fault on the part of the Appellant but the said findings are not supported by the record of the present case, as well as, by the proceedings conducted by the Inquiry Officer because the abovementioned evidence / documents brought on the record during the inquiry, statement of the Assistant Chemical Examiner, statement of the District Police Officer, Sialkot and other oral as well as, documentary evidence has not been considered and properly appreciated by the Hearing Officer. Hence, the Authority imposed major penalty of dismissal from service upon the Appellant w.e.f. 25.10.2010.
16. It is manifestly evident from the above that the Authority considered the entire case of the Appellant in depth by analyzing the material available on record and reached to a reasoned and conscious decision for inflicting major penalty of dismissal form service. There is no cavil to the proposition that judicial Orders are sacrosanct and are accorded due protection under the Act, 1850 and under Section 75 of CNSA as well as other provisions of law. The principle of according protection to judicial Orders is well entrenched in our jurisprudence provided that are passed in good faith without an element of mala fide. However, there is no concept of complete and absolute immunity if extraneous considerations are vividly established. The principle was articulated by the Supreme Court of Pakistan in case titled, "Government of Sindh and others v. Saiful Haq Hashmi and others" (1993 SCMR 956) in the following words:- "11-A. It is well-settled that as long as the jurisdiction is exercised in good faith free from ulterior motives, contamination or taint of dishonesty or corruption a judicial officer cannot render himself liable to disciplinary action for mistakes committed in the course of decisions made by him honestly and bona fide. A judicial officer has to decide the case without fear or favour, ill-will or affection and impartially without showing any inclination or favouritism to any party. He has to decide cases, dispassionately, legally, honestly and without any consideration. The orders passed in such manner though legally incorrect will not attract disciplinary provision against him. A Judge has delicate position of vulnerable nature on whom eyes from both sides are set. According to the well-settled principle, justice is not only to be done but it should be seen to be done. It should be seen to be done by the conduct of the Judge, the manner he entertains, proceeds and hands over the written decision. Each and every step in a judicial proceeding should demonstrate the integrity, honesty, bona fides and impartiality of the Judge. As observed in Muhammad Hussain Kazi v. Government of the Punjab PLD 1983 SC 187, "the propriety or impropriety of conduct had to be determined by reference to the officer, his work and duties and the service discipline governing him. In case of a judicial officer the hierarchical arrangement of Courts, the handing down of written judgments and the collection of precedents in law, all control and guide his functioning".
The Courts presided over by Judges are institutions which command respect, faith and confidence for implementation of rule of law, justice and equity. If at any stage justice is tainted, tarnished or contaminated with dishonesty and corruption or abhors the judicial conscience, the blame squarely lies upon the Judge for behaving in a manner unbecoming of a Judge or a gentleman. Purity of the fountain of justice has to be maintained and protected zealously from corruption, contamination and pollution which distorts its angelic and divine face."
(Emphasis supplied)
For reference, also see cases titled, "Arz Muhammad Umrani, Asstt. Political Agent, Dera Bugti v.
Atta Muhammad and another" (1993 SCMR 633); "Lahore High Court, Lahore through its Registrar v. K.M. Sohel" (2001 PLC (C.S.) 1253); and "Mir Hassan Kalhoro v. Muhammad Chuttal alias Imran and another" (PLD 2022 Sindh 165).
17. The moot question in the instant case is not with respect to a judicial Order simplicitor passed in good faith which can be condoned for inadvertent human error, incompetency or error of Judgment, rather, it is regarding passing of a judicial Order by the Appellant having an experience of six years to his credit by relying upon a Photostat copy of Chemical Examiner which was explicitly prohibited in terms of the Circular without any reasonable justification, particularly, when he was exercising jurisdiction under a special law i.e. CNSA, Section 51 whereof, prohibited grant of bail where the offence is punishable with death. The act of the Appellant to deviate from the prescribed procedure was coupled with irrefutable evidence which suggest that the bail granting Order was maneuvered and manipulated for extraneous considerations which were highlighted by the Authority in detail as stated above and need not be reiterated but surely demonstrates that the Appellant was hand in glove with the accused of the FIR.
18. In addition thereto, there were undeniable facts through which it is established that the Appellant had acquired a general reputation of being corrupt. In cases where general reputation of corruption is attributed to an officer, the superior Courts have leaned in favour of imposing the penalty of compulsory retirement. This Tribunal in its recent Judgment in case titled, "Muhammad Afzal Zahid, Ex-Additional District & Sessions Judge v. Lahore High Court, Lahore through its Registrar" (2025 LHC 123) after analyzing the Judgments passed by the Supreme Court of Pakistan and that in the Indian jurisdiction, expressed the view that in cases where specific allegations qua corruption in disciplinary proceedings against an accused officer are not proved but the general reputation of such officer of being corrupt is established, the punishment of compulsory retirement can be validly inflicted. The principle is based on the rationale that in order to maintain honesty and integrity among service personnel, improve efficiency in administration of justice and restore public confidence in State institutions, officers of doubtful integrity or suspected of corruption can be compulsorily retired where sufficient evidence is not available to dismiss or remove them from service after considering the employee's length of service, the nature of offence and the context surrounding misconduct.
19. In the instant case, however, three elements have conjoined i.e. the Appellant passed a judicial Order in deviation of prescribed procedure in the Circular and express mandate of CNSA; the Appellant passed judicial Order with mala fide intent for extraneous considerations which was proved on record in terms that the Appellant was in close contact with the accused persons who were beneficiary of bail granting Order; and the Appellant had acquired a general reputation of being corrupt. These elements taken together proved the charge against the Appellant and swa yed the Authority to impose the major penalty of dismissal from service upon him.
20. The fate of various rounds of litigation qua disciplinary proceedings clearly reflects that due process of law was followed in the case of the Appellant and he was provided with relief on several occasions. Therefore, the allegation that the impugned Decision and Notification were passed in haste is misconceived particularly when the Appellant himself had obtained a direction from the Supreme Court of Pakistan requiring the Authority to expeditiously conclude the proceedings against the Appellant. Similarly, the assertions of the Appellant that the conduct of police and Inquiry Officers had been unfair or he was met with injustice are not supported by material on record. Therefore, we are not inclined to agree that the penalty imposed upon the Appellant is harsh or does not commensurate with the charge established against him given the peculiar facts and circumstances of the case and hold that the Authority was fully justified in imposing the penalty of dismissal from service which was within its discretion in terms of Rule 3 of the Rules.
21. In view of the above, this Appeal is devoid of any merit and is accordingly, dismissed.