MUHAMMAD SAJID MEHMOOD SETHI, J./CHAIRMAN:- Through instant appeal, notification dated 06.05.2013 and letter/ order dated 27.07.2013, passed by the respondent have been assailed, whereby major penalty of removal from service was imposed upon the appellant and his representation/review petition was also dismissed.
Through connected Service Appeal No.19 of 2010, order dated 26.05.2010, passed by the respondent has been challenged, whereby appellant's representation against expunction of adverse remarks appearing in his PER for the period from 24.03.2008 to 17.11.2008 was dismissed.
2. Brief facts of the case are that appellant joined judicial service as Civil Judge on 19.07.1982 and later on promoted as Senior Civil Judge and Additional District & Sessions Judge. A complaint bearing No.50/2007 was filed against appellant by Rashid Ahmad and Munir Ahmad, with the allegation that appellant decided murder case bearing FIR No.391/2005, dated 19.10.2005, registered u/s 302/34 PPC, Police Station Fort Abbas, after accepting illegal gratification amounting to Rs.19,00,000/-. Appellant was kept under quarterly special report by the order of Hon'ble Inspection Judge and the then District & Sessions Judge reported that appellant did not enjoy good reputation. Consequently, inquiry proceedings were initiated against appellant on the charge of being guilty of misconduct. Another complaint bearing No.330/2008 was also filed against appellant by one Nabi Bukhsh Paryar with the allegation of corruption and a report from the District & Sessions Judge, Vehari also seconded the allegation, hence inquiry proceedings were also initiated against appellant on this complaint. Both the inquiries were culminated in passing of impugned notification dated 06.05.2013, whereby major penalty of removal from service was imposed upon appellant. Feeling aggrieved, appellant filed representation / review petition, which was declined vide order dated 27.07.2013. Hence, instant appeal.
3. Learned counsel for the appellant submits that PERs of appellant from the years 1983 to 2007 were good and there was no adverse entry in his service record, however adverse remarks in his PER pertaining to period from 24.03.2008 to 17.11.2008 were based upon personal annoyance and biasness of the then learned District & Sessions Judge. He adds that at the time of personal hearing, the charges leveled in the complaint, evidence brought on record and lacunas / discrepancies floating in the inquiry reports have not been rightly thrashed out by the Hearing Officer. He further submits that the inquiry reports and personal hearing notes are against law/facts and record. He contends that earlier complaint No.50/2007 was declined by the then Hon'ble Inspection Judge vide order dated 21.02.2008, therefore, a subsequent inquiry on the same complaint amounts to a case of double jeopardy, and an application in this regard filed by appellant was not decided by the Inquiry Officer while submitting the inquiry report. He argues that the complainant / Rashid Ahmad, while appearing as PW-4, categorically denied filing of any complaint against appellant, with the further admission that appellant never received a single penny from him for a favourable decision of the criminal case. He maintains that Munir Ahmed, the other complainant, while appearing as PW-5, had also not supported the contents of the complaint, with the admissions that he himself did not pay any illegal gratification to the appellant and he was also not present at the time of alleged settlement or return of the amount. He contends that Abdul Sattar Zafar, Advocate (PW-6) has also not supported the prosecution case and the DWs, adduced by appellant, made statements to the effect that appellant enjoyed good reputation and worked honestly on merits while being posted at Haroon Abad/Fort Abbas. Lastly, he submits that impugned notification and order are unsustainable in the eyes of law.
4. On the other hand, learned counsel for respondent defends the impugned notification and order by contending that the adverse remarks were approved by the Countersigning Authority. He adds that on other occasions, adverse remarks were given by the Reporting Officers; however same were either not approved by this Tribunal or declared as Advisory. He further submits that the Hearing Officer has given full opportunity of hearing to the appellant and the findings are based upon correct appreciation of whole service record, available evidence and the inquiry reports.
5. Arguments heard. Available record perused.
6. The allegations of corruption against the appellant primarily arise from complaints No.55/2007 and 330/2008, as well as reports from the then District & Sessions Judge. The former complaint alleges the receipt of illegal gratification amounting to Rs.19,00,000/- for a favourable decision in aforementioned criminal case, while the latter accuses the appellant having reputation as a corrupt Judicial Officer. The complainant in complaint No.55/2007, namely Rashid Ahmad, appeared in the witness box as PW-4. During his examination-in-chief, he stated that the appellant did not receive even a penny and he did not move any complaint before the High Court regarding this matter. At the request of the Departmental Representative, the witness underwent cross- examination, during which he denied his signature on the complaint and disowned its contents. He specifically rejected the allegation that the appellant had received illegal gratification amounting to Rs.19,00,000/- in relation to any undue favour in said criminal case. He also denied his appearance and the recording of his statement before the then learned District & Sessions Judge (PW-2). Additionally, he denied any acquaintance with Munir Ahmad, the co-complainant. During cross-examination by the appellant, he again denied the story of the complaint. Munir Ahmad, the co-complainant in C.O. No. 50/2007, appeared as PW-5 and testified that he and Rashid Ahmad had filed the complaint against the appellant, and they had also recorded statements before the learned Sessions Judge, Bahawalnagar. During cross-examination by the appellant, the witness stated that he had not personally paid any illegal gratification to the appellant and could not identify the officials who allegedly demanded the illegal gratification. He further stated that the accused had settled the matter with the appellant, received back the illegal gratification, and therefore did not pursue the matter. Abdul Sattar Zafar, Advocate, learned counsel for the accused persons in the criminal case, appeared as PW-6 and deposed that the accused had told him that the appellant had received illegal gratification for acquitting them. He also stated that the appellant did not enjoy a good reputation and was not deciding cases on merits while being posted at Haroon Abad. Tahir Pervaiz, the then District & Sessions Judge, appeared as PW-3 and confirmed that he had sent two special reports, dated 17.07.2008 (Ex. PG) and 05.11.2008 (Ex. PH), regarding the appellant, both of which bore his signature. He stated that he had received several complaints and transfer applications requesting the transfer of cases from the appellant's court due to allegations of corruption.
7. Perusal of record shows that after filing the complaint, the complainant (Muhammad Rashid) submitted an application for the withdrawal of the complaint along with an affidavit. Therefore, the Hon'ble Inspection Judge, by order dated 21.02.2008, declined to take action on the complaint as the complainant had resiled. However, in light of the report from the then learned District & Sessions Judge, which included statements from the complainants supporting the original complaint, the appellant was placed under surveillance for one year. Pursuant to the said order, the respondent authority, by letter dated 25.02.2008, requested quarterly reports regarding the integrity, conduct, and performance of the appellant from the concerned District & Sessions Judge.
The quarterly report dated 17.07.2008 indicated that the appellant did not enjoy a good reputation.
This report was submitted to the then Hon'ble Inspection Judge, who referred the matter to the Hon'ble Chief Justice. The matter was further placed before the Administration Committee, which, by decision dated 30.04.2009, ordered the initiation of a regular inquiry against the appellant. In these circumstances, the appellant's argument of being a victim of double jeopardy and the non- decision of his application in this regard by the Inquiry Officer is entirely misconceived.
8. As regards C.O. No. 330/2008, the complainant was not traceable, and therefore, a regular inquiry was conducted based on the report of the then learned District & Sessions Judge. While appearing as PW-2, he confirmed his signature on the report Ex. PB. He stated that he received several complaints and transfer applications regarding the appellant, alleging corruption. He further stated that the appellant did not enjoy a good reputation. During cross-examination by the appellant, he reiterated his depositions and denied the suggestion that the number of transfer applications filed against the appellant was fewer than those filed against other judicial officers.
9. Upon scrutiny of the available evidence and record, we have found that the charge of receiving illegal gratification of Rs. 19,00,000/- has not been proven against the appellant. However, allegations of corruption and ill-repute remain on record. The appellant has failed to refute these allegations, as highlighted in the reports from the then learned District & Sessions Judge and his own statement. One of the reports was also accompanied by the statements of the complainants in complaint No. 50/2007, who fully supported the contents of the complaint. Appellant has failed to controvert the adverse entries in the PER for the period from 24.03.2008 to 17.11.2008 regarding his integrity and uprightness. The record also shows that earlier adverse entries were recorded in the appellant's PERs for the years 1998, 1999, and the period from 14.05.2007 to 11.09.2007. However, these entries were either expunged by this Tribunal, declared advisory by the Administration Committee, or not endorsed by the Countersigning Officer. Nevertheless, the appellant's overall reputation of being corrupt cannot be disregarded, especially in light of the evidence discussed above and the reports submitted by the then learned District & Sessions Judge, which remain unrebutted.
10. We have come across certain judgments of Hon'ble Supreme Court wherein owing to mitigating circumstances analyzing different factors the penalty of removal from service was converted into compulsory retirement. In the case reported as Akhtar Ali v. Director-General, Pakistan Post Office and others (2009 SCMR 1197), the government servant was removed from service due to his absence from duty. The plea of the government servant that his absence was due to his involvement in a criminal case wherein he was subsequently acquitted was beyond his control was accepted by the Supreme Court and keeping in view the unblemished service record of about 17 years, the penalty of removal from service was converted into compulsory retirement. In Farhad Ali v. Director General, Pakistan Post Office and others (2011 SCMR 608), the government servant was accused of misappropriating the public money entrusted to him. The Hon'ble Supreme Court observed that he was holding a position where his duties included handling money entrusted to him by the public. Misappropriation of such public funds, even for a short period, could not be taken lightly or ignored. He was, of course, liable to face the consequences of his conduct and malfeasance. However, the Apex Court did not approve the penalty of dismissal from service but instead converted it into compulsory retirement, observing that it would better serve the ends of justice. We are also fortified by the dictum laid down in Indian jurisdiction in similar cases. The Supreme Court of India in case reported as State of Orissa & Ors v. Ram Chandra Das [AIR 1996 SC 2436 or 1996 (5) SCC 331], observed that a government servant, in the public interest, may be compulsorily retired with a view to improve efficiency of the administration or to weed out the people of doubtful integrity or those suspected of corruption where sufficient evidence was not available to take disciplinary action in accordance with the rules so as to inculcate a sense of discipline in the service. In another case reported as Sukhdeo v. The Commissioner Amravati Division [1996 SCC (L&S) 1141 or 1996 (5) SCC 103], while elucidating the object of compulsory retirement, it was observed that inefficient and corrupt persons, against whom no sufficient evidence was available to dismiss or remove them from service after enquiry, are removed from service to maintain honesty and integrity among the service personnel. In S. Ramachandra Raju v.
State Of Orissa [AIR 1995 SC 111 or 1994 (3) SCC(SUPP) 156], it was observed that integrity in public service needs to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corruption arid incompetence. The officer would live by reputation built around him and where his conduct and reputation is such that his continuance in service would be a menace in public service and injurious to public interest, he should be compulsorily retired from service.
It is evidently clear that the Courts have consistently emphasized the importance of considering the employee's length of service, the nature of the offense, and the context surrounding the misconduct. The precedents illustrate that a fair and just approach to disciplinary actions is essential in maintaining morale and ensuring that penalties are proportionate to the offenses committed. In these circumstances, we are of the considered view that the impugned penalty of removal from service is not proportionate to the gravity of the misconduct proved against the appellant. Therefore, we are inclined to convert the major penalty of removal from service into compulsory retirement.
11. In view of the above, this appeal is partly allowed in the manner that penalty of removal from service is hereby converted into compulsory retirement.
12. As a sequel to above discussion, the connected Service Appeal No.19 of 2010 has become infructuous and same is disposed of accordingly.