MUHAMMAD SAJID MEHMOOD SETHI, J./CHAIRMAN:- Through instant appeal, the appellant has assailed orders dated 06.06.2015 and 16.09.2015, passed by the respondent, whereby a major penalty of dismissal from service was imposed upon him and his representation was also dismissed.
2. Brief facts are that the appellant, while being posted as Civil Judge at Nankana Sahib, was appointed as Returning Officer to conduct election in Union Council Nos.12 to 21 of Tehsil Shahkot.
After consolidation of the result, one Asghar Ali Asghar was elected as Nazim Union Council No.19, however subsequently after receiving an application for correction of result, the appellant issued a corrigendum dated 24.09.2005, whereby one Maqbool Ahmad Javed was declared as successful candidate. Consequently, the Election Commission of Pakistan ("ECP") also issued a corrigendum declaring said Maqbool Ahmad Javed as returned candidate in place of Asghar Ali Ashgar. The latter filed complaint against the appellant before the District Returning Officer, who submitted a report to the ECP vide letter dated 17.10.2005. In response whereof, the ECP, vide letter dated 24.10.2005, directed the District Returning Officer to recheck the relevant record and submit a report. In pursuance whereof, a report dated 24.11.2005 was forwarded to the ECP, who vide letter dated 05.12.2005, filed the complaint. Appellant's services were terminated by the respondent- authority vide Notification dated 17.03.2006. The said order was set-aside by this Tribunal vide judgment dated 10.10.2008 in Service Appeal No.12 of 2006, which was upheld by the Apex Court vide judgment dated 23.02.2009, passed in CPLA No.74-L of 2009, primarily with the observation that charge of misconduct could not be proved without holding a regular inquiry. Consequently, the appellant was reinstated into service vide order dated 20.06.2009, however disciplinary proceedings under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 were also ordered to be initiated against him. The Appellant assailed the order of initiation of disciplinary proceedings by filing a Service Appeal No.02/2012, which was dismissed being barred by limitation vide judgment dated 10.04.2015. The Appellant then challenged said judgment before the Supreme Court in Civil Petition No.924 of 2015, which was disposed of vide order dated 25.05.2015. The competent authority, after observing due process, dismissed the appellant from service vide impugned order / letter dated 06.06.2015. Feeling aggrieved, the appellant filed departmental representation / appeal, which was also dismissed vide impugned order / letter dated 16.09.2015.
Hence, the instant appeal.
3. Learned counsel for the appellant submits that the competent authority to receive complaint in an election matter is the ECP, who may either itself proceed with the same or refer the matter along with record to the parent department for initiation of proceedings, hence the complaint against appellant before the Lahore High Court, routed through the District Returning Officer, was not maintainable under the law. He adds that the ECP after hearing the parties, verified the record and endorsed the corrigendum issued by the appellant, which was maintained vide order dated 15.02.2007, passed in W.P.No.7670 of 2006. He argues that the second complaint with the same charge, filed by Asghar Ali Asghar, was not maintainable as earlier complaint was dismissed by the competent forum i.e. ECP. He maintains that the polling bags could have been opened and checked by the Inquiry Officer to thrash the matter factually, however needful was not done. In the end, he submits that impugned orders are unsustainable in the eye of law.
4. Contrarily, learned counsel for respondent-authority defends the impugned orders.
5. Arguments heard. Available record perused.
6. A regular inquiry was conducted against the appellant wherein both sides tendered oral as well as documentary evidence. The issuance of the original result, the declaration of the complainant as the returned candidate, and the issuance of the revised result without notice to the complainant are admitted facts. The change in the result was made one month after the issuance of the original result, despite the fact that the earlier application for recounting, moved by Muhammad Maqool Ahmad Javed, was dismissed by the appellant. It was found during the inquiry that a copy of the corrigendum was neither received by the District Returning Officer's office nor by the Assistant Election Commissioner, as it was issued backdated just to provide an opportunity to the runner-up candidate, Muhammad Maqbool Ahmad Javed. It was also found that the appellant proceeded on earned leave by submitting an application when an explanation was called by the District Returning Officer. It was further found during the inquiry that at polling station No. 19/4, which was the village of Muhammad Moeen, co-candidate of the complainant, the complainant's votes were reduced from 218 to only 18, which was not possible. There was no increase in the votes of Muhammad Maqbool Ahmad Javed; rather, the votes of Mureed, etc., increased from 32 to 232.
Similarly, at polling station No. 19/7, which was the village of the complainant, his votes were reduced from 268 to 68, and the decreased 200 votes were equally distributed between Muhammad Maqbool Ahmad Javed (from 82 to 183) and Mureed (from 27 to 127). Likewise, at polling station No. 19/8, which was the area of Mureed, the complainant's votes remained unchanged at 24, but Mureed's votes were reduced from 758 to 558, and these 200 votes were given to Muhammad Maqbool Ahmad Javed, increasing his votes from 56 to 256. It was in the evidence of PW-02 that after the initiation of the inquiry, the appellant approached the complainant's party to seek pardon in the name of Allah Almighty for the blunder he committed.
During cross-examination, the witnesses testified that the appellant repeatedly approached them to seek forgiveness. The complainant also showed his mobile phone to the Inquiry Officer, which contained certain Eid greetings messages from the appellant. The complainant alleged that the mobile number belonged to the appellant; however, the appellant transferred ownership of the number to his friend after 16.11.2009. The appellant could not convincingly rebut this fact. The District Returning Officer (PW-3), during cross-examination, stated that there was tampering with the official record and also mentioned verbal complaints against the appellant regarding his judicial work.
7. The primary question in this appeal for our determination is whether appellant was legally competent to change an already declared result by issuing a corrigendum and does it constitute misconduct warranting imposition of impugned major penalty of dismissal from service. Perusal of record shows that the appellant consolidated the result of the election on 27.08.2005, and Election Tribunals were notified by the ECP on 01.09.2005, whereafter Maqbool Ahmad Javed also filed Election Petition before the concerned Election Tribunal. However, the appellant, after receiving application for issuance of revised Form-XV, XVI - Return of Candidates, proceeded to issue a corrigendum on 24.09.2005 by reversing the fate of successful candidate, and forwarded the same directly to the ECP, which accordingly issued a corrigendum. It has not been shown to us that under what authority of law, the appellant undertook said exercise when the election disputes could only have been resolved by the Election Tribunals and the appellant had become functus officio.
Reference can be made to Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others (PLD 2008 Supreme Court 663), Jameel Qadir and another v. Government of Balochistan, Local Government, Rural Development and Agrovilles Department, Quetta through Secretary and others (2023 SCMR 1919), Abdul Rehman Khan Kanju and others v. Election Commission of Pakistan through Secretary, Islamabad and others (2024 SCMR 1902), Raja Najabat Ali v.
Election Commission of Pakistan through Election Commissioner, Islamabad and 4 others (2006 MLD 43), Shahid Aziz Kiani and another v. Election Commission of Pakistan through Secretary and 4 others (2006 YLR 298) and Muhammad Ashraf v. Election Commission and others (2017 MLD 1209).
Similar position is available in the elections laws / rules of India, whereby once a candidate is declared elected in the Form IX, the Returning Officer ceases to have any power to alter said declaration subsequently. The declaration as contained in form IX could only be challenged by means of an election petition before an appropriate Tribunal. Reference can be made to Malkit Kaur v. Jatinder Kaur [2001 (Sup2) JT 157], Kashmir Kaur v. State of Punjab [2004 (1) RCR (Civil)
580 (DB)] Jasmail Kaur v. Punjab State Election Commission and Others (AIR 2009 Punjab and Haryana 50), Kulwant Singh and another v. State of Punjab and Others [(2011) 2 RCR(Civil) 282] Kuldeep Singh v. State of Haryana and others (2024 PHHC 023012-DB).
8. It is also not evident from the record that the appellant issued any notice to the opposite party, who was likely to be affected from the change in the already declared result, which contravenes the principles of natural justice. It is also a matter of record that the changed result was sent directly to the Provincial Election Commission, bypassing the DRO, and no plausible explanation has been provided to us for this deviation from the established procedure. The disputed corrigendum was later on withdrawn by the ECP and a Notification declaring Asghar Ali Asghar as returned candidate was re-issued.
9. The other crucial question is whether the appellant's impugned actions or inactions can be classified as 'misconduct'. As per Rule 2(i)(e) of Punjab Civil Servants (Efficiency & Discipline) Rules, 1999, 'misconduct' includes a conduct prejudicial to good order or service, discipline; or contrary to the Punjab Government Servants (Conduct) Rules, 1966; or conduct unbecoming of an officer and a gentleman. According to Black's Law Dictionary, 6th Edition, p.999, misconduct means a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour; its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness. 'Misconduct in office' means any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. In M.M. Malhotra v. Union of India and Others (AIR 2006 SC 80), the Indian Supreme Court observed that the word 'misconduct' was not capable of a precise definition and it receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve. The word 'misconduct' is also defined, in somewhat similar way, in other Indian judgments including cases reported as State of Punjab and Ors v. Ram Singh Ex. Constable (AIR 1992 SC 2188), C. Ravichandran Iyer v. Justice A.M. Bhattacharjee & Ors (1995 SCC (5) 457) and Baldev Singh Gandhi v. State of Punjab and Others (AIR 2002 SC 1124).
10. We have come across various judgments from Indian jurisdiction in which actions of Solicitor, Pleader, Arbitrator, Police personnel and Judicial Officer, on being found contrary to rational and reasonable principles, delinquency in performance of assigned duties, as well as violation of established and definite rules of action or code of conduct, were termed as 'misconduct', leading to the conclusion that those government servants were unfit to hold their public office. Reference can be made to State of Punjab And Ors v. Ram Singh Ex. Constable (AIR 1992 SC 2188), M.
Krishna Swami v. Union of India & Others (AIR 1993 SC 1407), Ravichandran Iyer v. Justice A.M.
Bhattacharjee & Ors [1995 SCC (5) 457] and Rama Sharma v. Government of Andhra Pradesh [2002(2) ALT 593] Andhra HC (Pre-Telagana). We also had the opportunity to visit several judgments wherein a calculated move from the vested authority was not only declared as a misconduct but also deemed a mala fide act. In Steel Authority of India Ltd. v. J.C. Budharaja, Government and Mining Contractor [1999 AIR (SC) 3275], the Supreme Court of India observed that the Arbitrator could not act arbitrarily, irrationally, capriciously or independently of the contract and a deliberate departure from the contract by him was held as a misconduct on his part. In R. R. Parekh v. High Court of Gujrat & Anr. [2016(4) S.C.T. 102], the appellant awarded a sentence which was less than the prescribed minimum sentence, and such action was declared as misconduct.
11. We find it difficult to accept that as a Judicial Officer, the appellant did not need to have recourse to applicable law and due process. The established facts reflect gross negligence, misconduct and a dereliction of duty on the part of the appellant. We have also gone through the enquiry proceedings, and find that the same are based upon correct appreciation of evidence brought on record, whereby the charge of misconduct stood proved against the appellant.
Needless to say that the disciplinary proceedings are not same as a criminal trial. The scope of enquiry in disciplinary proceedings is entirely different from that of a criminal trial in which the charge is required to be proved beyond reasonable doubt. In contrast, the disciplinary enquires do not adhere to strict technical rules of evidence. Moreover, the doctrine of "proof beyond doubt" does not apply to them. A preponderance of probabilities and some material on record would be sufficient to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to determine whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether a reasonable man, in the circumstances, would be justified in reaching that conclusion. Reference can be made to High Court of Judicature At v. Shri Udaysingh s/o Ganpatrao (AIR 1997 SC 2286). It is axiomatic that direct evidence of corruption may not always be forthcoming in every case involving a misconduct of this nature. A wanton breach of the governing principles of law or procedure may indicate, in certain cases, a motivated or even reckless disregard of legal principles.
12. The argument of learned counsel for appellant regarding double jeopardy is misconceived.
Record shows that appellant's termination order was set-aside by this Tribunal and the decision was upheld by the Apex Court vide judgment dated 23.02.2009, passed in CPLA No.74-L of 2009, primarily with the observation that charge of misconduct could not be proved without holding a regular inquiry. Consequently, the appellant was reinstated into service and disciplinary proceedings under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 were also ordered to be initiated against him. This decision though assailed before this Tribunal as well as the Supreme Court of Pakistan, but the same was maintained. The observations of the Apex Court, vide judgment dated 10.04.2015, passed in Civil Petition No.924 of 2015, were as under:- "After arguing the matter briefly, learned counsel does not want to press this petition because the second inquiry and administrative proceedings are pending before the competent authority and the findings are to be placed before the Administrative Committee of the Lahore High Court. He states that the earlier finding of the Service Tribunal of the High Court dated 10.04.2015 may prejudice the petitioner in the pending inquiry. We may state that this is an unfounded fear because in the inquiry proceedings any consequential action, if justified, before the Service Tribunal of the High Court will, needless to say, proceed on their own merits."
Ultimately, the disciplinary proceedings were culminated after fulfilling all the legal and procedural requirements resulting into passing of the impugned order dated 06.06.2015 through which the appellant was dismissed from service. It is clear that the earlier complaint dealt with by the ECP against the appellant was independent from the inquiry proceedings ordered by the competent authority under the provisions of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999.
Reference can be made to Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar and another (PLD 1987 Supreme Court 195), Aijaz Nabi Abbasi v. Water and Power Development Authority and another (1992 SCMR 774) and Syed Ali Shah Bukhari v. Chief Secretary, Government of Punjab, Lahore and another [2004 PLC (C.S.) 55].
In the case of Syed Ali Shah Bukhari supra, the Hon'ble Supreme Court of Pakistan ruled that earlier enquiry proceedings conducted by the Anti-Corruption Establishment against the petitioner were distinct and separate from the enquiry ordered by the competent authority under section 3 of the Punjab Removal from Service (Special Powers) Ordinance, 2000. The Hon'ble Apex Court, thus, concluded that there was no issue of double jeopardy, as these two proceedings were independent of one another. In the case of Aijaz Nabi Abbasi supra, initially the appellant was charge-sheeted on 16.05.1982 for various charges including loss to the tune of Rs.9,000/- caused to government due to irregularities in inviting quotations, but was exonerated on 20.11.1982. Later, an Enquiry Committee was formed to examine the operations of various Divisions, and based on its report, action was decided under section 17(1-A) of the WAPDA Act, 1958. The Hon'ble Supreme Court, dismissing the objection of double jeopardy, found that the initial charge-sheet (which led to exoneration) and the subsequent enquiry regarding the working of WAPDA Divisions were separate and independent matters.
13. In view of the above, this appeal, being without any merit, is hereby dismissed.