S. ABDUL JABBAR KHAN (CHAIRMAN). --Razi Abbas Bokhari, ex-Civil Judge, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Lahore High Court, Lahore through Registrar, Lahore High Court. Lahore and the Governor of the Punjab, Lahore, through Chief Secretary, S&GAD, Civil Secretariat, Lahore, as respondents.
2. By virtue of this appeal he has prayed that the impugned order, dated 30-9-1984, be set aside and appellant be re-instated in service with all back benefits.
3. Brief facts of the case are that while appellant was working as Civil Judge, Rajanpur, he was charge-sheeted, on 14-4-1980, by the order of their Lordships Chief Justice and Judges of the Lahore High Court, Lahore, under the signature of Mr. Lehrasap Khan the then Registrar and now Judge of the Lahore High Court. This charge-sheet was accompanied by the statement of allegations. The appellant submitted his reply to the said charge-sheet, which was found unsatisfactory and Mr. Justice Abaid Ullah Khan, was appointed as Enquiry Officer against him.
Learned Judge acting as Enquiry Officer, conducted inquiry into matter and submitted Inquiry Report, dated 15-7-1980, and the same was considered by the High Court. A final show-cause notice was issued to him to show cause within seven days from the receipt of the same, as to why major penalty may not be imposed upon him. The appellant complied with the same and submitted his reply. After receiving the detailed reply from the appellant, he was afforded opportunity of personal hearing before Mr. Justice Mehboob Ahmad, on behalf of the Authority, and ultimately the Authority, constituted of Chief Justice and Judges of the High Court, imposed upon him major penalty of removal from service vide - impugned order, dated 30-9-1984. The appellant filed appeal before the worthy Governor of the Punjab, but as no decision was taken on the said appeal, the appellant has preferred this appeal after 90 days of the same.
4. We have heard the learned counsel for the appellant as well as learned counsel for the Lahore High Court, and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that the entire proceedings initiated against the appellant were without lawful authority as their Lordships Chief Justice and Judges of Lahore High Court were not competent to impose major penalty upon a Civil Judge. With regard to leave learned counsel for the appellant has submitted that under Leave Rules, 1981, leave applied for on medical grounds, could not be refused, particularly when the appellant was suffering from heart trouble. It has been argued that according to the Government instructions, an ailing Government servant can assume sanction of the leave and proceed on leave without awaiting prior sanction of the competent Authority, therefore, the appellant was entitled to the benefit of these instructions and since he was suffering from serious illness he had no option but to proceed on leave in anticipation of the sanction. In the end it was argued that the punishment awarded to the appellant was highly unjust and oppressive.
6. On the other hand learned counsel for the Lahore High Court, Malik Azam Rasool, Advocate, has submitted that the legal objection was misconcieved on the ground that the Lahore High Court is competent authority to impose penalty upon the appellant.
7. With regard to the merits of the case, it has been submitted by the learned counsel for the respondent that lucid and detailed inquiry conducted by the Judge of the Lahore High Court would reveal that it was not only the question of leave involved in this case, but the conduct of the appellant, who had given direction to his Reader to pass orders on his behalf, in order to show that he was working on those days and was not on leave. It has been vehemently argued that their Lordships Chief Justice and Judges of the Lahore High Court, have already taken a lenient view, by not dismissing the appellant from service but has only removed him from service. It has been prayed that the appeal be dismissed as being without any merit.
8. We have given our anxious thought to the arguments advanced by the parties and have taken into consideration the charges so levelled against the appellant, and find that the appellant firstly remained absent) from Court, on 8-3-1980, without getting leave for that date sanctioned.
Secondly he remained absent from the Court, on 28th February, 5th; and 6th March, 1980, without having applied for leave, for the said dates. We have also taken note of the charge that he directed his Reader to record appropriate orders in the files of the cases fixed before him for the 28th February, 1980, and told him that he would sign the orders so recorded on his return to Rajanpur and the Reader recorded the orders on the file accordingly. There is also charge of similar nature regarding direction to his Reader to make orders in the cases fixed for the 5th and 6th March, 1980.
Learned Enquiry Officer has taken pains to go into the entire facts of the case and for this has relied on the statement of P.W. 1, Maqbool Hussain. Actually his Lordship Mr. Justice Muhammad Ilyas carried out surprise on the Courts of Rajanpur, and found that the appellant who was Civil Judge at the said place, did not turn up in his Court throughout the day. Maqbool Hussain P.W. 1, Reader, while confronted with the situation, told his Lordship that the appellant had held the Court, on 27-2- 1980, and had gone to Lahore that day but had not returned till 8th March, 1980. He also disclosed that the accused had applied for leave from 1st to 4th March, 1980, but not for 28th February, 1980.
As Maqbool Hussain informed his Lordship the accused had directed him to record appropriate orders in the files of the cases fixed for the 28th February, 1980, and had told him that he would sign the orders so recorded on his return. Maqbool Hussain further disclosed to his Lordship Justice Muhammad Ilyas that the appellant had directed him to make orders in the said cases and announce them to the parties and their counsel without recording orders on the files and to mention them briefly indicating the next dates of hearing in the indices of the files. According to Maqbool Hussain the appellant had assured him that on his return to the headquarters he would himself record the orders on the files of the cases. This very matter came under detailed enquiry before Justice Abaidullah Khan, who acted as Enquiry Officer and he came to the conclusion that the same stood proved, as for him it was rather difficult to imagine that Maqbool Hussain could have acted on his own to record original orders of the Presiding Officers without any directions in that behalf issued by the appellant. Similarly, in his opinion he could not have made any announcement of orders in the cases fixed for the 5th and 6th March, 1980, either without any directive to do so given by the appellant. According to the learned Judge (Enquiry Officer) the said witness Maqbool Hussain was a truthful witness and he could not have dared to make false statement against his boss without there being foundation therefor. While relying on the testimony of said Maqbool Hussain and taking into consideration the attending circumstances of the case, learned Judge came to the conclusion that as far as Charge I stood fully proved. With regard to leave matter, learned Judge took into consideration the defence produced by the appellant in the form of certificate issued by Dr. Mumtaz Hassan, Associate Professor of Medicine, King Edward Medical College, Lahore, dated 3-12-1979, stating that the appellant was suffering from acute anxiety neurosis and was advised complete rest for three weeks and a letter addressed to the Registrar of Lahore High Court by Dr. Muhammad Rashid Chaudhry, Professor of Psychiatry, King Edward Medical College, Lahore, indicating that he had examined the appellant on 30th and 31st December, 1979, and had found him tense, anxious and depressed and had recommended rest for further period of two weeks. Keeping in view this defence, learned Judge has come to the conclusion that the appellant applied for four days leave from 1st to 4th March, 1980, with permission to leave station vide his application, dated 24-2-1980, but no order granting or refusing leave was passed by the District and Sessions Judge, Dera Ghazi Khan, on that application.
According to the report of the office the accused had already availed of 24 days casual leave during the current year and only a day's casual leave was left to be availed of. His telegram sent from Lahore on the 7th March, 1980, for grant of three days leave from the 8th to 10th March, 1980, was received in the office of the District and Sessions Judge, Dera Ghazi Khan, on the 8th March, 1980 at 2-50 p.m. The office reported that no casual leave was due to him and that he should be asked to apply for earned leave, but no order was passed by the District and Sessions Judge till the arrival of his Lordship at Dera Ghazi Khan that day. Learned Judge has not expressed his final opinion with regard to the leave so applied but what he has highlighted in his inquiry report, is the conduct of the f officer, by which he allowed his Reader to pass orders on his behalf with the instructions that he would be coming back and sign the same himself .
9. In the light of the above analysis of the entire facts of the case, we are of the considered opinion that the appellant was guilty of misconduct by enjoying leave without proper sanction and asking his Reader to write orders on his behalf, in order to show that he was available at the station.
However, we do not find any ulterior motive involved in this exercise by the appellant rather it simply shows that he was truant by nature, who was happy to avail maximum leave, if he could manage the same. We have also taken note of the fact that certain leave applications were accompanied by medical certificates duly certified by Associate Professor as well as Professor of Medicines and Psychiatry, King Edward Medical College, Lahore. We have further taken note of the fact that he has rendered 25 years service with the Judicial Department without any complaint. In these circumstances, while we uphold the impugned order passed against him, we vary the punishment of removal from service to that of compulsory retirement, as this will adequately meet the ends of justice, as well as officer of his type would not come back to judiciary once for all.
However, there will be no order as to costs.
M.Y.H.