1. JUDGMENTJustice (Rtd.) Munawarali Khan (Chairman): - Appellant Saiful Haq Hashmi was Senior Civil Judge when he was removed from service vide Government's order dated 13th June, 1984. He challenged this order in Appeal No.80/84 before this Tribunal. His said appeal was still pending for admission to regular hearing when his review petition directed against the order of his removal was decided at the departmental level vide Government's order dated 21st November, 1984.
2. Consequently the penalty of removal awarded to the appellant was substituted for that of his compulsory retirement. Instead of moving necessary amendments in the appeal already filed and pending in the light of change of the penalty, he filed another appeal No.88/84, this time assailing his compulsory retirement. Both of his appeals were heard together and they are being disposed by this cammon judgement.2. The impugned penalty, awarded to the appellant was the result of disciplinary proceedings taken against him. The said proceedings began with service of two show- cause notices on the appellant: one dated nil relating to Civil Suit No.571 of 1976 and the other dated 8-1-1978 in respect of rent case No.1949 of 1973. No detailed enquiry was held into the charges contained in the above two show-cause notices. As the explanation furnished by the appellant in response to the aforesaid show-cause notices was found un-satisfactory he was visited with the impugned penalty as mentioned above.3. The appellant being un-represented by a counsel, he was permitted to submit written arguments. His written arguments were quite voluminous running into as many as 48 pages. However the learned Govt. Counsel submitted his oral arguments. We also went through the bulky record of the two appeals.4. With a view to acquaint ourselves with the accusations made against the appellant, it would be appropriate to reproduce the two show cause notices serrved on him. Taking up first the show cause notice relating to civil suit No: 571/1976, it may be reproduced as under:" You, Mr. Saiful Haque Hashmi, Senior Civil Judge, Karahci are hereby called upon to show cause within one week from the date of receipt of this notice why disciplinary action under the Sind Civil Servants (Efficiency and Discipline ) Rules, 1973, should not be taken against you for committing patent illegalities and irregularities in entertaining and admitting Civil Suit No: 571 of 1976 (Muhammad Zubair Qureshi versus Munir Hussain Shirazi and others) and for passing illegal orders in the said suit thereby abusing your official position.(1.) That the aforesaid civil suit was filed in your court by one Zubair Qureshi for declaration and injunction in respect of property (garmants) worth Rs. 3,20,000.00. The plaintiff stated in the plaint that the said property was subject matter of a criminal case pending in the Court of S.D.M. Central, Karachi and that the said property which was being exported for 32,000.00 was recovered by the police during the investigation and the S.D.M, concerned had allowed the ' said property to be retained by the persons from whom it was recovered, on 'SUPERDAGINAMA' with the directions that it shall be produced in Court as and when required.(2) . That you entertained and admitted the above civil suit inspite of thefact that the value of the property involved was shown at Rs.3,20,000.00 in the plaint, which was beyond the pecuniary jurisdiction of your Court and you, thereby wrongly and illegally assumed jurisdiction over and above the limited pecuniary jurisdiction of Rs.50,000.00.(3) . That the S.D.M. Central, Karachi, in whose Court the criminal case inrespect of the said property was proceeding, was joined by you as a party in the above civil suit without making the Provincial, Government a party and serving notice on the Provincial Government.(4) . That you ordered the delivery of the above property admittedly worthRs.3,20,000.00 to the plaintiff in the aforesaid civil suit on 'SUPERDAGINAMA' on furnishing a suety in the sum of Rs.1,50,000.00 only.(5) . That you allowed the plaintiff in the above civil suit to dispose of thesaid property without directing him to deposit the sale proceeds in Court till the disposal of the suit, and, consequently, the plaintiff sold the said property and mis-appropriated the sale proceeds.(6) . That it was proved to your satisfaction and/or it was in yourknowledge that a bogus surety for Rs.1,50,000.00 had been furnished by the plaintiff, yet you neither proceeded against the surety under section 205 of the P.P.Cnor took steps for the recvery of the sale proceeds of the said goods.(7) . That in passing the orders for handing over the said property to theplaintiff in the above civil suit and allowing him to dispose of the said property, you interfered in the proceedings of the criminal case pending in the Court of the S.D.M. Central, Karachi, which amounted to sliffling of the said criminal case.That for the reasons aforesaid you have been guilty of gross- misconduct in the discharge of your duties and abuse of your official position for which you are liable for disciplinary action under the Sind Civil Servants (Efficiency & Discipline) Rules, 1973."5. In his lengthy reply to the above show-cause notice, the appellant has made categorical denial of all the allegations contained therein. He denied that the value of the property involved in the suit filed by Zubair Qureshi in his Court was Rs.3,20,000/ =; he denied that he had no jurisediction to entertain the suit on account of high valuation of the suit property; he denied that it was disclosed in the plaint that the suit property was being exported for dollars 32,000/ = ; he denied that he joined S.D.M, as party to the suit; he denied that he had ordered the suit property to be delivered to the plaintiff on furnishing surely for Rs.1,50,000/= ; he denied that it was proved to his satisfaction and that it was within his knowledge that the surety offered was bogus, yet he took no action against the surety; he denied that he had no power to permit the sale of the suit property; he denied that it was legally necessary to order for depositing of the sale proceeds and finally he denied that he had in any manner interfered with the pending criminal case.6. Keeping the appellant's above denials in view which relate to both factual assertions and legal lapses,it is to be determined how far the charges contained in the above show-cause notice have been proved.
3. As provided in sub rule (4) of rule 5 of the Sind Civil Servants (Efficiency and Discipline ) Rules, 1973 hereinafter referred to as the said rules, it is only on proof of the charges levelled against the accused civil servant that prescribed penalty is imposed upon him. Admittedly no detailed enquiry was held in the present case. There is also no indication in the show-cause notice or else-where in record that any documentary evidence was supplied to the appellant simultaneously with the service of the show-cause notice on him or at any later stage in support of the charges. Thus the competent authority had before him only the show-cause notice and the appellant's reply making total refutation of the charges detailed in the said notice, when the impugned penalty was imposed on him. Obviously in the above circumstances it was difficult to hold that the impugned penalty was based on proof of the charges.7. Besides this, the appellant's grievance was that the action taken against him was mala fide in as much as that it was initiated on the motion of Mr. Muhammad Khan Junejo, the then Home Secretary to Govt, of Sind, as he had refused to oblige him in the Civil suit specified in the show-cause notice, ln support of his allegation he has produced a copy of the letter dated December,28,1976 written by Mr. Junejo to the Registrar, Sindh High Court, Karachi.Lt may be pertionent to reproduce the said letter as under:No:XII(34)RV/76- GOVERNMENT OF SINDHOME DEPARTMENTKarachi, dated Dec. 28,1976.From:Mr. Muhammad Khan Junejo,Secretary to Government of Sind ToThe Registrar,Sindh High Court, Karachi.The following facts may kindly be brought to the notice of his Lorsdhip the Chief Justice of Sindh High Court for action as he may deem fit:1. A criminal cade for misappropriation of garments worth Rs.3,20,000/00 was registered a couple of years ago at Drigh Road Police Station and is now pending in the Court of S.D.M. Central Karahci. During the investigations of this case, the Police recovered the whole property which was being exported for Rs. 32,000/00. The Magistrate had allowed the case property to be retained on 'Superdaginama' by the persons from whose custody the same was recovered. The criminal court had issued directions that the property shall be produced in the Court whenever required;2. During the pendency of the criminal proceedings as mentioned above, a civil suit No: 571/76 was filed by one Zubair Qureshi for declaration and injunction in the Court of Vth. Senior Civil Judge Karachi Mr.Saiful Haq Hashmi. The learned Senior Civil judge committed the following illegalities:-(a) Though the suit admittedly involved property worth Rs.3,20,000/00 which was beyond the pecuniary jurisdiction of the court, the learned Senior Civil Judge admitted the suit inspite of the position being pointed out to him;(b) The S.D.M., in whose court the criminal proceedings were pending and the case property was in custody of his court, was made a partywithout making the Provincial Government a party and serving notice on the Provincial Government:(c) The learned Senior Civil Judge allowed an application under Sec. 115 Cr.P.C, and allowed the case property worth Rs. 3,20,000/00 to be given to Mr. Zubair Qureshi on 'superdagi- nama on furnishing a surety of Rs.1,50,000/00 only though the property was admittedly worth Rs.3,20,000/00;(d) The learned Senior Civil Judge allowed Mr. Zubair Qureshi to sell away the case property and misappropriate the amount and did not order for depositing the sale proceeds of the goods in the court till the final decision of the suit;(c) That it was proved to the learned Senior Civil Judge that the surety accepted by him for Rs.1,50,000/00 in respect of the goods worth Rs.3,20,000/00 was hogus, he failed to take action u/s 205 PPC or for recovery of the sale proceeds of the goods;(f) The learned Senior Civil Judge passed order to stiffle the criminal proceedings pending before the S.D.M. Central Karachi:(g) The learned Senior Civil judge appears to have intentionally acted illegally by accepting the suit against the Government though he had no pecuniary jurisdiction;(h) The learned Senior Civil judge by his order allowing Mr. Zubair Qureshi to sell away the goods which were the case property of a criminal case, acted in an illegal manner and almost decreed the suit filed before him without recording evidence though he had no jurisdiction either pecuniary or otherwise to accept such a suit against a criminal court.(3) Though on revision, Mr. Muhammad Yusuf Memon, Additional Sessions Judge, all the anbove irregularities were pointed out to him but he also confirmed the orders of the learned Senior Civil Judge mentioned above.2. Thus, both the Senior Civil Judge Mr.Saiful Haq Hashami and Additional Sessions Judge Mr.Muhammad Yusuf Memon have acted illegally, contrary to law and disciplinary action may be taken against them in the interest of justice.Sd/ =(MUMTAZ MUHAMMAD BAIG)Deputy Secretary,For Secretary to Government of Sind. Copy forwarded with compliments to:-1. The Chief Secretary, Sind, Karachi.2. The Secretary to chief Minister Sind, Karachi.3. The Secretary, Law Sind, Karachi.Sd/ =(MUMTAZ MUHAMMAD BAIG) Deputy Secretary for Secretary to Government of Sind."8.
4. When both the letter and the show-cause notice hereinabove are read together, it appears as if the allegations made in the letter have almost been repeated in vebatim in the show-cause notice.
5. This aspect of the case, in our opinion, made it all the more necessary that the appellant should have been afferded full opportunity for establishing not only his innocence but also his plea of mala fides. This was possible only through a regular enquiry. Moreover in course of such enquiry, it would also have been clarified as to why the appellant was singled out for disciplinary action when in his letter, the learned Home Secretary had not spared even Mr. Muhammad Yousuf Memo, the Additional Session Judge who had dismissed the revision application preferred against the interlocutory order of the appellant in the civil suit in question.It has also come on record that another revision application was filed against the order of the appellant, accepting one Khurshid Ahmed as surety in the said civil suit. The said revision application (No: 117 of 1976) was however allowed by IVth Additional District and Sessions Judge Karachi(Mr. Ali Ahmed Junejo) vide his judgement dated 20.12.1976. The said judgement begins as under:" This Civil Revision application under Section 115(2) of the Code of Civil Procedure is directed against the order dated 25th Oct.
6. 1976, passed by the Vth Senior Civil Judge, Karachi (Mr. Saiful Haq Hashmi) in Civil Suit No: 571 of 1976 whereby the trial court accepted the respondent No: 3 as surety in the sum of Rs.1,00,000/ = (Rs. One lac only) and further ordered the Respondent No.1 to furnish another surety in the sum of Rs.50,000/= (Rs.Fifty thousand only)"However, the learned Addl. Dist. Judge instead of confining his order to the above issue, travelled beyond the jurisdiction vested in him and held as under: " For the foregoing reasons, I hold that the value of the subject matter of the suit before the trial court, and the suit against defendant No: 3 who is the officer of Provincial Government, is not maintainable under the law. I accordingly allow this revision application, and set asaide the impugned order dated 25.10.1976. The plaint against the defendant No: 3 is hereby rejected as being not maintainable, and I further direct the Senior Civil Judge to return the plaint against defendants No: 1 and 2 under order VII Rule 10 CPC for presentation to the court having the pecuniary jurisdiction in the matter. The bogus surety produced before the trial court shall be prosecuted by the Court having the jurisdiction in the matter, and the competent court of criminal jurisdiction already seized of the case before it shallrecover the aforesaid property according to law. This revision application is accordingly allowed with costs.Pronounced in open court, this 20th day of December, 1976."2. The above order of the learned Addl. Dist: judge was challenged before the High Court in Constitution Petition No: D-717/1978. By judgement dated March 31, 1980, his lordship, Fakhruddin G.
7. Ibrahim (as he then was) set aside the said order of the learned Addl. Dist:Judge. His lordship was pleased to hold as under:"It is obvious that the IVth Additional District Judge was not entitled to sit in judgement over his colleague's order in revision dated31.5.1976. More importantly the IVth Additional District Judge could have at best set aside the order impugned in revision before him, which was limited to acceptance of a surety and not proceed to reject the plaint against one of the defendants and directing the trial court to return the plaint against other two defendants, to the plaintiff or presentation to the Court having the pecuniary jurisdiction in the matter,more particularly when an application under order VII, rule 11 CPC was still pending before the Trial Court.7. We, therefore, set aside the impugned order dated 20.12.1976 made by the IVTH Additional District Judge as without lawful withand of no legal effect."There is nothing to show that appeal was filed in the Supreme Court from the above decision of the High Court nor is there any indication that the Supreme Court had reversed any such decision of the High Court. Thus the legal lapses attributed to the appellant stood vindicated with the announcement of the aforementioned judgement of High Court dated 31st March, 1980.3. As for the charges of factual nature we have already held above, that apart from appellant's denials there was no other material to prove the said charges. Accordingly mere allegations short of proof could not be made the basis of the punishment.Coming to another show-cause notice, it reads as under:"You, Mr. Saiful Haque Hashmi, Senior Civil Judge, Karachi are hereby informed that on the grounds mentioned hereunder, it is proposed to take action against you for malpractices, lapses and abuse of official power in the discharge of your duties as Incharge Senior Civil Judge on 1.1.1976, which amount to inefficiency, mis-conduct and corruption and to impose upon you one of the major penalties as defined in Rule 4 (b) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973.You are hereby called upon to show cause in writing within fourteen (14) days from the receipt of this notice, why one of the major penalties should not be imposed upon you.GROUNDS1. That on 18.3.1975, the Rent Case No: 1949 of 1973 (Mst Alia Begum vs.Rafiuddin) pending in the Court of XXI Civil judge, Secound Class and Rent Controller, Karachi was compromised and the tenant agreed to vacate the premises, B-123 Hussain D'Silva Town 'P' Block, North Nazimbad, Karachi within eight (8) months, i.e. On or about18.11.1975.
8. Because of the violation of the te- terms of compromise the landlady filed Exectution Application No: 32 of 1975 in the Court of XXI Civil Judge, Second Class, Karachi on 20.11.1975. On19.12.1975, the Writ of possession was issued returnable on l('.1.1976.Before the date of return of the writ of possession the landlady filed Application on 1.1.1976 (last date of Winter Holidays) under rule 14 of the Sind Civil Court Rules read with rule 262 of the said Rules for treating Execution application No:32 of 1975 as urgent and consider the application for the execution of the Writ of possession during Winter Holidays on the grounds contained in the accompanying Affidavit of Saeed Noor Khan Durrani, Pairokar and son-in-law of the landlady alleging that an earlier attempt to execute Writ of possession by the Bailiff, failed.2. That on 1.1.1976, you being Incharge Senior Civil Judge for attending the urgent civil work of all the Courts of Senior Civil Judges and IInd & IIIrd Class Civil Judges at Karachi, granted the aforesaid application. On the same dated the Advocate for the landlady filed another application under section 151 CPC for Police aid to execute Writ of possession supported by affidavit of the said Pairokar on identical grounds on which you passed the following order:-"Heard Mr. Talmiz. His request as contained is urgent and genuine. Hence in view of the affidavit, the prayers are allowed."3. That on 2.1.1976, with the help of Police force the Bailiff forcibly removed the goods from the premises and ejected the lady occupants and handed over possession to the Pairokar.4. That you treated the execution application as an urgent matter and ante dated the same for 1.1.1976 from 10.1.1976 on the facts mentioned in the affidavit of the Pairokar accompanying the application under Rule 14 of the Sind Civil Court Rules which did not justtify the entedating of the Execution Application and treating it as an urgent matter during Winter Holidays and as such in the absence of any grounds and circumstances warranting the exection application to be treasted as an urgent matter during Winter Holidays and for handing over immediate possession of the premises in dispute to the said Pairokar/decreeholder, you passed the aforesaid order.5. Thgt in ordering the police aid/assistance for ejecting the judgement- debtor from the premises in dispute, you completely ignored the provisions of Order XXI rule 97 of the CPC and without investigatingas to whether any resistence was offered by the judgemt-dcbtor to the Bailiff and in the absence of a report from the Bailiff to the effect that he made any attempt to execute the Writ of ejectment against the judgement-debtor and was offered resistance by the judgement-debtor in the execution of the same and also without examinning the Bailiff to ascertain whether he made an attempt to eject and was resisted by the judgement-dabtor in his attempt, you granted police aid/assistance for ejecting the judgement-debtor solely on the unascertained and biased facts contained in the affidavits of the Pairokar.6. That you acted with undue haste and favourtism in passing the order granting police aid on 1.1.1976, during Winter Holidays in the capacity of the Incharge Senior Civil judge in the absence of any material on record to justify the above order and in ante-dating the Execution Application from 10.1.1976 to 1.1.1976, which was the last date for the return of writ of ejectment and the report of the Bailiff.7. That your order is not a judicial order and it has been passed with ulterior motives and considerations other an judicial."4. It would appear that the charges contained in the above show-cause notice, are not only of factual in nature but also speak of violation of rules.On one hand it was alleged that while acting as Incharge Senior Civil Judge for attending to urgent civil work during Winter Holidays, the appellant had wrongly granted the application for treating the Execution Application in question as urgent and instead of allowing the writ of possission already issued to be executed by10.1.1976, the date fixed for its execution in the said writ of possission, had advanced the date fo execution to 1.1.1976 and further that in violation of the relevant rules he had provided police aid, with the result that the goods were forcibly removed from the premises in question and also lady occupants were ejected there from in undue haste and harrassment. On the other hand the appellant had allegedly done all that with ulterior motives and considerations other than judicial and that he had shown favourtism. Further as alleged in the opening paragraph of the show-cause notice that the action was proposed to be taken against the appellant for malpractices, lapses and abuse of official power in discharge of his duties, which amounted to inefficiency, misconduct and corruption.5. The perusal of the appellant's reply to the aforesaid show-cause notice would show that he has emphatically denied all the above charges, factual as well as legal. As stated earlier neither detailed enquiry was held nor any written material was supplied to the appellant in support of the charges. As such no attempt was inade to prove the charges particularly when they were confronted with the appellant's eloquent denials. Accordingly the charges contained even in the second show-cause notice could not be held to have been proved. As pointed out above, accused civil servant can not be punished unless the charges made against him are proved. In view of the above discussion, we hold that the charges made against the appellant in the two show-cause notices, fall short of proof andtherefore the order of penalty, inflicted on him was not legally sustainable. Accordingly allowing both the appeals, we set aside the impugned orders of penalty, with no order as to costs. However it would be open to the Departmental Authorities tc proceed against the appellant afresh in accordance with the said rules taking care to ensure that before awarding appropriate prescribed penalty to the appellant, the charges made against him are.Lawfully substantiated. Since this case has taken years to conclude we believe that the appellant would not have remained idle but would rather have kept himself busy with some or other job during the intervening pariod. Accordingly the period between the date of impugned order of his removal from service and the date of resumption of his duties shall be treated as extraordinary leave.Given under our hands and the Seal of this Tribunal,on this 5th day of July, 1989 at Karachi.