' MUNAWAR ALI 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 of 1984 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 Goverernment's order, dated 21st November, 1984. 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 of 1984, this time assailing his compulsory retirement. Both of his appeals were heard together and they are being disposed by this common judgment.
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 unsatisfactory he was visited with the impugned penalty as mentioned above.
' The appellant being unrepresented by a counsel, he was permitted to submit written arguments.
His written arguments were quite voluminious running into as many as 48 pages. However, the learned Government. Counsel submitted his oral arguments. We also went through the bulky record of the two appeals.
' With a view to acquaint ourselves with the accusations made against the appellant, it would be appropriate to reproduce the two show-cause notices served on him. Taking up first the show cause notice relating to Civil Suit No, 571 of 1976, it may be reproduced as under: "You, Mr. Saiful Haque Hashmi, Senior Civil Judge, Karachi are hereby called upon to show cause within one week from the date of receipt of this notice why disciplinary action under the Sindh 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 v. 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 (garments) worth Rs,3,20,000. 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 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 recovereed, 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 in spite of the fact that the value of the property involved was shown at Rs,3,20,000 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.
(3) That the S.D.M. Central, Karachi, in whose Court the criminal case in respect 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 worth Rs:3,20,000 to the plaintiff in the aforesaid civil suit on `SUPERDAGINAMA' on furnishing a surety in the sum of Rs,1,50,000 only.
(5) That you allowed the plaintiff in the above civil suit to dispose of the said 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 misappropriated the sale proceeds.
(6) That it was proved to your satisfaction and/or it was in your knowledge that a bogus surety for Rs,1,50,000 had been furnished by the plaintiff, yet you neither proceeded against the surety under section 205 of the P.P.C. Nor took steps for the recovery of the sale proceeds of the said goods.
(7) That in passing the orders for handing over the said property to the plaintiff 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 stifling kir 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 mwhich you are liable for disciplinary action under the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973."
' 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 jurisdiction 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 surety 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. {{BLURR}} 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 provediAsprovided in sub-rule (4) of rule 5 of the Sindh Civil Servants (Efficiency! Awl Discipline) Rules, 1973 hmeinafter referred to as the said rules, it is oral on iprbof of the charges levelled iiiiSttthe accuseealliservant that prescritied prY is imposed upon him. Tgdl , no detailed'41:94ui0: held'in. Pt, Sent case. There is also no inateilicin in the show-dinViiiiiice or eisewiidie hi 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 Ahe show-cause notice and the appellant's reply making totalliamtation oft charges detAiled.In the said notice, when the impugned penaltyowars4nposed,,00n, him. Qbviously in the above circumstances it was difficult to hold that the impugned penalty was based on proof of the charges. AI)" -i h:riT b.:: al oil burl 000,1k.1.2.54 -tot virtu' RuAod r;. Ziscli Jill Besides this, the appellant's grieyancg,was that the action, taken against him was mala fide inasmuch as that it was initiated on the motion of Mr. Muhammad Khan Junejo, the then Home Secretary to Government of Sindh as he had refused to oblige him in the civil suit specified in the show-cause notice. In 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, Karaciai. It may be pertinent to reproduce the said letter as under: "No, XII(34)/RV/76 Government of Sindh, Home Department Karachi, dated December 28, 1976. ,,-iq elm El Jail mid 'd hwqa5wi {{BLURR}} ' From: ' Mr. Muhammad Khan Junejo, Secretary to Government of Sindh.
To ' The Registrar, ' Sindh High Court, Karachi.
' The following facts may kindly be brought to the notice of his Lordship the Chief Justice of Sindh High Court for action us he may deem fit:
(1) A criminal case for misappropriation of garments worth Rs3,20,000 was registered a couple of years ago at Drigh Road Police Station and is now pending in the Court of S.D.M. Central Karachi.
During the investigations of this case, the police recovered the whole property which was being exported for $ 32,000. The Magistrate had allowed the-case property to be retained on `Superdaginame 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 s intentioned above, a Civil Suit No, 571/76 was filed by one &bait 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 which was beyond the pecuniary jurisdiction of the Court, the learned Senior Civil Judge admitted the suit in spite 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 party without making the Provincial Government a party and serving notice on the Provincial Government:
(c) The learned Senior Civil Judge allowed an application under section 115, Cr.P.C. And allowed the case property worth Rs,3,20,000 to be given to Mr. Zubair Qureshi on `superdaginama' on furnishing a surety of Rs,1,50,000 only though the property was admittedly worth Rs,3,20,000;
(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;
(e) That it was proved to the learned Senior Civil Judge that the surety aceepted by him for Rs,1,50,000 in respect of the goods worth Rs,3,20,000 was bogus, he failed to take action under section 205, P.P.C. Or for recovery of the sale proceeds of the goods;
(f) The learned Senior Civil Judge passed order to stifle 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 above 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 Hashmi 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 M UHAMMAD BAIG) Deputy Secretary, for Secretary to Government of Sindh. Copy forwarded with compliments to:--
(1) The Chief Secretary, Sindh, Karachi.
(2) The Secretary to Chief Minister Sindh, Karachi.
(3) The Secretary, Law Sindh, Karachi.
(Sd. ) (MUMTAZ MUHAMMAD BAIG) Deputy Secretary, for Secretary to Government of Sindh."
' 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 verbatim in the show-cause notice. This aspect of the case, in our opinion, made it all the more necessary that the appellant should have been afforded 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 Memon, the Additional Sessions 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. All Ahmed Junejo) vide his judgment dated 20-12-1976. The said judgment begins as under: "This civil revision application under section 115(2) of the Code of Civil Procedure is directed against the order, dated 25th October, 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 Additional District 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 aside 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 Nos. 1 and 2 under Order VII Rule 10, C.P.C. 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 shall recover the aforesaid property according to law. This revision application is according to law. This revision application is accordingly allowed- with costs.
' Pronounced in open court, this 20th day of December, 1976."
The above order of the learned Additional District Judge was challenged before the High Court in Constitutional Petition No,D-717 of 1978. By judgment dated March 31, 1980, his Lordship, Fakhruddin G. Ibrahim (as he then was) set aside the said order of the learned Additional District Judge. His Lordship was pleased to hold as under:- "It is obvious that the IVth Additional District Judge was not entitled to sit in judgment over his colleague's order in revision dated 31-5-1976. 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 for presentation to the Court having the pecuniary jurisdiction in the matter, more particularly when an application under Order VII, Rule 11, C.P.C. 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 authority and 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 judgment of High Court, dated 31st March, 1980.
' 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 Hashnii, 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, misconduct and corruption and to impose upon you one of the major penalties as defined in Rule 4(b) of the Sindh 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. GROUNDS
1. That on 18-3-1975, the Rent Case No,1949 of 1973 (Mst.Alia Begum v. Rafiuddin) pending in the Court of XXI Civil Judge, Second Class, and Rent Controller, Karachi was compromised and the tenant agreed to vacate the premises, B-123 Hussain 'D' Silva Town 'P' Block, North Naziniabad, Karachi within eight (8) months, i,e, on or about 18-11-1975. Because of the violation of the terms of compromise the landlady filed Execution Application No,32 of 1975 in the Court of XXI Civil Judge, Second Class, Karachi on 20-11-1975. On 19-12-1975, the writ of possession was issued returnable on 10-1-1976. 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 Sindh 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 and IIIrd Class Civil Judges at Karachi, granted the aforesaid application. On the same date the Advocate for the landlady filed another application under section 151, C.P.C. 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- 11976 from J071-1974 on the facts mentioned in the affidavit of the Pairokar accompaying the application under Rule, 14 of the Sindh Civil Court Rules which did not justify the ante dating 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 necessary the execution application to be treated 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. That in ordering the police aid/assistance for ejecting the judgment-debtor from the premises in dispute, you completely ignored the provisions of Order XXI, rule 97 of the C.P.C. And without investigating as to whether any resistence was offered by the judgment-debtor 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 judgment-debtor and was offered resistance by the Judgment-debtor in the execution of the same and also without examining the Bailiff to ascertain whether he made an attempt to eject and was resisted by the judgment-debtor in his attempt, you granted police aid/assistance for ejecting the judgment-debtor solely on the unascertained and biased facts contained in the affidavits of the pairokar.
6. That you acted with undue haste and favouritism 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 o(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 than judicial."
' It would appear that the charges contained in the above show-cause notice, are not only of factual 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 possession already issued to be executed by 10-11976, the date fixed for its execution in the said writ of possession, had advanced the date of 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 therefrom in undue haste and harassment. On the other hand the appellant had allegedly done all that with ulterior motives and considerations other than judicial and that he had shown favouritism. 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.
The perusal of the appellant's reply to the aforesaid show-cause notice I 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 made 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 cannot 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 and, therefore, 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 to 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 period. 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.