' SALEEM AKHTAR, J.---Both these appeals will be disposed of by this judgment which arise from the judgment passed by Sindh Service Tribunal whereby the appeal filed by Saiful Haq Hashmi hereinafter referred to as respondent, was allowed and the order of removal from service which on review was later converted into compulsory retirement was set aside. It was however kept open to the Departmental Authorities to proceed against him afresh in accordance with law. Aggrieved by this judgment, the Government of Sindh, hereinafter called the appellant filed petition for leave to appeal. The respondent also filed similar petition. Both the petitions were heard together and leave was granted to examine the following questions of law of public importance:
(i) Whether the Service Tribunal has failed to take into consideration the findings recorded by the authorised officer on controverted questions of fact before the final order was passed?
(ii) Whether judicial orders which remain intact on appeal/revision or unchallenged can alone be made the basis of charges as were levelled against the civil servant in this case?
(iii) Whether the charges not proved overweigh the charges proved? Its effect?
2. The respondent, who was Senior Civil Judge and Assistant Sessions Judge was served with two show-cause notices under Rule 5(3) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 relating to his conduct, proceedings taken and orders passed by him in Civil Suit No, 571 of 1976 and Execution No, 32 of 1975 which are reproduced as follows: "SHOW-CAUSE NOTICE UNDER RULE 5(3) OF THE SINDH CIVIL SERVANTS (EFFICIENCY & DICSIPLINE)
RULES, 1973.
' 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 Sherazi and others) and for passing illegal orders in the said suit thereby abusing your official position.
' 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 recovered, on Superdaginama' with the directions that it shall be produced in Court as and when required.
' 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.
' 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.
' That you ordered the delivery of the above property admittedly worth Rs,3,20,000 to the plaintiff in the aforesaid civil suit on `SUPERDGINAMA' on furnishing a surety in the sum of Rs,1,50,000 only.
' 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.
' 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.
' 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 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 Sindh Civil Servants (Efficiency and Discipline) Rules, 1973.
(Sd.)
(AGHA ALI HAYDER), ' ACTING CHIEF JUSTICE/AUTHORISED OFFICER."
' SHOW-CAUSE NOTICE UNDER RULE 5(3) OF THE SINDH CIVIL SERVANTS (EFFICIENCY AND DISCIPLINE)
RULES, 1973.
' 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, 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, Nazimabad, 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-Iaw 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- 1-1976 from 10-1-1976 on the facts mentioned in the affidavit of the Pairokar accompanying 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 warranting 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/decree-holder, 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 resistance 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 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 than judicial.
(Sd.)
(AGHA ALI HAYDER), ACTING CHIEF JUSTICE/AUTHORISED OFFICER, 8-1-1978."
' These show-cause notices were replied by the respondent in detail and denied the charges.
Personal hearing as requested by him was afforded. The learned Acting Chief Justice, High Court of Sindh being the 'authorised officer' came to the conclusion that charges of inefficiency, misconduct as well as malpractice and corruption were fully established against respondent and he was liable to be awarded a major penalty as defined in rule 4(b) of the Sindh Civil Servants (Efficiency and Discipline) Rules. It was recommended to the Authority that the respondent be dismissed from service. The Provincial Government issued a notification on 13-6-1984 removing him from service.
This order was challenged in appeal filed before the Service Tribunal but during its pendency on a review petition filed by the respondent, the order of removal was converted in compulsory retirement. The respondent filed another appeal before the Service Tribunal and by the impugned judgment the order of compulsory retirement was set aside. The Tribunal came to the conclusion that in view of the denial by the respondent a detailed enquiry was needed which was not held and no documentary evidence was supplied to him simultaneously with the show-cause notice served on him in support of the charges. It was further observed that as order was passed on the basis of show-cause notices and the reply, it was difficult to hold that the impugned penalty was based on proof of charges. The Tribunal was of the view that it was necessary that opportunity should have been given to the respondent to prove his plea of mala fides.
3. In the charge-sheet relating to Suit No, 571 of 1976 Muhammad Zubair Qureshi v. Muhammad Munir Hussain Sherazi and others, the respondent was accused of committing illegalities and irregularities in entertaining and admitting the suit and for passing illegal orders. The learned Acting Chief Justice, hereinafter referred to as the authorised officer, after discussion found him guilty of gross misconduct in the discharge of his duties and abuse of official position for which action under the rules could be taken. In regard to the show-cause notice relating to Execution No 32 of 1975, it was observed by the 'authorised officer' that the order passed was not judicial order and was passed with ulterior motives and consideration other than the judicial. The learned 'authorised officer' finally concluded as follows:-- "(2) The admitted facts in regard to the case referred to earlier are that on the 18th of March, 1975 there was a compromise in the eviction proceedings pending before the Civil Judge and Rent Controller, Karachi and the tenant had agreed to hand over the vacant possession of the premises after eight months, that is on 18-11-1975. However, the possession was not delivered, as agreed upon, and the owner of the house had filed an execution application. On 19-12-1975 the writ of possession was issued, returnable on 10-1-1976. On 1-1-1976 just a day before the end of the winter vacation, the owner filed an application for the urgent hearing of the execution application. Mr. Hashmi was the Incharge Senior Civil Judge on that date. He granted the application and ordered police aid to execute the writ of possession. The tenants, who were ladies, as a result of this order were forcibly ejected, and the possession was handed over to the "Parokar" of the owner. Mr. Hashmi, in his reply, has maintained that the writ was still in force; no appeal or revision had been filed, and therefore, there was no order of injunction or stay; that the tenant was trying to defeat the writ by handing over the possession to rank outsiders, which would have created complications, and that the Bailiff had kept the writ with himself for thirteen days and the order could not be executed.
(3) It is noteworthy that Mr. Hashmi was the incharge Senior Civil Judge for one day only, that is 1-1- 1976 and to attend to urgent work only. When there were ten days still left for the return of the writ there can be no conceivable urgency in the matter. However, the application was presented that day and Mr; Hashmi chose to grant police aid without calling for the report of the Bailiff to find out if any attempt had been made to execute the writ; whether any resistance had been offered to the Bailiff, or, that there was any apprehension of breach of peace. Mr. Hashmi states that the Bailiffs report must have been on the record when he passed the order, but he does not say that affirmatively. However, it was not there, and Mr. Hashmi failed to muster any support for his presumption. He goes on to say that the examination of the bailiff for the purpose of ordering police aid would have caused delay, but that is the requirement of Order 21, Rule 77 of the Civil Procedure Code. It is all too clear that the application was presented before Mr. Hashmi under the expectation and hope, if act_ a promise, that he will oblige the owner by the forcible eviction of the tenants pre-emptorily as was done. It was an insupportable order, and was obviously done to oblige the owner and for ulterior motives. Mr. Hashmi has tried to show that he was financially very sound and he need not to have stooped to secure any unfair benefit and perpetrate injustice. It is not necessary to go into his financial status but his conduct, as reflected in the order, is not only suspicious, but totally unworthy of a Judge. The explanation furnished by him is devoid of all merits and is rejected.
(4) The subject-matter of the suit in the second show-cause notice had been disclosed as Rs,1,08,600 though it should have been Rs,3,70,000. Even this amount was beyond the pecuniary jurisdiction of the Court of Mr. Hashmi, which is limited to Rs,50,000 only. He has tried to justify it on the ground that it was only for declaration, but this is overlooking the fact that the plaintiff had also prayed for injunction, which was the consequential relief, and therefore the suit had to be valued according to section 7(3) of the Court Fees Act, 1917, which requires a suit to be valued at the market value of the subject-matter. This point was raised before Mr. Hashmi in the application filed by the defendant under Order 7, Rule 11 of the Civil Procedure Code, in which it was expressly mentioned that the property in the suit was Rs,3,00,000 and beyond his pecuniary jurisdiction.
However, Mr. Hashmi still proceeded with the matter and passed The impugned order.
(5) Mr. Hashmi has laid much stress on the fact that the S.D.M. Central was not joined by him as a party, who was already a party to the suit, it was the mandatory requirement of the law to direct the plaintiff to make the Provincial Government a party, as the S.D.M. Could not have acted, except in his official capacity. He ordered the release of the goods to the plaintiff on his furnishing surety in the sum of Rs,1,50,000. Mr. Hashmi states that the S.D.M. Also had directed the property to remain with the plaintiff. But that was on the `Superdginama' of Rs,2,08,000/Superdginama' meant that the plaintiff could be directed to produce the same if and when so ordered. Mr. Hashmi instead permitted the plaintiff to dispose of the goods and without directing him to deposit the sale proceeds in the Court, with the result, that the plaintiff sold away the goods, and misappropriated the sale proceeds, while the suit was still pending. It turned out later on that the surety documents executed by the plaintiff were a mere agreement of sale, a lease deed and a power of attorney, which did not confer any title on the surety. Subsequently, the surety was found to be a bogus one.
Mr. Hashmi however, failed to mention that the same issue was agitated in any revision application before any Additional District Judge, which found that the surety was bogus.
(6) The execution of the `Superdginama' in the Court of the S.D.M. Central, Karachi, would have made Mr. Hashmi realise that the criminal proceedings were still pending in regard to the suit property, and he should not have allowed the same to fall into the hands of the plaintiff and beyond redemption. That is what has happened. The perusal of the facts again shows that the conduct of Mr. Hashmi in this case also was not beyond reproach, and certainly he showed no respect for law. I am, therefore, of the opinion that the charges against Mr. Hashmi on this count also stand established.
(7) I am, therefore, of the opinion that the charges of inefficiency, misconduct as well as malpractice and corruption are fully established against Mr. Hashmi and he is liable to be awarded a major penalty as defined in Rule 4(b) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973."
4. The facts which seem to have impressed the authorised officer were that although the suit entertained by Hashmi was beyond the pecuniary jurisdiction of the Court, in spite of objection raised, the respondent ignored it on flimsy, fake and illegal grounds and passed order which frustrated the order passed by the Criminal Court. From the order passed by him it seems that the Advocate for the defendant had specifically raised the plea of jurisdiction on the ground that the property involved was beyond the pecuniary jurisdiction of the Court. This plea was however rejected on the reasoning that the suit was only for declaration and therefore it was properly valued. However, the authorised officer found that it was overlooked that the plaintiff had also prayed for injunction which was a consequential relief and therefore the suit had to be valued on the market value as provided under section 7(3) of the Court Fees Act, 1870. The respondent who argued his case vehemently laid emphasis on the fact that a revision application was filed against the order accepting Khurshid Ahmed as surety in the civil suit which was allowed and observations were made that the plaint should have been returned under Order VII, Rule 10, C.P.C. As it was beyond the pecuniary jurisdiction of the Court but this order was set aside by the High Court of Sindh in a Constitution petition. This petition was allowed on technical ground that challenge in the revision was limited to the order accepting a bogus surety and that the question of pecuniary jurisdiction was subject-matter of a pending application under Order VII, Rule 11, C.P.C. And further that the 4th Additional Sessions Judge was not entitled to set aside the judgment over the respondent's order who was also an Assistant Sessions Judge. According to the respondent, after the order was passed in the revision petition, the order passed by him merged in the revisional order and did not exist. Pressing in service the principle of merger the respondent contended that as the original order had merged with the revisional order, there was nothing on record of which he could be charged. Reliance has been placed on FA. Khan v. The Government of Pakistan PLD 1964 SC 520 where it was observed that where the "appellate authority passes an order the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order ...."
5. The contention is misconceived as for purposes of finality and determination of rights of parties by a judicial order, it is the appellate or revisional order which remains in the field. But if the misconduct of a judicial officer is to be investigated in passing the original order, the same shall remain intact and alive for such purposes. The fact that the order passed in revision application was set aside in Constitution petition will not absolve the respondent of any misconduct or dishonesty which may have been employed in passing such an order.
6. From a bare perusal of the plaint it is clear that the value of the goods, the subject-matter of the suit was at least Rs,1,08,050 as declared by the plaintiff whereas the Criminal Court had ordered for furnishing bond in the sum of Rs,2,08,000. Whatever may have been the value of the goods either Rs,1,08,050 or Rs,2,08,000, the fact remains that in the face of such valuation as disclosed in the plaint the suit could not have been entertained by a Court of the Senior Civil Judge, Karachi. This value was beyond the pecuniary jurisdiction of the Court and any Civil Judge exercising jurisdiction deligently and reasonably with proper care and knowledge of law which is expected of a judicial officer and particularly on objection to jurisdiction being raised, he would refuse to proceed with the case. But in the present case not only that the I declared value in respect of which permanent injunction was being sought, was ignored but passing of the order and exercise of jurisdiction was justified which was completely untenable and palpably wrong.
7. The other ground which seems to have been considered relevant for purposes of determining the misconduct in passing the order was that it was apparent on the record that a criminal case had been pending and was seized of by a Criminal Court of competent jurisdiction involving the same subject-matter in respect of which the suit had been filed. The Magistrate had passed an order of `Superdginama' and the goods were delivered to the plaintiff on furnishing a security in the sum Rs,2,08,000 with a further condition that those goods would not be sold or disposed of and shall, when required, be deposited in the Court. Ignoring all these facts the respondent passed the order releasing the goods in favour of the plaintiff on furnishing a surety of Rs,1,50,000 without imposing any restriction that the same may not to be disposed of or exported. In the facts and circumstances of the case on record there was no justification for passing such an order merely on the ground that the surety had been furnished and the interest of the other parties was sufficiently secured. By releasing the goods on furnishing surety without restraining the plaintiff from disposing of the same, practically the whole suit was disposed of at the interlocutory stage. Furthermore, the order amounted to frustrating and stifling the criminal proceeding.
8. The charges relating to the execution application may show haste in entertaining urgent application on the last day of the vacation when the respondent was working as a link Judge. In such matters particularly in such situation, a Judge has to be very cautious and before passing any order granting police aid for executing writ of ejectment he should examine all the reports of the bailiff and scrutinise deeply, not cursorily, the affidavit filed by a party seeking urgent hearing and police aid. The affidavit filed by the decree-holder was cursory and vague. Allegations were made that the judgment-debtor was obstructing execution of writ of ejectment and it was learnt that he was disposing of or transferring the possession to some third party. His later statement may have formed a ground for urgent hearing but it should have been seen that such statement did not suffer from vagueness and infirmities and is supported by authentic statement disclosing the source of such information through a properly verified affidavit. Vague allegation without giving particulars of alleged transfer or even without naming the person who had informed the decree- holder could not be sufficient to entertain an application for urgent hearing. The indiscretion shown and the haste with which orders were passed and executed leaves a bad impression and the affected party may reasonably doubt the honesty and integrity of the order.
9. The respondent has contended that in the show-cause notice the value of the property involved was mentioned at Rs,3,20,000 but in fact it could not have been beyond Rs, 1,08,050 or Rs,1,50,000 and as correct particulars were not given, the said notice was defective and further that he was denied the opportunity to properly defend himself. The contention is misconceived as the charge has to be read as a whole. Although it speaks of the value of Rs,3,20,000 in fact the charge was that the suit which was beyond the pecuniary jurisdiction of the Court was entertained and order was passed. Even if the value of the property involved, would have been taken to be as suggested by the respondent, the charge would have remained the same as even on this valuation the suit would have been beyond his pecuniary jurisdiction. This discrepancy has not caused any prejudice to the respondent. It is true that the charge should be specific giving details correctly to enable the accused to reply it properly and to put up defence to such a charge. However, as the discrepancy pointed out by the respondent not having caused any prejudice to him, the same cannot be a ground for vitiating the recommendation of the "authorised officer" and the order passed by the Authority. Reference can be made to Mir Muhammad v. N.-W.F.P. Government PLD 1981 SC 172 (183).
10. The order of the Tribunal proceeds on the ground that in view of the denial by the respondent, he should have been allowed to produce evidence and to prove the case. The 'authorised officer' had invoked Rule 5(3) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 which reads as follows:-- "5(1).........................................................................................................................
(2) The authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in Rule 6 shall apply.
(3) If the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall --
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(h) give him a reasonable opportunity of showing cause against that act ion: (4)
(5)
(6)
(7) The respondent contended that under Rule 5(2) 'authorised officer' has to decide that it is not necessary to have inquiry conducted through an inquiry officer and therefore such decision should be made before any notice was issued. Rule 5(3) confers a discretion in the 'authorised officer' to decide whether inquiry should be conducted through inquiry officer/inquiry committee or not. It is not necessary that he may pass any order or issue any notice for deciding such aspect of the case.
He;has to take such decision after examining the facts and the records of the case. The fact that a notice under Rule 5(3) had been issued speaks of itself that the 'authorised officer' had decided to invoke this provision and not to appoint any inquiry officer or inquiry committee. The facts of the case as, involved entirely depended upon the documents of the suit and the execution proceeding.
In the lengthy reply submitted by the respondent reference has been made to the entire record and copies of many relevant documents were also submitted. This shows that he had access to the documents and was actually in possession of the same. Further, he was personally heard by the 'authorised officer'. The respondent at no, stage seems to have claimed that he would produce witness in his defence.He had asked for personal hearing which was duly afforded. The nature of proof required depends upon the facts and circumstances of each case. In every case it is not necessary to produce oral evidence. Cases which are clearly dependent on documents alone on which both the parties rely, hardly require any oral evidence unless shown to be needed by any party. There were no disputed questions of fact with regard to pleadings of the parties, applications and the orders passed by the respondent. Only assessment of the record was to be made by the 'authorised officer' before deciding the course of action. In such cases depending on facts, if inquiry officer or inquiry committee is not appointed it would not amount to illegality. The Tribunal at no stage adverted to the detailed finding and reasoning recorded by the 'authorised officer' which is logical and legal. It restricted itself to the limited question as discussed above without taking into consideration the nature of controversy, inquiry and the proof required in the case. This approach leads to a wrong conclusion.
11. Mr. A.G. Mangi, the learned Additional Advocate-General has contended that the misconduct of the respondent was proved from the record and no further inquiry was required. As far as misconduct by judicial officer is concerned, the learned counsel referred to MA. Rehrnan v.
Federation of Pakisan and others 1988 SCM R 691. The question arose whether an officer who in exercise of jurisdiction passes a quasi-judicial order which is free from any taint of dishonesty or corruption can be subjected to disciplinary proceeding for any mistake. It was observed as follows:- "Surely an honest mistake committed by an officer in such exercise of jurisdiction will not attract the ground of conduct prejudicial to good order or service discipline. Similarly it will not violate any rule of L Government Servants (Conduct) Rules, 1964, because honest error will not constitute wilful abuse of office. Nor does such, act fall within the category of conduct unbecoming of an officer and a gentleman."
11-A. It is well-settled that as long as the jurisdiction is exercised in good faith free from ulterior motives, contamination or taint of dishonesty or corruption a judicial officer cannot render himself liable to disciplinary action for mistakes committed in the course of decisions made by him honestly and bona fide. A judicial officer has to decide the case without fear or favour, ill-will or affection and impartially without showing any inclination or favouritism to any party. He has to decide cases, dispassionately, legally, honestly and without any consideration. The orders passed in such manner though legally Incorrect will not attract disciplinary provision against him. A Judge has delicate position of vulnerable nature on whom eyes from both sides are set. According to the well-settled principle, justice is not only to be done but it should be seen to be done. It should be seen to be done by the conduct of the Judge, the manner he entertains, proceeds and hands over the written decision. Each and every step in a judicial proceeding should demonstrate the integrity, honesty, bona fides and impartiality of the Judge. As observed in Muhammad Hussain Kazi v.
Government of the Punjab PLD 1983 SC 187, "the propriety or impropriety of conduct had to be determined by reference to the officer, his work and duties and the service discipline governing him. In case of a judicial officer the hierarchical arrangement of Courts, the handing down of written judgments and the collection of precedents in law, all control and guide his functioning".
The Courts presided over by Judges are institutions which command respect; faith and confidence for implementation of rule of law, justice and equity. If at any stage justice is tainted, tarnished or contaminated with dishonesty and corruption or abhors the judicial conscience, the blame squarely lies upon the Judge for behaving in a manner unbecoming of a Judge or a gentleman.
Purity of the fountain of justice has to be maintained and protected zealously from corruption, contamination and pollution which distorts its angelic and divine face.
12. We have gone through the order of the 'authorised officer' which is in sufficient detail considering all aspects of the case. It shows application of independent mind. It mentions higher valuation and allegation that the Government was not ordered to be joined by the respondent but as discussed above they hardly prejudice the respondent or evaluation of the case.
13. After examining the orders passed and the proceeding taken by the respondent the 'authorised officer' correctly concluded that the orders passed were not worthy of the Judge and therefore the honesty, integrity and impartiality which are cornerstone of judiciary were disregarded.
14. The respondent contended that the learned Acting Chief Justice was not competent to pass the order as he was not the 'authorised officer'. We are N not inclined to consider this contention as it was not raised before the Services Tribunal and leave has not been granted to decide this question. However, all 0 official acts are presumed to the regular unless proved to have been done irregularly.
15. The respondent further contended that the action was initiated against him on a mala fide complaint of Muhammad Khan Junejo, the Chen Home Secretary of the Government of Sindh, which was not disclosed to him. Considering the facts and nature of the allegations, it was not necessary to disclose the source of information. Furthermore, the suggestion that Muhammad Khan Junejo would have exercised his influence in initiating this action seems to be misconceived mainly for the reason that when the show-cause notice was issued he was no longer a Home Secretary and Martial Law had been imposed.
16. We allow the appeal (CA. No, 716-K/90) filed by the Government of Sindh, set aside the impugned judgment of the Service Tribunal, Sindh and restore the order passed by the appellant.
The appeal (CA No, 715-K/90) is dismissed. There will be no order for cost.
' SAJJAD ALI SHAH, J.---I have perused elaborate judgment proposed to be delivered by my learned brother Saleem Akhtar, J. With whom my other learned brother Ajmal Mian, J. Has agreed. With maximum respect I say that I am unable to subscribe to the view expressed therein with regard to the interpretation of Rule 5(3) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 (to be referred hereafter as the said Rules) and findings that whether to hold or not regular enquiry is discretion of the authorised officer as contemplated under Rule 5(3) and it is not necessary to pass separate order in this respect and further issue of notice under Rule 5(3) itself shows that the said rule has been invoked. Other reasons assigned in support of the findings are firstly that the case in respect of which disciplinary proceedings were taken in hand entirely depended upon documents of the suit and execution proceedings. Secondly, that appellant asked for personal hearing which was given by the authorised officer. Thirdly that no disputed questions of facts were involved and authorised officer made assessm ent of the record and in such circumstances order dispensing with holding of regular enquiry is not illegal.
2. Sub-rules (2) and (3) of Rule 5 of the said Rules are reproduced extenso as under:-- "(2) The authorised officer shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in rule 6 shall apply..
(3) If the authorised officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall --
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) give him a reasonable opportunity of showing cause against that action: Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity."
3. Perusal of this provision clearly shows that authorised officer has discretion to direct holding of regular enquiry or not but that discretion is not absolute and is to be exercised judicially on the principles for sound reasons. It appears that in the normal course regular enquiry is to be held and in exceptional cases it can be dispensed with by order in writing and accused is to be informed of such action and reasonable opportunity is to be given to him to show cause against dispensation of regular enquiry. There is also proviso which envisages that no such opportunity is to be given to the accused where authority is satisfied that it is not expedient to do so in the interest of security of Pakistan or any part thereof. Indisputably this proviso does not apply to the facts of the present case. To me it 'appears that this rule provides that in the ordinary course regular enquiry is to be held but it is the discretion of the authorised officer to dispense with departmental enquiry for reasons to be reduced in writing which satisfy him and about this action the accused is to be informed not only of the decision that regular enquiry is dispensed with but also of reasons assigned in support thereof. Such decision can be taken by authorised officer after considering facts and peculiar circumstances of each case. If allegations are such that major penalty of dismissal from service or removal is to be recommended then justice demands that departmental enquiry must be held because there is a lot of difference between departmental enquiry in which witnesses are examined and cross-examined and defence witnesses can be produced and personal hearing, which can be perfunctory in nature. I am also of the view that issuance of show- cause notice under Rule 5(3) is not sufficient compliance of legal requirement that for dispensation of regular enquiry there should be an order in writing supported by reasons about which the accused officer is to be informed. In this case no such separate order seemingly was passed by authorised officer dispensing with regular enquiry and appellant was not informed about the same.
4. On the point mentioned above with regard to discretion of the authorised officer to dispense with regular enquiry, nearest judgment of this Court is in the case of Deputy Inspector-General of Police, Lahore v. Anisur Rehman Khan PLD 1985 SC 134 in which it is held that competent authority is conferred with discretion to decide whether a departmental enquiry through an enquiry officer is not necessary and such discretion is not controlled by any prerequisites or guidelines. It is so held considering language and import of Rule 6 of Punjab Police (Efficiency and Discipline) Rules, 1975.
On comparison it appears that the language is almost the same in the said rule and rule 5(3) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973. It was so held in that case on account of very peculiar facts of that case and keeping in view the facts and circumstances of that case that order was justified. In the reported case under the orders of S.P. Lahore, police party headed by DSP and other officials raided residential room of SHO Mozang on the upper storey of police station building. They found a lady Mst. Aisha sitting on the bed on which Inspector Anisur Rehman was lying and she was pressing his feet. On interrogation she informed that she had been picked up in Che police jeep and detained at police station. She also disclosed that she was raped by Anisur Rehman and further on her statement FIR was registered under sections 342, 354, 376 and 511, P.P.C.
At the same police station. In such circumstances notice was issued to Anisur Rehman by DIG for malversation and misconduct with Mst. Aisha dispensing with regular enquiry. It was observed that where a superior officer who had even otherwise the authority to control and supervise functioning of his subordinates conducted a raid and results of such raid were accepted by accused officer, resort to show cause procedure without appointing any enquiry officer could not on any principle be objected to as abuse of discretion of competent authority or unjustified in law.
5. In another case decided by this Court in which shorter procedure was adopted and regular enquiry was dispensed with is of Deputy Post Master General, Karachi and others v. Syed Shamshad Hussain 1990 SCM R 347. In this reported case direct interpretation of Rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973 came up for consideration and it was held that Government servant had no vested right in the procedure and competent authority could decide on the material before it whether shorter or longer procedure is to be adopted. It was so held in the light of peculiar facts and circumstances of that case. In that case respondent was Assistant Post Master (Savings) and was found in possession of a warrant of payment of Rs,3,500 of an earlier date. His statement was recorded and he admitted that he had attested signatures of account-holder but did not know the person who introduced her. Warrant of payment on which last draw was made was admittedly found in the drawer of the respondent. His explanation was rejected as not borne out by contemporaneous record. Charge-sheet was given to him in the form of show-cause notice enumerating the charges, the material on which it was based and the extent to which he was involved. Furthermore respondent asked for copies of documents which were not relevant so he did not file reply/defence statement and finding against him was ex parte.
Observing that it was not a case where summary procedure should have been adopted and discretion conferred on competent authority was not properly exercised Service Tribunal set aside impugned order of dismissal and directed his reinstatement in service with ,all back benefits. This Court reversed the order of the Service Tribunal and restored the order passed by the authority.
6. It is, therefore, clear that under Rule 5(3) of the said Rules authorised officer has discretion to direct regular enquiry or not and for such exercise of discretion facts and peculiar circumstances of each case are to be considered and kept in view and if the authorised officer is satisfied after objective assessm ent of material before him that regular enquiry can be dispensed with he can pass such order. Discretion should be shown ex fade to have been exercised fairly and justly and not arbitrarily and capriciously. If under any special law or statute discretion is conferred then such discretion is to be exercised fairly, in equitable manner and in public interest. Main object of the statute is to be considered while exercising such discretion. This Court in the case of Sultan Mowjee and others v. Federation of Pakistan, Chamber of Commerce and Industry, Karachi and others PLD 1982 SC 174 examined question of discretion and powers of Government in the light of sections 8 and 9 of Trade Organisations Ordinance of 1961 and made a very pertinent observation at page 184 of the report which is reproduced as under:- "It is needless to emphasise that, in construing a provision of, a statute by which such powers are vested, in a statutory functionary, the powers are vested to be exercised in the public interest and it cannot be argued that such powers are to be exercised in the discretion of the donee of such powers, without reference to the context of the policy and objects of the Legislation. It is by now well-established that the legislature does not confer plenary power of such wide amplitude, as is contended for, as that may fall within the mischief of the doctrine of excessive delegation of legislative power to the Executive Branch of the Government, except perhaps in the case of emergency legislation. Such wide statutory discretion, in order to avoid the charge of abuse or excess of authority, must not be used, to seek promotion of purposes alien to the letter and spirit of the legislation that gives power to act."
7. Authorised officer has discretion to select shorter procedure or longer procedure but on judicial principles and for valid reasons. Not only that but authorised officer is competent to recall his earlier order of prescribing procedure keeping in view the facts and circumstances of the case. In the case of Sohrab Khan Kalwar v. Secretary to the Government of Sindh, Department of Food PLD 1980 SC 279 order of regular enquiry was recalled in disciplinary proceedings against Rationing Controller for the reason that witnesses who were owners of flour mills were not prepared to give evidence in presence of accused officer. Supreme Court set aside removal on the ground that personal hearing was not given. In the interpretation of rule 5(3) the main criterion as it appears is that shorter procedure can be adopted if no prejudice is caused to the accused officer. If prejudice is caused to his disadvantage then action stands vitiated. Reference can be made to the case of Syed Mir Muhammad v. Government of N.-W.F.P. PLD 1981 SC 176 in which it is held that in formal enquiry copy of enquiry report was to be supplied to the accused to enable him to explain his position with regard to the adverse finding. In regular enquiry authorised officer has to frame charge and communicate it to the accused with statement of allegations explaining the charge and any other relevant circumstances which are proposed to be taken into consideration. Shorter procedure manifestly deprives accused officer of these legal facilities, hence discretion in that matter is to be exercised in appropriate case with great care and caution, lest prejudice is caused resulting in miscarriage of justice.
8. In the instant case I am of the view that discretion should have been exercised by the authorised officer in favour of holding regular enquiry for several reasons. Firstly, show-cause notices were issued by the High Court after receipt of letter dated 28-12-1976 from Secretary, Home Department, Government of Sindh, in which allegations were levelled against the appellant who was at that time Senior Civil Judge at Karachi. After that straightaway notices were issued to the appellant under Rule 5(3) of the said Rules enumerating same allegations contained in the letter of Home Secretary. Copy of the letter of Home Secretary was not supplied nor this fact was mentioned that proceedings had been taken in hand in pursuance of letter from Home Secretary. Copy of the order for selecting shorter procedure with reasons therefor was not supplied to the appellant. If appellant had been informed that enquiry had commenced on the basis of letter from Home Secretary, he would have demanded regular enquiry and asserted his right to cross-examine the Home Secretary. First show-cause notice dated 8-1-1978 in Suit No, 571 of 1976 is at page 141 of paper book and reply thereof dated 23-1-1978 by appellant is at page 147 of the paper book. In paragraphs 7 and 8 appellant mentioned this fact that attempt was made to get him removed from service through highly influential Government officer and through Provincial Law Department. Further it is stated therein that plaintiff, defendant No,1 in the suit and man of surety were got arrested in D.P.R.
During the pendency of suit and were detained in custody for a period of more than two months.
They were produced in custody in the proceedings of the suit. According to the plaintiff's application dated 26-2-1976, the matter was amicably settled through good offices of the then Home Secretary (Mr. Muhammad Khan Junejo) and plaintiff paid a sum of Rs,75,000 to the contesting defendant No, 2 in full and final settlement of her claim. In this context request was made by the appellant that he should be granted an opportunity to be heard in person. This did not mean that appellant wanted to forego his right of regular enquiry and was content with personal hearing. Further parawise comments show that each charge and allegation was contested and reply was given thereto. In view of what is stated in the reply as mentioned above, it is clear that the then Home Secretary (Mr. Muhammad Khan Junejo) was partisan and had played positive role in bringing about settlement between the parties to the suit. In such circumstances copy of the letter of the Home Secretary should have been sent to the appellant or appellant should have been informed that disciplinary proceedings had been taken against him on the complaint of the Home Secretary. This fact was unknown to the, appellant and he came to know about it only after disciplinary proceedings came to an end with recommendation of his dismissal.
Appellant sent an application through District and Sessions Judge, Karachi on 7th November, 1978 to the Registrar requesting for copy of complaint which was made against him by the then Home Secretary (Mr. Muhammad Khan Junejo) in respect of proceedings in Civil Suit No, 571/76. In this context reference can be made to white paper (page 251 of paper book) issued in July 1978 containing statement of Mr. Muhammad Khan Junejo in his trial by Summary Military Court, in which he has mentiond the details of Civil Suit No, 571/76 and the role played by him. Relevant paragraph at page 255 of the paper book is reproduced as under:- "The accused are a gang of professional cheats and are hazard for public safety. They had come to Martial Law authorities perhaps also at the instance of the Civil Judge and Additional Sessions Judge who are facing enquiry. The poor lady needed help which must be provided to all citizens in such circumstances and in this case there were clear orders of the former Prime Minister which had to be complied with."
9. In the case of Government of Punjab and another v. S. Tassadaq Hussain Bokhari PLD 1986 SC 162 this Court examined Rule 6(3) of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 and observed that procedure of shorter enquiry does not confer arbitrary or capricious powers on competent officers to draw any conclusions they please. It was so observed for the reason that secret reports against the civil servant were not shown to him nor factual contents thereof were disclosed to him. In the reported case City Magistrate was charged with corruption, living beyond means, indulging in heavy drinking and womanising. He replied that no specific instances were quoted so he was handicapped to give conclusive defence and further he owned agricultural land and his record was good and he was allowed to cross efficiency bar. In disciplinary proceedings shorter procedure was adopted and after giving hearing the Magistrate was removed from service.
Service Tribunal held that accused officer was condemned on secret reports of special police and other agencies and he was not associated with those enquiries and secondly, D.C. And Commissioner were of the opinion that concerned officer had created enemies. Service Tribunal concluded that on the charge of corruption he was entitled to full-fledged enquiry and Supreme Court did not interfere with that decision.
10. Secondly, careful perusal of show-cause notices indicates that allegations with regard to the irregularities in the conduct of judicial proceedings are enumerated without pin-pointing whether they relate to inefficiency or corruption. In the first show-cause notice relating to Civil Suit No, 571/76 (page 141 of paper book) seven allegations are specified with final conclusion that appellant has been guilty of gross misconduct in the discharge of his duties and abuse of his official position for which he is liable for disciplinary action under the said Rules. In the second show-cause notice relating to Rent Case No, 1949 of 1973 (page 143 of paper book) seven allegations/charges are specified on the basis of which action is proposed to be taken for malpractices, lapses and abuse of official powers in the discharge of duties amounting to inefficiency, misconduct and corruption.
In both the cases appellant had submitted charts showing charges and brief replies thereto side by side which can be found at page 165 of paper book. I have not been able to find in charges any particular allegation of corruption in the sense that appellant passed such orders in lieu of accepting bribe. On the other hand there is also no indication that such orders in legal proceedings were passed by the appellant due to his inefficiency or lack of legal knowledge.
11. It appears that charges are denied and orders passed in the proceedings have been defended on the ground that they were rightly and correctly passed. In Civil Suit No, 571/76 with regard to handing over of property to the plaintiff in the suit on his furnishing surety, stand is taken that order was passed according to law against which Revision No, 32 of 1976 was filed before A.D.J. And subsequently order passed by the appellant was maintained by the High Court in Constitutional Petition No, D-717 of 1978. Similarly with regard to the allegation that in the civil suit orders were passed interfering with criminal case, stand is taken that legally such order could be passed by the Civil Court as question of title is to be decided by the Civil Court and not by the Criminal Court.
Whether this is correct or not is a separate question.
12. In the second show-cause notice relating to Rent Case No, 1949/73 main allegation against appellant is that on 1-1-1976 appellant as Incharge Senior Civil Judge attended urgent civil work of all the Courts during winter vacation and passed order treating Execution Application No, 32 of 1975 as urgent and allowed police aid to execute writ of possession which was supported by affidavit of Pairokar and in consequence tenant was dispossessed. In the reply order is defended on legal grounds and reliance is placed on the report of bailiff that police force was not used and judgment-debtor's son had himself removed the goods from the premises and handed over vacant possession to the landlord. There is also specific allegation that appellant had ante-dated execution application which is a serious charge and amounts to forgery. Appellant has denied this allegation. In such circumstances recording of evidence is essential without which controversial points cannot be resolved.
13. Perusal of charges and replies clearly indicates that on the factual side controversies could be resolved only by examination of witnesses who played part in the proceedings. Now if appellant is punished for misconduct on the ground of inefficiency then one single slip or error cannot be considered to be sufficient to prove inefficiency. In the case of A.U. Mussarat v. Government of West Pakistan (PLD 1977 SC 24) appellant therein was compulsorily retired from service on the ground of inefficiency after issue of show-cause notice and observance of other necessary formalities in regard to departmental enquiry. Failing in appeal he filed Constitutional petition before the High Court which was dismissed in limine. He was held responsible for delay of two years in the disposal of a promotion case which was construed as inefficiency. This Court held that before visiting Government servant with penalty of compulsory retirement on the ground of inefficiency, it must be found that such inefficiency is of lasting character and is not likely to be got rid of. A single slip or error is not be straightway construed as amounting to inefficiency. In the result appeal was allowed. In the case of M.A. Rahman v. Federation of Pakistan and others (1988 SCM R 691) it has been held that inefficiency or misconduct are two separate and independent grounds for penalty to be imposed in disciplinary proceedings on an accused officer. In that case penalty of Rs,35.41 crores was imposed by Deputy Collector on importer on the ground that he had committed fraud.
Appeal was accepted by Collector of Customs, who set aside order of penalty and left it open for fresh proceedings. Board of Revenue took view that order of Collector was passed in gross violation of law and he was charge-sheeted and Enquiry Committee was appointed and in the result of enquiry he was dismissed from service. Service Tribunal partly allowed appeal. Supreme Court examined various provisions of Government Servants (Efficiency and Discipline) Rules, 1973 and Customs Act of 1969. Pertinent observation which is relevant for subject under consideration at page'702 of the report is reproduced as under:-- "We are, therefore, of the view that the charge of misconduct was wholly misconceived as was indeed found by the Service Tribunal which held the appellant guilty of incompetence instead, to which aspect we will advert a little later. If in such a case the Board of Revenue is allowed to punish an officer of the Customs it will amount to doing something indirectly what the law prohibits by express terms. It follows from the proviso to section 223 that the Board of Revenue cannot interfere in the quasi-judicial functions of the officers of Customs under the Act and they are left free to decide the matters coming before them in accordance with their judgment on issues requiring adjudication without any let or hindrance from an outside authority, subject however, to correction of errors in their decisions by appeal or revision. The fear of personal accountability in case they are subjected to disciplinary proceedings in circumstances like those obtaining in the present case, would result in their acting virtually under the dictation of the higher administrative authorities in total negation of the spirit underlying the proviso to section 223 of the Customs Act."
14. Thirdly, appellant filed Constitutional Petition No, D-1567 of 1978 in the High Court of Sindh impleading Government of Sindh, Authorised Officer, Registrar and Mr. Muhammad Khan Jujeno, ex-Home Secretary (see page 257 of the paper book). Main grievance of the appellant in this petition was that authorised officer had directed that regular enquiry be dispensed with. However, this petition was dismissed in limine by Division Bench vide order dated 12-12-1978 on the ground, inter alia, that final order was not passed and further remedy lay before the Service Tribunal and not High Court. It appears that this petition was filed after authorised officer recommended dismissal of appellant and before final orders in that regard were passed by the Government.
15. Fourthly, about personal hearing nothing is mentioned in the written statement filed by Registrar of High Court of Sindh, Karachi (page 294 of paper book) before Sindh Service Tribunal. In the confidential record maintained by the High Court there is no mention about details of personal hearing as to how long it took place and what contentions or arguments were raised by the appellant. In the order of findings passed by the Authorised Officer (page 233 of paper book) it is mentioned that appellant had replied to the notices in writing and he was given personal hearing by the Authorised Officer. It appears from the order that explanations put forward by appellant were rejected. This personal hearing cannot be a substitute of regular enquiry in which witnesses are examined or cross-examined.
16. For the facts and reasons stated above I am of the view that nature of allegations and charges levelled against the appellant and replies given by him therefor were such that enquiry could not have been confined and concluded on the basis of documents in Civil Suit No, 571/76 and Rent Case No, 1949/73. Controversial questions had arisen which required recording of evidence of witnesses. Copy of complaint filed by Mr. Muhammad Khan Junejo should have been sent to the appellant. Appellant alleged animosity with Mr. Muhammad Khan Junejo, ex-Home Secretary in his reply to the show-cause notice and when mala tides were alleged enquiry should have been converted into regular enquiry and evidence of witnesses should have been recorded. Separate order should have been passed by Authorised Officer with grounds therefor for dispensing with regular enquiry and appellant should have been intimated about it. Disputed questions of facts and law are involved particularly in view of the fact that orders were passed on judicial side and for maximum penalty of dismissal from service of a member of judiciary for proper dispensation of justice it was necessary to have regular enquiry of which personal hearing is no substitute. I, therefore, agree with and approve findings of the Service Tribunal to the effect that charges are not proved against appellant as such order of penalty is not legally sustainable and further departmental authorities can proceed against the appellant afresh in accordance with law. Order of removal is set aside and appellant is reinstated with period of absence to be treated as extraordinary leave. Civil Appeal No,715-K of 1990 filed by appellant Saiful Haque Hashmi is disposed of in terms stated above and Civil Appeal No, 716-K of 1990 filed by Government of Sindh is dismissed.