1991 PLP (C (PLC(CS))

(e) That it was proved to the learned Senior Civil Judge that the surety accepted 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 MUHAMMAD 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. Ali 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 6f 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 cots. 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 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.

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 1Voor 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 1-1-1976 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 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/degree-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." 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 10-1 1976, 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 m 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 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 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. M.Y.H./228/Sr.S Appeal allowed.