2021 PLP (C (PLC(CS)N)

ABDUL MAALIK GADDI, J.

This appeal is directed against the order dated 05.09.2007, passed by the Departmental Appellate Authority of this Court, dismissing the appeal against the order dated 23.02.2007, passed by the learned District and Sessions Judge, Karachi West/competent authority, whereby appellant Faisal Haider Memon was removed from service.

2. The allegations against the appellant as contained in the show-cause notice dated 28.10.2005, issued to him by the competent authority for initiating action against him are as under:- "Whereas, it has been observed that on 24.10.2005, bail before arrest was granted to the accused namely, Sher Khan son of Khairullah in Bail Application No.608/2005, emanating from Crime No. 433/2005, registered under Sections 147/148/452/ 380/337A(i) at Police Station Jackson. That on the same day, the surety has not been furnished for the applicant/ accused and on the next day, i.e. 25.10.2005, one advocate namely, Faisal Registration No.2431/03 produced the surety, surety accepted, you have filled up the bail bond and same was handed over by you to his counsel for obtaining the sign, but you neither seen the accused nor call him in person before you for obtaining his signature on bail bond, thereafter, it was returned to you by his counsel with the signature of the accused which has been issued by you to concerned P.S. on receipt of bail bond. The accused who was arrested on 24.10.2005 and was in custody remand was taken for two days was released illegally by the concerned Police Station which is due to your negligence. It has come in the knowledge of the undersigned today that on the day i.e. 25.10.2005, the signature of the accused was obtained in the court of Judicial Magistrate. You have not intimated to your Presiding Officer that accused was not appeared before you and sign on the bail bond. You have rendered yourself liable to be disciplinary action as you have committed an act of misconduct. You are hereby called upon to show cause as to why disciplinary shall not be taken against you according to relevant law. Your reply should reach to the undersigned within three days from the day of receipt of this notice."

3. It appears from the record that the appellant submitted his reply of the aforesaid show-cause notice by denying the allegations and submitted that on 24.10.2005, surety papers were produced by the counsel for the accused (Faisal Advocate), before the Reader of the Court namely, Syed Habib Shah, who after putting his submission note, went to the chamber of Ms. Hafiza Usman, IIIrd Additional District and Sessions Judge, Karachi West, and noticed that she had already left the Court room as the Court hours were over, hence, the surety papers could not be submitted on that day. However, on the next day i.e. 25.10.2005, the surety papers were again submitted before the Presiding Officer by Reader Habib Shah, and PR bond provisionally prepared by the COC namely Sirajuddin Khan, which was accepted by her, and he only put his signature on aforesaid PR bond, as such, according to him, he did not play any role, which comes within the definition of misconduct.

4. It also appears from the record that the reply submitted by the appellant was found unsatisfactory by the competent authority, hence, a regular enquiry was ordered, which was conducted by the learned Vth Additional District and Sessions Judge, Karachi West, who after conclusion of the enquiry, found the appellant guilty of the charge and recommended for his removal from service. On the basis of said enquiry report and after adopting all required formalities, the appellant was removed from the service by the competent authority.

5. Mr. Syed Abrar Ahmed Bukhari, learned counsel for the appellant contended that the impugned orders passed by the learned respondent No.2 and the Departmental Appellate Authority are against the law and on facts and further submitted that no misconduct within the scope of removal from service under Government Servants (E & D) Rules, 1973 has been committed by the appellant, nor has been proved against him. No witness has deposed against him. The findings/conclusion recorded by the inquiry officer is also based on misreading/non-reading of evidence on record, hence, order based thereon to be set-aside/quashed; that the appellant has been punished for no misconduct committed by him; that appellant was no concerned with appearance of the accused either for bail before arrest or otherwise on 24.10.2005 and/or 25.10.2005, as the case may be. According to him, a Lower Division Clerk has no concerned with any such doings or happening in the Courts. The duty of the appellant being to issue release order on the basis of bail order, acceptance of surety by the Courts and execution of bail bonds of the surety and the accused. This exercise is undertaken by the Court, by Reader or by the COC and not by a Lower Division Clerk; that the appellant acted on the basis of documents received by him as he could not afford or bear in not releasing the bail orders; that on 24.10.2005 or 25.10.2005, the appellant has never visited the Chamber of the learned Judge, nor he has summoned; hence, his involvement in the matter is mala fide, motivated as the surety documents were presented by the Reader after putting his submission note and surety was identified by his advocate namely, Mr. Muhammad Faisal and affidavit was filled by the surety, thereafter, the same was accepted by the learned Judge, but no action has been taken against them; that material witnesses, who were allegedly involved in the whole process for acceptance of the surety i.e. Surety, Advocate appearing for the accused and Presiding Officer have not been examined before the Enquiry Officer; however, the present appellant was made an scapegoat in order to save the others; that the appellant has been illegally removed from the service in the year 2007, almost twelve (12) years have been passed and he is the only source of earnings for his family, therefore, he prayed that this appeal may be allowed and the appellant be reinstated in service.

6. Conversely, Mr. Ali Safdar Deepar, learned Assistant Advocate General, Sindh, while opposing the aforesaid contentions submitted that the prosecution has fully established its case against the appellant beyond the reasonable doubt by producing consistent/convincing and reliable evidence and the impugned orders passed by the learned Competent Authority and Departmental Appellate Authority of this Court are the result of proper appreciation of evidence brought on record, which needs no interference. Hence, he prayed that this appeal may be dismissed.

7. We have heard the learned counsel for the parties at a considerable length and have gone through the documents and evidence on record with their able assistance.

8. Admittedly, on 24.10.2005, ad-interim pre-arrest bail was granted by the respondent No.3 to the accused namely, Sher Khan son of Khairullah in Crime No.433 of 2005 of Police Station Jackson in the sum of Rs.50,000/-, but on the said date, surety could not be produced, however, on 25.10.2005, surety papers with submission note of Reader along with Bail Bonds were presented before the respondent No.3, which was accepted by her. On perusal of record, it appears that main controversy in this appeal is that whether the appellant under the circumstances of the case, is liable to be punished for his misconduct. Needless to mention here that a person cannot be admitted to pre-arrest bail, unless he is present in Court in view of statutory requirement of Section 498-A, Cr.P.C.

9. As observe above, ad-interim pre-arrest bail was granted to the said accused by the learned IIIrd Additional Sessions Judge, Karachi (West) subject to furnishing solvent surety in the sum of Rs.50,000/- meaning thereby, interim pre-arrest bail granting order was conditional subject to furnishing required surety and until and unless required surety furnished and accepted by the Court, accused could not be considered on bail. In this backdrop, presence of accused while placing the surety papers before concerned Judge for acceptance or otherwise was mandatory, unless exemption of the accused sought by the Court. Admittedly, at the time of acceptance of surety, accused was not present. However, it was alleged that the appellant while preparation and signing the bail bonds accused was not present before him and this fact was not disclosed by him to the respondent No.3. It is stated by the counsel for the appellant that it was the duty of the COC, Reader to ensure the presence of accused while presenting the surety papers before the Presiding Officer and at the same time, it was also the duty of the Presiding Officer to ensure the presence of the accused at the time of accepting the surety papers, but they failed to do so.

10. It is noted that on 24.10.2005, one namely, Imtiaz Khan son of Musali Khan was appeared before the Court to stand surety for the said accused in the said crime and required surety papers were submitted in the office of the concerned Clerk, but the same could not be furnished on the said date, as the Presiding Officer of the said Court was left the Court, as Court hours were over. However, on 25.10.2005, surety papers were again produced by the said surety in the office, where submission note and affidavit of surety were prepared and signed by the Reader Syed Habib Shah, which was also signed by the surety Imtiaz Khan and surety was identified by his counsel, Muhammad Faisal Registration No.2431/03; whereas, Bail Bond was signed by the appellant. The signature on bail bond of the appellant was not denied, however, surety was accepted by the respondent No.3.

11. The only allegation levelled against the appellant on the basis of which, he was removed from service is that he filled the bail bond in the absence of accused. Be that as it may, for the sake of arguments, if it be assumed that appellant filled the bail bond and signed it in absentia of the accused, then why COC, Reader, who made the submission note did not refuse to make the submission note. Not only this, as per record, Reader had placed the surety papers before the concerned Judge for orders on it, why he did not point out the absence of the accused to the concerned Judge while placing the surety papers before her. Apart from above, in the whole scenario, the concerned Judge cannot be absolved for her responsibility. It is the bounden duty of the Judge that whenever surety papers produced before his/her for orders, he/she is required to scrutinize the same with due care and caution for the reason that acceptance of the surety relates to satisfaction of the Court. In this sense, responsibility was also upon the concerned Judge as to how, she accepted the surety without ensuring the presence of the accused before her, but the learned Enquiry Officer did not consider this aspect of the case in its true perspective.

12. It is also noted that in this matter, neither surety Imtiaz Khan, Muhammad Faisal Siyal, Advocate, who identified the surety have not been produced in evidence. Presiding Officer, who accepted the surety, has also not been examined. Signatures of COC, Reader of the Court, Advocate for the accused and surety are appearing on the surety papers, but no action has been taken against them. They seem to be responsible for ensuring the presence of the accused at the time of the acceptance of the surety, but they did not inform to the Presiding Officer of the absence of accused. However, debris was put upon the appellant alone of this episode. As observed above, there is no denial to the fact that appellant had filled the bail bond and made signature over it.

13. After considering all record, though the appellant cannot be wholly exonerated from the charge levelled against him, but one thing is sure that he is not the only responsible person, but many others as well and it also seems that he made scapegoat in order to save the others.

14. At this stage, it would not be out of place to mention here that major penalty as term suggests is a serious and extreme penalty, in context of service law as in the instant case, it could mean the end of a person's career. Such penalty cannot be imposed lightly and without proof of serious allegations as the case in hand appears to only negligence of the appellant. No charge of corruption levelled against him, therefore, in our view, punishment awarded must be proportionate to and commensurate with the magnitude of the offence. Keeping view the peculiar facts and circumstances of the case, so also service record of the appellant as well as the fact that he was removed from the service on 23.02.2007 and since then, he is facing agony of trial, almost twelve (12) years have been passed and it is stated by the counsel for the appellant that appellant is a poor man and is only source of bread earnings of his family; as such, the impugned orders dated 23.02.2007 and 05.09.2007, passed by learned District and Sessions Judge, Karachi West and Departmental Appellate Authority are not sustainable under the law, hence, the same are hereby set-aside and we partly allow this appeal and reduce his punishment from major penalty as removal from service to a minor penalty as censure as prescribed in Section 4(1)(a)(i) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973. Resultantly, the appellant is reinstated in service with immediate effect with directions to him to remain careful in future. However, since the matter is old one and appellant was not in service during this intervening period, therefore, we have refrained ourselves from passing any order with respect to back benefits. This service appeal is disposed of in above terms. ZC/F-2/Sindh Order accordingly.