P L D 1983 Supreme Court 187 (PLP)

SHAFIUR. RAHMAN, J.-The petitioner, formerly an Additional District & Sessions Judge, a member of the Provincial Civil Service (Judicial) of the Punjab, seeks leave to appeal against the judgment of the Punjab Service Tribunal dated 6th February, 1982 whereby his appeal against dismissal from service by thd. Punjab Government, was dismissed. When the petitioner was posted as Additional District & Sessions Judge, Sargodha in the year 1972-73 his handling of certain criminal matters came to the notice of the High Court, Demi-official letters were addressed to him in 'May ' 1973 bringing to his notice the specific complaints and his explanations . were obtained. On 3rd December, 1973 what is said to be a statement of allegations was also served upon him and his views with regard to the. allegations were obtained. Thereafter the Government of the Punjab was moved: 'After obtaining orders from the competent authority a formal charge-sheet alongwith a statement of allegations only signed by the Chief Secretary in. August 1974 was sent down and by a notification dated 26th August 174 a "learned Judge of the High Court was appointed as the Inquiry Officer. There was a substitution of the Inquiry Officer by another notification . dated 28-I1-1974. When the Inquiry Officer started inquiry in January 1975 and asked the petitioner to submit his written defence to the charges, as none was found on the record it transpired that the charge-sheet and the statement of allegations duly prepared acid signed in August, 1974 remained unserved on him. The Inquiry Officer then made a reference to the Government of the Punjab which asked the Inquiry Officer to effect the service, and proceed with the enquiry as according to the Government this omission did not affect the validity or legality of the proceedings. Accordingly the charge sheet and the statement ,of allegations were served by the Inquiry Officer on 9-1-1975 and the reply to the charge-sheet was obtained. There were four charges against the petitioner relating to his handling of bail applications in a manner which was considered to be objectionable and amounting to misconduct from which it c, 01 reasonably be inferred that he was guilty of corruption. After recording the evidence and dealing with it, the inquiry officer came to the conclusion, that the first three charges, were proved but riot the fourth. The Inquiry Officer considered that it was a t case of gross misconduct fully made out against the petitioner and that it was punishable with dismissal or removal and that the proper punishment in the case was ' dismissal. On receipt of the inquiry report the Government under the signature of the Secretary, S. & G. A. D. Department, served a final show-cause notice on the petitioner and after considering his reply and hearing before the Chief Secretary, the Governor/Martial Law Administrator passed an order of his dismissal from service. He filed a review petition but it was dismissed. Then he preferred a service appeal before the Tribunal. The Tribunal re-examined the evidence led by the petitioner and the material against him along with the report of the Inquiry Officer and upheld the findings and the punishment awarded to him and dismissed his appeal. Hence this petition. The learned counsel for the petitioner contended that the petitioner has been seriously prejudiced on account of the fact that a very senior Judge of the High Court was appointed as the Enquiry Officer and he dealt with the inquiry as a full fledged Court case concluding it with not an inquiry report but a judgment citing therein extensively case law to support the findings leaving no scope whatsoever for any other authority to apply its independent mind. Even the Service Tribunal, presided, as it was, by a former Judge of the High Court, could not reappraise the case uninfluenced by the seniority of the Enquiry Officer and his finding and this fact was apparent from the repeated reference in the tribunal's order to the enquiry report as a verdict of the Enquiry Officer to give the impression that it 'was conclusive and above challenge. Yet another factor iii the enquiry report which seriously prejudiced the petitioner was the recommendation made about the ,punishment which it was no function of the Inquiry Officer to make. The competent authority had to itself decide about the punishment to be imposed and could not be influenced by the Inquiry Officer in this matter. It was next contended that there was a serious breach of the Efficiency and Discipline Rules inasmuch as the preliminary inquiry after service of charge-sheet and statement, of allegations as prescribed in rule 6(1v)(a) was not held before deciding upon the formal inquiry under rule

8. Besides, the appointment of the Enquiry Officer should not have taken place till the reply to the charges had been received from the petitioner and considered. The requirements of rule 6(iv) being mandatory its violation vitiated the inquiry and such was the opinion of the Enquiry Officer as. well, though not of the Government. Yet another argument of the learned counsel for the petitioner was that on the findings of the Enquiry Officer the petitioner could not be held guilty of misconduct for he was found guilty of impropriety alone while misconduct takes place when there is a breach of service discipline. The mistakes attributed to the petitioner were all, at its worst, errors of , judgment, so often found in judicial functioning and such errors do not attract penal or disciplinary proceedings. If there was disobedience or avoidance of Superior Courts' orders the proper course was to deal and adjudge the petitioner guilty of contempt rather than of misconduct entailing removal from service. If it was a case of corruption then a tribunal under rule 9-B should have been appointed instead of an Inquiry Officer, as was done in this case. We find that the objection of the learned counsel for the petitioner to the,! appointment of a High Court Judge as Enquiry Officer cannot. be considered! at all prejudicial to the petitioner. On the other hand, none else but a judicial officer would have been alive to the requirements, limitations and the, proprieties of judicial office and to the dictates of law in conducting cases and in disposing of petitions relating to matters judicial. Rule 8 of the Efficiency and Discipline Rules, 1960 required that the Inquiry Officer had to be an office higher in rank, A, learned Judge of the High Court is higher in rank and there is no intermediary rank between the Sessions Judge and the High Court Judge except that there may be selection grade Sessions Judges or the Senior Sessions Judges. The- appointment of a Judge as Enquiry Officer was in accord with the letter and spirit of the law. In fact, by the appointment of a High Court Judge as Inquiry Officer maximum protection was afforded to the petitioner with regard to his conduct as a Judicial Officer. The clarity of the report, the definiteness of the findings, the detailed reasoning in support of the finding all made the report intelligible, enabled the petitioner to demonstrate the weakness or irrelevance, if any, of the grounds made the basis of finding and in fact it facilitated the appraisal of the case by the Government as well as by the Service Tribunal. There was no question of any authority dealing with the petitioner being overwhelmed by the position and status of the Enquiry Officer and this fact is amply proved by the facts of this case as well. The very first opinion formed by the Inquiry Officer with regard to improper service of charge-sheet and statement of allegation was overruled by the Government, the authority which was handling and was ultimately to deal with the case of the petitioner. It is true that the petitioner had not been served with a charge-sheet and statement of allegations and his defence had not been obtained before) appointing the Inquiry Officer. The learned counsel for the petitioner, it B appears, has relied on rule 6 before it was amended and substituted in 1969 (1969 W. P. Statutes 56). After this amendment rule 6 dealt only with minor penalties. It is rule 6-A which alongwith rule 8 dealt with major penalties and the appointment of Enquiry Officer. The first part of rule 6-A provided that where the authority had not decided about the penalty to be imposed the preliminary inquiry could be got conducted before initiating a formal inquiry. However, this procedure was not to be adopted in every case, for where the authority competent to take action was clear in mind that it was a case of a formal inquiry it could appoint Inquiry Officer under rule 8 and simultaneously with the appointment furnish the charge-sheet and the statement of allegations. In this case it is significant that much had gone before the charge-sheet was framed. On every dereliction coming to the notice of the High Court due notice had been given to the petitioner, his explanation obtained and considered and the record so prepared was transmitted to the Government with the recommendation of the High Court. From the charges framed, it would appear, particularly from charge No. 2, that the explanation submitted by the petitioner had also been taken into consideration for adding to the charges as originally formulated. In this background of events no prejudice could have been caused ; for one and half years before the framing of the formal charges the petitioner had been given opportunities in writing to explain his conduct in these very matters and ultimately proceedings were transmitted to the Government for taking a decision with regard to the initiation of a formal inquiry and appointment of an Inquiry Officer. The late delivery of the charge-sheet and the statement of allegations by the Inquiry Officer could not, in any manner, affect the legality of the proceedings. The charge of gross impropriety is in fact a charge of breach of service discipline. The propriety or impropriety of conduct had to be determined the reference to the officer, his work and duties and the service discipline governing him. In the case of a judicial officer the hierarchical arrangement t of Courts, the handing down of written judgments, and the collection of precedent in law, all control and guide his functioning. In every case of insubordination in judicial work, proceedings in contempt are technically possible but not quite proper. In the case of Abdul Hayee Khan v. The State (P L D 1958 S C (Pak.) 169 ) the Supreme Court observed "Where what is found is something having the appearance of indiscipline the powers of superintendence vested in the High Court are quite sufficient to enable restoration of a proper state of affairs, without recourse to the severe process of contempt." The learned counsel has not taken note of the fact that by an amendment in the year 1963 (W. P. Statutes 1963 p. 400) another misconduct was added in rule 3 of the Efficiency and Discipline Rules and it was of "reputation for being corrupt." For that misconduct an Inquiry by a tribunal was prescribed under rule 9-B. The charge of "reasonably be considered corrupt" was altogether different from the charge of having a "reputation for being corrupt." The charge against the petitioner was not of his having a reputation for being corrupt but of his indulging in certain misconduct from which it could reasonably be inferred that he was corrupt. This charge did not call for the appointment of a tribunal. It is also correct that ordinarily it is not the function of the Enquiry Officer to determine the penalty to be imposed and to incorporate it as a recommendation in the report. But as it is distinct and severable from the findings, it cannot and does not vitiate the enquiry or the report. - As already pointed the competent authority was free to determine the penalty and was neither bound nor overwhelmed by it. We have gone through the order of the tribunal. It is a fairly detailed order. It considers every aspect of the case and plea taken by the petitioner. It shows independent application of mind. There is no abdication of discretion in favour of the inquiry report. As a matter of fact, it has been evaluated in more than one respect and the conclusions have been affirmed. In the circumstances we find that this petition raises no such question of law of public importance as may justify the grant of leave to appeal under) Article 212(3) of the Constitution. Leave to appeal is therefore refused. S. Q. Petition dismissed.