2020 PLP (C (PLC(CS))

IJAZ ANWAR, J.

Appellant, Syed Asghar Shah, Ex-Additional District and Sessions Judge, through instant appeal under section 5 of the Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act, 1991, has impugned Notification No.242-J dated 29.10.2010, whereby major penalty of compulsory retirement from service has been imposed upon him by the Hon'ble Chief Justice, Peshawar High Court, Peshawar being the competent authority. The appellant formulated his prayer as follow:- "On acceptance of service appeal, the impugned order of Authority, findings of the Authorized Officer and Notification of compulsory retirement dated 29.10.2010 and suspension order dated 21.10.2010 issued by the office of the Registrar, Peshawar High Court be declared null and void and inoperative upon the rights of the appellant. Further appellant be restored to his post and designation as he enjoyed on 29.10.2010 with all back benefits."

2. Brief facts leading to filing the instant appeal are that the appellant was serving as Additional District and Sessions Judge / OSD at Peshawar High Court, Peshawar, when he was served with a show-cause notice dated 02.10.2010 issued by Authorized Officer, within the meaning of sub-rule (3) of Rule 5 of Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 1973, levelling therein the allegations of ill-reputation and adverse entries in his PERs qua integrity of the appellant; that the appellant submitted his reply to the show-cause notice, wherein, he denied the allegations and charges, however, the appellant was served with final show-cause notice dated 21.10.2010, wherein, major penalty of compulsory retirement was proposed by the Authorized Officer against the appellant; that the appellant submitted his reply to the Final show-cause notice and also appeared before the Authorized Officer on 29.10.2010 for personal hearing, he again denied the charges levelled against him, however, vide impugned notification dated 29.10.2010, the appellant was awarded major penalty of compulsory retirement from service. Hence, the instant appeal.

3. Learned counsel for the appellant argued that Honourable the Chief Justice has got no powers to departmentally proceed against the appellant and pass the order of his compulsory retirement and he argued that under Rule 4 of Khyber Pakhtunkhwa Judicial Service Rules, 2001, only the High Court is declared as the appointing authority, and according to him in accordance with the recent judgment of august Supreme Court of Pakistan reported as PLD 2015 SC 360, only the Administration Committee of the High Court is empowered to proceed against the appellant; he further argued that in the absence of regular inquiry no charge of misconduct can be proved summarily; he also questioned the decision of the learned Authorized Officer to dispense with regular inquiry on the ground that no such admitted sufficient incriminating evidence was available on record to justify such order.

4. Learned counsel representing respondent High Court argued that record of the appellant is replete of adverse entries in ACRs/PERs; he also argued that where the adverse entries carrying remarks regarding the integrity, it cannot be ignored.

5. Arguments of learned counsel for the parties heard and record perused.

6. The objection regarding the incompetency of departmental proceedings against the appellant has been mainly argued as such, we would take up this objection first. Perusal of record transpires that the appellant has been proceeded against under the Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter to be referred as E&D Rules, 1973). The E&D Rules, 1973 define 'authority' and 'authorized officer' under Rule 2 sub-clauses 'b' and 'c', as follows: "

2. Definition:

In these rules, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say:-- (a) (b) "authority" means the Governor or an officer or authority designated by him to exercise the powers of the authority under these rules; (c) "authorized officer" means an officer authorized by the authority to perform functions of an authorized officer under these rules. (d) ." In accordance with scheme of E&D Rules, 1973, it is the authority, who can initiate and finalize the departmental proceedings against the delinquent civil servant. Similarly, the Authority can appoint authorized officer who has either to proceed and adopt shorter procedure or to go for regular inquiry keeping in view the facts and circumstances of the case. In the instant case, the decision of initiating the departmental inquiry was taken by Honourable the Chief Justice when a report regarding conduct of different judicial officers was placed before him. Thus, on 23.09.2010 Honourable the Chief Justice decided to initiate departmental proceedings against different judicial officers. Relevant Paras are reproduced below: "

1. Having been conferred the trust of heading the Institution and taking oath under the Constitution, I deem it my earnest duty to cleanse the District Judiciary from all those elements who have corrupted the judiciary and have brought bad name to it. The National Judicial Policy, 2009, also mandates action against all those Judicial Officers who carry persistent reputation of being corrupt and have a life style beyond their ostensible means of income.

2. With the background I direct the Registrar to put the cases of the following District and Sessions Judges and Additional District and Sessions Judges, in a first stage, as they fall within the category mentioned in N/1 above. i. .. ii. .. iii. . iv. . v. .. vi. .. vii. .. viii. .. ix. .. x. Syed Asghar Shah, Additional District and Sessions Judge." Similarly, the Registrar, Peshawar High Court on 27.09.2010 submitted the report regarding the service career of the appellant in the following words:- "The record of the officer at S. No. x shows that he is having a reputation of being corrupt and living beyond his means. There are number of complaints against him." Hon'ble the Chief Justice after perusing the report of the appellant including other delinquent Judicial Officers appointed Mr. Justice Miftah-ud-Din Khan as Authorized Officer to proceed against the appellant under E&D Rules, 1973 and formal order to this effect was issued on 28.09.2010. The Authorized Officer on the basis of available record decided to adopt shorter procedure and dispensed with regular inquiry, accordingly served the appellant with show-cause notice dated 02-10-2010 containing the following allegations:- "That you have persistent reputation of being corrupt throughout; That your record speaks volumes about your ill reputation which includes adverse entries in your PERs regarding your integrity during your service career; That your life style shows that you are living beyond your ostensible legal means." After the receipt of reply to the show-cause notice, the Authorized Officer considered the record of the appellant and on the basis thereof, he formed an opinion that the accused/officer deserves to be awarded major penalty of compulsory retirement from service, he recommended it as such. Accordingly, Hon'ble the Chief Justice while exercising his powers as envisaged in Rule 4(1)(b)(ii) of E&D Rules, 1973 imposed the major penalty of compulsory retirement from service upon the appellant.

7. The reliance of the learned counsel for the appellant on the case of 'Registrar Peshawar High Court and others v. Shafiq Ahmad Tanoli and others' reported in PLD 2015 SC 360 is misplaced, because reported judgment goes against the appellant. Relevant Para-21 of the said judgment is reproduced below for ready reference:- "

21. On separation of the Judiciary from the Executive pursuant to the mandate of Article 175 of the Constitution, the authority under the Efficiency and Discipline Rules was conferred on the Chief Justice vide Notification No. SORII(S&GAD)5/(29)/86 dated 16th of January 1992. The said notification along with the table reads as under:- "POWER OF CHIEF JUSTICE AS AUTHORITY UNDER NWFP GOVERNMENT SERVANTS (E&D) RULES, 1973. NOTIFICATION PESHAWAR, DATED 16TH, JANUARY, 1992. No.SORII(S&GAD)5(29)/ 86:- In exercise of the powers conferred by clauses (b) and (c) of Rule 2 of the North-West Frontier Province (Efficiently and Discipline) Rules, 1973, and in supersession of this department's Notification No. SOSIII(S&GAD)1-80/ 73, dated the 28th January, 1975, the Governor of the North- West Frontier Province is pleased to direct that the officers specified in columns 3 and 4 of the table below shall respectively be the "Authority" and "Authorized Officer" for the purpose of the said rules in respect of civil servants specified against each in column 2 of the said table.- S.No. Basic Pay Scale of Government Servant Authority Authorised Officer 1 2 3 4 1 .. .

2. Officer of former Provincial Civil Service (Judicial Branch) in Basic Pay Scale 17 and above. Chief Justice As Authorized by the authority. According to this notification, the Chief Justice could exercise all the powers conferred on the Governor of the Province without the approval of the latter at initial or final stage." It is clear from definition given in section 2(b) of E&D Rules, 1973, that the 'authority' means the Governor or an officer or authority designated by him to exercise the powers of the authority under these rules. The Hon'ble Supreme Court quite rightly referred to Notification No. SORII(S&GAD)5(29)/86 dated 16.01.1992, whereby, the Governor has designated Hon'ble the Chief Justice as 'authority' for the officers of former provincial civil service (Judicial Branch) in BPS 17 to

21. Thus, the objection on the competency of the Hon'ble the Chief Justice to proceed against the appellant is misplaced and is accordingly repelled. Under E&D Rules, 1973, Hon'ble the Chief Justice was declared as 'authority' and it has got a stamp of approval from the apex Court in Shafiq Ahmad Tanoli's case.

8. The main factor behind initiation of departmental proceedings against the appellant is an order in Bail Petition No.160/2010, when the appellant granted bail to one Mian Nisar Gul Kakakhail, in case F.I.R No.38 dated 02.05.2010 under sections 365/354/452/427/382 / 148/149, P.P.C., Police Station Shakar Dara. At the bails stage, the complainant and the abductee in the light of the statement recorded before Judicial Magistrate-II, and also a statement before the Court that she is no more interested in prosecution of the accused, thus the appellant while serving as Additional Sessions Judge-V, Kohat granted him bail. To the misfortune of the appellant due to wide media coverage to the said case, the application of the complainant was entertained by the august Supreme Court of Pakistan as suo motu petition, pursuant thereto the appellant was called in person, the apex Court has not accepted the explanation of the appellant and directed for initiation of departmental proceedings against him. It was thus on direction of apex Court that the Authority appointed Authorized Officer, who served the appellant with a show-cause notice containing the same allegation about allowing bail vide order dated 22.05.2010. On submission of his reply to the show-cause notice, the Authorized Officer recommended him for major penalty. He was also served with the final show-cause notice. In the meantime, the Hon'ble High Court decided to proceed against those judicial officers who carry persistent reputation of being corrupt and have a life style beyond their ostensible means of income. This is second unfortunate aspect of the case that though the appellant was having no such record of corruption but still his case was bracketed with those judicial officers and he was served with the show-cause notice simply alleging "that you have persistent reputation of being corrupt throughout; that your record speaks volumes about you ill reputation which includes adverse entries in your PERs regarding your integrity during your service career; that your life style shows that you are living beyond your ostensible legal means." Perusal of the recommendations of the Authorized Officer would reveal that he has also mainly based his recommendations on the contents of reply to the show-cause notice, wherein, reference to earlier incident as well as some of the judgments of the High Court, were referred. Astonishingly, the learned Authorized Officer has before him only one adverse ACR regarding integrity and reputation of the appellant for the year 2005. We on examining the record find that this adverse ACR was also expunged by the Administration Committee but the Authorized Officer gave his unique reasoning that though the adverse remarks are expunged regarding unfit for promotion but there is no specific expunction order regarding ill-reputation. We are, thus, unable to comprehend the explanation/ recommendations of the Authorized Officer in the absence of any material regarding the ill-reputation of the appellant. We have also noted that the Authorized Officer has referred to certain judgments of the appellant, which he himself has quoted. It is pertinent to mention here that appellant was compulsory retired from service on 29.10.2010 but simultaneously vide letter dated 04.01.2011 adverse remarks for the years 2006, 2007, 2008 and 2009 were communicated to the appellant. The adverse remarks communicated long after retirement of the appellant cannot be used against the appellant in the instant matter. We desist ourselves from commenting upon the status of those adverse entries at this stage, because the appellant has already impugned those adverse entries in separate service appeals. We have further noticed that in the show-cause notice, general allegations were levelled but except the one expunged adverse ACR, there was nothing on the record of the appellant about his ill-reputation. The term "persistent reputation of being corrupt" must have repeated adverse entries or malignant service record, which in the case of appellant it is missing. Similarly, the allegation of living beyond ostensible legal means is superfluous in the present case as there is no record or evidence to this effect. Merely saying so in the show-cause notice should not suffice unless there is some evidence to this effect.

9. To our understanding the only allegation that can be used against the appellant is the one for which the apex Court directed i.e. allowing bail in a case which got the fame due to vast media coverage and the support of some Human Rights Associations. The record transpires that when subsequently the Hon'ble High Court was moved for the bail cancellation petition, it was dismissed finding nothing illegal with the order of bail.

10. Though the Authority is empowered to impose any of the penalties as provided under Rule 4 of the Government Servants (Efficiency and Discipline) Rules, 1973, but it is also by now well settled that the penalty should commensurate with the gravity of charges levelled and proved against the delinquent officer. We have already observed above that the case of the appellant was distinguishable from those officers who were proceeded for the allegation of corruption and that the case of the appellant was wrongly bracketed with them.

11. We have given our anxious consideration to the whole case, the allegations that are levelled and the alleged proof of allegation, as held by the learned Authorized Officer are without any base, we find that the Authorized Officer was influenced mainly because of the recommendation of the Hon'ble apex Court and has not given his independent consideration to the case of the appellant. We are thus of the considered opinion that the punishment imposed upon the appellant is extremely harsh. The allegations were not of such a nature that it entail major penalty of compulsory retirement from service. Reliance is placed on "Auditor General of Pakistan v. Muhammad Ali" (2006 SCMR 60), "G.M. Pak Railways v. Muhammad Rafique" (2013 SCMR 372), "Muhammad Ali S. Bukhari v. Federation of Pakistan" (2008 SCMR 214), "Syed Fida Hussain Kazmi v. IGP Punjab" (2008 SCMR 1513), "Secretary to Government of the Punjab Food Department Lahore v. Javed Iqbal" (2007 PLC (C.S.) 692), "Maqbool Ahmad v. Chief Executive, FESCO" (2004 SCMR 637) and "Commissioner, Punjab ESSI v. Jamal Butt" (2004 SCMR 186).

12. We, thus, set aside the order of compulsory retirement dated 29.10.2010 and convert the same into reduction to the post of Senior Civil Judge for a period of three years effective from 29.10.2010. On the completion of his period of reduction, he shall be restored to his original seniority. The period of compulsory retirement till reinstatement in service shall be treated as leave of the kind due and countable towards length of service but since we have not completely exonerated the appellant, as such, he is not entitled to any arrears of pay. The appellant will, however, be entitled to the fixation of his pay on notional basis. ZC/175/P Appeal allowed.