1994 PLP 1815 (SCMR)

(2) The standard of proof, though it may not be as rigorous in departmental/,administrative proceedings as in judicial proceedings, yet substantiation of guilt/allegation beyond doubt is as much the quintessence of the former as of the latter. (3) The maxim "benefit of doubt should go to the accused" has the same relevance for departmental/administrative cases as for judicial cases. These basic fundamentals, read in isolation or conjunction have always served as basis for the machinery of justice in the civilised societies irrespective of the nature of the forum/institution dealing with the valuable human rights or dispensing justice. These principles, therefore, ought to form the over all framework for meaningful appreciation of the cogence of the prosecution/defence cases as also for the analysis of the major issues/facts as have been dilated upon by the authorised officer and the accused officer." Next, he proceeded to evaluate the reports and the submissions of the appellant as hereunder:‑‑ "With utmost respect to the views of the learned authorised officer, I am of the opinion that the construction and interpretation attached to `reputation' and persistent reputation of being corrupt' is loose and vague. Needless to say that vagueness is infested with nebulousness; nebulousness creates doubts; and if there are doubts, the facts alleged do not stand substantiated to the degree and extent at to facilitate formulation of authoritative and authentic value judgments. For the proof of allegation, there has to be reasonable degree of specificity and definitiveness. More specifically, if a false campaign of vilification and character assassination is, unleased against a person and fabricated on such a large scale that it grips the minds of the people, it does not amount to a proof of the truthfulness of the campaign. On the contrary, the victim of the campaign would stand stigmatized and. declared so notwithstanding that in actual fact he is innocent and otherwise possesses immaculate character Evidently, these are general statements. The point that should be noted is that all of them, in the cross‑examination, conceded that no specific complaint or case was reported to any of these District and Sessions Judges. The Enquiry Officer was, therefore, right in observing that in the absence of material verifying the statements, the charge did not stand proved." The report of the Additional Chief Secretary concluded as hereunder:‑ "In view of the foregoing analysis, I am of the opinion that the charge No. (ii) i.e. persistent reputation of being corrupt. is not proved."

11. The Chief Secretary (Authority) on an examination of this report recorded his own note, elaborate for a Chief Secretary. He dealt with all the points as hereunder:‑‑ (i) "Additional Chief Secretary has laid out a basic framework for evaluation and interpretation of the evidence. While it would be difficult to disagree with him on fundamental principles, it may be pointed out, that every situation has its own perspective. The evidence brought on the file has to be viewed within that perspective and if it is detached from the same and read in isolation of practical reality it might fail to lead to the correct and logical conclusion. (ii) The basic point raised by the Enquiry Officer and the Additional Chief Secretary is that proof to the effect that a person enjoys corrupt reputation requires evidence of actual instances of corruption The dictionary meaning of the word reputation is "what is generally said or believed about a person's character", ' or "it is over‑all quality of character as seen or judged by the people in general". It is clear that reputation is the general assessment of the people and it is enough that people in general believe a person to be corrupt to say that he has a corrupt reputation. (iii) Another point on which Additional Chief Secretary finds himself in agreement with the findings of the Enquiry Officer is that on the occasion of visits of the Judges of Lahore High Court to the places where the accused officer was posted at that time, no complaint regarding any act of corruption by the accused was brought to their notice. Authorised Officer/Chief Justice, Lahore High Court has a vast experience of the situation prevailing in the legal profession. He has drawn upon his own experience to evaluate the point raised by the Enquiry Officer. It has been stated: "I can say from my personal experience that I have toured many districts and addressed numerous Bar Associations calling upon the members of the Bar to bring to my notice if they have any complaints against judicial officers but no such complaints were made to me on such visits, although such complaints had been subsequently received and in some cases action was taken against the judicial officers. (iv) Additional Chief Secretary has also drawn attention to the annual confidential reports earned by the accused officer. He is under the impression that due weight has not been given to the confidential reports of the accused officer in para. 18, he has reproduced the argument of the authorised officer in this respect `some times favourable confidential reports recorded even by the Chief Justice could be mechanically recorded'. Additional Chief Secretary observes that there was no justification for reducing their importance to filial. C.R. Dossier of the accused officer was summoned from the High Court. It was examined in detail. Accused Officer started his career as a judicial officer in 1977. In a span of seven years of service, the integrity of the accused officer has been rated in the years 1977, 1978 and 1979 as average and in the year 1982 as below average. All these reports have been recorded before the start of the enquiry and I would regard them as objective assessment of the officer and casting an adverse reflection on his reputation. His integrity in his report for the year ending 31‑12‑1983 is rated as poor but I would disregard it as it was recorded when this enquiry was in progress. (v) It has been observed by him that the witnesses did not have any grudge or feeling of ill-will against the accused officer and this evidence was discarded by the Enquiry Officer only on account of their inability to furnish any specific instances of indulgence in corruption by the accused officer. (vi) Additional Chief Secretary has also pointed out that authorised officer has placed more reliance on the testimony of the prosecution witnesses and the degree of the credibility attached to the evidence of the defence witnesses is not the same. Evidence of the prosecution witnesses to the effect that accused officer enjoyed a reputation of being corrupt at various stations contain the statements of District and Sessions Judges who as the highest Judicial Officers of the districts had the opportunity of supervising the work of the accused officer. There is no material to believe that these officers deposed against the accused officer out of any illwill. In addition to that, it may be observed that the "reputation" of a person is the general assessment of a man's character by the people amongst whom he lives. It is, therefore, logical to assume that when evidence touching upon the reputation of a judicial officer is assessed then testimony of the members of the Bar would be more relevant than any other person, who may otherwise be very prominent in the social set‑up." The Authority/Chief Secretary concluded as hereunder:‑‑ "From the analysis of the evidence brought on the file, the report of the enquiry officer, notes written by the authorised officer on 13th August, 1984 and 25th March, 1985 and the views of the Additional Chief Secretary as contained in his note dated 25‑3‑1985, I find myself in agreement with the recommendation of the authorised officer/Chief Justice of Lahore High Court. The charge of having persistent reputation of being corrupt is proved against Khawaja Saeedul Hassan previously Additional District and Sessions Judge, Rahimyar Khan who is presently under suspension. He is hereby ordered to be removed from service with immediate effect. Accused officer has remained under suspension since 6th December, 1983. For the period of suspension he may be paid subsistence allowance as admissible under the rules." A formal Order to that effect issued on 28‑5‑1985.

12. After unsuccessfully exhausting the departmental remedy of appeal, the appellant approached the Service Tribunal where he failed. Hence this appeal.

13. The findings of the Service Tribunal can be summarised as hereunder:‑‑ (i) "According to the bare reading of this rule, we are of the considered opinion that learned Additional Chief Secretary was not required to give his opinion about the merits of the case, as the merits were only to be judged by the Authority itself and none else. This being so we will not read his report and bypass the same as being irrelevant/unauthorised. While disposing of this objection in favour of the respondents, we will only concern ourselves with the report of the Inquiry Officer as well as Authorised Officer and the final order of the Authority with regard to the only charge No. (ii), which has been so proved against the appellant by the Authorised Officer i.e. charge of persistent reputation of corruption. (ii) We also observe that a judicial officer is expected to enjoy exemplary. reputation with regard to his honesty with no doubt attached to it otherwise it will certainly affect the purity of justice which he is expected to administer. To our considered opinion he is not entitled to the benefit of doubt as the very doubt about him, would not entitle him to sit on the pedestal so high to do justice between a person to person. (iii) Thus, all of the judicial officers under whom he had the occasion to work, deposed before the Inquiry Officer regarding reputation of the appellant. It may also be observed at this stage that the appellant failed to suggest to any of these officers particularly Mr. Ausaf Ali Khan and Lutuf Ali Malik that their testimony was bias or result of malice, which they had given against him. Moreover, the appellant has failed to bring on record any document to show that any of the Judges who had considered his reputation as corrupt Judge, has any enmity or motives to say so. (iv) Keeping in view the formula so formulated by us as above, we are of the considered opinion that the appellant's integrity was doubtful at Multan, Jhelum, Rahimyar Khan which is supported by the evidence of M/s. Ausaf Ali Khan, Lutuf Ali Malik, Ch. Muhammad Naseem, all District and Sessions Judges and supplemented by six P.Ws. who belonged to Bar at Rahimyar Khan and with whom the appellant failed to establish any animosity. . (v) We have already indicated in the earlier part of our judgment that it is the reputation which is to be assessed and not the actual act of accepting bribe. It is a matter of common knowledge that act of accepting bribe or adultery are never committed in the presence of witnesses as the persons concerned always take care to see that these are done in a most clandesting and secret manner. The appellant in this case has been held guilty for his persistent reputation of being corrupt and not for particular act of accepting bribe or any other act of moral turpitude. For this the evidence on record is sufficient to hold him guilty. The Tribunal concluded as hereunder:‑‑ "In view of the detailed analysis of the evidence on record, opinion of the learned Inquiry Officer, as well as of learned Authorised Officer and final order of the Authority we do not find any reason to interfere with the impugned order so passed and uphold the same. The appeal is dismissed as being without any merit. There will be no order as to costs."

14. Mr. Abid Hasan Minto, Advocate, the learned counsel for the appellant relying on Rule 8 of the Efficiency and Discipline Rules and decision of this Court in Syed Mir Muhammad v. N: W.F.P. Government through Chief Secretary (PLD 1981 SC lib) urged that after a favourable opinion was formed by the designated authority which heard the appellant, another personal hearing was necessarily called for if the Chief Secretary or the Authority disagreed with the `opinion of the designated authority. The denial of it vitiated the final order of removal. On merits, it was urged that it was a case of no evidence. He also pointed out to, what he considered a misreading of the record by the Chief Secretary (at page 176 of the Paper Book) portion already reproduced.

15. Rule 3 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 provides as hereunder (only the relevant portions reproduced):‑‑ "

3. Grounds of penalty.‑‑‑A civil servant, who,‑‑ (a) ................. (b) ................. (c) is corrupt, or may reasonably be considered corrupt because‑‑ (i) ................. (ii) ................. (iii) he has a persistent reputation of being corrupt; (d) ................. shall be liable to be proceeded against under these rules and one or more of the penalties hereinafter mentioned may be imposed on him."

16. The basis for such a substantive rule can be found in Phipson's Manual of the Law of Evidence by Sir Roland Burrows (9th Edition) page 400 as hereunder:‑‑ "(A) General reputation.‑‑‑General reputation is admissible to prove the existence of the facts mentioned below, partly by reason of the difficulty of obtaining better evidence in such cases, and partly because `the concurrence of many voices' among those most favourably situated for knowing, raises a reasonable presumption that the facts concurred in are true:' In Monir's Law of Evidence (Volume I), page 663, the following commentary occurs about the nature of evidence receivable on the subject:‑‑ `Reputation' means what is thought of a person by others, and is constituted by public opinion; it is the general credit which the man has obtained in that opinion‑‑under this section evidence can be given of general reputation and general disposition only, and no f particular facts since isolated incidents afford no presumption of a man's general character‑‑Both lie in the general habit of the man rather than in particular acts or manifestations. When it is said that the reputation must be general, it is meant `that the community as a whole must be agreed on this opinion in order that it may be regarded as a reputation. If the estimates vary and public opinion has not reached the stage of definite harmony, the opinion cannot be treated as sufficiently trustworthy. On the other hand, it must be impossible to exact unanimity, for there are always dissenters." (Underlining is our).

17. In the background of the legal requirement, the learned Inquiry Officer and the Additional Chief Secretary were, in so far as searching of individual supporting instances on this subject, in fact on the wrong track.

18. Among the witnesses there was a group of officers, u; least four of them, whose duty it was to keep an eye on the punctuality, integrity and proper functioning of all the judicial officers and Courts in the district. If during the performance of such a duty they came to form an opinion about their colleague it deserved utmost consideration unless it was shown to be influenced, biased or motivated. Such was not found to be the case. To test the soundness of their opinion by reference to writing in the ACR or reporting to the visiting High Court Judge is an unsound test. Record or Report is made when there is tangible, concrete case to present and sustain, and not on mere reputation.

19. The Additional Chief Secretary as the designated authority committed three legal mistakes, of which one was jurisdictional. The first and a jurisdictional mistake was to have recorded a finding. Rule 8 of the Efficiency and Discipline Rules applicable to the case reads as hereunder:‑‑__ "

8. Action by the Authority: ‑In the case of any proceeding the record of which has been reported for orders under sub‑rule (4) of rule 6 of sub‑rule (8) of rule 7‑A, the authority may pass such orders as it deems fit but before imposing a major penalty, the authority shall afford the accused an opportunity of being heard in person either before himself or before an officer senior in rank to the accused designated for the purpose, after taking into consideration the record of such personal hearing prepared by the Officer so designated." As designated officer he was to prepare "record of such personal hearing". Preparation of the record of personal hearing did not empower him to record the finding and to decide the matter, or to submit the case for approval of the Authority.

20. The second legal defect in his report is that he evolved an evaluation standard which was incorrect and inapplicable to the proceedings. "Substantiation of the guilt/allegation beyond doubt" is not required in domestic enquiry. All that is required is that the inferences should be such as can reasonably and fairly be drawn from facts presented.

21. The third legal error is that in the matter of reputation he was looking for "reasonable degree of specificity and definitiveness". As discussed above, to do so is prohibited under the law.

22. When we say that in domestic inquiry the conclusion/finding should be reasonable and fair, we necessarily bring in the job‑requirement, the environment in which the duties are discharged, the manner in which they are expected to be discharged and the standard of performance to be attained. These differ from service to service, from post to post. The apprehension of the designated authority that "if a false campaign of vilification and character assassination is unleashed against a person and fabricated on such a large scale that it grips the minds of the people, it does not amount to a proof of truthfulness of the campaign "could be used for demonstrating it to be so but not for introducing an element of doubt in the absence of it, on the mere possibility of it being so.

23. On the view that we have taken, no further hearing of the appellant by the Authority was legally required after the designated officer had heard him. The designated hearing officer in accepting the submission of the appellant found that‑ (1) the standard of proof in departmental inquiry should be of beyond reasonable doubt; (2) the evidence on reputation must be backed by specific supporting instances; and (3) the mere possibility, without any supporting material, of unleashing of vilification and character assassination campaign against him was q, sufficient for recording a favourable finding; committed legal errors. Hence, there is no merit in the appeal which is hereby dismissed. A.A./S‑836/S Appeal dismissed;