2008 PLP (C (PLC(CS))

SYED YAHYA ZAHID GILANI, J.

The appellant was posted as Additional District and Sessions Judge at D.I. Khan when he was charge-sheeted on 19-8-2004 under N.-W.F.P. Government's Servants (Efficiency and Discipline) Rules, 1973 by the Authorized Officer to convey him the following accusations:

"charge against you is that one Muhammad Riaz son of Khan Said resident of Sard Cheena District Swabi had complained against you addressed to Honourable Chief Justice, Peshawar High Court, Peshawar with allegations that you while posted as Additional Sessions Judge at Swabi and when seized of case F.I.R. No.303, dated 12-4-2000 of Police Station Swabi demanded illegal gratification/bribe from the complainant for showing him favour. The complaint was marked to Syed Afsar Shah, District and Sessions Judge, Mardan who conducted preliminary enquiry and has recorded statements of the complainant and others which record was placed before Honourable Chief Justice, Peshawar High Court Peshawar who is competent authority under the Rules (ibid) and the authority was satisfied on the basis of statements recorded during preliminary enquiry coupled with your reply/ comments filed to the complaint that a prima facie case exists against you, therefore, action taken against you under the Rules (ibid). "

2. The "Enquiry Officer" exonerated the appellant in his enquiry IA report, dated 30-9-2004, with following words:-- "The crux of the foregoing discussion is that the allegations levelled by the petitioner could not be established/proved in the given background and therefore, it can be said that no case of misconduct under the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 has been made out against the Presiding Officer."

3. The Authorized Officer, disagreeing with the Enquiry Officer, served the appellant with final show-cause notice, with an offer of personal hearing, that why major penalty of dismissal from service should not be imposed on him. The appellant contested the notice by submitting written reply and also availed opportunity of personal hearing.

4. Ultimately the Authorized Officer recommended to authority "compulsory retirement" of the appellant with the following conclusion:-- "I have therefore, reached the conclusion that accused officer has persistent reputation of being corrupt. He is, therefore, held liable under Rule 3(d) of N.-W.F.P. Civil Servants (Efficiency and Disciplines) Rules, 1973. I, therefore, recommend that to impose major penalty under Rule 3(i)(b). However, keeping in view length of service of the accused-officer, I refrain to order his dismissal from service or removal from service but that he shall be compulsorily" retired from service because he is not a fit person to hold the prestigious office of a Judicial Officer."

5. All this process culminated in compulsory retirement of the ID appellant, by the order of "Authority", dated 4-1-2005.

6. The appellant impugned this order in the instant appeal, after submitting representation, that was not responded.

7. We have heard the arguments of appellant in person. Mr. Alamzeb Khan, D.A.-G., has been heard for respondents. Record has been perused.

8. The appellant submitted that the allegations in the charge-sheet were not proved as per report of the Enquiry Officer. The Authorized Officer although admitted this reality, but utilized extraneous considerations to declare him guilty. He argued that Authorized Officer has conceded in para.15 of his report that undoubtedly there is no direct evidence of demand of bribe by the accused officer (the appellant). The Authorized Officer has held, in paras.16 and 17 of his report that if from such evidence charge of demand of bribe is not proved, the corrupt reputation of accused officer has definitely been proved through crucial admissions made by him.

9. The appellant contended that the aforesaid admissions noted in para.18 of the report of Authorized Officer is a pick and choose of isolated fragments of his written replies, considered without reference to actual context from conjectural findings. He emphasized that statement of an accused cannot be appreciated in this manner and it has to be considered as a whole. The admissions, if any, are qualified by reasonable explanations and the explanations have not been considered. His conclusion was that an upright Judge (the appellant) has been thrown out from service for convicting a few bullies, who were bent upon taking revenge from him, although, the judgment of their conviction was upheld. He prayed that he may be reinstated or in alternate his compulsory retirement may be altered to retirement, with usual service benefits.

10. Mr. Alamzeb Khan, D.A.-G. argued that the report of Authorized Officer is self-speaking and it is based on case-law. He submitted that admissions of the appellants are integral part of the record and the recommendations of Authorized Officer are sound because the appellant admittedly used to maintain relations with litigation related people which is a circumstantial evidence to prove his guilt.

11. After contemplating over the points, argued before us and the cited case-law, we deem it pertinent to mention that in this case Enquiry Officer has exonerated the accused officer/appellant with the clear words that the charge against him could not be proved. Likewise, the Authorized Officer also fairly noted in his report that there is no direct evidence and from the available evidence charge of demand of bribe is not proved. However, the Authorized Officer has held that the crucial admissions of the accused officer definitely proved his widely known reputation of being corrupt. The admissions have been listed in para.18 of the report of Authorized Officer and these are extracts from written replies of the appellant. The conclusion drawn from these admissions was agreed by the authority for imposing the proposed major penalty of compulsory retirement. Under Rule 4(I)(b)(ii), read with Rule 3(c)(iii) of N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973.

12. Under Rule 5(4) of the aforesaid Rules, the Authorized Officer shall determine that whether the charge has been proved, and if so, shall also tentatively decide the imposition of major, or minor penalty. The rule does not denote any inbuilt mechanism to make Authorized Officer absolutely bound by the conclusion of Enquiry Officer because in such eventuality, the sphere of empowerment of the Authorized Officer would reduce to nullity. But, at this juncture the case Mukhtiar Ahmad Bhatti v. Director Food Punjab, Lahore and others 1992 SCMR 1864(d) would also be relevant wherein august apex Court has laid down that competent authority would not be justified to ignore facts and findings of enquiry and shall not substitute the same by general subjective order not relatable to the facts of the case.

13. The gravamen of the grievance of appellant is that not the evidence recorded by the Enquiry Officer but extraneous factors were taken in account to hold him guilty, and that these extraneous factors, gathered from his written replies were given weight after detaching them from their actual context.

14. In this background, when the reports of Enquiry' Officer and Authorized Officer were at variance, evidence recorded by Enquiry Officer was agreed by the Authorized Officer to be deficient to prove charge, and statements of accused officer in written replies were taken in account to hold him guilty, it would have been certainly in the interest of justice and most appropriate for the "Authority" to extend chance of personal hearing to accused to officer/appellant before imposing the major penalty, so that the accused officer/appellant could have explained the implication of his admissions before the authority, and the authority would also have availed the opportunity to understand admissions as per the outlook of the maker, to appreciate them aptly, in true perspective.

15. Although, rules do not' provide for extending chance of personal hearing by the authority, prior to imposition of penalty, but we are fortified in our view by the dictum of august apex Court in Federation of Pakistan v. Ghulam Shabbir reported in 2006 SCMR page 1641(c). We further believe that such a personal hearing was highly essential in the peculiar facts and circumstances of this case because of the reasons discussed in para.14 of this judgment.

16. As a sequel to above reasons and conclusion, we accept this appeal, set aside the impugned order of the "Authority" dated 4-1-2005 and remand the case to "Authority" for a fresh decision, after affording a' fair chance of personal hearing to the appellant, within next two months, because the appellant already suffered delay in disposal of his case. H.B.T./39/P Appeal accepted.