1988 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑The appellant was Additional District and Sessions Judge when he was dismissed from service by the Chief Minister's order, dated 14th August, 1986. He sought review of the said order but to no avail. Having thus, exhausted the departmental remedy available. to him the appellant approached this Tribunal and filed appeal on 1‑2‑1987 with prayer that the impugned order (i.e. order of his dismissal from service) be set aside. The case was heard by the Tribunal on 20‑4‑1988 when the appellant was present in person. His counsel being absent, he was given a choice to seek adjournment but he insisted on proceeding of the case. Accordingly the appellant was heard personally and the learned A.A.‑G. (Mr. Abdul Ghafoor Mangi) submitted arguments on behalf of the official respondents. With their help we also went through the voluminous record of the case. It appears that initially the appellant was served with show‑cause notice to which he gave a detailed reply. However, subsequently Mr. Justice Saeed Zaman was named as Inquiry Officer to hold a detailed enquiry into the allegations made against the appellant who in the meantime was served with the charge‑sheet and the statement of allegations. A number of witnesses, majority of them being advocates, were examined in course of the enquiry. After considering their evidence and tile documents produced before the Enquiry Officer, the latter found the appellant guilty of the charges levelled against him and submitted his report recommending the appellant's dismissal from service. Accepting the recommendations of the Enquiry Officer, the Authority namely the Chief Minister, passed the impugned order referred to above. Starting his arguments the appellant raised a preliminary objection that in his case, the principle of `double jeopardy' has been violated as he has been vexed twice first, when he was served with a show‑cause notice to which he had even submitted his reply and second time when he had been subjected to detailed enquiry through Enquiry Officer without recalling the earlier show‑cause notice and was given the charge‑sheet and the statement of allegations wherein tile allegations contained in the earlier show‑cause notice were almost repeated. With a vices to examine the appellant's above objection, we may refer to Rule 5 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the said rules). It prescribed two alternate courses to be adopted by the Authorised Officer in dealing with disciplinary cases. As provided in sub‑rule (2) of rule 5 hereinabove, it is for him to decide in the light of facts of the case or in the interests of justice whether enquiry should be conducted through an Enquiry Officer or Enquiry Committee and if he so decides, then the procedure given in Rule h will automatically apply. If in the alternative, he decided that enquiry is not necessary, then he will proceed in accordance with sub‑rule (3) of tile said rule. In that case the accused Officer will be informed, by order in writing of the action proposed to be taken in regard to him and the grounds of the action and he will be given reasonable opportunity of showing cause against that action. On going through the above procedural requirements carefully, it would appear that the intention is to advance the interests of justice and help the aggrieved civil servant get a fair deal. Therefore, it cannot be conceived that the provisions contained in rule 5 tend to place any impediment in the way of the Authorised Officer who, in our opinion, is therefore, free to choose any course prior to finalization of the case. In other words if a particular course is followed and the accused officer is ultimately punished or exonerated, in that event the Authorised Officer of course cannot turn round and take alternative course. To clarify this point further we may state that if the accused officer controverts the factual allegations in his reply to the show‑cause notice initially served on him, obviously no decision could be taken as regards his guilt or exoneration unless the disputed facts are thrashed out in full enquiry. In such a case the Authorised Officer will have no option but to substitute full enquiry in place of show‑cause notice. Conversely detailed enquiry already ordered would become redundant and uncalled for if the accused officer in reply to the charge‑sheet and the statement of allegations served on him comes out with admission of the allegations made against him. In the instant case, although the appellant was initially served with show- cause notice, yet the Authorised Officer (Chief Justice) thought fit to order detailed enquiry because, in our opinion, the factual allegations denied by the appellant in his reply to the said show‑cause notice, could not otherwise be proved and consequently the question of visiting the appellant with punishment would not arise. We are, therefore, satisfied that there was nothing wrong if in order to prove controversial facts the Authorised Officer substituted full enquiry in place of show‑cause notice, particularly when the initial course adopted by him had not yet been finalized. We may now take up the charges which have been made the basis for the appellant's dismissal. They are contained, in the two documents namely the charge‑sheet and the statement of allegations. The charge‑sheet shows as if there are six charges against the appellant whereas the statement of allegations discloses only three charges against him. On careful perusal of both these documents we, however, find that one single charge has been levelled against the appellant and other so‑called charges are only ill the nature of evidence to support the said charge. The solitary charge referred to above is mentioned in the charge‑sheet as well as the statement of allegations in the following words: "That you enjoy persistent reputation of being corrupt". As provided in sub‑clause (iii) of clause (c) of Rule 3 of the said rules; where a civil servant, in the opinion of the authority may reasonably be considered corrupt because, he has persistent reputation of being corrupt, the authority may impose on him one or mere penalties. In Support of above charge, the catalogue of allegations contained in the statement of allegations reads as under‑ "(1) Some complaints containing allegations of corruption against you were received on which you were called on 14‑3‑1984 by the Honourable Chief Justice who warned you to be careful in future and guard your reputation. (2) That the following adverse entries had been earned by you in your A.C.Rs. about your integrity for the years, mentioned below: (i) Year 1976: "There were complaints about his behaviour in Court and also oral complaints about his integrity. He should guard himself." (ii) Year 1977: "Has a very unsavoury reputation and complaints against him, Needs to be watched so long as he is allowed to remain in service (iii) Year 1983: "Unfortunately he has a bad reputation again." (iv) Year 1984: "Unfortunately complaints persist in the case of this Judge"

3. In the first week of November, 1985 a complaint was made orally by Mr. Yasin Khan Baber, Advocate, Shikarpur about your corruption on which Mr. .Justice Abdul Razzak A. Thahim who was working at Sukkur in those days was requested to hold preliminary spot enquiry on the aforesaid complaint. He examined Mr. Yasin Khan Baber, Member, Sind Bar Council, Mr. Syed Aijaz Ali Shah. General Secretary, District Bar Association. Shikarpur, Mr. Sanaullah Khan. Advocate, Mr. Hizbullah Shaikh Advocate and Mr. Abdul Majid and Haji Muhammad Noor, private persons. All of them stated that you have very persistent bad reputation of corruption. Some other members from the Shikarpur Bar namely M/s. Gural Das, Nasir Ahmad, Qureshi Ali, Ali Ghohar, Abdul Shakoor, Shah Nawaz, Riaz Hussain Moghal, Ghulam Ail Shah Ali Raza Shah. Allah Bux Abro, Jai Jai Vishnu, Pir Shabroz Sarhandi, Rahim Bux Shaikh, Gul Muhammad Unar, Atta Muhammad and Haq Nawaz Soomro have also made joint statement before Mr. Justice Abdul Razzak A. Thahim that you are most corrupt Judge and have given a bad name to the judiciary " As is clear from the above, the first allegation is that the Chief Justice on receiving some complaints of corruption against the appellant had called him on 14‑3‑1984 and had warned him to be careful in future and guard his reputation. This allegation is admitted by the appellant himself. 1n this connection reference may be made to his own reply to the final show‑cause notice. At page 6 of the reply he has stated as under:‑‑ "The Enquiry Officer admits that I was indeed not posted as Additional District and Sessions Judge, Shikarpur on 14‑3‑1984, but nevertheless goes on to say that it was not disputed by me that I was called by the Chief Justice in connection with some complaints to warn me to be careful. Of course, I could not dispute this but the question is whether the mere fact that the then Chief Justice called me and gave such a warning does not by itself constitute any charge. It was the duty of his Lordship to call me and warn me about certain complaints against me but that to itself is not an incriminating circumstance. It is thus, clear from the appellant's own reply that he was actually called by the Chief Justice on 14‑3‑1984 in connection with some complaints of corruption he had received against him when he also gave him warning to be careful. In our opinion this was nothing but conveying to the appellant verbally the adverse observations of the Chief Justice. 'If the appellant thought that there was no truth in the complaints received by the Chief Justice, he should have immediately protested there and then, further assuring the Chief Justice that the complaints regarding him were totally incorrect. If he could not muster up courage to do so in presence of the Chief Justice, he could have done it in writing addressed to the Chief Justice subsequently. He would have been within his right to insist on disclosure of the names of the persons who had made complaints against him. But instead he silently accepted the allegations conveyed to him verbally by the Chief Justice and also his consequential warning. The Enquiry Officer who also has discussed this allegation in his report has in our opinion come to right conclusion. However, the appellant in his arguments gave undue importance to the discrepancy as regards the place of his posting when he was called by the Chief Justice and administered warning. It is true that in the charge‑sheet the appellant is shown to have been posted at Shikarpur when he was called by the Chief Justice on 14‑3‑1984 to convey to him the complaints that he had received against him. But the admitted position is that on the above date the appellant was still posted at Karachi. It appears to us that it was due to typographical mistake that instead of Karachi, Shikarpur had been typed in the charge‑sheet. However, no, such mistake has been repeated in the statement of allegations. We feel that the material point is that the appellant was called by the Chief Justice on 14‑3‑1984 when he conveyed to him verbally that he had received complaints about him (appellant) and also administered warning to him to be careful. As stated above this has been admitted by the appellant himself. Accordingly the mentioning of The wrong place of appellant's posting at that time in the charge‑sheet was inconsequential. The next point to be discussed relates to the appellant's A.C.Rs. It appears that adverse entries appearing in his A.C.Rs. for the years 1976, 1977, 1983 and 1984 have been brought on record of the case. Since they have already been mentioned in details in the foregoing paragraphs, they need not be repeated here. Suffice it to say that they reflect on integrity of the appellant. It is admitted by him that all the four entries were conveyed to him and he had moved for their impingement. It is also his own admission that they were not expunged. Despite his above admission, he contended that the said adverse entries were on account of bias of Mr. Justice Abdul Hayee Qureshi, the then Chief Justice. We are, however, not impressed by this argument. First of all nowhere in any of his replies that he has filed at various stages, he has given any cogent ground for the hostility of the said Chief Justice. Of course his A.C.Rs. for the years 1983 and 1984 were written by the above Chief Justice, what about the A.C.Rs for the years 1976 and 1977 which were admittedly written by different Judges namely Mr. Justice Abdul Qadir Shaikh and Mr. Justice Agha Ali Hyder respectively? The appellant has not uttered a word against the last mentioned two Chief Justices. Moreover, he did not succeed in getting the adverse entries of any of the four years expunged. It may be mentioned here that Full Court (All Judges of High Court) sit to consider the question of expungement. All Judges could not be prejudiced against the appellant nor could they be expected to have declined expungement under the influence of aforesaid Chief Justice. Thus, not only the Full Court upheld the view of Mr. Justice Abdul Hayee Qureshi about the appellant but also his two predecessors held more or less same views about the appellant's integrity. This brings us to the last allegation regarding complaint of Mr. Yasin Khan Baber, Senior Member of Shikarpur Bar to the Chief Justice in the first week of November 1985 which led firstly to preliminary spot enquiry held by Mr. Justice Abdul Razzak A. Thahim and then to the regular enquiry made by Mr. Justice Saeed Zaman. It is not denied by the appellant that Mr. Yasin Khan Baber did meet the Chief Justice in first week of November, 1985 and made complaint of corruption against him. But his contention was that the said Advocate had turned against him as a result of the decision of the murder case in which he appeared as defence counsel. 1n this, connection we may refer to his detailed reply, dated 28 12‑1985 to the charge‑sheet. It appears that the case decided by the appellant was State v. Karim Bux and others in which he admittedly convicted one accused and acquitted the remaining four. In normal course the defence counsel should have been pleased with this result. But somehow instead of showing his satisfaction he menthe Chief Justice immediately after the decision of the case (in the first week of November, and made complaint of corruption to him against the appellant. It is also in appellant's above reply that the acquitted accused while leaving the Court room abused him (the appellant) right and left. This incident itself speaks volumes about the appellant's integrity and reputation. It cannot be imagined that the senior lawyer of Mr. Yasin Khan's standing would go to the length of falsely implicating the appellant who was then holding responsible position of Additional District and Sessions Judge only for the reason that he convicted one of his five clients in the murder case. According to appellant's own admission, Mr. Yasin Khan at that time was not only Vice‑President of Shikarpur Bar Association but was also member of Bar Council. We are confident that such member of Bar would not speak falsehood against the appellant unless he was convinced that his integrity was not above board. In his reply the appellant has attributed no other motive to Mr. Yasin Khan for giving false statement against him. Here again we may point out that Mr. Yasin Khan is not alone in speaking about the appellant's corruption. The enquiry report shows that as many as 20 Advocates were examined in course of the enquiry who all stated with one voice that the appellant enjoyed reputation of being a corrupt judicial officer. In this connection we may borrow the observations made by the Enquiry Officer (Mr. Justice Saeed Zaman) in the enquiry report which reads as under:‑‑ "I may also mention here that as many as 20 Advocates came forward from Shikarpur to depose against Mr. Muhammad Yousuf Memon during the course of the enquiry, which I held at Sukkur, on 16th of March, 1986. Although no direct evidence could be produced by the members of the Bar, who deposed against Mr. Muhammad Yousuf Memon, for payment of any illegal gratification directly or indirectly to Mr. Muhammad Yousaf Memon in connection with a particular case, pending in his Court, but the manner in which such large number of advocates appeared and supported the allegations against Mr. Muhammad Yousuf Memon, do show that he enjoys the reputation of being a corrupt judicial officer, which cannot be ignored. The members of the Bar, which included the members of the Bar Council and the office‑bearers of Shikarpur Bar Association, all unanimously stated in their respective statements that Mr. Muhammad Yousuf Memon would not decide a case on merit, unless he is paid by the party." However, the appellant severely criticised the statements of Advocates, contending that they do not inspire confidence, as none of them has come out with specific allegation that the appellant had ever demanded or accepted any amount as bribe. No doubt all the witnesses who have deposed against the appellant in the enquiry have spoken of only general reputation of the appellant as being corrupt judicial officer. We are of the view that they cannot be disbelieved in this respect only because they were unable to give any concrete case of appellant's acceptance of bribe. The question arose why at all they even dubbed him as corrupt judicial officer. Neither they are alleged to have any motive for perjuring themselves nor can such vast number of witnesses be expected to speak falsehood only to please anybody, much less then Chief Justice or any other Judge. It is an admitted position that except for six Advocates no other Advocate had any case before the appellant. Some of the Advocates who deposed against the appellant were of long standing at Bar Their evidence could not be lightly dismissed. They are further supported by at least three private litigants who had their cases before the appellant. One of them has stated that he paid illegal gratification through one Nandlal. According to other two as they did not make payment they were convicted. Although the transactions of paying or accepting bribe are generally made in secret, it does not mean that those who pay the bribe do not ever breathe about it. On the contrary the information about such illegal payments travels from one quarter to another. This is how reputation of the person taking bribe is established. However, it is in rare cases that such payments are made public and result in prosecution of the accused. Therefore, the evidence of so many witnesses who have absolutely no motive to speak falsely about the general reputation of the appellant cannot be overlooked or ignored. Apart from above even in preliminary enquiry conducted by Mr. Justice Abdul Razzak A. Thahim, a number of Advocates have made statements charging the appellant with corruption. Since that enquiry was not held in presence of the appellant, their evidence cannot be taken into account for the purpose of deciding the present case. From the above discussion we are convinced that the charge that the appellant enjoyed persistent reputation of corruption has been fully established. Consequently the penalty of dismissal from service is also fully justified. We see no reason to interfere with impugned order. As a result the appeal is dismissed with no order as to costs. S.Q./158/Sr.S Appeal dismissed.