2014 PLP (C (PLC(CS))

WAQAR AHMAD SETH J.

Appellant has filed this appeal under section 5 of the N.-W.F.P. (Khyber Pakhtunkhwa) Subordinate Judiciary Service Tribunal Act, 1991 (Act No.VIII of 1991) against the order dated 20-12-2000 passed by the respondent No.1 whereby penalty of removal from service has been imposed on charges of misconduct.

2. Succinctly, facts of the case are that initially the appellant was appointed as Civil Judge in the year, 1985 after clearing the N.-W.F.P. Public Service Commission examination. Later on, he was promoted as Senior Civil Judge in the year, 1992 and as Additional District and Sessions Judge in March, 1997. The appellant remained posted at Kohat as Additional District and Sessions Judge till 27-10-1997. It is to be mentioned here that one Malik Hamid Khan Afridi, Advocate on 6-8-1997 filed an application for transfer of all his cases from the court of appellant to the court of the then District and Sessions Judge, Kohat for certain reasons. The said application was dismissed by Peshawar High Court, Peshawar, which probably caused prejudice to the complainant, thus, he lodged a complaint against the appellant on 31-3-1999 alleging therein twofold allegations i.e. that the appellant while posted as Additional District Judge at Kohat once declined concession of bail to the accused Asmatullah on 23-6-1997 in Bail Application No.156 of 1997 but subsequently vide order dated 3-10-1997 in Bail Application No.256 of 1997 granted him bail and taken away the case file and that the accused had absconded after release on bail and the case file/record pertaining to the said bail application was missing the Record Room.

3. In this respect, comments were sought from the appellant, which were duly furnished. Consequently, respondent No.1 called for explanation of the appellant and reply whereof was submitted. Both the comments and reply could not satisfy respondent No.1, therefore, order for initiating an inquiry under the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 was made against the appellant and the then Hon'ble Mr.Justice Nasir-ul-Mulk was appointed as Authorized Officer while Ghulam Mohyuddin Malik as Enquiry Officer.

4. The Enquiry Officer after assessing the material, recording statements of P.Ws. and that of appellant submitted his report vide dated 4-8-2000. In the report, the Enquiry Officer was of the view that the allegations against the appellant stood proved and submitted the same to the Authorized Officer.

5. The Registrar summoned the appellant on the directions of Authorized Officer and delivered him a copy of the enquiry report with a further direction to furnish a reply thereto within seven days. The appellant submitted a detailed reply/explanation along with two separate applications both dated 21-9-2000. It merits mention here that during the proceedings before the Enquiry Officer, it revealed that the original certified copies of bail application, order sheets and order 23-6-1997 attached by the appellant with earlier comments dated 29-6-1999 submitted to the Registrar, Peshawar High Court, Peshawar were missing from the file of the preliminary enquiry as alleged by the appellant. Even copies of the certified copies of the said application, order sheets and order duly submitted by the appellant with his subsequent comments dated 21-4-2000 to the Registrar, Peshawar High Court, Peshawar were also allegedly found replaced/substituted by some other copies. In the light of this tampering of the record, the appellant submitted the said application dated 21-9-2000 to the Authorized Officer for probe into the matter but the same was not considered as alleged by him.

6. On 6-12-2000, the appellant was summoned by the Registrar, Peshawar High Court, Peshawar and gave away a show-cause notice as to why major penalty of removal from service should not be imposed. The said notice revealed that the Authorized Officer concurred with the findings of Enquiry Officer and recommended the imposition of major penalty of reduction in grade or time scale upon the appellant.

7. It is to be mentioned here that the complainant Malik Hamid Khan Afridi, advocate along with other advocates of Kohat, moved an application for contempt proceedings against the appellant before the Chief Justice, Lahore High Court, Lahore, which was sent to Peshawar High Court, Peshawar. In this respect comments of appellant were sought, which were duly furnished, however, after due process, the said complaint was ordered to be filed. It is claimed that the appellant relinquished the charge of the post of Additional District and Sessions Judge, Kohat on 27-10-1997 and the Copying Branch, Kohat issued certified copies of bail application, order sheet and order dated 23-6-1997 recorded in B.A. No.156 of 1997 'Asmatullah v. State', under No.1327 on 28-10-1997, under No.1327 on 13-11-1997 and under No.1405 on 4-11-1997. It is further alleged that during the enquiry proceedings, Islam Khan, Copying Clerk, Kohat (P.W.-8) in his deposition admitted to have issued copies exhibited as Exh.D1 and Exh.D2 original whereof issued under No.1405 dated 4-11-1997 were annexed to earlier comments dated 29-6-1999, which were found missing from the file of preliminary enquiry. Not only this but copies of the said certified copies attached to the subsequent comments dated 21-4-2000 were also alleged to be substituted by some other copies. The said P.W. during his examination himself produced copies of certified copies of bail application, order sheet and order dated 23-6-1997 in B.A. No.156 of 1997 as PX also issued on 4-11-1997.

8. According to appellant, the earlier bail application of accused was rejected being premature and the record of B.A. No.156 of 1997 was consigned to the Record Room and he did not requisition the same officially or unofficially. It is alleged that the accused in the said bail application was represented by Mr.Tariq Khattak, Advocate (P.W.-2) on both the occasions, who in his examination-in-chief admitted that he had not mentioned the factum of disposal of earlier bail application in his subsequent bail application. This witness also admitted that the accused had not completed two years detention at the time of submission of first bail application. Further, Mr.Muhammad Zubair Anwar (P.W.-3) represented the State in the matter admitted that he had neither submitted application for summoning of file of earlier bail application at the time of arguing subsequent bail application nor brought the factum of rejection of earlier bail application of accused in the notice of the court.

9. After conclusion of enquiry proceedings, the Enquiry Officer submitted his report to the Authorized Officer recommending the imposition of major penalty upon the appellant. The Authorized Officer concurred with the Enquiry Officer and submitted its report to respondent No.1, who dispensed with the services of appellant vide impugned order dated 20-12-2000. The appellant preferred appeal/representation to the Governor, the appellate authority, against such action of respondent No.1, which was rejected during pendency of instant appeal.

10. The appellant contended that he remained posted at Kohat as Additional District Judge, Kohat with effect from 2-3-1997 to 27-10-1997 while the complaint was lodged against him on 31-3-1999 after the lapse of almost 1-1/2 years, wherein, the complainant was not representing either of the parties, hence the same is based on mala fide and personal grudge. Further contended that as per Article 29 of the Constitution of Islamic Republic of Pakistan, 1973, the executive authority of the Province shall vest in the Governor and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution, thus, the entries in columns 2, 3 and 4 as against Sr.No.2 vide Government of N.-W.F.P. S&GAD's Notification dated 16th January, 1992 are ultra vires and void ab initio because the Hon'ble Chief Justice, Peshawar High Court, Peshawar is neither covered within the definition of 'Officer' nor an 'Officer' subordinate to the Governor as per the said provision of law, hence the enquiry proceedings and the impugned order are unlawful and unconstitutional having no legal effect. Further submitted that at the relevant time he was serving as Section Officer in Law Department since, 1998 while respondent No.1 ordered enquiry in June, 2000 when he was not serving under the control and superintendence of the High Court but of the Government of N.-W.F.P., therefore, the Governor was the authority, hence the assumption of jurisdiction of Governor by respondent No.1 is illegal and unconstitutional, thus, the impugned order and enquiry proceedings are coram non judice. He was also of the view that the charge sheet and statement of allegations, being time barred, could not be served upon the appellant, hence the edifice of entire proceedings built upon illegal foundation is liable to be set at naught. Further contended that the enquiry report is not based upon the evidence but on mere conjectures and surmises as the Enquiry Officer did not appreciate the evidence on record, hence the findings arrived at by it vide his report dated 4-8-2000 are the result of misreading and non-reading of evidence, which have no value in the eyes of law. He was of the view that the material available on record does not depict the alleged destruction or even the requisitioning of record/file in question by him, hence the charge has not been proved. Further contended that the original of slip manufactured by interested quarters alleged to be in the handwriting of appellant has not been produced during the enquiry proceedings and that the concurrence of the Authorized Officer with the findings of the Enquiry Officer is the result of misconstruction and non-consideration of the evidence on record and that the respondent No.1 had no delegated authority/power to impose the major penalty, hence the impugned order and the enquiry proceedings require to be set at naught, the appellant was of the view.

11. Learned A.A.-G. while defending the impugned order contended that the allegations against the appellant stood proved beyond reasonable doubt, which is corroborated by statements of P.Ws. and material on record, hence the same warrant no interference by this Tribunal in its appellate jurisdiction. Arguments heard. Record perused.

12. The charges against the appellant, according to the charge sheet coupled with the statement of allegations are:

(i) That while posted as Additional Sessions Judge, Kohat during the year 1997, after having declined bail on 23-6-1997 in Bail Application No.156 of 1997 to Asmatullah son of Zar Mueen on statutory ground in a murder case registered vide F.I.R. No.192 dated 20-6-1995 Police Station Kohat, you released him on bail in a Second Bail Application No.285 of 1997 on 30-10-1997 without reference to the first order. (ii) That on or around the time you granted bail to the accused, you relinquished unofficially the file pertaining to Bail Application No.156 of 1997 and destroyed the record to conceal the previous order in order to forestall any legal objection that may be raised to the grant of the bail when already a similar application was declined by you.

13. In order to substantiate the charges levelled against the appellant, it would be better to go through the bail application so allowed and decided by the appellant being a Judicial Officer. The record reveals that Bail Application No.156 of 1997 presented on 12-6-1997 was decided on 23-6-1997 with the following remarks (relevant paragraphs):

"The accused petitioner did not become entitle to this concession on 11-6-1997, i.e. the date of instituting this petition. His period of detention of continuous two years was to expire on 20-6-1997. His instant petition is thus, premature. The prosecution is, however, allowed, as per request of APP, more two months time to produce its consummate evidence. And if his trial is not concluded within two months, the accused/ petitioner can move this Court through a fresh bail petition under the third proviso to section 497(1), Cr.P.C., if he wishes to do so. This petition (BAA #. 156/97) being premature merits no consideration. The same is disposed of as per above observations:"

14. Bail Application No.285 of 1997, the subsequent one was moved on 18-9-1997 and the same was allowed vide order dated 3-10-1997 with the following words (relevant paragraphs):

"he is neither a previously convicted offender, nor is there any thing suggested of this fact that he is hardened criminal, nor is he shown to be involved in terrorism. He is found to have been detained for a continuous period exceeding 27 months, and his trial has not concluded. No other point has been argued before this forum on either side. However, the learned APP has during arguments on this petition, frankly conceded that he be ordered to execute a bond with a sufficient sum of money with at least two sureties. Viewed in perspective of what has been stated above, he is found to be entitled to bail under the third proviso to subsection (1) of section 497, Cr.P.C. The petitioner is, therefore, directed to be released on bail, if not required to be detained in any other case, provided he furnishes a bail bond in a sum of Rs.2,00,000 (Rs.Two Lac) with two local, reliable and resourceful sureties each in the like amount to the satisfaction of this Court."

15. The perusal of second bail application shows that the counsel for the accused petitioner has not mentioned the fact regarding the earlier application and during inquiry proceedings, he has admitted that he never informed the Court in this respect and same is the position of State counsel. Even otherwise, it is observed that the same was the duty of the staff to have informed the Court, as the Presiding Officer is not expected to remember the same. The staff of the Court has been left uncharged in this respect, which is meaningful.

16. The accused petitioner in the bail petition was not barred for bringing fresh application in view of order dated 23-6-1997 recorded in Bail Application No.156 of 1997 as the same was declared as premature and the bail granting order dated 3-10-1997, in Bail Application No.285 of 1997 was a legal and judicial order. Moreover, no mala fide can be alleged against that order and the remedy otherwise was available by way of filing cancellation petition before the higher forum.

17. As regarding the allegation for requisitioning unofficially the File No.156/97 and destroying the same, the charge seems to be a funny one. The appellant relinquished charge of the post of Additional District and Sessions Judge, Kohat on 27-10-1997 and assumed the charge of the post of Additional District and Sessions Judge at Bannu on 28-10-1997. If the said file was destroyed after summoning the same then how can certified copies of the order/judgment dated 23-6-1997 were obtained by different persons including the appellant on different dates, thereafter. At pages 163 to 178 of the appeal are the documents/decisions in the Bail Application No.156 of 1997 in which certified copies were issued on 28-10-1997, 13-11-1997 and 4-11-1997, when appellant had already relinquished the charge on 27-10-1997. Who issued the same and why the record clerk was not charge sheeted in this respect. Had the file been missing or destroyed by appellant, then how can the certified copies be issued. Islam Khan P.W.-8 during his examination in chief himself produced certified copies of bail application/order sheet and order dated 23-6-1997 recorded in Bail Application No.156 of 1997 as PX without explaining as to how did he came into possession thereof. It would show that file of Bail Application No.156 of 1997 was available in record room till 4-11-1997.

18. The moot point in the case is that why appellant will do it when the earlier bail application was declared as premature and the accused had the right to file subsequent one under the statutory period. The obvious answer is that the appellant has no reason, whatsover, to do so, nor there is any convincing evidence in this respect, for doing the same. If the record file was missing then why the concerned staff remained quite for a period of about 1-1/2 years and the complaint of the complainant dated 31-3-1999 was entertained at the belated stage.

19. As per observations of the authorized officer, there is neither any allegation or evidence of the consideration that have influenced the appellant in granting bail makes the case of appellant more convincing one. The charge of corruption cannot be levelled unless proved by cogent and sufficient evidence. In the case Raja Muhammad Shafique Javed v. Lahore High Court, through Registrar (2005 PLC (C.S.) 1015 (e&j), in the similar circumstances, it has been held that no person without evidence could be declared as corrupt person, unless proved by cogent and sufficient evidence. Further it has been also held in the same judgment that accused would be liable to be acquitted, if case against him was not proved beyond any shadow of doubt in accordance with provision of Qanun-e-Shahadat Order, 1984. The said case was decided by the Punjab Subordinate Judiciary Service Tribunal, Lahore. Hence, it is held that appellant had not committed any corruption nor can be charged for the same.

20. The Authorized Officer has held that appellant removed the file merely to cover up the improper grant of bail when he had earlier refused a similar application. The said observation does not seems to be convincing one because the earlier application was not refused on merits rather the same was declared as premature. Moreover, in the second round it was the duty of the counsel for the accused, APP and the staff to have informed the Presiding officer, but admittedly, they have failed to do so; hence the Presiding Officer alone cannot be penalized and discriminated. Tariq Khattak, advocate appeared as P.W.-2 during the inquiry proceedings and stated in his examination in chief that he submitted the second application for bail and had not mentioned the fact of disposal of earlier bail application in his subsequent bail application. He also admitted that the accused/petitioner had not completed two years detention at the time of submission of first bail application. Likewise, Muhammad Zubair Anwar P.W.-3, who represented the state in that matter, admitted in his cross-examination that he had not submitted application for summoning of file of Bail Application No.156 of 1997 at the time of arguing subsequent Bail Application No.285 of 1997. He also admitted that he had not brought the factum of rejection of earlier Bail Application No.156 of 1997 into the notice of court at the time of arguments on Bail Application No.285 of 1997 as he was under an impression that subsequent bail application would be rejected. Admittedly, it was the bounded duty of Additional Public Prosecutor, posted in the Court, to have disclosed at the time of arguments regarding the earlier decision but he failed to perform his duties. Even otherwise, the earlier petition, as already concluded that the same was not on merits, therefore, the subsequent application was entertainable and as such was rightly entertained by the Presiding Officer/appellant.

21. The charge of summoning unauthorizedly record from the record room although not proved but if at all there is some confusion regarding the summoning of decided matter by the Presiding Officer, the same amounts to negligence and violation of procedure. Negligence which has caused no pecuniary loss or disadvantage to any one is condonable. In this respect guidance is drawn from Government of Islamic Republic of Pakistan v. Muhammad Yaseen (2002 SCMR 857), wherein, it has been held that the reasons for non-observation of the instructions by the civil servant in discharge of his duties seems to be that of negligence and a single incidence of negligence can not straight away construe misconduct. Moreover, it also reflects that procedure for summoning the decided case from the record room was not properly observed and in the case of Raja Muhammad Shafique Javed v. Lahore High Court, through Registrar (2005 PLC (C.S.) 1015(h), it has been held that judicial officer not adopting proper procedure provided in the High Court Rules and orders, would only be an omission and not an act of misconduct. In the case of "Khalid Siddique v. Secretary Excise and Taxation Department, Punjab reported through 2002 SCMR 690, it has been held that negligence on the part of civil servant, who during whole period of his service, had earned no adverse remarks, imposition of major penalty did not commensurate with the kind of the act of negligence committed by the civil servant.

22. The Authorized Officer has recommended the lenient of the three major punishments provided in rule 4(i)(b) of the K.P.K (Efficiency and Discipline) Rules, 1973 i.e. reduction of grade or time scale but the Authority has imposed maximum punishment of removal from service, with immediate effect, while disagreeing with the Authorized Officer, by not giving a speaking order and reasons in this respect. In the case of "Khalid Mansoor v. Director FIA" (2008 SCMR 1174), the Hon'ble apex Court has held that the recommendations of Enquiry Officer and Authorized Officer should have been given respect and in the case of "Province of Punjab through Director Food v. Farooq Ahmed Rehman" (2008 SCMR 1349), it has been held that the competent authority, if not satisfied with the report of Enquiry Officer and recommendations of Authorized Officer, might direct for fresh inquiry after assigning reasons therefor, otherwise, competent authority would have no independent jurisdiction to award punishment. In the case of "Shibli Farooqui v. Federation of Pakistan and others" reported through 2009 SCMR 281, it has been held that if the competent authority was not inclined to agree with the findings of Authorized Officer, it was required to record proper reasons for doing so after notice to affected civil servant - public power could not be exercised arbitrarily capriciously. Competent authority did not record any reason for not following the recommendations of Authorized Officer. In the same judgment, it has also been held that when such decision is rendered by an administrative authority, it is essential that appropriate balance must be struck between adverse effects, which decision may have on rights or interest of persons concerned and purpose, which authority is seeking to pursue proportionately, hence seeking guidance from the said judgment of the apex Court, it is concluded that the competent authority, while disagreeing with the recommendations of the Authorized Officer has not rendered any reasons for the same.

23. It is a general law that the charge must be proved on firm evidence and in the instant case there are verbal statements of the staff without any written orders of the Presiding Officer regarding the alleged summoning of file. In this respect reliance is placed on Ali Qaswar Bokhari v. Secretary Ministry of Interior, Islamabad and others (1999 PLC (C.S.) 1332), wherein, it is held that accused was presumed to be innocent unless proved otherwise and benefit of doubt always would go to accused and not to prosecution and it was for prosecution to stand on its own legs by providing all allegations to the hilt against accused and mere conjectures and presumptions, however, strong could not be made a ground for removal from service of Civil Servants.

24. There is a question mark on the personality of complainant, namely, Malik Hamid Khan Afridi, advocate who is not a counsel for accused party nor counsel for the complainant in the bail application, neither he is an office-bearer of the Kohat Bar Association rather record reflects that he had some mala fide, ill-will and personal grudge against the appellant. The occurrence is of March, 1997 and then October, 1997. The appellant was transferred from Kohat on 27-10-1997 whereas complaint was filed on 31-3-1999 with unexplained delay of more than 1-1/2 years. Especially in the circumstances when his two applications/ complaints against the same Presiding Officer stand refused/filed.

25. The disputed slip vide which the file was summoned from the record room is not available in original, nor the same was confronted with the appellant which was necessary in the given circumstances, as the appellant has denied its execution and signing the same by saying that the same is not in his handwriting. Umar Hayat, the then Reader of the Court and Muhammad Konain, the Peon in their depositions made on oath on 29-4-1999 during preliminary inquiry did not depose anything about File No.156 of 1997 but when examined as P.W.5 and P.W.7 in the inquiry proceedings on 26-7-2000, both of them proceeded to make abrupt somersaults and they made different statements. They were confronted with their previous statements but they could not explain their position. They could not even tell the date and time of requisitioning the file and the inquiry officer exhibited the preliminary inquiry report without calling for production of original disputed slip/chit. Four P.Ws. were examined on 25-7-2000. P.W. Ibrar Khan came into the witness box but could not produce original slip on the said date and the Enquiry Officer informed District and Sessions Judge, Kohat about the non-production of the slip by this P.W., hence the proceedings were adjourned to 26-7-2000, on which date no slip could be produced and P.Ws.5 to 9 alleged to have made complete departure from their earlier stance before the District and Sessions Judge, Kohat during preliminary enquiry. Record of statements perused during the hearing of the case and it has been observed that four different versions have come on record i.e. firstly, Reader and Peon of the court during preliminary/fact finding inquiry proceedings expressed their complete unawareness as to whether the said file was requisitioned by the appellant; secondly, in their statement recorded in regular inquiry, P.W.-5 the Reader of the court stated that file was requisitioned by the appellant through Peon, without referring to any slip; thirdly, the P.W.-7 Peon of the court said that he brought it on a slip written by Umar Hayat, Reader of the Court from Record Keeper and fourthly, P.W.-6 i.e. Record Keeper said that Peon had brought a slip written by the appellant. Strangely enough that the said slip is missing from the record and no one has been charged in this respect.

26. During the fact finding/preliminary inquiry, Enquiry Officer, namely Mujtaba Malik, District Judge, Kohat at one place has observed that:

"Mr. Konain/Peon is neither admitting nor denying the fact of taking the file in question."

27. All the statements of P.Ws. during the fact finding enquiry proceedings and the subsequent one, if scrutinized, would reflect omissions, improvements and doubts, flagrantly available on record, which cannot be considered at all. The standard of proof whatsoever, whether that of "preponderance of evidence" as is purely civil matters or that of "beyond any shadow of reasonable doubt" as in criminal matters, the prosecution had failed to establish anything whatsoever against the appellant.

28. According to charge sheet, appellant has misconducted himself under Rules 3 of the Government Servant (Efficiency and Discipline) Rules, 1973 and has rendered himself to one or more penalties specified in Rule 4 of the said rules. Rule 3 provides grounds for penalties, which reads as under:

"Grounds of penalty:- where a Government servant, in the opinion of the authority:

(a) is inefficient or has ceased to be efficient, or (b) is guilty or misconduct, or (c) is corrupt or may reasonably be considered corrupt because:- (i) He is, or any of his dependents or any other person through him or on his behalf is, in possession (for which he cannot reasonably account) of pecuniary resources or of property disproportionate to his known sources of income, or (ii) He has assumed a style of living beyond his ostensible means: or (iii) He has a persistent reputation of being corrupt: or (d) is engaged or is reasonably, suspected or being engaged in subversive activities or is reasonably suspected or being associated with others engaged in subversive activities or is guilty of disclosures of official secrets to any unauthorized person, and his (retention in service, is therefore, prejudicial to national security, the authority may impose on him one or more penalties." Whereas, misconduct is defined in section 2(e) of the rules ibid which reads as under:

"misconduct" means conduct prejudicial to good order or service discipline or contrary to the (N.-W.F.P.) Government Servants (Conduct) Rules, 1987, or unbecoming of an officer and a gentleman and includes any act on the part of government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on government or any government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a government servant."

29. The above referred record, reasons and facts would suggest that the allegations levelled against the appellant does not come within the ambit of Rule 3 and rule 2(e) of the said rules hence, for all the aforesaid reasons, we are constrained to hold that there is no iota of evidence in support of allegations against the appellant, therefore, the impugned punishment by way of order dated 20-12-2000 is hereby set aside. Appellant is reinstated in service with consequential benefits excluding monthly salary/wages. The reason for allowing consequential benefit is that appellant has undergone agony for the last 13 years but has not been allowed wages for the reasons that he remained in gainful employment i.e. practicing advocate, during the intervening period. SAK/161/P Appeal accepted.