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Petitioner: RAJA MUHAMMAD SHAFIQUE JAVAID VS Respondent: LAHORE HIGH COURTHonorable Justice M. AKHTAR SHABBIR CHAIRMANSh.Muhammad Rafiq Goreja,Muhammad Azam Rasool
2005 P L C (C
2005 P L C (C.S.) 1015
[Punjab Subordinate Judiciary Service Tribunal, Lahore]
Before Justice Muhammad Akhtar Shabbir, Chairman Justices Mian Hamid Farooq, and Sh. Abdul Rashid, Members
RAJA MUHAMMAD SHAFIQUE JAVAID
Versus
LAHORE HIGH COURT through Registrar
Service Appeal No.51 of 2001, decided on 10th December, 2004.
(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)-----
----S.5---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, Rr.3(b)(c) & 7(1)(6)---Appeal---Judicial Officer---Dismissal from service---Charge against appellant was that he as Duty Judge, entertained suit, entrusted same to his own Court and decreed same ex parte within one month on basis of fictitious report of Process-Server qua refusal of service of summons by defendant---Non-appearance of defendant and her attorney before Inquiry Officer to support allegations---Inquiry Officer on statements of officials of Court found appellant guilty and recommended penalty---Authorised Officer agree with report of Inquiry Officer and imposed penalty---Chief Justice and Judges of High Court directed appellant to appear before another Judge of High Court for personal hearing, who sided with opinion of Inquiry Officer and Authorised Officer by affirming penalty---Validity---Entertainment of suit by appellant as Duty Judge in winter vacation and entrusting same to his own Court in absence of any other Court functioning on relevant date would neither be an offence nor irregularity or illegality---Allegation of defendant that she was not residing at given address, was contrary to record---If Court was competent to pass ex parte decree, then its act of passing of ex parte decree could not be termed as an act of misconduct or corruption---No evidence on record that appellant had secured illegal benefits from plaintiff nor same could be inferred from act of passing of decree within a period of one month---Process-Server had defended his report before Inquiry Officer---Process-Server had been promoted as Bail if after dropping of departmental inquiry against him---Court after report of refusal to receive summons by plaintiff, had ordered substituted service through newspaper---Prosecution witnesses had not levelled allegation of misconduct or corruption against appellant---Defendant, after acceptance of her application for setting aside of decree had withdrawn suit and sold out property to her tenant---Neither complaint had been exhibited nor complainant or her attorney had been examined by Inquiry Officer---Inquiry in such circumstances, would be illegal and on its basis, no punishment could be imposed upon appellant---Disciplinary proceedings had remained pending for more than seven years without any sufficient reasons---Pendency of disciplinary proceedings was also a punishment and appellant had suffered such agony and mental torture for such a long period---Such penalty could not be imposed upon appellant---Service Tribunal accepted appeal, set aside dismissal order and reinstated appellant in judicial service with back benefits.
Muhib All, Chairman, State Life Insurance Corporation of Pakistan and 6 others v. 2003 PLC 316; Monmatha Nath Ghosh. v. Director of Public Instructions Government of West Bengal and others AIR 1958 Calcutta 49; Dadarao Shegoji Tidke v. State of Madhya Pradesh and another AIR 1958 Bombay 204; Abdullah v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others 1994 PLC (C.S.) 111 and Allah Yar v. General Manager, Railways Headquarters Lahore and another 2001 SCMR 256 ref.
(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975-----
----R. 3(b)(c)---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Judicial Officer---Dismissal from service---Entertainment of suit as Duty Judge and its entrustment to his own Court, charge of---Validity---Such act would neither be an offence nor irregularity nor illegality---Principles illustrated.
(c) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)-----
----S.5---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.3(b)(c)---Judicial Officer---Dismissal from service---Passing ex parte decree by the Judicial Officer within a period of one month, charge of---Validity---Passing of ex parte decrees by Presiding Officer was usual in cases of refusal of a party to accept service or failure to appear despite service---Law had not constrained Courts from passing ex parte decree in such circumstances---If Court was competent to pass ex parte decree, then its act of passing ex parte decree could not be termed as an act of misconduct or corruption---Principles illustrated.
(d) Qanun-e-Shahadat (10 of 1984)-----
----Art. 1 (2)---Principles of Qanun-e-Shahadat, 1984---Applicability---Such principles would apply to all executive, judicial or quasi-judicial proceedings---Such principles could not be disregarded especially by Judicial Officer while punishing or prejudicing his subordinate.
(e) Criminal trial---
----Accused would be liable to be acquitted, if case against him was not proved beyond any shadow of doubt in accordance with provisions of Qanun-e-Shahadat, 1984.
(f) Criminal Trial-----
----Innocent person could not be punished, even if along with him ten guilty would be benefited.
(g) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---
----R.7(1)---Inquiry proceedings---Non-appearance of complainant in support of allegations and his non-examination by accused---Validity---Allegations would be deemed to have not been proved in accordance with law---Such inquiry would be illegal and on its basis no punishment could be imposed upon accused---Principle illustrated.
(h) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975-
----R. 3(b)(c)-Misconduct-Judicial Officer not adopting procedure provided in High Court (Lahore) Rules and Orders-Effect---Same would only be an omission and not an act of misconduct.
(i) Civil Procedure Code (V of 1908)------
------O.V.R.20(e)----Substituted service---Publication of summons in a newspaper not widely circulated among people but approved for publication by High court---Held Presiding Officer had not committed any illegality.
(j) Civil Service------
--------Corruption allegation of ----Proof-No person without evidence could be declared as corrupt person unless proved by cogent and sufficient evidence.
(k) Civil service----
-----Disciplinary proceedings-Pendency of such proceedings for a period of more than seven years would be a punishment mental agony and torture to civil servant---In absence of time limit for competent authority to give verdict under Efficiency and Discipline Rules agony of civil servant should not prolong for such an indefinite period, in case authority failed to decide matter within reasonable time.
Sh.Muhammad Rafiq Goreja for appellant.
Muhammad Azam Rasool for Respondent.
JUDGMENT
M. AKHTAR SHABBIR CHAIRMAN.---This Service Appeal has been filed under section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991, against the dismissal order dated 31-1-2001 passed by the Administration Committee, Lahore High Court, Lahore vide Notification No.25/RHC/CJJ/ENDT N.90/RHC/CJJ dated 31-1-2001.
2. The facts giving rise to the present appeal are to the effect that the appellant joined the judicial service as Civil Judge on 1-4-1978 and has been serving at various places of posting and then he was upgraded as Civil Judge First Class. In the year 1990, while posted at Gujranwala, the appellant the appellant has entertained a civil suit on 31-12-1990 which has been decreed ex parte within a period of one month on 27-1-1991. The defendant/judgment debtor in that suit was a lady and her husband namely Muhammad Ashraf while posting himself as special attorney made a complaint against the appellant on 9-2-1991 levelling allegation that the appellant being a civil suit on 31-12-1990 and marked the same to his own Court and within a period of one month, he decreed the said suit ex parte and a fictitious report from the Process server was obtained showing the judgment debtor that she had declined to accept the summons issued to her by the Court. On receipt of the said application an inquiry was conducted against him by Mr. Muhammad Aslam Khan District and Sessions Judge Toba Tek Singh who held the appellant as guilty under the provisions of rule 3(b) and (c) of the Punjab Civil Servants (Efficiency and Discipline) Rules 1975, and recommended the major penalty to him.
3. Mr. Justice Khalil-ur-Rehman Ramady the Hon'ble Judge of this Court, as he then was, was appointed as an Authorized Officer under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 who charge-sheeted the appellant and the following charges were leveled against him:--
(a) That while posted a civil Judge 1st Class, Gujranwala during the year 1990-91 you entertained a civil suit for specific performance titled Ijaz Ahmad v. Begum Rashida Ashraf on 31-12-1990 as Duty Judge and entrusted the same to your own Court.
(b) That you exhibited undue haste in decreeing the said suit ex parte on 27-1-1991 within a period of one month.
(c) That you passed this decree on the fictitious report of Process server qua refusal of service by the defendant lady.
(d) That you decreed the suit in collusion with the plaintiff Ijaz Ahmad to thwart the proceeding in ejectment petition titled Begum Rashida Ashraf v. Doctor Zafar haudhary a relative of the plaintiff.
(e) That you violated the High Court Rules and Orders in not recording the order sheet and the evidence in the civil suit in your own hand.
(f) That in the order dated 9-1-1990 you tampered with the dated for which notice was ordered to be published in daily "Wafaq" to make it read as 20-1-1991.
(g) That you failed to record the order dated 27-1-1991 in the order sheet.
(h) That you passed the decree ex parte in favour of the plaintiff for extraneous considerations.
(i) That your conduct was unbecoming of a gentleman moreso a judicial officer.
The Authorized Officer while declaring him to be guilty of misconduct and considering him to be corrupt falling within the ambit of rule 3 (b) and (c) of the Punjab Civil Servant (Efficiency and Discipline) Rules, 1973, was directed to submit his written defence before the Inquiry Officer, Mr. Muhammad Aslam Khan, District and Sessions Judge, Mandi Baha-ud-Din within a period of fourteen days.
4. The appellant submitted his written reply to the Inquiry Officer on 3-6-1999 whereby he denied the allegations levelled against him. The Inquiry Officer recorded the evidence of Muhammad Ismail P.W.-1, Clerk of Court to the Civil Court Gujranwala. Muhammad Yaqoob P.W.-2, Bailiff Civil Court Gujranwala, Muhammad Akram P.W.-3, Ahlmad to the Court of Senior Civil Judge, Gujranwala, and Mahmood Anwar P.W.-4, Reader Sessions Court. Neither the complainant nor her alleged attorney namely Muhammad Ashraf, husband of Mst. Rashida Ashraf, defendant/judgment-debtor, appeared before the Inquiry Officer to prove the charges levelled against the appellant. However, the Inquiry Officer on the statements of the four P. Ws. mentioned above, found all the charges, except No.(f), proved against the appellant, found him guilty and recommended major penalty.
5. On 17-6-2000, the Authorized Officer issued show-cause notice to the appellant and directed him to appear before him on 24-6-2000 at 12-noon at Lahore.
6. The appellant made a written reply to the show-cause notice on 17-6-2000 and also offered for his personal appearance at the relevant date before the Authorized Officer, who agreeing with the report of the Inquiry Officer imposed a major penalty of dismissal from service of the appellant, but the Hon'ble Chief Justice and the Judges of the High Court after perusing the record of the proceedings and recommendation of the Authorized Officer had ordered for issuance of final show-cause notice to the appellant and he was directed to file his explanation within a period of ten days from the receipt of the notice with a further direction to appear before Mr. Justice Mian Nazir Akhtar, J. for personal hearing on behalf of the Authority on 5-8-2000 at 11-00 a.m. Mr. Justice Mian Nazir Akhtar, as he then was, also sided with the opinion of the Inquiry Officer as well as the Authorized Officer affirmed the penalty of dismissal of the appellant from service.
7. Learned counsel for the appellant contends that on the date when the prosecution evidence was closed, the appellant was directed to produce his defence, which was not possible for the appellant. It was the requirement of natural justice that the appellant. should have been provided an opportunity to lead his evidence to rebut the allegations levelled against him. Further contends that the applicant/complainant and his wife/defendant/judgment-debtor did not appear before the Inquiry Officer to support the allegations. Learned counsel submits that the Inquiry Officer has recommended major penalty while it was not his function, rather it was the power of the Authorized Officer. Further submits that the case of the appellant was an act of only omission and it was not a case of misconduct, therefore, he is entitled to reinstatement in service with back-benefits. He placed reliance on the case of Muhib Ali, Chairman, State Life Insurance Corporation of Pakistan and 6 others (2003 PLC 316). Further submits that all the charges levelled against the appellant have arisen out of one allegation that the appellant entertained the suit titled; Ijaz Ahmad. v. Begum Rashida Ashraf on 31-12-1990 and entrusted the same to his own Court, which was decreed ex parte within a period of one month. Learned counsel argues that the main allegation against the appellant does not cover within the ambit of misconduct and thus no major penalty could be imposed upon him. Further argues that the Inquiry Officer was not within his powers to recommend the penalty of dismissal of the appellant which is the major penalty and it was the competent Authority which could impose the same. Reliance in this contest has been placed on the case of Monmatha Nath Ghosh v. Director of Public Instructions, Government of West Bengal and others (AIR 1958 Calcutta 49). He further argues that the appellant has not admitted several charges framed against him. Although, he was asked for personal hearing yet he was not provided an opportunity to rebut the statement of the prosecution evidence and the application of relevant rules is not attracted to the case of the appellant. Reliance in this behalf is placed on the case of Dadarao Shegoji Tidke. v. State of Madhya Pradesh and another (AIR 1958 Bombay 204). He further argues that no charge of corruption and corrupt practices has been levelled or proved and the case for misconduct against the appellant is not made out in the facts and circumstances of the case, therefore, the major penalty has been illegally imposed upon him. Lastly argues that Article 129 of the Qanun-e-Shahadat Order have also not been complied with. Learned counsel contends that the appellant is entitled to the benefit of doubt also which was his legal right.
8. On the other hand, learned counsel appearing on behalf of the High Court vehemently opposed the arguments of the learned counsel for the appellants contending that the appellant made hurry in decreeing the suit ex parte against the defendant/judgment-debtor which is sufficient to infer that he obtained some ill-gotten benefits and he also violated the High Court Rules and Orders in performing the procedure for hearing of the suit. He further contends that the allegation levelled against the appellant are proved against him and two Hon'ble Judges of the High Court concurring with the Inquiry Officer who imposed a major penalty of dismissal from service. In this context, reliance has been placed on the case Abdullah v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others (1994 PLC (C.S.) 111) and Allah Yar. v. General Manager, Railways Headquarters Lahore and another (2001 SCMR 256).
9. We have heard the learned counsel for appellant as well as the learned counsel for the respondent and perused the record with their kind assistance. On 31-124990, the appellant was the Duty Judge at Gujranwala and no other Judicial Officer/Civil Judge was available due to winter vacation and the appellant was directed to entertain the matters A during the vacations. The said suit titled; Ijaz Ahmed v. Begum Rashida Ashraf was filed by the plaintiff and the appellant entrusted the same to his own Court, as no other Court was functioning on the said date. The entertainment of the suit by the appellant himself is neither an offence nor irregularity/illegality.
10. The main allegation against the appellant is that he had decreed the suit within a shortest period of one month without performing the formalities of law. The suit was fixed on 9-1-1991 and notice was issued to the defendant for the said date, but the Process-Server has reported that the defendant/respondent has refused to accept the service, therefore, the Court adjourned the case to 20-1-1991 and the publication was issued in the daily "Wafaq" for 20-1-1991. On the said date, no one entered appearance, therefore, ex parte proceedings were initiated against the defendant/respondent and after recording ex parte evidence on 27-1-1991, the suit was decreed ex parte. The allegation against.the appellant is that the defendant party was not residing at the given address, rather in those days' the defendant was residing in United Kingdom. The record itself belies the stand of the prosecution, because the application for setting aside ex parte decree had been filed by the defendant through Ch. Mahmood Bashir Virk, Advocate, on 9-2-1991, wherein it has been stated that the defendant was owner of Kothi No.15 measuring 7-Kanals consisting of nine rooms situated at D.C. Road Gujranwala. She is the joint owner of the said property with Muhammad Ikram, younger brother of his husband. She further stated in the application that her husband has left for United Kingdom where he was doing his own business and in the month of August, 1987, she also went to England to reside with her husband in Manchester and rented out this bungalow through his general attorney Ch. Ziafat Ali Khan Advocate to Dr. Zafar Chaudhry on monthly basis and her tenant Dr. Zafar Chaudhry stopped payment of rent due on one pretext or the other and the applicant/defendant on25-9-1989 returned from England along with the other family members and stayed in some portion of the said bungalow and on 30-9-1989 she filed an ejectment-petition against Dr. Zafar Chaudhry, her tenant, which was pending at the time of filing of the civil suit against her. She admitted that the next date of hearing in the ejectment petition before the Rent Controller was fixed on 6-2-1991. She further stated in the application that the said Dr. Zafar threatened her to the dire consequences and she sought the help of the police for her protection and got recorded four F.I.Rs bearing Nos.36/90 dated 9-2-1990, 4-4-1990 and 15-2-1990 at Police Station Civil Lines and F.I.R Nos.191 dated 3-1-1991 and 7/91 dated 6-1-1991 at Police Station Peoples Colony Gujranwala which shows that at the time of institution of the civil suit, when the process was issued against her, she was residing in Pakistan. The allegation that she was not residing in Pakistan in those days is totally contrary to the record.
11. The allegation that the date of the suit i.e 9-1-1991 was tampered with by the appellant is also not proved and the Inquiry Officer had opined that this allegation was not proved. In nutshell the main allegation against the appellant is that he entertained the suit himself to his own court and decreed the same within the purview of section 3 (b) and (c) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 and he was declared to be guilty of misconduct and corrupt practices.
12. As to the allegation of decreeing the suit within a period of one month. It is not a case of misconduct or it was not the only suit which was decreed by him ex parte or he was the only person/Judicial Officer who passed the ex parte decree. This fact cannot be ignored that usually every Presiding Officer passes many ex parte decrees in those cases where either the parties refuse to accept the service or despite service did not appear in Court. The law has not restrained the Courts to pass the ex parte decree in such like circumstances. If the court is competent to pass ex parte decree it cannot be termed that it was an act of misconduct or corruption. The prosecution has not been able to bring on record that the appellant has passed only the aforesaid ex parte decree and all other decrees have been passed on merits after hearing the parties. Neither any material has been placed on record to establish that in the subordinate judiciary he was he only Presiding Officer who passes the ex parte decrees.
13. There is also no evidence on record that while passing the ex parte decree within a period of one month the presiding officer has secured illegal or ill gotten gains from the plaintiff. No such allegation has been leveled against the appellant only it has been inferred that since the decree was passed ex parte within a period of one month, therefore he passed the decree for securing illegal benefits and committed misconduct and corruption. This is only the inference which was drawn by the Inquiry Officer as well as the Authorized officer. It is settled proposition of law that the principle of Qanun-e-Shahadat order will apply to all executive, judicial and quasi-judicial proceedings. The application of the principle of Qanun-e-Shahadat Order/Evidence Act cannot be oversight especially by the Judicial Officers, while punishing or prejudicing his subordinate. If case against an accused is not proved beyond any shadow of doubt in accordance with provisions of Qanun-e-Shahadat Order, he is liable to be acquitted. It is the basic principle of Islamic jurisprudence that an innocent person cannot be punished even if along with him ten guilty are benefited.
14. The most important feature of the case is that the complaint was filed through special attorney Haji Muhammad Ashraf, the husband of the defendant Begum Rashida Ashraf. Neither his complaint. was exhibited by the Inquiry Officer nor the special attorney or the defendant appeared before the Inquiry Officer or the Authorized Officer to substantiate the allegation levelled against the appellant. The Inquiry Officer recorded the evidence of four witnesses, the employees of the subordinate Judiciary, Muhammad Ismail P.W.-1, clerk of Court to the Civil Courts, appeared before the Inquiry Officer. He stated that the summons was issued by the appellant against the defendant for 9-1-1991 on the given address and the address in the summons was shown "D.C. Road Gujranwala". According to him, this D.C. Road was a pretty long Road of 3-4 furlongs but it did not mean that the summons was issued on a wrong address. The summons were entrusted to Muhammad Yaqoob Process-Server, who reported that the defendant had refused to accept the same and the report was verified by the Reader of the Court of Senior Civil Judge at that time. No action whatsoever has been taken if, for the sake of arguments, the report of the Process-Server was manoeuvre by the plaintiff and inquiry against him was initiated but the Process-Server was exonerated in that inquiry and later on he was promoted. In this case, it was the Process-Server who created the mischief by reporting that the defendant had refused to accept the service but he was not punished, the reasons best known to the Authority. The inquiry against the Process-Server was conducted by Syed Akhtar Hussain Zahid, Civil Judge, who exonerated the said Process-Server from the charge and the Senior Civil Judge also agreed with the report of the Inquiry Officer and inquiry against him was dropped and he was subsequently promoted as Bailiff. Muhammad Yaqoob, Process-Server, while appearing before the Inquiry Officer as P.W.-2, admitted that the summons was entrusted to him for effecting service upon Begum Rashida Ashraf, who was the resident of D.C. Road Gujranwala. He went to her bungalow, but she refused to accept the service and accordingly he reported. He admitted the report and signatures on the same. He has, in his examination-in-chief, nowhere stated that he was directed by the appellant/Presiding Officer to furnish report of refusal by the defendant. P.W.-3 Muhammad Akram Ahlmad in the Court of Senior Civil Judge has stated that it is the duty of the clerk of the Court of Senior Civil Judge to maintain the Register and enter the institution of the suits. It was never the duty of the Presiding Officer to…
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