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Petitioner: Abdul Hakeem Hashmi VS Respondent: Peshawar High Court, Peshawar through its Registrar
Court Name: Peshawar High Court Judge(s): Lal Jan Khattak, Ijaz Anwar Title:Abdul Hakeem Hashmi vs Peshawar High Court, Peshawar through its
Registrar Case No.: Service Appeals No.29, 31, 32, 34, 36, 37, 38, 40, 43, 45, 49 and 47 of 2017 Date of Judgment:2019-05-18 Reported As: 2019 PHC 140 Result: appeal dismissed Judgment IJAZ ANWAR, MEMBER.- These twelve appeals are taken up together for disposal, as all the appellants were imposed upon major penalty of removal from service on the charges of corruption by the Competent Authority, within the meaning of Rule 4(1)(b)(iii) of Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline ) Rules, 2011, (Hereinafter to be referred as E&D Rules, 2011) through Separate Notifications dated 28.04.2017, which have been impugned by them in their respective appeal before this Tribunal. 2. Brief facts leading to filing these appeals are being summarized separately herein below , in seriatim:- Service Appeal No.29/2017 Appellant was initially appointed as Civil Judge-cum-Judicial Magistrate on contract basis in the year, 1995. Subsequently , he was appointed on regul ar basis on the recommendations of the KPK Public Service Commission in the year, 1998. He was promoted as Senior Civil Judge and then as Additional District & Sessions Judge. He was served with a Show Cause Notice dated 05.04.2017 on account of his unbecoming conduct and integrity . Appellant submitted his reply to the said Show Cause Notice on 12.04.2017. Finally , the Authority in concurrence with the opinion of Administration Committee imposed major penalty of removal from service upon the appellant vide impugned order dated 28.04.2017. Service Appeal No.31/2017 Appellant was appointed as Civil Judge on 11.12.1999 and thereafter , she was promoted as Senior Civil Judge and Additional District & Sessions Judge. She was served with Show Cause Notice dated 05.04.2017 on account of charges regarding her integrity and condu ct is unbecoming of a Judicial Officer. Appellant submitted her reply to the said Show Cause Notice on 13.04.2017. Finally , the Authority in concurrence with the opinion of Administration
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Committee imposed major penalty of removal from service upon the appellant vide impugned order dated 28.04.2017. Service Appeal No.32/2017 Appellant was appointed as Additional District & Sessions Judge on 19.09.2001 and thereafter , he was promoted to the post of District & Sessions Judge. However , the appellant was served with Show Cause Notice dated 05.04.2017 containing allegation regarding his integrity and conduct not above the board. Appellant submitted his reply dated 16.05.2017 to the said Show Cause Notice. Finally , the Authority in concurrence with the opinion of Administration Committee imposed major penalty of removal from service upon the appellant vide impugned order dated 28.04.2017. Service Appeal No.34/2017 Appellant was appointed as Civil Judge-cum-Judicial Magistrate on the recom mendations of the KPK Public Service Commission on 11.09.1998. He was promoted as Senior Civil Judge on 13.11.2013. However , he was served with Show Cause Notice dated 05.04.2017 on account of allegations about his integrity and conduct, which was respondent by him through submission of his reply dated 11.04.2017. Finally , the Authority in concurrence with the opinion of Administration Committee imposed major penalty of removal from service upon the appellant vide impugned order dated 28.04.2017. Service Appeal No.36/2017 Appellant was appointed as Civil Judge-cum-Judicial Magistrate on the recom mendations of the KPK Public Service Commission on 25.06.2003. He was promoted as Senior Civil Judge on 29.06.2015. He was served with Show Cause Notice dated 05.04.2017 containing allegations regarding general reputation, social contacts and integrity . Appellant submitted his reply to the said Show Cause Notice on 11.04.2017. Finally, the Authority in concurrence with the opinion of Administration Committee imposed major penalty of removal from service upon the appellant vide impugned order dated 28.04.2017. Service Appeal No.37/2017 Appellant was appointed as Civil Judge-cum-Judicial Magistrate on the recom mendations of the KPK Public Service Commission in the year , 2004. He was served with Show Cause Notice dated 05.04.2017 on account of his unbecoming conduct and integrity . Appellant submitted his reply to the said Show Cause Notice on 11.04.2017. Finally , the Authority in concurrence with the opinion of. Administration Committee imposed major penalty of removal from service upon the appellant vide impugned order dated 28.04.2017. Service Appeal No.38/2017 Appellant was initially appointed as Civil Judge-cum-Judicial Magistrate on the recommendations of the KPK Public Service Commission in the year, 1999. He was promoted as Senior Civil Judge in the year, 2006 and thereafter he was promoted to the post of Additional District & Sessions Judge. However , he was served with Show Cause Notice dated 05.04.2017 by the Authority on account of his unbecoming conduct and integrity . Appellant submitted his reply to the said Show Cause Notice on 12.04.2017. Finally , the Authority in concurrence with the opinion of Administration Committee imposed major penalty of removal from service upon the appellant vide impugned order dated 28.04.2017. Service Appeal No.40/2017 Appellant was initially appointed as Civil Judge-cum-Judicial Magistrate in the year, 1999. Thereafter , he was promoted as Senior Civil Judge and then as Additional District & Sessions Judge. He was served with Show Cause Notice dated 05.04.2017 on account of his unbecoming conduct and integrity . Appellant submitted his reply on 17.04.2017 to the said Show Cause Notice. Finally , the Authority in concurrence with the opinion of Administration Committee imposed major penalty of removal from service upon the appellant vide impugned order dated 28.04.2017. Service Appeal No.43/2017 Appellant was initially appointed as Civil Judge-cum-Judicial Magistrate on the recommendations of the KPK Public Service Commission in the year, 1999. He was promoted as Senior Civil Judge in the year, 2006 and then as
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Additional District & Sessions Judge in the year, 2010. He was served with a Show Cause Notice dated 05.04.2017 on account of unbecoming conduct and integrity , which was respondent by him through reply . Finally , the Authority in concurrence with the opinion of Administration Committee imposed major penalty of removal from service upon the appellant vide impugned order dated 28.04.2017. Service Appeal No.45/2017 Appellant was appointed as Civil Judge-cum-Judicial Magistrate. He was served with a Show Cause Notice dated 05.04.2017 on account of his unbecoming conduct and integrity . Appellant submitted his reply to the said Show Cause Notice on 13.04.2017. Finally, the Authority in concurrence with the opinion of Administration Committee imposed major penalty of removal from service upon the appellant vide impugned order dated 28.04.2017. Service Appeal No.49/2017 Appellant joined judicial service as Civil Judge and he was promoted as Senior Civil Judge and then as Additional District & Sessions Judge. He was served with a Show Cause Notice dated 05.04.2017 on account of his unbecoming conduct and integrity. Appellant submitted his reply to the said Show Cause Notice on 12.04.2017. Finally, the Authority in concurrence with the opinion of Administration Committee imposed major penalty of removal from service upon the appellant vide impugned order dated 28.04.2017. Service Appeal No.47/2017 Appellant was initially appointed as Civil Judge-cum-Judicial Magistrate on contract basis in the year, 1995. Subsequently, he was appointed on regular basis on the recommendations of the KPK Public Service Commission in the year, 1998. He was promoted as Senior Civil Judge in the year, 2013. He was served with a Show Cause Notice dated 05.04.2017 on account of his unbecoming conduct and integrity. Appellant submitted his reply to the said Show Cause Notice on 13.04.2017. Finally, the Authority in concurrence with the opinion of Administration Committee imposed major penalty of removal from service upon the appellant vide impugned order dated 28.04.2017. 3. Learned counsel for the appellant argued that at the relevant time when the appellant was proceeded departmentally there were only two adverse ACRs against the appellant, which were impugned in this Tribunal and have thus not attained finality , while third adverse ACR was communicated after the service of Show Cause Notice and therefore those entries cannot be used against the appellants. Learned counsel further argued that there is no concept in the Efficiency and Discipline Rules, 2011 about reports of Inspection Judges or of the Intelligence Agencies. He argued that those reports were made the basis for the removal of the appellants, but they were never confronted with those allegations, therefore, the appellants were virtually condem ned unheard. Learned counsel argued that the superior Courts have consistently held that cases in which the proposed punishment is removal/dismissal from service, regular inquiry is mandatory . It was further argued that quite illegally regular inquiry was dispensed with while there was no admitted record against the appellants, such inquiry proceedings conducted against the appellants are defective. Learned counsel also referred to the in service record and argued that for the period when those Judicial officers were reported adverse in that period they were mostly allowed special increment for best performance and even some of the Judicial Officers were promoted in that period. Lastly exceptions were taken to the powers of the competent authority in initiating departmental proceedings against the appellant on the ground that in view of the recent judgment of the Apex Court reported as PLD 2015 SC 360, and it was argued that when the very departmental proceedings were incompetently commenced and finalized, the whole superstructure built thereupon is liable to fall to the ground. In support of the abov e arguments reliance placed on 2015 PLC (CS) 239, 2015 PLC (CS) 173-191, 2007 SCMR 1786 , 2010 SCMR 1392 , PLD 1986 SC 162, 2004 PLC (CS) 1558 , 2009 SCMR 412, 2007 SCMR 1389, 2007 SCMR 1726 , 2006 SCMR 106, 2003 SCMR 681, 2008 SCMR 1362, 2007 SCMR 1643 and 2015 PLC (CS) 868. 4. Learned standing counsel representing respondent argued that judgment of the Supreme Court regarding the competent Authority in respect of judicial officers to initiate departmental proceedings is not relevant to the case in hand, because it was with reference to Efficiency and Discipline Rules, 1973, while the appellants were proceeded under E&D Rules, 2011. He further argued that the Administration Committee at the initial stage of departmental proceedings as well as at the time of awarding penalty took decision about proceeding
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departmentally against the appellants. Learned counsel while referring to Rule 5(1)(a) of the Efficiency and Discipline Rules, 2011 argued that it is within the powers of the competent Authority to dispensed with regular inquiry after giving reasons. He argued that there were charges of corruption, which were duly communicated in time through adverse entries in his PER, as such, no further enquiry is required. Learned counsel while referring to the dictionary meaning of 'corruption' argued that it was the reputation of a Judicial Officer based upon collective opinion and therefore, no regular inquiry is required. He argued that the judgments relied upon by the appellant are distinguishable because they pertains to the conduct of ordinary Civil Servant while the appellants are Judicial Officers whose reputation should be unquestionable, exceptional and in these cases their striking reputation has marred their good judicial work. He argued that the High Court had taken extra care, while proceeding against the appellants because despite consecutive communication of adverse entries the same was got verified from the Hon'ble Inspection Judges of the High Court and then confirmed through reputed intelligence agencies. In support of above contentions, learned counsel placed reliance on 2001 SCMR 1161, 2009 SCMR 1169, PLD 2004 SC 222, PLD 1985 SC 134, 2007 SCMR 1786 , 1993 SCMR 956, PLD 1977 Karachi 582 and 2014 PLC (CS) 1244. 5. Arguments of learned counsel for the parties heard and record perused. 6. In all the connected matters the competency of Honourable the Chief Justice to initiate departmental proceedings against the appellants was vehemently argued, as such, this point is taken up first. The appellants' are proceeded against under the E&D Rules, 2011. The E&D Rules, 2011, empowers only the competent authority to initiate and finalize the departmental proceedings. Rule 2(c) of the E&D Rules, 2011 defines "Appointing Authority" as 'an authority declared or notified as such by an order of Government under the Khyber Pakhtunkhwa Civil Servants Act, 1973 (Khyber Pakhtunkhwa Act No.XVIII of 1973) and the rules made there under or an authority as notified under the specific laws/rules of Government; similarly , Rule 2 (f) defines "Competent Authority":- "competent authority' means- (i) the respective appointing authority; (ii) in relation to a Government servant of a tribunal or court functioning under Government, the appointing authority or the chairman or presiding officer of such tribunal or court, as the case may be, authorized by the appointing authority to exercise the powers of the competent authority under these rules; Provided that where two or more Government Servants are to be proceeded against jointly, the competent authority in relation to the accused Government servant, senior most shall be the competent authority in respect of all the accused". 7. Section 4 of the Khyber Pakhtunkhwa Judicial Service Rules, 2001 provides; "Sec.4. Appointing Authority:- Appointment to a post shall be made by High Court". 8. The Hon'ble Supreme Court of Pakistan in Civil Appeal No.1171 to 1192 of 2013 titled "Registrar, Peshawar High Court Vs Shafiq Ahmad Tanoli and others, reported in PLD 2015 SC 360 discussed in detail the "Appointing Authority" with reference to Rule-4 of the Khyber Pakhtunkhwa Judicial Service Rules, 2001 read with High Court Rules & Orders, Volume-V Chapter 10-A, and held the Administration Committee of the High Court consisting of Hon'ble the Chief Justice & three senior most judges of the Peshawar High Court as the appointing authority when acting/exercising statutory powers. Thus, under the E&D Rules, 2011, the competent authority is defined as the "respective appointing authority" while the Khyber Pakhtunkhwa Judicial Service Rules, 2001 defines appointing authority as the High Court. Under Rule- 5 of the E&D Rules, 2011, the disciplinary proceedings can be initiated by the competent authority if, on the basis of its own knowledge or information placed before it, he is of the opinion that there are sufficient grounds for initiating proceeding against a Government servant. Similarly , if the competent authority decides to hold an enquiry , the procedure prescribed in Rule 7 and 11 of the rules ibid shall be followed, in case where the competent authority dispense with enquiry , shorter procedure prescribed under rule 5 ibid shall be followed. Again, in case the charges are proved, it is only the competent authority that can award punishment under Rule 14 ibid.
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9. In this case the matter pertaining to the initiation of departmental proceedings against all the delinquent Judicial Officers was placed before the Administrative Committee of the Hon'ble Peshawar High Court, which has considered it in its meeting held on 5th April, 2017 and a decision was taken to proceed departmentally against them. The suspension orders dated 05.04.2017 of the appellants clearly referred to those recommendations i.e. "in accordance with the recommendation of the Administration Committee of Peshawar High Court in its meeting held on 5th April, 2017, the Competent Authority has been pleased to place the service of (appellant by name) under suspension as he is to be proceeded against under the E&D Rules, 2011 for misconduct." Similarly, in the show cause notice in Para-2 it has been specifically mentioned as "The Administration Committee decided that those Judicial Officers who despite adverse entries communicated to them had not mend their ways and guarded their reputation, social contacts and overall conduct, were to be proceeded against departmentally, as they had a persistent reputation of being corrupt." Similar is the case when the orders/ notifications of removal from service of these accused Judicial Officers were issued on 28th April, 2017. We reproduced Para-2 thereof for convenience and ready reference: "And whereas after complying with the entire prescribed procedure under the rules ibid, the Authority , in agreement with the Members of the Administration Committee, impose major penalty of removal from service on the accused of ficer."(The underlines provided for emphasis) We have also requisitioned minutes of the meeting of Administration Committee dated 05.04.2017 and find that there is unanimous decision of the Committee for initiation of departmental proceedings against the appellants. Thus, as required under the law, there is a decision of the High Court from initial to final stage to proceed against the appellants under the E&D Rules, 2011. The objection about the competency of the departmental proceedings is, thus, misplaced and repelled. 10. Now coming to the main allegation on the basis of which the appellants were proceeded against departmentally . We reproduced the relevant adverse remarks and material that was considered in respect of each appellant respectively:- Abdul Hakeem Hashmi (In S.A.29/2017) The Hon'ble Administration Committee of Peshawar High Court recorded the following remarks in the Annual Confidential Report for the year 2014-2015 duly communicated. 1.Integrity Not aboveboard 2.Pin-Picture Warning be issued and guard your reputation. 3.Overall grading Below Average 4.Recommendation for promotionNot fit for Promotion
Similarly , for the year , 2016 the following remarks were communicated. 1.Integrity Not aboveboard 2.Pin-Picture Despite entries so communicated, you have not guarded your reputation and social contacts and overall conduct. You have a persistent reputation of being corrupt. 3.Overall grading Below Average 4.Recommendation for Not fit for Promotion
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promotion
The communication of consecutive remarks and that too regarding the integrity and reputation of the appellant was seriously viewed by the High Court and it was decided to further assess the gener al reputation. In this regard, the Hon'ble Inspection Judges were appointed to appraise the performance of the appellant and other Judicial Officers qua (i) General Reputation; (ii) Conduct in the Court; and (iii) Qualitative Assessment of Judgments and for this purpose, each of the field was allocated '10' marks. The Hon'ble Inspection Judges submitted their appraisal report regarding each judicial of ficer. The report of Inspection Judge regarding the appellant is as under:- Abdul Hakeem Hashmi (In S.A.29/2017) 1.General Reputation Zero 2.Conduct in the Court 5 3.Qualitative Assessment of Judgments7
When the above adverse remarks tallied with the report of the Inspection Judges, the opinion of Intelligence Agencies was sought. In respect of the appellant Abdul Hakeem Hashmi (In S.A.29/2017), it was reported that: "Though the officer is professionally sound yet he has over the years developed a tainted reputation. At a number of stations including Upper Dir and Hangu, there were allegations against him. AT his current place of posting too, people are raising fingers against him. Moreover, strangely despite being a very well-education and foreign qualified officer, he has started administering "Dam Darood" and issuing Taweez' to people. This kind of practice at the place of his posting does not sync well with his job and is often publicity ridiculed by bar and public alike." Likewise, the remarks recorded by the Administration Committee in the ACRs for the years, 2014-2015 and 2016, Inspection Judges and Intelligence Agencies, respectively , in respect of Judicial Officers in the connected matters regarding their reputation and integrity are highlighted below:- Mrs. Riffat Aamir (In S.A.31/2017) ACR 2014-2015 1.Integrity Not aboveboard 2.Pin-Picture Warning be issued and guard your reputation 3.Overall grading Below Average 4.Recommendation for promotionNot fit for Promotion
ACR 2016 1.Integrity Not aboveboard 2.Pin-Picture Despite adverse entries so communicated, you have not guarded ' your reputation and social contacts and overall conduct. You have a
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persistent reputation of being financially corrupt 3.Overall grading Below Average 4.Recommendation for promotionNot fit
Report of Inspection Judge 1.General Reputation Approachable always/ corrupt 2.Conduct in the Court 4 3.Qualitative Assessment of Judgments4
Sardar Muhammad Irshad (In S.A 32/2017) ACR 2014-2015 1.Integrity Not aboveboard 2.Pin-Picture Guard your reputation 3.Overall grading Below Average 4.Recommendation for promotionNot fit for Promotion
ACR 2016 1.Integrity Not aboveboard 2.Pin-Picture Despite adverse entries so communicated, you have not improved your reputation and social contacts and overall conduct. You have persistent reputation of being corrupt. . 3.Overall grading Below Average
Report of Inspection Judge 1.General Reputation Zero 2.Conduct in the Court 7 3.Qualitative Assessment of Judgments5 Agencies Report "Sardar Muhammad Irsahad (D&SJ) belongs to a respectable educated family of Abbottabad. However , is reported to be involved in financial corruption; as there are serious allegatio ns against him at a number of stations including Upper Dir and othe r stations. Moreover , he is learnt to be very rude and arrogant; and
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because of this reasons, inter alia, he is at daggers drawn with the bar. as District Judge Dir, he reportedly used to get bribe through a KPO; then developed serious rift with the bar but later on settled the matter realizing that the bar was not ready to give in. In Charsadda too, the bar sharply reacted to his malpractices and ultimately he was posted out." Adil Akbar Khan (In S.A 34/2017) ACR 2013 1.Overall grading Below average 2.Remarks of the Hon'ble Administration CommitteeWe agree with the remarks of the reporting of ficer except grading and honesty of the of ficer. The of ficer does not enjoy good reputation and is rated as below average. Counseling be issued. 3.Fitness for promotion Not yet fit for Promotion
ACR 2014 1.Remarks of the Hon'ble Administration CommitteeWe do not agree with the remarks of the reporting officer. He does not enjoy good reputation. However he is below average and not fit for promotion. 2.Overall grading Below Average 3.Recommendation for promotionNot fit.
ACR 2015 1.Integrity Not Above Board 2.Pen Picture Guard your reputation 3.Overall grading Below Average 4.Recommendation for promotion.Not fit for promotion.
ACR 2016 1.Pen Picture "Despite adverse entries so communicated, you have not guarded your reputation and social contacts and overall conduct. You have a
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persistent reputation of being corrupt." 2.Overall grading Below Average 3.Recommendation for promotionNot fit.
Report of Inspection Judge 1.General Reputation Unsatisfactory 2.Conduct in the Court 3.Qualitative Assessment of Judgments Agencies Report "Mr. Adil Akbar Khan who is presently serving as Senior Civil Judge in Hangu is generally reported as an average judicial officer. His general reputation is very bad; tainted with allegations of financial issues. There are allegations that as SCJ at one station, he even misappropriated official allowances under the head "Hot and Cold". Due to his work habits and carefree attitude, he has earned the reputation of judge who is least interested in work and happily favours lawyers with adjournments of their choice-at the cost of delay and the agony of litigants. "Interested". He is also considered to be easily approachable." Shah Hussain (In S.A 36/2017) ACR 2014-2015 , . 1.Integrity Not aboveboard 2.Pin-Picture Guard your reputation 3.Overall grading Below Average 4.Fitness for Promotion Not fit for Promotion
ACR 2016 1.Pin-Picture Despite adverse entries so communicated, you have not guarded your reputation and social contacts and overall conduct. You have persistent reputation of being corrupt. . 2.Overall grading Below Average 3.Recommendation for promotionNot fit.
As per report of Inspection Judge, he got Zero marks for his integrity . Agencies Report "Appellant was involved in financial corruption and…
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