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Petitioner: GOVERNMENT OF SINDH and others VS Respondent: SAIFUL HAQ HASHMI and others
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Saleem Akhter, Ajmal Mian Title: GOVERNMENT OF SINDH and others vs SAIFUL HAQ HASHMI and others Case No.: Cr. Appeal No, 716-K of 1990 Date of Judgment:1992-10-04 Reported As: 1993 SCMR 956 Result: Order accordingly
JUDGMENT
JUDGMENT ' SALEEM AKHTAR, J.---Both these appeals will be disposed of by this judgment which arise from the judgment passed by Sindh Service Tribunal whereby the appeal filed by Saiful Haq Hashmi hereinafter referred to as respondent, was allowed and the order of removal from service which on review was later converted into compulsory retirement was set aside. It was however kept open to the Departmental Authorities to proceed against him afresh in accordance with law. Aggrieved by this judgment, the Government of Sindh, hereinafter called the appellant filed petition for leave to appeal. The respondent also filed similar petition. Both the petitions were heard together and leave was granted to examine the following questions of law of public importance: (i) Whether the Service Tribunal has failed to take into consideration the findings recorded by the authorised officer on controverted questions of fact before the final order was passed? (ii) Whether judicial orders which remain intact on appeal/revision or unchallenged can alone be made the basis of charges as were levelled against the civil servant in this case? (iii) Whether the charges not proved overweigh the charges proved? Its effect? 2. The respondent, who was Senior Civil Judge and Assistant Sessions Judge was served with two show-cause notices under Rule 5(3) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 relating to his conduct, proceedings taken and orders passed by him in Civil Suit No, 571 of 1976 and Execution No, 32 of 1975 which are reproduced as follows: "SHOW-CAUSE NOTICE UNDER RULE 5(3) OF THE SINDH CIVIL SERVANTS (EFFICIENCY & DICSIPLINE) RULES, 1973. ' You, Mr. Saiful Haque Hashmi, Senior Civil Judge, Karachi are hereby called upon to show cause within one week from the date of receipt of this notice why disciplinary action under the Sindh Civil
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Servants (Efficiency and Discipline) Rules, 1973, should not be taken against you for committing patent illegalities and irregularities in entertaining and admitting Civil Suit No, 571 of 1976 (Muhammad Zubair Qureshi v. Munir Hussain Sherazi and others) and for passing illegal orders in the said suit thereby abusing your official position. ' That the aforesaid civil suit was filed in your Court by one Zubair Qureshi for declaration and injunction in respect of property (garments) worth Rs, 3,20,000. The plaintiff stated in the plaint that the said property was subject-matter of a criminal case pending in the Court of S.D.M. Central, Karachi and that the said property which was being exported for $ 32,000 was recovered by the police during the investigation and the S.D.M. Concerned had allowed the said property to be retained by the persons from whom it was recovered, on Superdaginama' with the directions that it shall be produced in Court as and when required. ' That you entertained and admitted the above civil suit in spite of the fact that the value of the property involved was shown at Rs, 3,20,000 in the plaint, which was beyond the pecuniary jurisdiction of your Court and you, thereby wrongly and illegally assumed jurisdiction over and above the limited pecuniary jurisdiction of Rs, 50,000. ' That the S.D.M., Central, Karachi in whose Court the criminal case in respect of the said property was proceeding, was joined by you as a party in the above civil suit without making the Provincial Government a party and serving notice on the Provincial Government. ' That you ordered the delivery of the above property admittedly worth Rs,3,20,000 to the plaintiff in the aforesaid civil suit on `SUPERDGINAMA' on furnishing a surety in the sum of Rs,1,50,000 only. ' That you allowed the plaintiff in the above civil suit to dispose of the said property without directing him to deposit the sale proceeds in Court till the disposal of the suit, and consequently, the plaintiff sold the said property and misappropriated the sale proceeds. ' That it was proved to your satisfaction and/or it was in your knowledge that a bogus surety for Rs,1,50,000 had been furnished by the plaintiff yet you neither proceeded against the surety under section 205 of the P.P.C. Nor took steps for the recovery of the sale proceeds of the said goods. ' That in passing the orders for handing over the said property to the plaintiff in the above civil suit and allowing him to dispose of the said property, you interfered in the proceedings of the criminal case pending in the Court of the S.D.M Central, Karachi which amounted to stifling of the said criminal case. ' That for the reasons aforesaid you have been guilty of gross misconduct in the discharge of your duties and abuse of your official position for which you are liable for disciplinary action under the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973. (Sd.) (AGHA ALI HAYDER), ' ACTING CHIEF JUSTICE/AUTHORISED OFFICER." ' SHOW-CAUSE NOTICE UNDER RULE 5(3) OF THE SINDH CIVIL SERVANTS (EFFICIENCY AND DISCIPLINE) RULES, 1973. ' You, Mr. Saiful Haque Hashmi, Senior Civil Judge, Karachi are hereby informed that on the grounds mentioned hereunder, it is proposed to take action against you for malpractices, lapses and abuse of official power in the discharge of your duties as Incharge Senior Civil Judge on 1-1-1976, which amount to inefficiency, misconduct and corruption and to impose upon you one of the major penalties, as defined in Rule 4(b) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973. You are hereby called upon to show cause in writing within fourteen (14) days from the receipt of this notice, why one of the major penalties should not be imposed upon you. ' GROUNDS 1. That on 18-3-1975, the Rent Case No, 1949 of 1973 (Mst. Alia Begum v. Rafiuddin) pending in the Court of XXI Civil Judge, Second Class and Rent Controller, Karachi was compromised and the
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tenant agreed to vacate the premises, B-123, Hussain D'Silva Town 'P' Block North, Nazimabad, Karachi, within eight (8) months i.e, on or about 18-11-1975. Because of the violation of the terms of compromise the landlady filed Execution Application No, 32 of 1975 in the Court of XXI Civil Judge, Second Class, Karachi on 20-11-1975. On 19-12-1975, the writ of possession was issued returnable on 10-1-1976. Before the date of return of the writ of possession the landlady filed application on 1-1- 1976 (last date of Winter Holidays) under rule 14 of the Sindh Civil Court Rules read with rule 262 of the said Rules for treating Execution Application No, 32 of 1975 as urgent and consider the application for the execution of the writ of possession during Winter Holidays on the grounds contained in the accompanying Affidavit of Saeed Noor Khan Durrani, Pairokar and son-in-Iaw of the landlady alleging that an earlier attempt to execute writ of possession by the bailiff, failed. 2 That on 1-1-1976, you being Incharge, Senior Civil Judge for attending the urgent civil work of all the Courts of Senior Civil Judges and IInd and IIIrd Class Civil Judges at Karachi, granted the aforesaid application. On the same date the Advocate for the landlady filed another application under section 151, C.P.C. For Police aid to execute writ of possession supported by affidavit of the said Pairokar on identical grounds on which you passed the following order:- "Heard Mr. Talmiz. His request as contained is urgent and genuine. Hence in view of the affidavit, the prayers are allowed: 3. That on 2-1-1976 with the help of Police force the Bailiff forcibly removed the goods from the premises and ejected the lady occupants and handed over possession to the Pairokar. 4. That you treated the execution application as an urgent matter and ante-dated the same for 1- 1-1976 from 10-1-1976 on the facts mentioned in the affidavit of the Pairokar accompanying the application under Rule 14 of the Sindh Civil Court Rules which did not justify the ante-dating of the Execution Application and treating it as an urgent matter during Winter Holidays and as such in the absence of any grounds and circumstances warranting the execution application to be treated as an urgent matter during Winter Holidays and for handing over immediate possession of the premises in dispute to the said Pairokar/decree-holder, you passed the aforesaid order. 5. That in ordering the police aid/assistance for ejecting the judgment-debtor from the premises in dispute, you completely ignored the provisions of Order XXI, Rule 97 of the C.P.C., and without investigating as to whether any resistance was offered by the judgment-debtor to the Bailiff and in the absence of a report from the Bailiff to the effect that he made any attempt to execute the writ of ejectment against the judgment-debtor and was offered resistance by the judgment-debtor in the execution of the same and also without examining the Bailiff to ascertain whether he made an attempt to eject and was resisted by the judgment-debtor in his attempt, you granted police aid/assistance for ejecting the judgment-debtor solely on the unascertained and biased facts contained in the affidavits of the Pairokar. 6. That you acted with undue haste and favouritism in passing the order granting police aid on 1-1- 1976, during Winter Holidays in the capacity of the Incharge Senior Civil Judge in the absence of any material on record to justify the above order and in ante-dating the Execution Application from 10-1-1976 to 1-1-1976, which was the last date for the return of writ of ejectment and the report of the Bailiff. 7. That your order is not a judicial order and it has been passed with ulterior motives and considerations other than judicial. (Sd.) (AGHA ALI HAYDER), ACTING CHIEF JUSTICE/AUTHORISED OFFICER, 8-1-1978." ' These show-cause notices were replied by the respondent in detail and denied the charges. Personal hearing as requested by him was afforded. The learned Acting Chief Justice, High Court of
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Sindh being the 'authorised officer' came to the conclusion that charges of inefficiency, misconduct as well as malpractice and corruption were fully established against respondent and he was liable to be awarded a major penalty as defined in rule 4(b) of the Sindh Civil Servants (Efficiency and Discipline) Rules. It was recommended to the Authority that the respondent be dismissed from service. The Provincial Government issued a notification on 13-6-1984 removing him from service. This order was challenged in appeal filed before the Service Tribunal but during its pendency on a review petition filed by the respondent, the order of removal was converted in compulsory retirement. The respondent filed another appeal before the Service Tribunal and by the impugned judgment the order of compulsory retirement was set aside. The Tribunal came to the conclusion that in view of the denial by the respondent a detailed enquiry was needed which was not held and no documentary evidence was supplied to him simultaneously with the show-cause notice served on him in support of the charges. It was further observed that as order was passed on the basis of show-cause notices and the reply, it was difficult to hold that the impugned penalty was based on proof of charges. The Tribunal was of the view that it was necessary that opportunity should have been given to the respondent to prove his plea of mala fides. 3. In the charge-sheet relating to Suit No, 571 of 1976 Muhammad Zubair Qureshi v. Muhammad Munir Hussain Sherazi and others, the respondent was accused of committing illegalities and irregularities in entertaining and admitting the suit and for passing illegal orders. The learned Acting Chief Justice, hereinafter referred to as the authorised officer, after discussion found him guilty of gross misconduct in the discharge of his duties and abuse of official position for which action under the rules could be taken. In regard to the show-cause notice relating to Execution No 32 of 1975, it was observed by the 'authorised officer' that the order passed was not judicial order and was passed with ulterior motives and consideration other than the judicial. The learned 'authorised officer' finally concluded as follows:-- "(2) The admitted facts in regard to the case referred to earlier are that on the 18th of March, 1975 there was a compromise in the eviction proceedings pending before the Civil Judge and Rent Controller, Karachi and the tenant had agreed to hand over the vacant possession of the premises after eight months, that is on 18-11-1975. However, the possession was not delivered, as agreed upon, and the owner of the house had filed an execution application. On 19-12-1975 the writ of possession was issued, returnable on 10-1-1976. On 1-1-1976 just a day before the end of the winter vacation, the owner filed an application for the urgent hearing of the execution application. Mr. Hashmi was the Incharge Senior Civil Judge on that date. He granted the application and ordered police aid to execute the writ of possession. The tenants, who were ladies, as a result of this order were forcibly ejected, and the possession was handed over to the "Parokar" of the owner. Mr. Hashmi, in his reply, has maintained that the writ was still in force; no appeal or revision had been filed, and therefore, there was no order of injunction or stay; that the tenant was trying to defeat the writ by handing over the possession to rank outsiders, which would have created complications, and that the Bailiff had kept the writ with himself for thirteen days and the order could not be executed. (3) It is noteworthy that Mr. Hashmi was the incharge Senior Civil Judge for one day only, that is 1-1- 1976 and to attend to urgent work only. When there were ten days still left for the return of the writ there can be no conceivable urgency in the matter. However, the application was presented that day and Mr; Hashmi chose to grant police aid without calling for the report of the Bailiff to find out if any attempt had been made to execute the writ; whether any resistance had been offered to the Bailiff, or, that there was any apprehension of breach of peace. Mr. Hashmi states that the Bailiffs report must have been on the record when he passed the order, but he does not say that affirmatively. However, it was not there, and Mr. Hashmi failed to muster any support for his presumption. He goes on to say that the examination of the bailiff for the purpose of ordering
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police aid would have caused delay, but that is the requirement of Order 21, Rule 77 of the Civil Procedure Code. It is all too clear that the application was presented before Mr. Hashmi under the expectation and hope, if act_ a promise, that he will oblige the owner by the forcible eviction of the tenants pre-emptorily as was done. It was an insupportable order, and was obviously done to oblige the owner and for ulterior motives. Mr. Hashmi has tried to show that he was financially very sound and he need not to have stooped to secure any unfair benefit and perpetrate injustice. It is not necessary to go into his financial status but his conduct, as reflected in the order, is not only suspicious, but totally unworthy of a Judge. The explanation furnished by him is devoid of all merits and is rejected. (4) The subject-matter of the suit in the second show-cause notice had been disclosed as Rs,1,08,600 though it should have been Rs,3,70,000. Even this amount was beyond the pecuniary jurisdiction of the Court of Mr. Hashmi, which is limited to Rs,50,000 only. He has tried to justify it on the ground that it was only for declaration, but this is overlooking the fact that the plaintiff had also prayed for injunction, which was the consequential relief, and therefore the suit had to be valued according to section 7(3) of the Court Fees Act, 1917, which requires a suit to be valued at the market value of the subject-matter. This point was raised before Mr. Hashmi in the application filed by the defendant under Order 7, Rule 11 of the Civil Procedure Code, in which it was expressly mentioned that the property in the suit was Rs,3,00,000 and beyond his pecuniary jurisdiction. However, Mr. Hashmi still proceeded with the matter and passed The impugned order. (5) Mr. Hashmi has laid much stress on the fact that the S.D.M. Central was not joined by him as a party, who was already a party to the suit, it was the mandatory requirement of the law to direct the plaintiff to make the Provincial Government a party, as the S.D.M. Could not have acted, except in his official capacity. He ordered the release of the goods to the plaintiff on his furnishing surety in the sum of Rs,1,50,000. Mr. Hashmi states that the S.D.M. Also had directed the property to remain with the plaintiff. But that was on the `Superdginama' of Rs,2,08,000/Superdginama' meant that the plaintiff could be directed to produce the same if and when so ordered. Mr. Hashmi instead permitted the plaintiff to dispose of the goods and without directing him to deposit the sale proceeds in the Court, with the result, that the plaintiff sold away the goods, and misappropriated the sale proceeds, while the suit was still pending. It turned out later on that the surety documents executed by the plaintiff were a mere agreement of sale, a lease deed and a power of attorney, which did not confer any title on the surety. Subsequently, the surety was found to be a bogus one. Mr. Hashmi however, failed to mention that the same issue was agitated in any revision application before any Additional District Judge, which found that the surety was bogus. (6) The execution of the `Superdginama' in the Court of the S.D.M. Central, Karachi, would have made Mr. Hashmi realise that the criminal proceedings were still pending in regard to the suit property, and he should not have allowed the same to fall into the hands of the plaintiff and beyond redemption. That is what has happened. The perusal of the facts again shows that the conduct of Mr. Hashmi in this case also was not beyond reproach, and certainly he showed no respect for law. I am, therefore, of the opinion that the charges against Mr. Hashmi on this count also stand established. (7) I am, therefore, of the opinion that the charges of inefficiency, misconduct as well as malpractice and corruption are fully established against Mr. Hashmi and he is liable to be awarded a major penalty as defined in Rule 4(b) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973." 4. The facts which seem to have impressed the authorised officer were that although the suit entertained by Hashmi was beyond the pecuniary jurisdiction of the Court, in spite of objection raised, the respondent ignored it on flimsy, fake and illegal grounds and passed order which frustrated the order passed by the Criminal Court. From the order passed by him it seems that the
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Advocate for the defendant had specifically raised the plea of jurisdiction on the ground that the property involved was beyond the pecuniary jurisdiction of the Court. This plea was however rejected on the reasoning that the suit was only for declaration and therefore it was properly valued. However, the authorised officer found that it was overlooked that the plaintiff had also prayed for injunction which was a consequential relief and therefore the suit had to be valued on the market value as provided under section 7(3) of the Court Fees Act, 1870. The respondent who argued his case vehemently laid emphasis on the fact that a revision application was filed against the order accepting Khurshid Ahmed as surety in the civil suit which was allowed and observations were made that the plaint should have been returned under Order VII, Rule 10, C.P.C. As it was beyond the pecuniary jurisdiction of the Court but this order was set aside by the High Court of Sindh in a Constitution petition. This petition was allowed on technical ground that challenge in the revision was limited to the order accepting a bogus surety and that the question of pecuniary jurisdiction was subject-matter of a pending application under Order VII, Rule 11, C.P.C. And further that the 4th Additional Sessions Judge was not entitled to set aside the judgment over the respondent's order who was also an Assistant Sessions Judge. According to the respondent, after the order was passed in the revision petition, the order passed by him merged in the revisional order and did not exist. Pressing in service the principle of merger the respondent contended that as the original order had merged with the revisional order, there was nothing on record of which he could be charged. Reliance has been placed on FA. Khan v. The Government of Pakistan PLD 1964 SC 520 where it was observed that where the "appellate authority passes an order the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order ...." 5. The contention is misconceived as for purposes of finality and determination of rights of parties by a judicial order, it is the appellate or revisional order which remains in the field. But if the misconduct of a judicial officer is to be investigated in passing the original order, the same shall remain intact and alive for such purposes. The fact that the order passed in revision application was set aside in Constitution petition will not absolve the respondent of any misconduct or dishonesty which may have been employed in passing such an order. 6. From a bare perusal of the plaint it is clear that the value of the goods, the subject-matter of the suit was at least Rs,1,08,050 as declared by the plaintiff whereas the Criminal Court had ordered for furnishing bond in the sum of Rs,2,08,000. Whatever may have been the value of the goods either Rs,1,08,050 or Rs,2,08,000, the fact remains that in the face of such valuation as disclosed in the plaint the suit could not have been entertained by a Court of the Senior Civil Judge, Karachi. This value was beyond the pecuniary jurisdiction of the Court and any Civil Judge exercising jurisdiction deligently and reasonably with proper care and knowledge of law which is expected of a judicial officer and particularly on objection to jurisdiction being raised, he would refuse to proceed with the case. But in the present case not only that the I declared value in respect of which permanent injunction was being sought, was ignored but passing of the order and exercise of jurisdiction was justified which was completely untenable and palpably wrong. 7. The other ground which seems to have been considered relevant for purposes of determining the misconduct in passing the order was that it was apparent on the record that a criminal case had been pending and was seized of by a Criminal Court of competent jurisdiction involving the same subject-matter in respect of which the suit had been filed. The Magistrate had passed an order of `Superdginama' and the goods were delivered to the plaintiff on furnishing a security in the sum Rs,2,08,000 with a further condition that those goods would not be sold or disposed of and shall, when required, be deposited in the Court. Ignoring all these facts the respondent passed the order releasing the goods in favour of the plaintiff on furnishing a surety of Rs,1,50,000 without imposing any restriction that the same may not to be disposed of or exported. In the facts and
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circumstances of the case on record there was no justification for passing such an order merely on the ground that the surety had been furnished and the interest of the other parties was sufficiently secured. By releasing the goods on furnishing surety without restraining the plaintiff from disposing of the same, practically the whole suit was disposed of at the interlocutory stage. Furthermore, the order amounted to frustrating and stifling the criminal proceeding. 8. The charges relating to the execution application may show haste in entertaining urgent application on the last day of the vacation when the respondent was working as a link Judge. In such matters particularly in such situation, a Judge has to be very cautious and before passing any order granting police aid for executing writ of ejectment he should examine all the reports of the bailiff and scrutinise deeply, not cursorily, the affidavit filed by a party seeking urgent hearing and police aid. The affidavit filed by the decree-holder was cursory and vague. Allegations were made that the judgment-debtor was obstructing execution of writ of ejectment and it was learnt that he was disposing of or transferring the possession to some third party.…
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