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Petitioner: GOVERNMENT OF SINDH VS Respondent: SAIFUL HAQ HASHMI
1993 P L C (C
1993 P L C (C.S.) 912
[Supreme Court of Pakistan]
Present: Ajmal Mian, Sajjad Ali Shah and Saleem Akhtar, JJ
GOVERNMENT OF SINDH and others
versus
SAIFUL HAQ HASHMI and others
Civil Appeals Nos. 715‑K and 716‑K of 1990, heard on 4th October, 1992.
(From the judgment of Sindh Service Tribunal, Karachi dated 5‑7‑1989).
(a) Sindh Civil Service (Efficiency and Discipline) Rules, 1978‑‑‑
‑‑‑R. 5(3)‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Leave to appeal was granted to examine the question of law of public importance viz. whether the Service Tribunal had failed to take into consideration the findings recorded by the Authorised Officer on controverted questions of fact before the final order was passed; whether judicial orders which remained intact on appeal/revision or unchallenged could alone be made the basis of charges as were levelled against the civil servant in the case and whether the charges not proved overweighed the charges proved and its effect.
Per Saleem Akhtar, J.; Ajmal Mian, J. agreeing, Sajjad Ali Shah, J., contra‑‑‑
(b) Civil service‑‑‑
‑‑‑‑Misconduct‑‑‑Investigation‑‑‑Accused a judicial officer‑‑‑Misconduct of a judicial officer is to be investigated in passing the original order, the same shall remain intact and alive for such purpose‑‑‑Fact that the order passed in revision application was set aside in Constitutional petition will not absolve the judicial officer of any misconduct or dishonesty which may have been employed in passing such an order.
F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 ref.
(c) Practice and procedure‑‑‑
‑‑‑‑For purpose of finality and determination of rights of parties by a judicial order, it is the appellate or revisional order which remains in the field.
F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 ref.
(d) Jurisdiction‑‑‑
‑‑‑‑Pecuniary jurisdiction of Court‑‑‑When value of the suit is beyond the pecuniary jurisdiction of the Court, any Court exercising jurisdiction diligently and reasonably with proper care and knowledge of law which is expected of a judicial officer and particularly on objection to jurisdiction being raised, would refuse to proceed with the case.
(e) Civil Procedure Code (v of 1908)‑‑
‑‑‑‑ Court passed the order releasing goods in favour of plaintiff, on furnishing security without imposing any restriction that the same may not be disposed of or exported‑‑‑Record did not show any justification for passing such an order merely on the ground that the security had been furnished and the interest of the other party was sufficiently secured‑‑‑By releasing the goods on furnishing security without restraining the plaintiff from disposing of the same, practically the whole suit was disposed of at the interlocutory stage and was a misconduct on the part of the Court.
(f) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑Execution application and application for urgent hearing‑‑‑Affidavit filed by the decree‑holder was cursory and vague‑‑‑Court has to be very cautious and before passing any order granting police aid for executing writ of ejectment 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.
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 and transferring the possession to some third party. His later statement may have formed a ground for urgent hearing but it should have been seen that such statement did not suffer from vagueness and infirmities and is supported by authentic statement disclosing the source of such information through a properly verified affidavit. Vague allegation without giving particulars of alleged transfer or even without naming the person who had informed the decree‑holder could not be sufficient to entertain an application for urgent hearing. The indiscretion shown and the haste with which orders were passed and executed leaves a bad impression and the affected party may reasonably doubt the honesty and integrity of the order.
(g) Civil service‑‑‑
‑‑‑‑Misconduct‑‑‑Charge has to be read as a whole‑‑‑Discrepancy pointed in the charge having caused no prejudice to the accused same could not be a ground for vitiating the recommendation of the Authorised Officer and the order passed by the Authority.
Mir Muhammad v. N.-W.F.P. Government PLD 1981 SC 172 ref
(h) Sindh Civil Services (Efficiency and Discipline) Rules, 1978‑‑‑
‑‑‑‑R. 5(3)‑‑‑"Authorised Officer" is conferred with a discretion to decide whether inquiry should be conducted through Inquiry Officer/Inquiry Committee or not‑‑‑Authorised Officer need not pass any order or issue any notice for deciding such aspect of the case; he has to take such decision after examining the facts and the record of the case‑‑‑Fact that a notice under R. 5(3) had been issued spoke for itself that the "Authorised Officer" had decided to invoke R. 5(3) and not to appoint any Inquiry Officer or Committee.
Per Sajjad Ali Shah, J., contra.‑‑‑
Deputy Inspector‑General of Police, Lahore v. Anisur Rehman Khan PLD 1985 SC 134; Deputy Post Master General, Karachi and others v. Syed Shamshad Hussain 1990 SCMR 347; Sultan Mowjee and others v. Federation of Pakistan, Chamber of Commerce and Industry, Karachi and others PLD 1982 SC 174; Sohrab Khan Kalwar v. Secretary to the Government of Sindh, Department of Food PLD 1980 SC 279; Syed Mir Muhammad v. Government of N: W.F.P. PLD 1981 SC 176; Government of Punjab and another v. S. Tassadaq Hussain Bokhari PLD 1986 SC 162; A.U. Mussarat v. Government of West Pakistan PLD 1977 SC 24 and MA. Rahman v. Federation of Pakistan and others 1988 SCMR 691 ref.
(i) Evidence‑‑
‑‑‑‑Proof‑‑‑Oral evidence‑‑‑When not needed‑‑‑Nature of proof required depends upon the facts and circumstances of each case‑‑‑Not necessary in every case to produce oral evidence; cases which are clearly dependent on documents alone on which both the parties rely, hardly require any oral evidence unless shown to be needed by any party.
(j) Sindh Civil Services (Efficiency and Discipline) Rules, 1978‑‑‑
‑‑‑‑R. 5(3)‑‑‑Misconduct by a judicial officer‑‑‑Failure to appoint Inquiry Officer/Committee‑‑‑Effect‑‑‑Where there were no disputed questions of fact with regard to pleadings of the parties before the judicial officer, applications and the orders passed by him in the case, only assessment of the record was to be made by the "Authorised Officer" before deciding the course of action‑‑‑If Inquiry Officer or Inquiry Committee is not appointed in such a case it would not amount to illegality.
(k) Sindh Civil Services (Efficiency and Discipline) Rules, 1978‑‑‑
‑‑‑‑R. 5(3)‑‑‑Allegation of misconduct against a Judicial Officer ‑‑‑Held, as long as the jurisdiction is exercised by Judicial Officer in good faith, free from ulterior motives, contamination or taint of dishonesty or corruption, a Judicial Officer cannot render himself liable to disciplinary action for mistakes committed in the course of decisions made by him honestly and bona fide.
M.A. Rahman v. Federation of Pakistan and others 1988 SCMR 691 ref.
(l) Administration of justice‑‑
‑‑‑‑ Mistake committed by Judicial Officer‑‑‑Disciplinary provision against Judicial Officer when not attracted‑‑‑Purity of the fountain of justice has to be maintained and protected zealously from corruption, contamination and pollution which distorts its angelic and divine face.
An honest mistake committed by an officer in exercise of jurisdiction will not attract the ground of conduct prejudicial to good order or service discipline. Similarly it will not violate any rule of Government Servants (Conduct) Rules, 1964, because honest error will not constitute wilful abuse of office. Nor does such act fall within the category of conduct unbecoming, of an officer and a gentleman.
As long as the jurisdiction is exercised in good faith free from ulterior motives, contamination or taint of dishonesty or corruption a judicial officer cannot render himself liable to disciplinary action for mistakes committed in the course of decisions made by him honestly and bona fide. A judicial officer has to decide the case without fear or favour, ill‑will or affection and impartially without showing any inclination or favouritism to any party. He has to decide cases, dispassionately, legally, honestly and without any consideration. The orders passed in such manner though legally incorrect will not attract disciplinary provision against him. A Judge has delicate position of vulnerable nature on whom eyes from both sides are set. According to the well-?settled principle, justice is not only to be done but it should be seen to be done. It should be seen to be done by the conduct of the Judge, the manner he entertains, proceeds and hands over the written decision. Each and every step in a judicial proceeding should demonstrate the integrity, honesty, bona fides and impartiality of the Judge. The propriety or impropriety of conduct had to be determined by the reference to the officer, his work and duties and the service discipline governing him. In case of a judicial officer the hierarchical arrangement of Courts, the handing down of written judgments and the collection of precedents in law, all control and guide his functioning. The Courts presided over by Judges are institutions which command respect, faith and confidence for implementation of rule of law, justice and equity. If at any stage justice is tainted, tarnished or contaminated with dishonesty and corruption or abhors the judicial conscience, the blame squarely lies upon the Judge for behaving in a manner unbecoming of a Judge or a gentleman. Purity of the fountain of justice has to be maintained and protected zealously from corruption, contamination and pollution which distorts its angelic and divine face.
M.A. Rahman v. Federation of Pakistan and others 1988 SCMR 697 and Muhammad Hussain Kazi v. Government of the Punjab PLD 1983 SC 187 ref.
(m) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 212‑‑‑Appeal to Supreme Court‑‑‑Question which was not raised before Service Tribunal nor leave was granted to decide the said question, Supreme Court declined to decide same.
(n) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Art.129, illus. (e)‑--Official act‑‑‑Presumed to be regular unless proved to have been done irregularly.
A. G. Mangi, Addl. A.‑G., Sindh for Appellants (in Cr. Appeal No.716‑K of 1990).
S.M. Abbasi, Advocate‑on‑Record for Respondents (in Cr. Appeal No. 716‑K of 1990).
S. M. Abbasi, Advocate‑on‑Record for Appellants (in Cr. Appeal No.715‑K of 1990).
A. G. Mangi, Addl. A.‑G., Sindh for Respondents (in Cr. Appeal No.715‑K of 1990).
Date of hearing: 4th October, 1992.
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 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 stilling 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.) ??????????? (AGRA 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 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 riled 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‑law of the landlady alleging that an earlier attempt to execute writ of possession by the bailiff, failed.
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 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 riled 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…
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