2016 P L C (C.S.

)281

[Punjab Subordinate Judiciary Service Tribunal]

Before Muhammad Farrukh Irfan Khan, Chairman, Abdus Sattar Asghar and
Muhammad Ameer Bhatti, Members

Rao ABDUL JABBAR KHAN

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

Service Appeal No.18 of 2012, decided on 19th December, 2014.

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 6 (3) & 4 (a) (iii)---Constitution of Pakistan, Art.10-A---Punjab Subordinate

Judiciary Service Tribunal Act (XII of 1991), S.5---Judicial officer---Cancellation of
bail by the appellant---Dispensing with regular inquiry---Malice---Proof of---
Withholding of annual increments---Minor penalty of withholding of annual
increments for a period of three years was imposed on the appellant---Validity---
Malice was a question of fact which could be proved only through reliable ocular or
documentary evidence---Nothing was on record to substantiate the allegation of malice
against the appellant---Judicial order could not be termed as fanciful in absence of any
established malice---Appellant had good service record and was always found fit for
promotion by the authority at the relevant time---Appellant in his judicial career
always enjoyed good reputation as well as confidence of the authority---No smack of
malice of the appellant was noticed by the Authority in the order passed by him it
would not be fair to suggest that bail cancellation order passed by the appellant was
based on malice in absence of any evidence---Nothing was on record to prove malice
of the appellant---Authority had erred in law while dispensing with regular inquiry and
issuing show-cause notice to the appellant---Malice could not be presumed on the basis
of surmises and conjectures---No regular inquiry was conducted to prove any malice of
the appellant---No reason, therefore, existed to propose the penalty of withholding of
annual increments---Right of due process and fair trial being a fundamental right had
been safeguarded under the Constitution which had been denied in the present case---
Impugned notification being unfounded, without reasons, suffering from legal
infirmity and vagueness had resulted into serious prejudice to the appellant and same
was liable to be set aside---Appellant, however, was advised by the Tribunal to remain
careful in future---Impugned notification was set aside and appeal was accepted.

(b) Constitution of Pakistan---

----Art. 10-A---Right of fair trial---Scope---Right of due process and fair trial being a
fundamental right had been safeguarded under the Constitution.
Umar Rizwan Azad for Appellant.

Abdul Shakoor Choudhry, with Zahoor Ahmed and Muhammad Rizwan Ashraf
Dealing Assistant (Confidential) for Respondent.

Date of hearing: 19th December, 2014.

JUDGMENT

ABDUS SATTAR ASGHAR, J. Member.--- This appeal under section 5 of the

Punjab Subordinate Judiciary Service Tribunal Act 1991 is directed against impugned
Notification No.84/RHC/AD&SJ dated 29 5.2012 whereby minor penalty of
withholding of annual increments for a period of three years has been imposed against
the appellant.

2. Brief facts leading to this appeal are that one Amjad Mehmood an accused of case
FIR No.479/2010 under sections 457, 506, 148 and 149 PPC Police Station Township
Lahore was allowed post-arrest bail by the learned Judicial Magistrate Lahore. Being
aggrieved complainant of the said FIR lodged an application before the appellant then
posted as Additional Sessions Judge Lahore for cancellation of bail. The appellant vide
order dated 12.4.2010 cancelled the bail. Consequently the said Amjad Mehmood
accused lodged CrI.Misc.No.5432-B of 2011 before the Hon'ble High Court seeking
post-arrest bail which was allowed by the Hon'ble High Court vide order dated
16.6.2011 with the following observations/directions:-

"7. Before parting with this order, I would like to observe that the judicial work
of Rao Abdul Jabbar Khan, Additional Sessions Judge, Lahore needs a
thorough scrutiny by this court. Accordingly, a direction is issued to Member
Inspection Team of this Court to summon record of this case from his Court,
hold an inquiry in the matter by joining the parties as well as in other criminal
cases dealt with by him for the last three months, associate tie parties thereto if
he so wishes and formulate his opinion. The inquiry shall be completed within
fortnight from the receipt of this order, where-after, report shall be placed
before me on administrative side."
In compliance of above order of the Hon'ble High Court, the learned Member
Inspection Team summoned the original record as well as the parties concerned. After
scrutiny of record and providing opportunity of hearing to the parties the learned
Member Inspection Team submitted his report dated 12.9.2011 with the observation
that cancellation of bail and modification of the order leads to suggest mala fide and
exclude the possibility of inadvertence on the part of the appellant and that element of
mala fide can be thrashed through a regular inquiry if approved. The report was placed
before the then Hon'ble Chief Justice of Lahore High Court Lahore. The Hon'ble Chief
Justice was pleased to place the report before the Administration Committee of the
Hon'ble High Court. The Administration Committee in its meeting held on 15.10.2011
ordered as under:-
"17. Disciplinary proceedings against the officer are initiated under the Punjab
Civil Servants (Efficiency and Discipline) Rules, 1999 by dispensing with
regular inquiry as it is a matter of record having no disputed facts. Issue show
cause notice to the Officer for imposition of one of the major penalties as
provided in Rule 4(b) of the Rules ibid. Mr. Justice Sh.Ahmad Farooq is
required to afford personal hearing to the officer and forward note on personal
hearing for consideration by the Committee."
Pursuant to the above order the appellant was served with a show-cause notice dated
02.11.2011 by the Registrar Lahore High Court under Rule 6(3) and Rule 4(b) of the
Punjab Civil Servants (Efficiency and Discipline) Rules 1999. The appellant was also
provided opportunity of personal hearing before Mr.Justice Rauf Ahmad Sheikh on
behalf of the Authority. Mr.Justice Rauf Ahmad Sheikh in his note of the personal
hearing dated 03.4.2012 observed and proposed as under:-

"50. The order of cancellation of bail passed on 12.04.2011 (the date of

announcement of the order is typed as 12.04.2010, which appears to be a
typographical mistake) reveals that the bail was cancelled on the sole ground
that the offence punishable under section 365-A PPC was not triable by the
learned Magistrate and he could have not extend the concession of bail. This
finding was against the record. On 14.04.2011 (the date of announcement of the
order is typed as 14.04.2010, which again appears to be a clerical mistake)
reveals that the learned ASJ held in para-5 of order dated 12.04.2011 was result
of typographical mistake and then proceeded on to cancel the bail on the sole
ground that the complainant was not afforded an opportunity of being heard.
This order was passed without giving a notice to the accused so the officer
himself violated the principle on basis of which the order of the trial Court was
set aside. It is true that the accused was in the Jail and his liberty might have
not been taken away but the fact of the matter remains that no cogent reason
was available to cancel the bail especially when the accused against whom the
allegations were exactly of the same nature were extended the concession of
bail before arrest by this Court. It was rightly observed in order dated
16.06.2011 that he dealt with the matter carelessly and adopted slipshod
method in withdrawing the bail granted by the court of competent jurisdiction.
No doubt the case law cited by him does provide that he was vested with the
powers to cancel the bail but it is an established law that the bail granting order
passed by the Court of competent jurisdiction should not be interfered with
sinless the same is fanciful or whimsical but in the instant case, the order
passed by the accused civil servant by itself was fanciful. However, there was
no allegation of monetary consideration in passing the impugned order. The
officer otherwise enjoys good reputation as to his integrity as is apparent from
order dated 28.03.2005 passed in Crl.Misc.No.48-T of 2005 passed by this
Court and order 'dated 12.11.2004 passed by the learned Sessions Judge,
Vehari, in transfer petition titled `Muhammad Tahir v. The State'. In these
circumstances, I am of the considered opinion that a lenient view should be
taken in the matter. The minor penalty of withholding of annual increment for a
period of three years as provided in Rule 4(a)(ii) of the Efficiency and
Discipline Rules, 1999 will meet the ends of justice."
Report of proceedings and note of personal hearing recorded by Mr.Justice Rauf
Ahmad Sheikh was placed before the Administration Committee in its meeting held on
12.5.2012. The Administration Committee of the Lahore High Court after considering
the same ordered as under:-
"Record of proceedings and Note on personal hearing recorded by Mr.Justice
Rauf Ahmad Sheikh perused. Minor penalty of withholding of annual
increments for a period of three years is imposed upon the officer, forthwith."
Consequently the Authority issued the impugned notification dated 29.5.2012
imposing minor penalty of withholding of annual increments for a period of three years
upon the appellant. Being aggrieved the appellant has lodged this appeal which is
resisted by the respondent.

3. Arguments heard. Record perused.

4. Malice is a pure question of fact which can be proved only through reliable ocular or
documentary evidence. There is no iota of evidence on the record to substantiate the
allegation of malice against the appellant. Needless to say that a judicial order cannot
be termed as fanciful in the absence of any established malice. We have carefully
perused the service record of the appellant and find that throughout his career he has
received good A.C.Rs. and was always found fit for promotion by the competent
authority at the relevant time. It will not be irrelevant to note that in Crl.Misc.No.48-T-
2005 Mr.Justice Nazir Ahmad Siddique dismissing the transfer application vide order
dated 28.3.2005 observed as under:-
"Petitioner seeks transfer of his petition for pre-arrest bail with reference to
case FIR No.465/03 dated 27.11.03 under Sections 420, 468, 471, 489-F, P.P.C.
registered at Police Station City Burewala District Vehari, now pending in the
Court of Rao Abdul Jabbar Khan, learned Additional District Judge, Burewala
District Vehari to some other Court of competent jurisdiction outside District
Vehari on the ground that the complainant being a senior member of Bar
Association, Burewala has exerted influence on the members of the said Bar
Association not to pursue the case of the petitioner.

2. I have noticed that the petitioner's aforesaid bail petition is being pursued by
eminent Advocates from Lahore & Multan and there is no allegation
whatsoever against the learned Presiding Officer who otherwise enjoys
reputation of integrity among the knowledgeable circles. It is believed that he
shall decide the matter expeditiously on merits without having been influenced
from any: extraneous considerations.

3. For what has been stated above, this petition stands dismissed-in-limine."
In another case titled 'Muhammad Tahir v. the State' learned Sessions Judge Vehari
vide order dated 12.11.2004 observed as under:-
"This is very sad aspect that people started leveling allegations on the courts
merely on the basis of their own whims, especially against the Officer who did
not accept any sort of interference in his judicial work. I am sure that Rao
Abdul Jabbar Khan, Addl. Sessions Judge, Burewala will do justice and will
dispose of the bail application purely on merits without being influenced by any
sort of temptation. Apprehension of the petitioner is absolutely baseless and I
condemn such like tendency. Petition stands dismissed in limine."
The Hon'ble Chief Justice Lahore High Court in his order dated 18.10.2011 passed in
Crl.Misc.No.211-T of 2011 withdrawing a criminal case from the Court of another
Additional Sessions Judge Sheikhupura was pleased to entrust the same to the Court of
the appellant which reflects that the Hon'ble Chief Justice himself reposed confidence
upon the appellant in the following manner:--
"Though any specific allegation regarding partiality of the learned Judge has
not been leveled but to lessen the anxiety of the accused petitioner I feel
appropriate to withdraw the trial of the petitioner from the said court.
Accordingly the application is accepted and the trial in case FIR No.279,
registered at Police Station City A-Division Sheikhupura on 29.05.2003, for
offences under sections 302, 324 & 34 PPC, pending in the Court of Mr.Haroon
Latif Khan, Additional Sessions Judge, Sheikhupura, is withdrawn from the
said Court and entrusted to Rao Abdul Jabbar, Additional Sessions Judge,
Sheikhupura, who will conduct the trial in jail. Both the parties shall appear
before the learned transferee Court on the next date of hearing i.e. 24.10.2011
where-after the learned transferee court shall fix a date for holding the trial
jail."
Afore referred instances manifest that appellant in his judicial career always enjoyed
good reputation as well as confidence of the Authority.

5. It will be expedient to note that Chapter III of the Punjab Civil Servants (Efficiency
and Discipline) Rules 1999 regulates the procedure for inquiry and imposition of
penalties. Rule 6 envisages that the Authority in the light of the facts of the case shall
decide whether in the interest of justice an inquiry is necessary and if the Authority
decides that it is not necessary to have an inquiry conducted against the accused it shall
inform the accused fort with by an order in writing of the action proposed to be taken
in regard to him and the ground of the action and to give him a reasonable opportunity
of showing cause against that action within a period of 14 days from the date of receipt
of order under clause (a) of Rule 6(3) ibid. It is important to note that the Hon'ble
Chief Justice of Lahore High Court in his order dated 16.6.2011 simply observed that
the appellant has dealt with the matter carelessly. No smack of malice of the appellant
was noticed by the Hon'ble Chief Justice in the order dated 16.6.2011. In view of all
above in the absence of any evidence it will not be fair to suggest that bail cancellation
order passed by the appellant was based on malice. In this case no material was
available on the record to prove any malice of the appellant therefore
respondent/Authority erred in law while dispensing with the regular inquiry and
issuing show cause notice to the appellant in terms of Rule 6(3) ibid. It is important to
mention that even in the note of personal hearing of the appellant recorded by Mr.
Justice Rauf Ahmad Sheikh it is categorically observed that 'There is no allegation of
monetary consideration in passing the impugned order. The officer otherwise enjoys
good reputation as to his integrity. In these circumstances, I have considered opinion
that a lenient view should be taken in the matter. Tile minor penalty of withholding of
annual increment for a period of three years as provided in Rule 4(a) (ii) of the
Efficiency and Discipline Rules, 1999 will meet the ends of justice.'
6. We have no doubt in our mind to opine that malice cannot be presumed on the basis
of surmises and conjectures. In this case no regular inquiry was conducted to prove any
malice of the appellant There was no reason to propose the penalty of withholding of
annual increments in terms of Rule 4(a)(iii) ibid. Needless to say that right of due
process and fair trial being a fundamental right is sufficiently safeguarded under
Article 10-A of the Constitution of Islamic Republic of Pakistan 1973 which is
apparently denied in this case therefore following the principle of fairness, equity and
safe administration of justice the impugned notification being unfounded, without
reasons, suffering from legal infirmity and vagueness has resulted into serious
prejudious to the appellant and therefore same being untenable is liable to be set aside.

7. For the above reasons this appeal is accepted and impugned notification dated
29.5.2012 is set aside. However keeping in view the observation of Hon'ble Chief
Justice of Lahore High Court dated 16.6.2011 that appellant dealt with the matter
carelessly we think it appropriate to advise the appellant to remain careful in future.

ZC/5/PST Appeal allowed.

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