2018 P L C (C.S.) 15
[Balochistan High Court]
Before Mrs. Syeda Tahira Safdar and Muhammad Hashim Khan Kakar, JJ
Mrs. TAHIRA PARVEEN BALOCH
Versus
CHIEF JUSTICE, HIGH COURT OF BALOCHISTAN, QUETTA through Registrar
Service Appeal No.4 of 2015, decided on 2nd June, 2017.
Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989) ---
----S. 5--- Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, Rr.2(1) (f) &
4(b)(ii)---Judicial service--- Nature ---Judicial officer (Distric t and Sessions Judge) ---Allegation
of misconduct ---Compulsory retirement ---Scope--- Inquiry was conducted against the Officer by
a Judge of High Court ---Recommendation for imposing major penalty was also given by the
sitting Judge of High Court ---Authority, after fulfilling the legal formalities had passed the
impugned punishment ---Personal file of officer was full of explanations, show -cause notices,
warnings and complaints ---Law required the Authority to consider the entire service record of
employee while assessing whether he/she could be compulsory retired ---Case of a judicial officer
was required to be examined treating him/her to be differently than other civil servants ---
Honesty and integrity of judicial officer was expected to be beyond doubt ---Nature of judicial
service was such that it could not afford to suffer continuance in service of a persons with
doubtful integrity or the one who had lost his/her utility in order to keep the stream of justice unpolluted---Judge could not be stamped with the label of doubtful integrity in absence of tangible material---General impression of the Judge as a corrupt Judge in the mind of general public was alone sufficient for his/her compulsory retirement by the Authority ---Officer
remained an average officer throug hout her service career and never improved---Judicial officer
did not enjoy good reputation in the eyes of general public as well as her superiors ---Compulsory
retirement was a major penalty but differed from dismissal and removal from service as it did no t
involve penal consequences ---Person compulsorily retired was entitled to pension and other
retirement benefits proportionate to the period of service standing to his/her credit ---Officer had
already attained the age of superannuation ---No chance to make allegation of non- application of
judicial mind and mala fides in making the decision against the officer existed ---Sufficient
material was available to connect the officer with the commission of misconduct during her service--- Inquiry Officer as well as Au thorized Officer had appreciated the evidence in its true
perspective ---Appeal was dismissed in circumstances.
Ayaz Zahoor and Zahir Kakar for Appellant.
Zahoor Ahmed Baloch, Assistant Advocate General for Respondent.
Dates of hearing: 17th, 24th and 31st March, 2017.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- The instant service appeal under
Section 5 of the Judicial Service Tribunal Act, 1989 has been preferred by appellant Mrs. Tahira
Parveen Baloch, ex -District and Sessions Judge against the notifi cation dated 23rd December
2014 ("the impugned notification"), issued by the respondent, whereby she was compulsorily retired from service, which reads as under:
"Consequent upon completion of departmental inquiry against Mrs. Tahira Parveen Baloch, District and Sessions Judge (BPS -21), Killa Saifullah, the Hon'ble Chief
Justice/Authority having found her guilty of "misconduct" as defined under section 2(1)(f) of the Balochistan Civil Servant (Efficiency and Discipline) Rules, 1992 has been pleased to impos e upon her major penalty of compulsory retirement from service as
envisaged under Rule 4(b)(ii) of the ibid Rules, with immediate effect."
2. The relevant facts, for disposal of the instant appeal, are that the appellant joined District
Judiciary as a Civi l Judge in the year 1987 and, subsequently, promoted to the rank of Senior
Civil Judge in the year 1993, as Additional District and Sessions Judge in the year 1995 and, finally, as District and Sessions Judge in the year 2006. While posted as a District and Sessions Judge/Presiding Officer, Labour Court, Sibi, she was served with a charge sheet dated 7th December 2009, incorporating the following statement of allegations:
"1. That while you were posted as District and Sessions Judge, Kharan, you were
transf erred on 16 -05-2009 and, accordingly, you left the charge on 19- 05-2009,
but on query from Accounts Section of that Division, it transpired that after relinquishing the charge, you on 22- 05-2009 withdrew an amount of
Rs.3,80,286/ - in cash in different heads without adopting proper procedure and,
reportedly, the said amount has not been utilized for any official purpose, which shows that you have embezzled the said amount.
2. That a complaint was received from Lawyers Action Committee, Dera Allah Yar, wherei n it has been mainly alleged that you, in the capacity of District and
Sessions, Dera Allah Yar, w.e.f. 28- 06-2009 to 24- 10-2009, was enjoying
extremely bad reputation. The complaint reflects that you obtained bribe in different cases through your Stenogra pher, namely, Rehmatullah or other sources.
3. Furthermore, in the said complaint, it has been stated that you have obtained an amount of Rs.200,000/ - from the contractor for the purpose of purchasing Air
Conditioners for Court rooms as well as Judges resi dence at Dera Allah Yar, but
the said amount has again not been utilized; meaning thereby you have embezzled the said amount as well.
4. That the allegations, made against you, are of grave in nature, which reflect that your conduct is prejudicial to good order of service discipline and come within the definition of 'misconduct' as defined under the Efficiency and Discipline
Rules, 1992."
3. The Inquiry Officer found the appellant guilty of misconduct in his Enquiry Report dated
8th April, 2010 with the fol lowing words:
"Thus in considered estimation, she had committed an act of 'misconduct' amounting to
corruption as defined under E&D Rules, by embezzling an amount of Rs.01,13,810/ -
while posted at Kharan Station and amount of Rs.02,00,000/ - while posted at Dera Allah
Yar."
Similarly, the Authorized Officer, while agreeing with the findings of the Inquiry Officer,
recommended to the Authority 'major penalty of the appellant with the following conclusion:
"Overall assessment of the enquiry stands proved against the Officer, who is actively
involved in direct corruption and such acts cannot be condoned or a lenient view taken since the same would shake the confidence of the public in the judiciary."
4. The Authority once again provided an opportunity of personal hearing to the appellant
and, finally, the whole process culminated into compulsory retirement of the appellant vide order dated 23rd December, 2014 with the following words:
"The charges stand proved against the officer and I need not to go in detail. However, a bare perusal of the same would show that the charges are highly serious in nature and by no stretch of imagination it can be expected from a person holding the sensitive post of District and Sessions Judge, to act in such an illegal mann er by involving herself in such
corrupt practices on large scale. All this smacks bad smell and amounts to bring a bad
name to the Judiciary. And thus, it unhesitatingly are the acts falling within the definition of 'misconduct' as defined under the Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992. Although the delinquent Officer has put certain excuses by making an attempt to absolve herself, but same were not found satisfactory by the learned Authorized Officer and I also concur with his such findings.
As regards the quantum of penalty in my estimated opinion a penalty of compulsory retirement from service would commensurate with the gravity of the acts on the part of delinquent officer."
5. Learned counsel for the appellant contended tha t the impugned notification is liable to be
set aside, being based on the findings of an enquiry, which was also conducted in a very casual, cursory and discriminatory manner, that too, without observing the provisions of the Balochistan Efficiency and Dis cipline Rules, 1992 ("the E&D Rules"). According to learned counsel, the
appellant has been made scapegoat on the basis of minor irregularities, which could easily be ignored in view of the brilliant and unblemished service track record of the appellant. W hile
concluding his arguments, he further submitted that the evidence, furnished during the course of enquiry, is required to be reappraised in view of the fact that the findings of learned Enquiry Officer are not supported by reliable and cogent pieces of evidence.
6. On the contrary, learned Assistant Advocate General stated that serious allegations,
relating to the integrity, that have been found in the case of the appellant upon enquiry, are
sufficient to justify the order of compulsory retirement of the appellant. He further contended that the departmental proceedings have nothing to do with the compulsory retirement, as the decision regarding compulsory retirement was taken by the Competent Authority, after careful consideration of overall performance, service record of the appellant and the enquiry report as
well as the recommendations.
7 Keeping in view the submissions made on behalf of the parties, we have not only perused
the available record, but also minutely gone through the personal file and Annual Confidential Reports (ACRs) of the appellant in view of the principle that the law requires the Authority to consider the 'entire service record' of a Judicial Officer, while assessing whether he/she can be given compulsory retirement. Admittedly, the enquiry was conducted by a Judge of the High
Court and the recommendations for imposing major penalty was also given by a sitting Judge of the High Court and the 'Authority', after fulfilling all the legal formalities, has passed the impugned notification, however, in the interest of justice, we have also gone through the relevant record and found the following facts:
(i) It appears that, at the time of joining the District Judiciary, the date of birth of the appellant, as per her matriculation certificate , was 20th May 1957 and in this
regard, the request of the appellant for correction of her date of birth from 20th May 1957 to 20th May 1959, after joining service, was declined by the then Secretary, Services and General Administration Department, Governm ent of
Balochistan vide letter dated 10th September, 1997, however, subsequently, the appellant, without permission of the Competent Authority, has succeeded to insert her date of birth as 20th May, 1959 in her service record.
(ii) That, while performing her duties as Additional District and Sessions Judge, Sibi, she was suspended by the High Court of Balochistan on account of wilful absence and misconduct vide order dated 13th July, 1998. Though the then Authorized Officer, in view of the enquiry conducte d by the Enquiry Officer, recommended
her removal from service, however, the then Hon'ble Chief Justice, while taking a lenient view, ordered withholding of annual increments for a period of three years vide order dated 2nd December 1998.
(iii) That in the year 2005, the appellant was superseded by her juniors: viz, M/s.
Zaheer -ud-Din Kakar, Muhammad Iqbal Shahwani (late), Nazeer Ahmed Langov
and Rozi Khan Barrech, who were promoted as District and Sessions Judges (BPS -20) vide Notification No.2243/120- Estt/Admn dated 23rd November, 2005.
(iv) The appellant was promoted as District and Sessions Judge on officiating basis vide notification dated 14th March 2006, but, subsequently, on account of poor performance, she was reverted to her earlier position i.e. A dditional District and
Sessions Judge and her departmental representation was also rejected by the then Hon'ble Chief Justice vide order dated 27th November, 2006. The said notification reads as under:
"The Hon'ble Chief Justice High Court of Balochistan, has been pleased to withdraw the
Notification No.760- 61/120- Estt: Admn dated/14 -03-2006 to the extent of appointment
of Mrs. Tahira Parveen Baloch and Mr. Abdul Rasheed Umrani, as District and Sessions
Judges (B -20) on officiating basis and accordingly the y stand reverted to their original
posts of Additional District and Sessions Judges (B -19) with immediate effect."
(v) That, while declaring the appellant an officer of average performance, the following remarks were given by the then Hon'ble Chief Justice in her ACR of the
year 2010:
"That though her judicial work was satisfactory. She faced certain complaints and doubts were raised about her integrity"
Similarly, in her ACR of the year 2011, the then Hon'ble Chief Justice in the column of
'Pen Picture' observed as under:
"She must desist from approaching people and her superiors for her personal
advancement."
(vi) That the appellant was once again suspended with immediate effect on 22nd December, 2014, when she was performing her duties as District and Ses sions
Judge, Killa Saifullah vide Notification No.3893/PF/Admn:, however, due to compulsory retirement of appellant on 23rd December, 2014, the proceedings were stopped and kept in abeyance.
8. The perusal of personal file of the appellant reveals that the same is full of explanations,
show cause notices, warnings and complaints received by the Hon'ble Chief Justice from time to
time from different quarters/corners regarding integrity of the appellant, however, keeping in view length of service of the appel lant, while taking lenient views, warnings were issued to her
from time to time and last warning was issued to her on 13th May, 2009.
9. It is by now settled that the law requires the authority to consider the entire service record
of the employee, while a ssessing whether he/she can be given compulsory retirement. It is also
by now settled that the case of a Judicial Officer is required to be examined, treating him/her to be differently from other civil servants, as they are performing the sacred duty of re ndering
justice among the general people. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall judicial work and reputation. The nature of judicial service is such that it cannot afford to suffer continuance i n service of persons with doubtful integrity, or
who have lost their utility in order to keep the stream of justice unpolluted. Similarly, a Judge cannot be stamped with the label of 'doubtful integrity' in absence of tangible materials, however, sometimes , such materials do not come forth and in such situation, the general impression of the
Judge as a corrupt Judge in the mind of general public is alone sufficient for his/her compulsory retirement by the Competent Authority.
10. While considering the case of the appellant on the touchstone of the aforementioned
principles of law and having gone through her entire service record, we are of the considered view that the appellant remained an average officer throughout her servicer ca reer and could
never improve. She was also not enjoying a good reputation in the eyes of general public as well
as her superiors. She had been given adverse entries regarding her integrity/reputation as not
good in the years 2010 and 2011.
11. It may be ad ded that though the compulsory retirement has been prescribed as major
penalty in the Balochistan Efficiency and Discipline Rules, 1992, yet it differs from dismissal
and removal from service, as it does not involve penal consequences inasmuch as the person compulsorily retired is entitled to pension and other retiral benefits proportionate to the period of service standing to his/her credit. Even otherwise, as per date of birth in the matriculation certificate, the appellant has already attained the age of superannuation on 19th May, 2017.
12. While reverting to merits of the case, admittedly, the enquiry in the instant case was
conducted by a Judge of the High Court and his findings regarding guilt of the appellant was concurred by a Senior Judge of this C ourt, as such, there is hardly any chance to make the
allegation of non -application of mind and mala fides. The overall as well as documentary
evidence, brought on record, during the course of the enquiry, is sufficient to connect the appellant with the co mmission of misconduct during her service and the Enquiry Officer as well
as the Authorized Officer has appreciated the evidence in its true perspective.
As a sequel to the above reasons and conclusions, the appeal, being without merit, is
dismissed.
ZC/1 13/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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