2023 P L C (C.S.) Note 43
[Balochistan High Court]
Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ
ABDUL GHANI
Versus
HON'BLE CHIEF JUSTICE through Registrar High Court
Service Appeal No.02 of 2016, decided on 18th August, 2020.
(a) Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992---
----R.3--- Penalty ---Grounds ---Compulsory retirement ---Judicial officer ---Inefficient or
ceased to be efficient ---Compulsory retirement ---Scope ---Division Bench of High Court
while proceeding in appeal observed that the appellant, a Qazi, had acted in aid of
accomplishing voracious whims of parties to plunder the property of public exchequer, as such, a show cause notice was issued to the appellant wherein almost thirty cases were noted to have been mishandled on judicial side by the appellant ---Enquiry officer concluded that
the appellant was careless, had decided cases in haste without adhering to the prevailing law, which proved negligence, misconduct and illegality on his part ---Major penalty of
compulsory retirement from service was imposed on the appellant vide impugned
notification---Validity ---Appellant had failed to justify the circumstances which had
compelled him to decide suit(s) hastily, without recording evidence and giving reasons in deciding the cases ---Conduct of the appellant besides being perfunctory was also tainted with
mala fide and showed extraneous consideration on his part ---Appellant had failed to
justifiably rebut the allegation leveled against him rather had pleaded the same as mistake ---
Such could not be considered a valid excuse by a judicial officer ---When ignorance of law is
considered as no excuse in the matter of a layman, how can it be taken as a valid ground in the matter of a judicial officer, who was vested with the power to exercise the original jurisdiction of Qazi Court and decide the fate of the cases amongst the general public ---
Appeal was dismissed.
(b) Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992 ---
----R.3--- Grounds for penalty---Judicial officer ---Scope ---Case of a judicial officer is
required to be examined by treating him in a different way from other civil servants as he is
performing the sacred duty of rendering justice amongst the general public ---Honesty and
integrity would be expected to be beyond any doubt and up to the highest expectation, which should reflect from his judicial work and reputation---Nature of judicial service cannot afford services of a person with doubtful integrity or who has lost his 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 a situation, the general impression of the Judge as a corrupt Judge
in the mind of general public would alone be sufficient for his compulsory retirement by the Competent Authority.
(c) Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992 ---
----R.4--- Penalty ---Compulsory retirement ---Scope ---Although compulsory retirement has
been prescribed in the Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, as
a major penalty yet it differs from dismissal and removal from service as it does not stipulate penal consequences, inasmuch as, a person retired compulsorily is entitled to pension and other retiral benefits proportionate to the period of service standing to his credit.
Abdul Khair Achakzai along with Appellant for Appellant.
Shai Haq Baloch, Additional Advocate General for Respondent.
Date of hearing: 3rd July, 2020.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ----This appeal under section 5
of the Balochistan Subordinate Judiciary Service Tribunal Act, 1989 is directed against the Notification dated 21st November 2015 passed by the respondent, whereby the appellant was removed from service by imposing major penalty of compulsory retirement.
2. Brief facts leading to filing of this appeal are that the appellant was appointed initially
as stenographer B -12 in the Court of District and Sessions Judge, Quetta and thereafter was
promoted as steno typist. In the year 2001, posts of Qazi were advertised by the Balochistan Public Service Commission; (BPSC) consequent thereto the appellant applied for the post and was appointed as Qazi on 12th November 2001 by the High Court of Balochistan on the recommendation of BPSC. The appellant was posted at diff erent stations as Qazi. In 2014
while proceeding with RSAs Nos. 3 and 4, the Hon'ble Mr. Justice Muhammad Noor Miskanzai and Justice Muhammad Hashim Khan Kakar, observed that the appellant has acted in aid of accomplishing voracious whims and parties to plunder the property of public exchequer, as such, a show -cause notice was issued to the appellant, wherein almost 30 cases
were noted to have been mishandled on judicial side by the appellant. The reply of the appellant in response to the explanation was fo und unsatisfactory, as such, the
respondent/Authority nominated Mr. Justice Naeem Akhtar Afghan as "Authorized Officer", consequent thereto the learned Authorized Officer appointed an enquiry officer, who conducted the inquiry, charge sheet and statement of allegations were served upon the appellant and on completion of the inquiry, the enquiry officer concluded that the appellant was careless, decided cases in hastily manners without adhering the prevailing law, which factums proved negligence, misconduct and illegality on his part. Consequently, on having
found the appellant guilty of misconduct, grave illegalities, irregularities and inefficiency, major penalty of compulsory retirement from service was imposed upon him, with effect from 21st November 2014 vide Notification No. 3392/PF/Admn dated 21st November, 2015
(impugned herein). Hence this appeal.
3. Learned counsel for the appellant has argued that it is a case of no evidence; that the
learned Inquiry Officer while recording, the impugned findings altogether ignored the entire
judicial record of the appellant; that the charges leveled against him were groundless and not substantiated from any record; that no malice or ill will was proved on the record in entertaining and passing orders in the cases mentioned in the charge sheet; that on the basis of the observations made by the Hon'ble author Judge in the without proving malice or ill will on the part of the appellant, imposing major penalty of compulsory retirement from service was not justified; that none of alleged acts displayed misconduct warranting major penalty; that the impugned notification is liable to be set aside. However, as an alternate plea, the learned counsel also requested for conversion of the appellants retirement from compulsory to that of voluntarily retirement, by taking a lenient view and also keeping in view the appellant's unblemished judicial career.
Conversely, learned Additional Advocate General submitted that mala fide of the
accused judicial officer was apparent on face of the record; that he had passed certain orders hastily and without adhering the law; that the manner in which he decided cases at judicial
side, showed that he had passed judgment in those cases totally against the law and possibility of extraneous consideration could not be ruled out; that the conduct of the accused -officer was unbecoming of a judicial officer and deserved removal from service but
the competent Authority took lenient view of the matter in view of his length of service as he had about 27 years of service and was at the verge of retirement; he finally urged for dismissal of the appeal.
4. We have heard the learned counsel for the appellant and the learned Additional
Advocate General and have also gone through the record.
5. The appellant was charged with altogether 30 allegations that he decided the cases,
while performing his duties as Qazi at different stations of the province, in utter disregard to the statutory provisions of law and dictum laid down by the superior courts. This High Court while handing down the judgment in RSA No. 03 and 04 of 2007 rendered certain observations and pointed out some serious flaws and errors committed by the appellant. We have carefully scrutinized the allegations against the appellant. T he record reveals that
admittedly, the appellant while deciding some civil suits decreed the same ex- parte without
even recording evidence in the same, rather solely relied upon the plaint of the plaintiff, whereas in his reply, he relied upon the provision of Order 9 Rule VI of Civil Procedure Code 1908, and submitted that the evidence was not required to be recorded, however, no reasons were rendered by him being the trial judge for not recording the evidence and also failed to give any reason on merit of the cases, thus, it was amounting to disregard the
applicable law and also to defy the verdicts of the superior courts. The appellant failed to justify the circumstances, which compelled him to decide the suit(s) hastily and without recording evidence and giving reasons in deciding the cases. The conduct of the appellant besides being perfunctory also is tainted with mala fide and shows some extraneous consideration on his part. The appellant has failed to justify the urgency in deciding the cases, likewis e in Civil Suit No.2 of 2011, the suit was rejected by the appellant under Order
VII Rule 11 CPC on the ground that only one plaintiff is present and the rest of the plaintiffs
had no interest in the case, however, the law does not permit rejecting of the plaint without any legal reason, that too in presence of the plaintiff. While in most of the cases, where the defendant failed to make appearance before the court, they were though proceeded against ex-parte and the suit(s) was (were) decreed, but the orders delivered by the appellant
revealed that no reasons were given in any of the judgments for decreeing the suit and
granting relief to the plaintiff, despite the fact that the court while deciding the case, even ex-
parte, was required to record the evidence, dilate upon the same and finally decide the suit on the basis of material available on the record. Such a conduct shown by the appellant was unbecoming of a judicial officer. So far as the reply filed by the appellant to the show cause notice during course of inquiry is concerned, the appellant had failed to justifiably rebut the allegation leveled against him, rather pleaded the same as a mistake, unintentional and without any mala fide on his part. This can hardly be considered a valid excuse by a judicial officer. When ignorance of law is considered as no excuse in the matter of a layman, how it could be taken as a valid ground in the matter of a judicial officer like the present appellant, who was vested with the power to exercise the original jurisdiction of Qazi Court and decide the fate of the cases amongst the general public.
6. Initially the matter was noticed by the Divisional Bench of High Court of Balochistan
while deciding the Regular Second Appeals Nos. 3 and 4 of 2007, wherein the learned Bench passed the following observations:
"22. Now adverting to the submissions made by Mr. H. Shakil Ahmed, learned counsel for respondent No.2, who maintained that Muhammad Din son of Ibrahim is a bonafide purchase, his rights are protected under the law, is also without any substance, as it is settled principle of law that if the initial order is declared void and
illegal then the whole structure created thereon is bound to fall. It is important to note that while going through the record at page -170 the capital cost for the construction of
B&R Rest House, Ormara incurred was Rs.44, 89, 350/ -, whereas the cost of land is
not included. It is painfully observed that the State property worth of billion of rupees was auctioned on worthless price, which apparently was an act of collusion between plaintiff, the auction purchaser and defendant Nos 2 and 3. The Executing Court failed to understand that the State property cannot be auctioned pursuant to a decree, which is nullity, void and non- existent. As per claim of respondent No.1 the appellant
Nos.2 and 3 verbally agreed to pay the expenses to be incurred for additional work as
well as expenditure made by him at the eve of visits of Chief Minister and Chief Engineer etc. We are of the considered view that the verbal direction would not amount a condition to the agreement under which the work was accomplished unless the agreement is duly amended by adding any fresh condition with approval of the competent authority. In absence of any such agreement, the government would not be under any legal constraint to pay the said amount because mere verbal order of the
appellants would not amount to promise made on behalf of the government department, unless it is duly made in writing and sanctioned/accorded by the competent authority. If any officer of the department verbally passed the direction without sanction of the competent authority, it is within the right of respondent No.1 to claim such amount in his private capacity, but not being an officer/official capacity. The record also reflects that at the relevant time, Mr. Abdul Majeed Shah and Mr.
Munir Ahmed Baloch were holding the charge of Executive Engineer and Sub-
Divisional Engineer B&R Department, thus, respondent No.1 is at liberty to file a suit for recovery of the alleged amount incurred by him at the eve of visit of Chief Minister and Chief Engineer against them in their private capacity.
23. Resultantly, we are inclined to accept RSAs Nos. 03 and 04 of 2007 and set aside the impugned judgments and decree passed by the trial Court i.e. Qazi Pasni,
appellate Court i.e. Majlis -e-Shoora Mekran at Turbat and orders passed by executing
Court i.e. Qazi Pasni and Majlis -e-Shoora during execution proceedings are hereby
set aside. Both the suits are remanded to the trial Court with the direction to obtain
written statement from appellants and thereafter to frame proper issues and decide the case by adhering to the provisions of Order XIV, Rule 2, C.P.C. Consequent upon setting of the Judgments and decrees mentioned hereinabove, the Deputy Commissioner Quetta is directed to take possession of B&R Rest House Ormara from Din Muhammad son of Ibrahim (auction purchaser) and deliver the same back to the appellant No.1 within a period of one month positively from the receipt of the date of this judgment and mutation entries carried out in favour of bidder i.e. respondent No.2 are hereby cancelled and the earlier mutation entries carried out in favour of Government of Balochistan are hereby restored. Necessary correction in the revenue entries in the light of this judgment be made.
24. Before parting with the judgment, we consider it necessary to reiterate that the frequency, with which cases are coming up, wherein the government officials are found to be obliging the parties with regard to their illegal claims and the matters wholly unconcerned with their job descriptions for erroneous considerations. We are in agreement with the learned AAG that the entire process initiated by respondent
No.1 with collusion of the then Executive Engineer and Sub- Divisional Officer
(B&R) department smacks of mala fides, fraud and misrepresentation, beside lacking legal sanctions. The respondent No.1 is directed to fix the responsibility of all the delinquent officers who have played a collusive part in the proceedings and have caused great financial loss to the National Exchequer. The Registrar of this Court to send copy of the instant judgment to the Chief Secretary, Government of Balochistan as well as Deputy Commissioner Gawadar with the direction to ensure compliance of the directions against the delinquent officers by taking positive actions, of course by providing fair opportunity to them. The result of action, so taken by them should be submitted for our perusal in chamber.
The appeals are, accordingly, disposed of on above terms. Decree sheet be drawn. Parties are left to bear their own costs.
Thereafter, on scrutinizing the judicial record of the delinquent officer, almost 30
cases were traced out to have been decided by the appellant during his posting as Qazi at different stations.
7. At this juncture, before adverting to the merit of the case or to undertake the judicial
scrutiny of the impugned notification, the appellant was present in person, when confronted with the findings of the learned Authorized Officer, when he not only admitted his mistake and termed the same as procedural lapses, statedly, due to stressed being faced by him during
such time when a number of cases were decided by him without adhering to the provisions of
prevailing law, principles of natural justice and dictum laid down by the Superior courts. He once again, not only admitted the referred to illegalities as mentioned in the charge sheet, but on the other hand, also pleaded that the lapses and illegalities committed by him were not based on malafide and therefore, without having a valid proof with regard to his malafide
actions, his innocence was otherwise established on record.
Be that as it may, but on perusal of the enquiry report and recommendations rendered
by my learned brother being Authorized Officer, we have also observed that during
appellant's service of long fourteen years, he remained posted on various stations, but his conduct and performance voluminously speak against him, which unfortunately reflects the shades of incompetence on his capabilities being a judicial officer, who despite various directives, explanation letters, show cause notices and suspension orders, did not mend his way, and in the last proceedings, which culminated in issuance of impugned notifications, as many as thirty (30) cases were traced out, thus, the Hon'ble Chief Justice had decided to appoint an Authorized Officer for disciplinary proceedings. Therefore, for the ease of reference, it would be instructive to reproduce the operative part of the recommendations rendered by the learned Judge of this court, which states as under:
"9. When confronted with all the above terms, learned Qazi admitted that he has committed procedural lapses and stated that it was due to inadvertence and stress as during those days he was holding charge offour Courts of Qazi Bhag, Qazi Dera Murad Jamali, Qazi Dera Bugti and Qazi Gandawah. Learned Qazi stated that if given a chance, he will improve. He further stated that till date no disciplinary proceedings were initiated against him.
10. Perusal of all above orders reveal that the learned Qazi has exercised judicial powers in an arbitrary manner and has passed non -speaking orders in flagrant
violation of the settled principles of law and procedure. All the above orders passed by learned Qazi are sufficient from glaring illegalities and irregularities which speak of the fact that the learned Qazi is lacking competency, legal acumen and is inefficient. The orders passed by learned Qazi is flagrant violation of law and procedure smack of his mala fide and misconduct. Mere holding of charge of four Courts at different stations cannot be considered as a justification for passing orders in a slip shod manner in violation of law and procedure.
11. It is concluded that the learned Qazi has mis conducted in exercising judicial powers while performing his duties as Qazi at different stations.
12. It further transpires from the record that throughout his tenure of fourteen (14) years of judicial service, learned Qazi was issued show cause notices at different intervals on account of his willful absence from duty and his explanation were not found satisfactory, whereafter he was issued warnings to be careful in future.
He was also suspended from service vide notification dated 13.10.2008 due to his willful absence from duty and was reinstated vide notification dated 15.4.2009 with warning to be careful in future.
It further reveals that previously on 15.5.2007, learned Qazi was issued a show cause
notice under Rule 2 of Balochistan Civil Service (Efficiency and Discipline) Rules,
1992 for having passed a judicial order without jurisdiction as Qazi Muslim Bagh; that the reply furnished by learned Qazi was found unsatisfactory by the then Hon'ble Chief Justice High Court of Balochistan, who while taking a lenient view issued warning to the learned Qazi vide letter dated 23.5.2008 and was directed to remain
careful in future.
13. In view of the report of the Inquiry Officer, failure of the learned Qazi to justify
non- speaking judicial orders passed in flagrant violation of law and procedure which
are also suffering from grave illegalities and irregularities and in view of the mis
conduct and inefficiency of learned Qazi, it is recommended that in the public interest, learned Qazi Mr. Abdul Ghani Achakzai (under suspension) be compulsorily retired from service as he has completed more than ten (10) years of service qualifying of pension and other retirement benefits.
Registrar to place the file before the Hon'ble Chief Justice for final orders."
The afore- referred reproduced part of the recommendations, left us with no option, but to
observe that in view of admission of the appellant initially in reply to the explanation letters,
thereafter, in reply to the show cause notices, before the enquiry officer, before the learned Authorized Officer and finally before this court, when though he was claiming his innocence with regard to illegalities committed by him, but has blatantly been failed to substantiate the same through any reliable or explicit reason.
8. Admittedly, the law requires, when it binds down the authority to consider the entire
service record of the employee, when the penalty of compulsory retirement is likely to be imposed. It is yet another well settled preposition that the case of a Judicial Officer is
required to be examined, treating him/her to be in a different way from that of other civil servants, as he/she is performing the sacred duty of rendering justice among the general people. The honesty and integrity would be expected to be beyond any doubt and up to the highest expectation, which should reflect from his/her judicial work and reputation. The nature of judicial service cannot afford services of a person 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 a situation, the general impression of the Judge as a corrupt Judge in the mind of general public would alone be sufficient for his/her compulsory retirement by the Competent Authority. It may be added 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 stipulate penal consequences, inasmuch as, a person retired compulsorily, is entitled to pension and other retiral benefits proportionate to the period of service standing to his/her credit.
9. Admittedly, the enquiry in the instant case was conducted on the direction of a Judge
of the High Court in his capacity of Authorized Officer, as such; there is hardly any chance to make the allegation of non- application of mind and mala fides. The overall, as well as, the
documentary evidence, brought on record, during the course of the enquiry, was sufficient to
connect the appellant with the commission of misconduct, negligence and even the ignorant
of law. The Enquiry Officer, as well as, the learned Authorized Officer has appreciated the evidence in its true perspective. The appellant also did not object on the enquiry officer or the Authorized Officer, and by not raising any objection, he has posed his full confidence over the enquiry officer and the learned Authorized Officer.
10. Now, when adverting to the alternate plea raised by the learned counsel that as the
appellant has already rendered more than 22 years' service, as such, he will remain contented, if the retirement of the appellant is converted into voluntary retirement instead of compulsory retirement. The perusal of the record reveals that the appellant has rendered total 22 years' service, initially appointed as Steno grapher in the month of March 1993 and thereafter was appointed as Qazi vide Notification dated 12th November 2001, but was compulsory retired on 21st November 2015. We are of the considered view that there is no cavil to the proposition that a Civil Servant is allowed to retire from service after completion of 20 years under Section 13(i) of Balochistan Civil Servant Act, 1974; an excerpt of the same is reproduced as follows for the ease of reference:
"(13). Retirement from service: A civil servant shall retire from service.
(i) On such date after he has completed (twenty) years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest, direct:
Provided that no civil servant shall be retired unless he has been informed in writing of the grounds of the action proposed to be taken against him and has been given reasonable opportunity of showing cause against that action."
"(ii) Where no direction is given under clause (i) on the completion of the (sixty years) of his age. "
11. The moot point in the present proceedings is:
"whether a Government Servant can be granted retiring pension after completion of 20 years."
12. Article 465 -A of the Civil Service Regulations (CSR) stipulates classes of the
pension, which are as follows: -
"465 -A. For officers 58[appointed substantively to the services or appointments]
mentioned in Article 349- A the rule for the grant of retiring pension is as follows: --
(1) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years or in the case of officers of Central Services of the Forest, Geological Survey, Public Works, Railway and Telegraph Departments and any others covered by Article 635 who entered the service before the 6thday of December, 1932, not less than twenty years.
(2) A retiring pension is also granted to an officer who is required by Government under paragraph (a) of clause (4) of Article 178 of the Constitution to retire after completing twenty -five years' qualifying service or more. This clause does not apply
to a Judge of the Supreme Court or of a High Court or the Comptroller and Auditor
General of Pakistan or an officer who has attained the age of fifty -five years."
The afore- quoted Article of CSR, clearly bars the appellant from any option of
availing the voluntarily retirement. The definition of Sub- Article (2) of Article 465 -A of
Civil Service Regulations provides that a pension granted to a Government Servant who retires voluntarily or is required by Government to retire after completion of prescribed period of duty and service or duty alone but, before reaching the age of superannuation. In the present case, service of the Petitioner is less than qualifying period of service for pension benefits or considering him for voluntarily retirement. Thus, in view thereof, it is settled that
a Civil Servant shall retire from service on completion of twenty five years of service
qualifying for pension or other benefits as the competent authority may, in the public
interest, direct.
11. Yet there is another aspect in the appellant's case, when he after issuance of impugned
Notification dated 21st November 2015, filed an application for withdrawal of General Provident Fund Accumulation by a retiring/retired Government Servant on 14th March 2016, which application duly signed by the appellant is available on his personal file, thus the appellant on filing the application has already accepted his compulsory retirement, and cannot claim the same to be converted into voluntarily retirement, which even otherwise is not permissible to an employee being retired from his services on account of misconduct and negligence. The appellant by filing application for the refund of GP fund and receiving the amount without any protest ceased to be an aggrieved person and was, thus, estopped to challenge his compulsory retirement from service. Even otherwise, the conversion of the appellant's retirement, in this manner would amount to discharge him from liabilities by granting a clearance certificate. It is to be noted here that granting any such relief to one of
the employee, who has been held liable for misconduct and against whom the penalty of compulsory retirement was imposed, would amount to open a gateway to all those employees who have/had been faced with similar penalty. After withdrawing his pensionary dues without any objection and protest, has barred him by the principle of estoppel. Reliance in this regard is placed on "Abdul Qadir v. Abdul Karim and 4 others' case" "(1999 PLC (C.S.) 947)" when in similar circumstances it was held: -
"It was laid down by this Court that the conduct of the appellant was such that he could not be given any relief in respect of his retirement. It was also clearly laid down that having himself requested for retirement and having received a substantial amount of pensionary benefits he could not be allowed to turn round to demand reinstatement. These findings show that equity and justice were against the respondent. Clearly the order of reinstatement passed by the Prime Minister cannot be defended on the gro und
that it was just and equitable, when a contrary finding had been recorded by this Court. We may add that acquiescence and estoppel are two recognized grounds in presence of which jurisdiction based on equity cannot be exercised in favour of a litigant. A common example may be found in the writ jurisdiction of the High Court which is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the making of an order or if he acquiesces in it. He is not allowed to turn round and challenge it. Equitable jurisdiction cannot also be exercised in favour
of a litigant with objectionable conduct. If any authority is needed on this point we
may refer to the judgment of this Court reported as Muhammad Sharif v. Muhammad
Manzoor and others (1993 SCR 92) and the case titled Ghulan Mustafa v. Azad Government and 2 others (1996 MLD 355). "
The cumulative effect of the aforesaid discussion leads us to an irresistible conclusion
that the appellant has miserably failed to make out a case in his favour neither on merit nor for conversion of his case of compulsory retirement into voluntarily retirement, therefore, the appeal being bereft of any merit is dismissed accordingly, but with no order as to costs.
SA/146/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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