GOVERNMENT OF THE PUNJAB Versus MUHAMMAD NISAR KHAN
This appeal by leave arises from a judgment of the Punjab Service Tribunal which accepted the respondent's appeal against his compulsory retirement from service as an Additional District and Sessions Judge. The respondent was proceeded against departmentally on allegations of abusing his official position by compelling local residents to provide free tractors and labor for cultivating a plot of land, and for making a false statement in his explanation regarding his connections with the said land. An inquiry was conducted, and ultimately the Chief Secretary ordered the respondent's compulsory retirement. The Service Tribunal set aside the retirement order on technical flaws. The Supreme Court held that the Tribunal was unduly influenced by technicalities and failed to thoroughly examine the evidence on record regarding the core charges, particularly in light of the definitions of corruption and misconduct. Consequently, the Supreme Court set aside the Tribunal's order and remanded the case back to the Tribunal for a fresh decision on the merits after examining the evidence.
- Whether a service tribunal can set aside a departmental penalty based merely on technical flaws without examining the evidence on the core charges?
- Does compelling locals to provide free labor and machinery for land cultivation while holding judicial office constitute misconduct and corruption?
- Whether the Supreme Court can remand a service matter to the tribunal when the tribunal fails to evaluate the evidence on record?
1. USMAN ALI SHAH, J.‑‑ This appeal by leave has arisen from the judgment and order dated 28‑6‑1984 of the Punjab Service Tribunal, whereby appeal of the respondent against his compulsory retirement with immediate effect by Chief Secretary Government of the Punjab vide his order No.SV‑14‑22/78 dated 4‑8‑83 was accepted by majority of the members of the Tribunal including the Chairman.
2. Brief facts of the case are that in 1978 the respondent herein was posted a5 Additional District and Sessions Judge, Mianwali. Meanwhile, one Amanullah Shahani made an oral complaint to the then Chief Justice of the Lahore High Court, alleging that the respondent was owner of a lot of land bearing No.367 in Rakh Haider Abad, Tehsil Bhakkar, District Mianwali. fie has managed to cultivate under the influence of local police the said land through locals without any payment. On 19‑5‑78 the learned Chief Justice appointed Mr. Justice S.S. Jan to make a spot enquiry into the matter. The Enquiry Officer visited the spot and recorded statements of some persons. He found that prima facie, a case exists against the respondent. Consequently, the respondent was transferred from Mianwali to Bhakkar, vide D.O. letter No.306/RHC dated 23‑5,78. The high Court also directed the respondent to submit his reply in regard to the allegations made against him. The respondent submitted his reply on 13‑6‑1978. The reply was forwarded to the Government of the Punjab and as the Government was not satisfied with it, the respondent was suspended and a thorough enquiry was ordered into the matter. The respondent was served with a charge sheet and alongwith the charge sheet the following statement of allegations was furnished to the respondent:‑‑
(1) That while posted as Additional District and Sessions Judge, Mianwali, he abused his official position. In that he by himself as well as through the local police compelled the residents of the district in which he was posted to provide tractors and labour free of charge and without any compensations for the development and cultivation of lot No.367 in Rakh Hyder Abad in Tehsil Bhakkar of District Mianwali.
(2) That when called upon to state his connections with the aforementioned lot he in his explanation dated 13‑6‑1978 addressed to the Registrar of the High Court stated that he had not been arranging for the cultivation of the aforementioned lot which did not belong to him while he knew that the statement made by him was not true.
3. The respondent submitted his reply to these charges. This time the Chief Justice appointed Mr. Justice Gulbaz Khan to enquire into the matter. The learned Judge recorded statements of 30 witnesses plus two enquiry witnesses. He found the respondent guilty of the charges levelled against him, whereupon the Chief Justice recommended to the Government compulsory retirement of the respondent from service. The Secretary S&GAD however, opined that the respondent is not owner of the land in question and the charges levelled against him have not been proved. So that respondent may be exonerated of the charges. The Chief Secretary on his part recorded a note dated 19‑4‑79 to the following effect and submitted the same to the Governor of the Punjab:‑‑
4. "The Governor may kindly either:‑‑
(i) give the accused officer an opportunity of being heard in person and then pass such orders as he may deem fit or;
(ii) under rule 2(1) (b) any officer can be designated by Government to exercise the powers of the Authority and if the Governor so desires, he may like to designate Chairman, P&D Board, to exercise the Powers of Authority in this case."
5. The Governor approved this note and designated Mr. Saeed Ahmad Qureshi, Chairman, P&U Board Punjab to exercise the powers of Authority in the case against the respondent. On 27‑5‑79 the Authority heard the respondent and thereafter came to the conclusion that the respondent had no interest with the land and as the enquiry was held by a Judge of High Court and the Chief Justice of the High Court acted as the Authorised officer, the best course would be to remand the proceedings to the Chief Justice for further probe into the matter. The Governor approved this suggestion and remanded the case to the Authorised Officer. As no reply was received from the Authorised Officer, a summary was put up to the Governor for re‑instatement of the respondent on the ground that he could not remain under suspension for an indefinite period. The respondent was accordingly reinstated.
6. On reinstatement of the respondent, the Governor of the Punjab asked the Chief Justice of the Lahore High Court that respondent being a member of the judiciary, he may be posted in the judiciary. The Chief Justice declined to do so and suggested that the respondent should be permanently absorbed in the executive. The Governor was not inclined to accede to this suggestion and the controversy in this behalf remained unresolved.
7. On 7‑7‑82 the Chief Justice of the Lahore High Court informed the Governor that the Enquiry Officer was not inclined to record further evidence and that the evidence already recorded was sufficient to substantiate the charges against the respondent. The Chief Justice suggested to the Governor that the respondent be served with a show‑cause notice as to why a major penalty should not be imposed upon him and that in this behalf he be given personal hearing. The question of show‑cause notice arose as the respondent was never served with such notice either by the Secretary S&GAD or by the Chairman P&D Board. The VILA/Governor, vide his order dated 14‑11‑82 approved this suggestion and the name of the Additional Chief Secretary (S&GAD) was proposed to act on behalf of the Chief Secretary which suggestion was approved by the Chief Secretary Punjab on 10‑12‑82. The Additional Chief secretary served the respondent with a show‑cause notice and afforded him an opportunity of personal hearing. Vide his note dated 13‑3‑83 he recommended that the accused officer be exonerated from the charges levelled against him. By going through this note the Chief Secretary marked the case for examination to the Additional Secretary (Services) S&GAD I, who vide his note dated 27‑3‑83 found that as regards the finding of the Additional Chief Secretary with respect to the Charge No. 1, the same is incorrect. Consequently, he submitted the case to the Chief Secretary who passed the following short order on the said note:‑‑
8. "I have gone through the record of the enquiry and other material on record. I do not agree with the views expressed by the Additional Chief Secretary. His reasoning is not sound. To the contrary I agree with the Enquiry Officer and Authorised Officer. The accused officer may be retired compulsorily from service."
9. As a result, by order dated 4‑8‑83, the Chief Secretary compulsorily retired the respondent from service with immediate effect. Against this order, the respondent filed a review petition before the Governor of the Punjab, but as this review petition was not disposed of within 90 days, the respondent filed appeal before the Punjab Service Tribunal. Majority of the learned Members of the Tribunal including the Chairman accepted the appeal and setting aside the impugned order, directed that the respondent be reinstated in service with all back benefits, vide order dated 28‑6‑84. Hence this appeal by leave.
10. We have heard the learned counsel for the parties. By going through the evidence on record, we are of the opinion that the majority of the learned Members of the Tribunal was influenced by technical flaws existing in the case and did not have the occasion to thoroughly examine the evidence on record as regards charge No.1. The evidence recorded in the case is to be examined in order to determine whether the respondent was to oblige his 'Khaloo' in the matter of cultivation of the land through people of the locality without ? payment, as alleged against him. This allegation is very conspicuous on the face of the record and the evidence has been recorded in this behalf but the learned Tribunal did not have the occasion to go into this aspect of the case, in order to determine the guilt or otherwise innocence of the respondent with respect to charge No.1. in the light of the definition /connotation of "corruption" and "misconduct".
11. On the view of the matter we set aside the impugned order and while accepting this appeal, we remand the case to the Tribunal with direction to attend to the case on the lines set out above and decide the case one way or the other. There will be no order as to costs.
12. M. I. /G-110/S ???????????????????????????????????????????????????????????????????????????????????? Order accordingly.