MUHAMMAD AKBAR Versus SENIOR CIVIL JUDGE, LAHORE
AKHTAR HASSAN (CHAIRMAN).‑ ‑‑This is the second instance disciplinary action taken against the appellant Muhammad Akbar-II a Process, ‑Server of the Court of the learned Senior Civil Judge, Lahore. Earlier as per grounds (xiii) he was ''exonerated with full back benefits by the learned Punjab Service Tribunal". I thought it advisable to point out to him that I had deals with his previous count in my capacity as the then District Judge, Lahore and offered him to withdraw myself from this appeal, but he and his counsel both agreed to its being heard by me stating that it was based upon totally independent cause of action. This is how I continued to associate myself with its hearing.
2, Coming to facts, the appellant was reverted from service, probably the second time, by the order dated 13‑11‑1986 of respondent No. 1. His appeal there from was dismissed by respondent No. 2 on 13‑11‑7986. He assailed both these orders in the present appeal.
3. The charge against him precisely was, firstly, that for serving summons on defendants in Case Re: Mst. Naqvia Khatoon v. Khair Din etc. he demanded illicit gratification of Rs.200 from the plaintiff's daughter Mst. Mumtaz Fatima, though she paid him only Rs.10; secondly, that on her making a complaint against him, he pressurised her to withdraw the same; and thirdly that he insulted her by showing that the opposite party had already paid him Rs.5,000 besides holding out a promise to further pay him Rs.10,000 for bringing the plaintiff to their place for an ulterior motive..
4. The appellant refuted the charge but the Inquiry Officer held it proved. Respondent No. 1 agreed with those findings and after hearing the appellant, ordered his removal. The penalty was affirmed by respondent No. 2 dismissing the departmental appeal and aggrieved thereby he preferred the present appeal before this Tribunal.
5. Primarily three grounds were: urged in support of the appeal namely (i) no authorised officer was appointed which requirement according to the ratio of Malik Lal Khan v. District and Sessions Judge, Rawalpindi 1971 PLC (C.S.) 109 and 1988 SCMR 1316 (Re: Senior Civil Judge and another v. Bashir Hussain) was a sine qua non of rule 2 of the (E&D) Rules, 1975, (ii) the appellate order took into account also the appellant's previous conduct of stealing a file, which having not been included in the charges, was said to be in a way an extraneous matter, and (iii) the complainant's statement having been taken only on "solemn affirmation" as distinguished from the "Oath" prescribed recently was inadmissible as construed in 1991 MLD 48 (Re: Jafar Ali v. Muhammad Tufail).
6. Learned D.A. opposed these arguments relying upon the High Court, Lahore, Delegation of Powers Rules, 1960 enforced vide the Notification dated 14‑5‑1986 whereby the Senior Civil Judge was competent to award all sorts of punishments to the appellant. Thus he was both the `Authority' and the 'Authorised officer' obviating the need of appointing someone else as 'Authorised Officer'. He stressed that proviso to rule 2 ibid permitted such appointment, and hence to argue against it, would be omitting to read the aforesaid proviso. As regards the appellant's past conduct involving theft of a case‑file and his consequent removal, he maintained that the factum of those proceedings was not denied and hence making mention of an admitted fact was by no means either inadmissible or irrelevant. In addition, he claimed that there was no provision in the (E&D) Rules, 1975 or for that matter, even in the Punjab Civil Servants Act, 1974 making it obligatory to exclude from consideration any such instance of past conduct on the part of the accused. Rather he went a step forward in contending that presence or absence of charge was not such material as held in 1988 SCMR 1676 (Re: Muhammad Akram Khokhar v. Administrative Officer; Lahore General Hospital, Lahore and others) and that the proceedings against the appellant would not be defeated simply because the charge served upon him did not include the element of his previous removal on disciplinary grounds. Further, he invoked 1990 SCMR 1005 (Re: Munir Ahmad v. Punjab Service Tribunal and 2 others) allowing reference to past conduct to determine quantum of punishment. Likewise he did not accept the plea that the statement of the complainant lady recorded on "Solemn Affirmation" on 28‑10‑1986 would be struck down because she was not administered the "Oath" prescribed in 1987 through an amendment of the Oaths Act, 1873. He urged that the enunciation made in 1991 MLD 48 was inapplicable to the present case in that the aforesaid amendment came into effect subsequent to recording of her statement and hence it was in perfect accord with the law then prevailing.
7. After considering the pros and cons, we were really not impressed by the argument raised against the impugned orders. The notification dated 14‑5‑1986 placed upon the record clearly conferred on the learned Senior Civil Judge, the status of both the "Authority" and the "Authorised Officer". To say therefore, that this requirement was abridged, was not factually correct. Such an arrangement was thoroughly in consonance with the proviso to rule 2 ibid and consequently the proceedings in question did not suffer from any lacuna. The two authorities cited by counsel for the appellant in this behalf related to cases where the "Authority" was not notified to be also "Authorised Officer" and could not be made applicable to the facts of the present case. Similarly, the plea of exclusion of the appellant's previous conduct was not supportable by any provision either of the Act or the rules. Indeed such a hyper technical objection relating to the frame of charge cannot be entertained especially in face of the pronouncement made by the Supreme Court in the fore-mentioned case of Muhammad Akram Khokhar. What was emphasised there was that the accused should be conscious of the nature of the action being taken against him. The same argument would apply if some count was not included in detail in the charge‑sheet. Here, the previous proceedings were not a matter of surprise to the accused. Contrarily, he himself made a reference to them in the Memo. of appeal and thereby tacitly agreed to its being discussed before the Tribunal. Besides, it was always open to him to show that he was finally "exonerated" in the charge and hence he could not possibly express grievance of making a mention thereof in the appellate order. In any event the past conduct was relevant for determining quantum of punishment.
8. The third ground of failing to administer "oath" to the complaint, as distinguished from the solemn affirmation, equally had no substance. She was examined on 28‑10‑1986 whereas the "Oath" in its typical form was introduced in 1987. Evidently,\t could not be made effective retrospectively, nor was any such intent exhibited in the relevant amendment. Her statement made on solemn affirmation, did not suffer from any lacuna and was rightly read as piece of evidence against the appellant.
9. On merits, nothing substantial was advanced except to submit that Rs.10 allegedly paid to the appellant was too meagre an amount to call for making such serious complaint and that the complainant unnecessarily created furore about nothing. No substantial reason was advanced to indicate that the complainant Mumtaz Fatima had any ulterior reason to accuse the appellant of typical misconduct. She made a complaint in writing and later appeared before the Inquiry Officer where she reiterated that the appellant tried to seduce her, stared at her face, called upon her again and again to accompany him for the purposes of effecting service of summonses on the defendants who paid him Rs.5,000 to bring her to their house after sunset for no motive other than molesting her. The sequence of events involved a brawl between her and the appellant at the office of Muhammad Aqil, Advocate. Later she appeared before the Inquiry Officer and was cross‑examined at length but remained adamant in deposing that the appellant had been all along teasing her in order to accompany him to the house of the defendants from whom he had already obtained quite a large amount.
10. The appellant's plea was that the lady had snatched away from her the summonses entrusted to him for service; that he had made a complaint against her to the learned Civil Judge and that it was by way of retort that she made the present complaint against him. He examined quite a few witnesses but largely they did not say anything about his having vexed her to accompany him to the house of the defendants. The learned Civil Judge in his inquiry report gave along account of the evidence, and advanced adequate reasons how the lady's version appeared more plausible as compared to the defence plea. Apparently in her suit against a 'Kabza Group', there was every possibility that such persons may be going to the extent of defiling her chastity in order to deter her from laying a claim to the valuable plot which they had allegedly occupied forcibly. She and her mother came from Karachi to litigate against those impostors and this fact itself included a possibility of misdirecting them. We quite feel that the charge was adequately established against the appellant and he was rightly punished.
11. There is no substance in the appeal and the same is dismissed.
H.B.T./435/Sr. P Appeal dismissed.