Presence of Interested Justice and Legal Status of Constituted Forum

Presence of Interested Justice and Legal Status of Constituted Forum Case Laws Civil Law Interested Justice Judicial Service Tribunal Judicial Staff Knowledge - Civil Law Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Public & Admin Law Service Appeal Solutions - Civil Law Solutions - Constitutional Law Transfer Mr. Justice Shahid Waheed in his judgment has decided the issue regarding presence of interested justice and legal status of constituted forum in Service Appeal No 30 of 2011.

1. This appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 has arisen from the disciplinary proceedings initiated against the appellant, Sh. Shahid Rafiq, under the Punjab Civil Servants (Efficiency & Discipline) Rules, 1999 which culminated in the impugned Notification No.151/RHC/D&SJJ dated 13.06.2011 whereby major penalty of compulsory retirement from service was imposed upon the appellant.

2. In the case on hands, the appellant, while working as District & Sessions Judge was charged with following misconduct:

a) That you while posted as Chairman Drug Court, Multan in July, 2009 invited Ch. Abdur Rehman, Advocate of Khanewal, spouse of Ms. Tahira DDPP of your Court when you were posted as Addl. D & S.J., Khanewal, in your chamber and directed your court staff to persuade accused of cases in Drug Court, Multan to engage said Ch. Abdul Rehman, Advocate as their counsel for favourable decisions who was ultimately engaged in 33 cases pending in your Court and you never recorded convection in the said cases which amounts to misconduct;

b) That while conducting sham proceedings Under Section 87 of Cr.P.C. you managed fake and fictitious reports through your Court Staff to consign the files of almost 450 cases to the record room without completing legal formalities, even without mentioning the name of the police station and without initiating proceedings U/S 88 Cr.P.C. which amounts to misconduct.

c) That you declared accused of different cases as proclaimed offenders without issuing perpetual/non-bailable warrants of arrest to the respective police stations for making entries in Register No.IV and thereby chance of arrest of these accused by the police was scuttled and this was done after accepting illegal gratification in each case and you received Rs.25,000/- per case in lieu of dumping every such file and as such provided chance to the accused to escape from legal proceedings and thus committed corruption.

d) That you conducted the Court in violation of Section 31 of the Drug Act when the quorum was snot complete so as to constitute a Drug Court and in the same proceedings you recorded acquittal of the accused which was in contravention of Section 31 of the said Act thus rendering the proceedings illegal which amounts to abuse of judicial powers.

e) That you did not entertain the challans, sent by the prosecution for trial in February and March 2010 which remained unattended in your Court till the day of inspection by the M.I.T. Lahore High Court, Lahore i.e. 26-06-2010, which reflects your inefficiency and negligence.

f) That you never conducted your Court on Saturdays and Mondays in Multan and in fact, you always enjoyed French leave on both these days during your tenure in the said Court and as such remained absent without leave which amounts to misconduct.

g) That your attitude towards the members of the Bar is very harsh and you have a persistent reputation of being corrupt and the members of Lahore High Court Bar Association, Multan, District Bar Association, Multan and District Bar Association, Dera Ghazi Khan passed resolution against you and declared you as king of corruption and your Court has been boycotted by the said Bar Associations for many days and as such your attitude is unbecoming of a Judicial Officer.”

The appellant on 23.08.2010 submitted reply and denied the allegations. The Inquiry Officer, Hon’ble Mr. Justice Sh. Najam-ul-Hassan, in his report dated 17.01.2011 found the appellant guilty of misconduct and proposed that he be awarded major penalty of reduction to a lower post from the rank of District & Sessions Judge to Addl. District & Sessions Judge for one year. The disciplinary authority viz. the Administration Committee, Lahore High Court, Lahore disagreeing with the proposed punishment, issued show-cause notice dated 20.05.2011 to the appellant to explain as to why major penalty of dismissal from service be not imposed upon him. After affording opportunity of hearing to the appellant, the Authority imposed upon him major penalty of compulsory retirement vide impugned Notification dated 15.06.2011. Feeling aggrieved, the appellant through a petition under Rule 18 of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1999 sought review of the Notification dated 15.06.2011. This review was not responded and, therefore, after lapse of 90 days the appellant filed the instant appeal before this Tribunal.

3. For the order to be proposed in this appeal we are not touching merits of the case.

4. It is admitted on all hands that the case of the appellant was put up for consideration in the meeting of the Administration Committee of the High Court on the 9th of June, 2011 headed by the Hon’ble Chief Justice and attended by other six Hon’ble Members. The Hon’ble Mr. Justice Sh. Najam-ul Hassan, one of the Hon’ble Members of the Administration Committee, in his capacity as the Enquiry Officer had already formed an opinion against the appellant and with all due respect it cannot be said that he sat in the meeting of the Administration Committee with an unbiased mind. By his report dated 17.01.2011 he had pre-judged the issue against the appellant before participating in the meeting. It is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence of this country. It is now well settled that natural justice in relation to disciplinary proceedings means observance of procedural fairness before holding an officer guilty of misconduct. Procedural fairness demands not only that those whose interests may be affected by an act or decision should be given prior notice and an adequate opportunity to be heard, but also requires that the decision-maker or Authority should not be biased or prejudiced in a way that precludes fair and genuine consideration being given to the case presented by the parties. The rule against bias thus aims at preventing a consideration of the case being sham. The law disqualifies a person or Authority from adjudicating whenever circumstances point to a real possibility that his decision may be pre-determined in favour of one of the parties.

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