Monday, 22 October 2018

PLJ 2016 Tr.C. (Services) 194

PLJ 2016 Tr.C. (Services) 194[Punjab Subordinate Judiciary Service Tribunal, Lahore]
Present: Shahid Waheed, Chairman, Muhammad Tariq Abbasi and Faisal Zaman Khan, Members.
Syed FARRUKH HUSSAIN SHAMSI--Appellant
versus
LAHORE HIGH COURT, LAHORE through its Registrar--Respondent
S.A. No. 22 of 2011, heard on 19.2.2016.
Punjab Sub-ordinate Judiciary Service Tribunals Acts, 1991 (XII of 1991)--
----S. 5--Judicial officer--Show-cause notice--Removal from service--Charge of inefficiency--Unsigned files--No judgments/interim order were written--Casual and cursory manner--Validity--Un-signed judgments/orders, which were available in files and are reflected at Sr. Nos. 1 to 226, had been acted upon/executed, therefore, no damage had been done--Judicial officer adopted a novel procedure for dispensing justice by allowing relief to parties without any formal written and signed judgments/orders, which he had no authority under law to do--Issuance of succession/guardianship certificates and robkars for release of offenders does not absolve appellant of his primary duty of deciding cases through signed judgments that too expeditiously which he failed to do--Appellant was in a habit of not passing judgments/orders that too within time for which no valid explanation has been rendered, therefore, competent authority was left with no option but to award major penalty to him--Due to alleged delinquency/inefficiency of appellant no prejudice had been caused to a party was also ill founded and misconceived--Appellant was burdened with a high sense of duty and responsibility in discharge of his obligation to promptly administer justice, therefore, his inefficiency in managing his case load and failure to organize and supervise Court personnel to ensure prompt and efficient dispatch of business culminating into non-disposition of cases in time is an act of gross inefficiency which is placed on a much higher pedestal as compared to committed by any other official--In wake of sensitivity of nature of work assigned to a judicial officer penalty awarded to appellant is proportionate to gravity of overt act committed by him in performance of his duties.
                                                   [Pp. 198, 199 & 200] A, E, F, G, H & I
2015 SCMR 1550 ref.
----O.XX R. 3--Criminal Procedure Code, (V of 1898), S. 367--Scope--Judgment--Oral announcement of un-signed judgments/order in case files--There is no concept of reserving a judgment or oral announcement of same without a properly written/signed judgment--They were no judgments/orders under law, therefore, same could not be acted upon/executed--Act of appellant by issuance of succession/guardianship certificates and Robkars to set free offenders is an illegality/delinquency/inefficiency/misconduct on his part, which was not condonable, therefore, inquiry officer and competent authority rightly came to conclusion that appellant was guilty of charge and was liable to be awarded major penalty.
                                                                                       [P. 198] B & C
----Scope--Dispensation of justice--Jurisdiction--Dispensation of justice is a noble and sensitive assignment, which cannot be performed on whims and liking of a judicial officer--Jurisdiction exercised by him would be in accordance with one invested in him and has to be exercised with care and caution and in accordance with law.
                                                                                 [Pp. 198 & 199] D
PLD 1983 SC 457; PLD 1973 SC 49 rel.
Hafiz Tariq NasimAdvocate for Appellant.
Mr. Zubda Tul HussainAdvocate for Respondents.
Date of hearing: 19.2.2016.
Judgment
Faisal Zaman Khan, Member.--This appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act (No. XII of 1991) (Act) has been filed impugning order dated 28.03.2011 by virtue of which major penalty of removal from service was imposed upon the appellant.
2.  Succinctly, the facts of the case are that appellant joined the judicial service as a Civil Judge on 01.12.2000. While he was posted at Rawalpindi, in pursuance of a complaint filed by the District Judge, Rawalpindi on 04.02.2010, a preliminary inquiry was conducted, whereupon, on 17.05.2010 a charge-sheet was issued to him on the ground that upon surprise inspection it was found that 341 case files were lying in his chamber in which judgments/orders were typed, but the same were unsigned and in about 50 files no judgments/interim orders were written. Written defense was submitted by the appellant, whereupon, a regular inquiry was held and on 18.10.2010 recommendations were made to remove the appellant from service. Consequent thereto, show-cause notice was issued to the appellant and finally on 28.03.2011 order of removal from service was passed. Feeling aggrieved, a review petition was filed by the appellant, which was not decided within a period of 90 days, whereupon present appeal was preferred, whereafter, on 27.07.2013, his review petition was dismissed as having become infructuous (due to filing of the present appeal).
3.  Learned counsel for the appellant without commenting on the merits of the case submits that although the charge of inefficiency was established against the appellant, however, the penalty awarded to him does not commensurate with the acts alleged to have been committed by him. He assert that appellant has unblemished service record and for the alleged lapse on his part, which even otherwise did not cause any prejudice to rights of any litigant, cannot be a reason for putting an end to the carrier of a judicial officer. In order to fortify his arguments, he relies on judgments reported as Saeed Ahmad Awan v. Registrar, Lahore High Court, Lahore [2013 PLC (CS) 928], Muhammad Ali S. Bukhari v. Federation of Pakistan through Establishment Secretary, Islamabad and 2 others (2008 SCMR 214) and Secretary to Government of the Punjab, Food Department, Lahore and another v. Javed Iqbal and others (2006 SCMR 1120).
4.  On merits, learned counsel submits that in 226 files the judgments/orders were dictated and typed, however, the same could not be signed due to paucity of time and over work. As regards the files in which no orders were available, he submits that appellant did dictate the orders, however, due to lapse of the stenographer working with him, the same were never typed, therefore, he cannot be held responsible for inaction/delinquency of his staff.
5.  Contrarily, learned counsel for the respondent submits that in toto there were 356 case files, which were found incomplete during the surprise inspection, for which no plausible explanation has been rendered by the appellant. Apart from the above, the most surprising aspect is that in cases of succession/guardianship, certificates were issued without any formal judgments/orders. Similarly in criminal cases Robkars have been issued for releasing the convicts/offenders, however, no corresponding signed judgments/orders were available. He also emphasizes that if the stenographer working with the appellant was not performing his duties the way he was required to, it was for the appellant to have reported his inefficiency to the competent authority so that necessary proceedings could be initiated against him; that in a casual and cursory manner, appellant has alleged that no prejudice has been caused to the litigants due to his inaction in 356 case files. In view of the above, he submits that the penalty awarded do commensurate with the delinquency attributed to the appellant, therefore, no interference is warranted. To fortify his arguments he relies on judgment reported as Muhammad Mustafa Kamal v. Federation of Pakistan through Secretary Revenue Division/Chairman Federal Board of Revenue, Islamabadand 2 others [2011 PLC (CS) 162].
6.  Arguments heard. Record perused.
7.  At the very outset, it shall be imperative to provide a resume of case files, which were found incomplete during the surprise inspection, which is also not denied by the learned counsel for the appellant and is also fortified by the defense reply submitted by the appellant:
S. No.
Nature of Cases
No. and year of order
Total
2008
2009
2010
1.
Succession (Certificates issued without orders)
--
40
3
43
2.
Guardianship
--
15
--
15
3.
Criminal cases including CNSA etc.
41
127
--
168
4.
Interim orders
--
2
113
115
5.
Annex-B (Judgments/Orders not written)
3
2
10
15
6.
Grand Total
44
186
126
356
8.  On perusal of the record and the arguments of the learned counsels following is manifest:
a.       That the judgments/orders, which were either not written or not signed, pertain to years 2008 to 2010;
b.       According to list attached with the charge-sheet most of the afore-noted judgments/orders have been acted upon/executed [in criminal cases Robkars was issued and the offenders have been released (cases mentioned at Sr. Nos. 1 to 168) and in cases of succession/guardianship certificates have been issued (Sr.Nos. 169to226)];
c.       That the above delinquency/inefficiency has been admitted by the appellant, however, the same has been attributed to rush of work, paucity of time and delinquency on part of the stenographer. Apart from the above, it is also highlighted that no prejudice has been caused to any litigant;
d.       That the conduct of the stenographer (if at all he is guilty of inefficiency/misconduct) has not been reported by the appellant to the competent authority for initiation of disciplinary proceedings against him;
e.       Delay on part of the appellant by not releasing the judgments/orders within the stipulated time that too for the reasons mentioned above also reflects that appellant apart from being delinquent in performing his judicial duties is also a failure on the administrative side.
9.  We are unable to subscribe to the explanation given by the appellant that the un-signed judgments/orders, which were available in the files and are reflected at Sr. Nos. 1 to 226, have been acted upon/executed, therefore, no damage has been done.
10.  The expression JUDGMENT has been described in Civil Procedure Code, 1908 (CPC) as well as the Code of Criminal Procedure 1898 (Cr.P.C). According to Order XX Rule 3, CPC a judgment in a civil case apart from having other contents has to be signed. Similarly under Section 367, Cr.P.C. same is the requirement for a judgment passed in a criminal case. The aforementioned provisions would also show that there is no concept of reserving a judgment or oral announcement of the same without a properly written/signed judgment.
11.  Keeping the above in juxta-position with the explanation rendered by the appellant qua oral announcement of unsigned judgments/orders in the case files mentioned at Serial Nos. 1 to 226 it is clear that they were no judgments/orders under the law, therefore, the same could not be acted upon/executed. The act of appellant by issuance of succession/guardianship certificates and Robkars to set free the offenders is an illegality/delinquency/inefficiency/misconduct on his part, which is not condonable, therefore, the inquiry officer and the competent authority rightly came to the conclusion that appellant is guilty of charge and is liable to be awarded major penalty.
12.  Dispensation of justice is a noble and sensitive assignment, which cannot be performed on the whims and liking of a judicial officer. The jurisdiction exercised by him should be in accordance with the one invested in him and has to be exercised with care and caution and in accordance with law. For reference reliance can be placed on judgments reported as Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457) and The State v. Zia ur Rehman and others (PLD 1973 SC 49).
13.  In the case in hand, appellant adopted a novel procedure for dispensing justice by allowing the relief to the parties without any formal written and signed judgments/orders, which he had no authority under the law to do. The issuance of succession/guardianship certificates and Robkars for release of offenders does not absolve the appellant of his primary duty of deciding the cases through signed judgments that too expeditiously which he failed to do. The above illegal act of the appellant is sufficient to brush aside his so-called unblemished record.
14.  The inexcusable and unpardonable aspect of this case is that appellant kept the judgments of the years 2008 and 2009 pending till 2010 by not signing the same inspite of the fact that they were allegedly announced. The Superior Court of this Country have successively held that a judgment by a trial Court not announced within 30 days of hearing of the case is impaired in value and the judicial officer shall be exposing himself to disciplinary proceedings. This concept is reiterated by the Honourable Supreme Court of Pakistan in judgment reported as Messrs MFMY Industries Ltd. and others v. Federation of Pakistanthrough Ministry of Commerce and others (2015 SCMR 1550).
15.  Keeping in view the above dicta and the fact of this case, it is clear and obvious that appellant was in a habit of not passing judgments/orders that too within time for which no valid explanation has been rendered, therefore, the competent authority was left with no option but to award major penalty to him.
16.  As regards the explanation that due to alleged delinquency/inefficiency of the appellant no prejudice has been caused to a party is also ill founded and misconceived. As the succession/ guardianship certificates and Robkars for releasing offenders have been issued without signed judgments/orders, the same on one hand have benefitted the parties in whose favour respective certificates/ Robkars have been issued giving them an unfair advantage over the adversaries and thus has prejudiced the rights of the adversaries, therefore, this cannot be pleaded that no prejudice is caused.
17.  The argument of the learned counsel for the appellant that inefficiency cannot entail major penalty is also not sustainable. The judgments cited by him do not in any way fortify the said view, however, it elaborates the principle that penalty must commensurate with the offense alleged to have been committed.
18.  Judges have the sworn/divine duty to administer justice without undue delay for the reason that “justice delayed is justice denied”. They are imbued with a high sense of duty and responsibility in the discharge of their obligation to promptly administer justice. They have to strictly adhere to the rule of speedy disposition of cases as delay in disposal is the major culprit in the erosion of public faith and confidence in judicial system. The concept of inefficiency used in common parlance and the one attribute to the judicial officers is way apart. As discussed above a judicial officer is invested with a noble duty to decide the rights of public at large; any delay on his part in dispensation of justice will put the reputation of the judiciary at stake. Each time when delay is occurred in disposition of cases their stature as a judicial officer diminishes and the reputation of the entire judiciary, which is amongst one of the pillars of the state, is tarnished.
19.  As discussed in the previous paragraphs the acts of delinquency/inefficiency committed by the appellant are so grave in nature that if condoned and pardoned will amount to setting up a bad precedent for other judicial officers and will also be negation of judicial policies, notifications and instructions issued from time to time to the judicial officers for speedy disposal of cases. The non-adherence to these policies/notifications/instructions apart from causing loss/damage to the litigants is a clear defiance on part of the judicial officer, which cannot be tolerated.
20.  In view of the fact that appellant was burdened with a high sense of duty and responsibility in discharge of his obligation to promptly administer justice, therefore, his inefficiency in managing his case load and failure to organize and supervise the Court personnel to ensure prompt and efficient dispatch of business culminating into non-disposition of cases in time is an act of gross inefficiency which is placed on a much higher pedestal as compared to committed by any other official. In the wake of the sensitivity of the nature of work assigned to a judicial officer we are of the view that the penalty awarded to the appellant is proportionate to the gravity of overt act committed by him in performance of his duties.

21.  For the foregoing reasons, this appeal being devoid of merits is dismissed.
(R.A.)  Appeal dismissed


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