IN THE HIGH COURT OF SINDH AT KARACHI
Syed Rehan Hassan Rizvi
vs.
The District & Sessions Judge, Karachi West
For the Appellant : In person
For the Respondent : Mr. Muzahir Hussain
(In-charge Superintendent)
Date of hearing : 30.09.2020
Date of announcement : 30.09.2020
JUDGMENT
Agha Faisal, J. The appellant, being a dismissed staff member (ex-
Reader in the Court of the learned Senior Civil Judge XVII Karachi
West), has filed two appeals under Rule 10(1) of the Sindh Civil
Servants (Efficiency & Discipline) Rules, 1973 (“Rules”). The first appeal
assails an office order number A/W/2683/2017 dated 08.08.2013
(“Impugned Office Order”) whereby certain staff members were
promoted, however, the list did not include the appellant. The second
appeal was filed against the Order of the learned District & Sessions
Judge, Karachi (West) dated 11th October, 2018 (“Impugned Dismissal
Order”), whereby the appellant, in proceedings pursuant to an inquiry
report dated 03.11.2017 issued by learned Additional District & Sessions
Judge-IX, Karachi (West) (“Inquiry Report”), was sanctioned with the
major penalty of dismissal from service. Since the two appeals are
interconnected, hence, they shall be determined vide this common
judgment. The appellant has already been dismissed from service,
therefore, it is considered proper to deliberate upon his appeal against
the Impugned Dismissal Order at the first instance as the conclusion
therein would have a direct and consequential impact upon his appeal
against the Impugned Office Order.
Appeal1 against the Impugned Dismissal Order
2. It is considered appropriate to initiate this deliberation by
reproducing the order under challenge:
“Whereas, in pursuance of inquiry report dated 03/11/2017 furnished by the
learned Additional District & Sessions Judge-IX, Karachi West, a final Show
th
Cause Notice bearing No.A/W/3069/2018, dated 05 July 2018 was served upon
Syed Rehan Hassan Rizvi, Reader/Senior Clerk, presently posted in a Vacant
Court of Learned Senior Civil Judge-XVII, Karachi West under the provisions of
Sindh Civil Servants (Efficiency & Discipline) Rules, 1973; reply thereof was
furnished by him.
1
File No. HC/ADMI/02746.
Re: Syed Rehan Hassan Rizvi Page 2 of 5
And whereas, the undersigned after going through the facts, accorded an
opportunity of personal hearing to the incumbent on 28/09/2018 and re-
considered the matter along with personal file. The entire service record of
incumbent is blemished and many times awarded penalties on the ground of
corruption, therefore, in exercise of powers conferred as per Sindh Civil Servants
(Efficiency & Discipline) Rules, 1973, I have come to the conclusion that the
above named official is guilty of the charges, hence impose major penalty of
“DISMISSAL FROM SERVICE” prescribed under Rule 4(1)(b)(iv) Sindh Civil
Servants (Efficiency & Discipline) Rules, 1973 on Syed Rehan Hassan Rizvi,
Reader/Senior Clerk.
Now, therefore, the penalty of “DISMISSAL FROM SERVICE” prescribed under
Rule 4(1)(b)(iv) Sindh Civil Servants (Efficiency & Discipline Rules, 1973, is
hereby imposed on Syed Rehan Hassan Rizvi, Reader/Senior Clerk with
immediate effect.”
3. Briefly stated, the facts of the case2 are that on 25.05.2015, the
appellant, being Reader of the Court of learned Civil Judge & Judicial
Magistrate-I, Karachi, put up six criminal cases before In-charge Judge
for proceedings. In these cases the accused had pleaded guilty and had
been sentenced to pay fine of Rs.1500/- each and in case of default
thereof were ordered to undergo simple imprisonment for two days.
All the said cases were sent to Nazir Branch for payment of the
fine, but instead depositing of Rs.1500/- each, only Rs.500/- was
deposited by each accused. The Nazir Branch issued receipts of
Rs.500/- in each case, however, the same were said to have been
manipulated, by way of forgery, and made to appear as Rs.1500/-. The
amount of Rs.500/- was initially written on the cover of each file and the
record was allegedly doctored to reflect receipt of Rs.1,500, instead of
the actual amount, so that it would appear that the actual amount of fine
was deposited.
Upon taking notice of the matter an inquiry was ordered3,
statements were recorded4, Inquiry Report rendered, and pursuant
thereto the appellant was charged5 and required to submit a written
defense. The reply6 to the charge sheet was submitted by the appellant.
Post consideration of the aforementioned reply the appellant was issued
with a show-cause notice7, in respect whereof a reply8 was filed by the
appellant and in addition thereto an opportunity of a personal hearing
was also afforded thereto on 28.09.2018. The aforementioned process
culminated in the issuance of the Impugned Dismissal Order, hence, this
appeal.
4. The appellant appeared in person and submitted that the
Impugned Dismissal Order was contrary to the law. The grounds
invoked in such regard were that the proceedings were based on an
erroneous complaint; the proceedings were only initiated once the
appellant filed an appeal against denial of promotion thereto; and that he
was not permitted to cross examine the deponents9 before the inquiry
2
Per Statement of Allegations dated 31.05.2018.
3
09.11.2015.
4
Syed Arshad Ali, Qasim, Muhammad Aijaz, Zubair Ahmed and the appellant himself.
5
Charge, under Rule 6(1) of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973,
dated 31.05.2018.
6
Dated 14.06.2018.
7
Show cause notice bearing No. A/W/3069/2018 dated 05.07.2018.
8
Dated 27.07.2018.
9
Syed Arshad Ali, Qasim, Muhammad Aijaz, Zubair Ahmed and the appellant himself.
Re: Syed Rehan Hassan Rizvi Page 3 of 5
officer. It was thus concluded that the Impugned Dismissal Order ought
to be set aside.
5. Mr. Muzahir Hussain, In-charge Superintendent, appeared on
behalf of the respondent and supported the Impugned Dismissal Order.
It was submitted that complaints had been received in respect of the
appellant and the same was also pointed out by the junior clerk and
bailiff of the Nazarat branch; upon such information the record was
called and an inquiry was ordered culminating in the Impugned
Dismissal Order; and the appellant was given ample opportunity to
present his case and / or cross examine the witnesses and the same is
demonstrated from the fact that no demur was raised by the appellant
with respect to the conduct of the inquiry proceedings till post rendering
of the final order. It was sought to be demonstrated that the Impugned
Dismissal Order had been rendered in consonance with the law and that
no interference was merited therein in appeal.
6. The Appellate Authority10 has heard the respective submissions
and considered the documentation to which its surveillance was
solicited. The Impugned Dismissal Order has been rendered in
disciplinary proceedings pursuant to the Rules, therefore, the scope
hereof is ring-fenced to the determination11 as to whether any
interference is merited therewith in appeal.
7. The Rules prescribe a mechanism for amelioration of efficiency
and / or disciplinary issues. There is provision for an inquiry12, which
may be dispensed with under prescribed circumstances13. The powers14
of an inquiry officer / inquiry committee and the procedure15 to be
observed thereby is also stipulated in the Rules. The law prescribes the
penalties16 that can be awarded thereunder as well as the grounds 17
upon which the same may be predicated.
8. The record denotes the procedure that was adhered to,
culminating in the Impugned Dismissal Order (as particularized supra),
and no cavil has been articulated by the appellant with regard to the said
procedure being in consonance with the law in general and the Rules in
particular. It is, thus, observed that no case of procedural impropriety
has been set forth by the appellant, hence, the only facet that awaits
determination is whether the decision arrived at, finding the appellant
culpable of corruption and imposing the major penalty of dismissal from
service, warranted interference in appeal.
9. It is trite law18 that while the entire case was open to the appellate
forum and there was no cavil to the reappraisal of the record, however,
where the fora of subordinate jurisdiction had exercised its discretion in
one way and that discretion had been judicially exercised on sound
10
Constituted / assigned vide order of the Honorable Chief justice Sindh dated 15.09.2020.
11
In mutatis mutandis application of Order XXXI Rule 41 CPC.
12
Rule 5 of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973.
13
Rule 8 of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973.
14
Rule 7 of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973.
15
Rule 6 of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973.
16
Rule 4 of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973.
17
Rule 3 of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973.
18
Per Faqir Muhammad Khokhar J. in Naheed Nusrat Hashmi vs. Secretary Education
(Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs.
Aftab Alam reported as PLD 2013 Supreme Court 323.
Re: Syed Rehan Hassan Rizvi Page 4 of 5
principles the appellate forum would not interfere with that discretion,
unless same was contrary to law or usage having the force of law.
10. The record demonstrates that the allegations against the appellant
were subjected to the anvil of a detailed inquiry and repeated
opportunities were provided to the appellant to dispel the charges there
against. In addition to the successive written submissions of the
appellant an opportunity of a personal hearing was also availed. Per the
Impugned Dismissal Order, the preponderance of the incriminating
record against the appellant could not be controverted by the appellant,
hence, the Impugned Dismissal Order was constrained to be delivered.
It is imperative to record at this juncture that the appellant, post
conclusion of the disciplinary proceedings, had written a letter19 to the
respondent whereby it was sought that the punishment of compulsory
retirement or leave prior to retirement may be imposed upon the
appellant in consideration of humanitarian grounds. Notwithstanding the
stand alone weightage of the record stacked against the appellant, the
aforementioned letter prima facie demonstrates that the appellant did
not deny culpability but merely sought a lighter punishment.
While eschewing a voluminous repetition20 of the incriminating
record, it would suffice to observe that the appellant has been unable to
demonstrate that the decision, arrived at vide the Impugned Dismissal
Order, could not have been predicated upon the record under
consideration.
11. The honorable Supreme Court has recently maintained21 that a
determination of culpability in respect of illegal gratification / corruption is
a grave offence, requiring imposition of major penalty. It is considered
appropriate to reproduce the illuminating observations of the august
Court herein below:
“In our view, taking of illegal gratification itself is a heinous offence, requiring
imposition of major penalty. The decision of Member-I of the Punjab Service
Tribunal considering it a minor act and imposing a minor penalty through his
impugned judgment shows that the said Member is neither sensitive nor alive to
the offence of taking illegal gratification, which by law is considered serious
misconduct. This Court has time and again held that accepting illegal gratification
is a heinous offence and a civil servant, who is found guilty of this offence,
cannot be retained in the civil service and major penalty has to be imposed on
him. Reference in this regard may usefully be made to Bashir Ahmad, Line
Superintendent-I Lahore vs. Water and Power Development Authority, through its
Chairman, Lahore (1991 SCMR 2093), Muhammad Inam vs. Federal Service
Tribunal (1995 SCMR 37), Javed Akhtar vs. WAPDA through Chairman, WAPDA
House, Lahore and 2 others (1996 SCMR 867), Ali Akbar vs. Inspector-General
of Police (2001 SCMR 83), Safdar Ali vs. D.I.G. Traffic, Lahore and others (2007
PLC (C.S.) 1284), Ghulam Rasool Ranjha vs. Government of the Punjab through
Chief Secretary, Province of Punjab, Lahore and others (2008 SCMR 1265) and
Muhammad Shehzad Zaheer vs. Federation of Pakistan through Secretary
Establishment Division and others (2014 SCMR 1169).”
12. In summation it is observed that the principles of audi alteram
partem appear to have been observed in the disciplinary proceedings
under scrutiny; no cavil has been articulated by the appellant in so far as
19
Dated 11.10.2018.
20
Per Mansoor Ali Shah J. in the yet unreported judgment dated 18.08.2020 in Farooq
Hussain vs. Shaikh Aftab Ahmed (CRP 104-L of 2019 & connected matters).
21
Per Ijaz ul Ahsan J. in the yet unreported judgment dated 30.07.2020 in District Police
Officer Mianwali & Another vs. Muhammad Hanif (Civil Appeal 324 of 2020).
Re: Syed Rehan Hassan Rizvi Page 5 of 5
the procedural aspect of the proceedings is concerned; no denial of the
opportunity to cross examine is borne from the record and on the
contrary the record is silent as to any demur from the appellant is such
regard till the post final determination filing of the appeal; the appellant
has admitted the occurrence of the misconduct / corrupt act under
consideration but has merely, by bare assertion, initially denied
culpability in regard thereof and subsequently sought a lighter
punishment; the Impugned Dismissal Order appears to have concluded,
based upon a preponderance of record, that the corrupt act did take
place and the appellant was liable in respect thereof; and proceeded to
impose the major penalty, of dismissal from service, upon concluding
that the same was commensurate punishment considering the gravity of
the offence concerned. It is in this context that it is observed that the
appellant has been unable to demonstrate any infirmity with respect to
the Impugned Dismissal Order, hence, the same is hereby maintained.
Appeal22 against the Impugned Office Order
13. By virtue of this appeal the appellant has called the order,
whereby certain staff members were promoted, under scrutiny into
question and sought his promotion with expected seniority 23 regardless
thereof. The appellant argued that his promotion was not granted on
account of dismal ACRs, which were unmerited in the first place.
14. In reply the minutes of the relevant DPC24 were demonstrated to
show that promotion was predicated upon seniority cum fitness and that
two staff members, including the appellant, were denied promotion on
account of the fitness standards. The minutes specifically made
reference to the consistent adverse ACRs, record and reputation of the
appellant. The para wise reply25 to the petition was adverted to in order
to demonstrate that the record supported the findings of the
departmental promotion committee.
15. It is observed that the appellant has not been able to demonstrate
any infirmity with respect to the Impugned Office Order and even
otherwise the question of denial of promotion becomes irrelevant since
he has already been dismissed from service and the Impugned
Dismissal Order has been maintained supra.
16. In view of the rationale and reasoning herein contained, this
appellate authority is of the considered view that the appellant has been
unable to set forth a case meriting interference in the orders impugned,
hence, these appeals are hereby dismissed.
Agha Faisal, J.
Appellate Authority
22
File No. HC/ADMI/02619.
23
The persons who have been promoted vide the Impugned Office Order and whose status
would be effected if the appeal were to be allowed have not been arrayed herein.
24
Held on 08.08.2017.
25
Presented on 10.01.2018.
