The shortened course of law
In a crackdown on the subordinate judiciary, the Peshawar High Court (PHC) has sent over a dozen judicial officers on forced retirement mainly on corruption charges. The allegations levelled against the removed judicial officers include persistent reputation of being corrupt, adverse entries in annual confidential reports (ACRs) and living beyond means. The Herald’s investigations, however, reveal that there were serious breaches of law and procedure in the way in which these officers were sacked.
Most of the sacked officers say they were shown the door withoutregular enquiries which, according to legal experts, are required when as major a penalty as removal from service is imposed. One expert, who deals with job-related cases but does not want to be named, tells the Herald it is a principle of natural justice that no one should be condemned unheard.
He refers to numerous judgements of the Supreme Court (SC) in this respect. “In case of imposing major penalty … a regular inquiry was to be conducted in the matter and opportunity of defence and personal hearing was to be provided to the civil servant proceeded against,” he says, reading from a judgement of the apex court published in the 2008 Supreme Court Monthly Review (SCMR).
Another verdict reported in the 2009 SCMR says: “It is settled law that when a major penalty is to be imposed on a civil servant a regular enquiry is to be held to determine the factual basis of the allegations which are required to be proved in accordance with the law.”
But in most of the sacked judicial officers’ cases, the officials authorised to recommend their removal – PHC judges – did not deem it necessary to conduct regular inquiries to determine the facts.
The recommendations that authorised officials passed on to the PHC chief justice stated that “holding of an enquiry is not a sine qua non [an indispensable and essential condition] for the proof of persistent reputation of being corrupt.” Basing the proceedings on Rule 5(3-b) of the NWFP Government Servants (Efficiency and Discipline [E&D]) Rules, 1973 that allows an authorised official to bypass the inquiry process, the authorised officials issued them show cause notices.
Under the regular inquiry procedure, such a notice is the third step and is issued only after a charge sheet and a statement of allegations have also been issued. As far as the charges of persistent reputation of being corrupt and living beyond means are concerned, the sacked officers argue that the allegations of corruption are vague and baseless and that the authorised officials have not provided any proof of their living beyond legal means.
In this regard, a verdict issued on January 26 last year by the SC is worth reading. “If the judicial officer was having persistent reputation of being corrupt, the same could not be decided in a vacuum and scrutiny of Annual Confidential Reports (ACRs) was the only device to assess the persistent reputation of being corrupt or otherwise.” But there are major problems with the ACRs of the sacked judicial officers, as we shall see later.
The Herald also came across other glaring violations of the rules in the process of cleaning out the subordinate judiciary. For instance, one judicial officer who in 1987 and 1992 was superseded by his juniors is now sacked. One of the reasons for his sacking is that he was superseded.
According to legal experts, when a civil servant is superseded by his juniors it is always considered a punishment. So, first, his sacking will be tantamount to the violation of Article 13(A) of the constitution that says, “no person shall be prosecuted or punished for the same offence more than once.”
Secondly, if someone getting superseded should not be a reason for his sacking, at least not in his particular case because his appeals against the decision to supersede him are still pending before the Subordinate Judiciary Services Tribunal, the appellate forum for judicial officers. According to legal experts, this means the matter for which the officer is sacked is sub judice. In fact, he should not have been issued a show cause notice based on it in the first place, the experts say.
In another case, an enquiry initiated against a judicial officer exonerated him of the allegation of obtaining the possession of a vehicle from the police. The enquiry was not considered up to the mark and the enquiry officer was told to do it again.
So, the second time round he came up with some proof. Based on the new findings, the authorised official recommended the demotion of the judicial officer. But the PHC chief justice considered the penalty neither proper nor adequate. He instead imposed the major penalty of compulsory retirement in spite of a rule that states that “where the penalty imposed by the authorised officer is decided to be increased, the authority shall not impose any penalty or increase the penalty, unless an opportunity is given to the person concerned to show cause as to why such a penalty should not be imposed, or as the case may be, be increased.”
But in this case, no such opportunity was given to the sacked officer. There also seem to be irregularities in the way that ACRs have been used in these cases. One judicial officer informs the Herald that he was made to retire because of negative entries regarding his integrity in his ACRs of 1995 and 1996. But, he says, he was promoted twice after those ACRs. How the entries that did not seem to be a factor earlier have now become the cause for sacking? he asks.
Even though the high court chief justices are countersigning authorities for the judicial officers’ ACRs, no PHC chief justice has been held responsible for allowing him to deliver justice to thousands of litigants since mid-1990s.
Another sacked judicial officer wonders if he has been penalised for issuing a politically incorrect verdict. He had granted bail to former Khyber Pakhtunkhwa minister for prisons, Mian Nisar Gul, in the kidnapping case of a Kohat-based woman. The Supreme Court took suo moto notice of the case and directed the PHC to suspend the judicial officer. The PHC duly complied with the SC directive and ordered an enquiry against him.
Khyber Pakhtunkhwa advocate general Asadullah Chamkani assured the apex court that the provincial government would file a bail cancellation appeal. But subsequently the PHC dismissed the provincial government’s appeal for the cancellation of the bail and upheld the judgment of the suspended judicial officer.
The PHC is yet to decide a probe against him launched on the SC order on the issue of the minister’s bail, but in the meanwhile he was sent a fresh show cause notice and sent packing. His compulsory retirement was based on adverse entries in an ACR issued in 2005 that declared him unfit for promotion.
What makes his case all the more special is the fact that a four-member administration committee of the PHC had stated in a decision on his representation on May 08, 2008 that “not fit for promotion” remarks in his ACR should not be treated as adverse.
Long delays in writing ACRs are the most crucial factor in making the sackings controversial. The stipulated time for completing them is one month. But oddly enough, one sacked judicial officer was issued ACRs for 2006 through 2009 on December 23, 2010. He was compulsorily retired on October 29, 2010 — when his ACRs for the preceding years were still not available.
His ACRs also carried serial numbers in reverse – 1013, 1014, 1015 and 1016 for 2009, 2008, 2007 and 2006 respectively – perhaps because of the hurry the PHC administration was in to complete them.
Likewise, another officer’s ACRs were issued on October 28, 2010 — just a day before he was sacked. These delays mean that the sacked judicial officers were deprived of the opportunity to submit timely replies to negative entries therein. Sufficient time for submitting their replies might have helped them avert the sacking.
The delayed completion of the ACRs means they were not used to establish guilt, in line with the Supreme Court verdict. “The communication of bad ACRs was made after the punishment was imposed and, therefore, the sacked officer should challenge it,” says senior lawyer Barrister Zahoorul Haq.
An official of the PHC tells the Herald, however, that the sacked judicial officers can bring the matter before the administration committee of the high court if they think their cases have not been dealt with in accordance with laid down procedures. They can also challenge their sackings at the Subordinate Judiciary Service Tribunal that serves as an appellate court in such cases, the official explains.
There are some lawyers who think that the PHC has been, in fact, lenient towards the sacked judicial officers. Forcing them into retirement is akin to providing a safe passage to those who are known to be corrupt, one of these lawyers says. If the PHC had solid proof against them, then the corruption money should also be recovered from them, he adds. “Some of the sacked judicial officers had only two to three years left to reach the age of superannuation, so a compulsory retirement is not a big loss for them.
After all, it does not deprive them of the benefits of retirement,” he tells the Herald. Either way, the manner in which the issue has been dealt with could have taken a course in strict accordance with the law — both in its letter and spirit.
This was originally published in the Herald's March 2011 issue. To read more subscribe to the Herald in print.
The writer is a staffer at the Herald.