2006 PLP (C (PLC(CS))

CH. IJAZ AHMAD, J.

Detailed facts have already been mentioned in the impugned judgment. However, the necessary facts to decide the petition are that petitioner was a Purchase Inspector in the service of respondents. Disciplinary proceedings had been initiated against him on the following charge: "On the charge that he while posted as Assistant Incharge Storage/Transit point at Pattoki Railway Station by abusing his official position as public servant with the connivance of Mr. Shaukat Shah, P.I. Incharge, loaded 59 wagons of wheat at Pattoki Railway Station in order to dispatch the wheat to N.-W.F.P. On an information of short dispatches a Board was constituted who re-opened the wagons, weighed the contents and found a net shortage of 5557.527 tons of wheat (valuing Rs.14,49,000) in the consigned weight."

2. After completing the formalities he was dismissed from the service vide order, dated 23-11-1998. Petitioner filed departmental appeal which was also dismissed by the Appellate Authority vide order, dated 28-4-1999. Petitioner being aggrieved filed Appeal No.670 (L of 1999 in the Federal Service Tribunal Lahore which was dismissed vide impugned judgment, dated 24-1-2005. Hence the present petition.

3. Learned counsel for the petitioner submits that Enquiry Officer had given finding of guilt against the petitioner without properly scrutinizing the affidavit of Shaukat Hussain Shah who had admitted in his affidavit that he had accepted the entire responsibility with regard to the allegations mentioned in the charge-sheet. He further urges that enquiry was conducted by the respondents in violation of the mandatory provisions of efficiency and discipline rules. He further urges that petitioner was not appointed in the center at the relevant time, therefore, he was not responsible qua shortage of 557.527 metric tones of wheat. He further submits that with regard to the incident the criminal cases were also registered vide F.I.R. No.17/88 and 78/88. He further urges that all the respondents while passing the impugned orders misread the evidence on record. He further urges that the petitioner had not admitted his responsibility for shortage in wheat stocks as depicted from the findings of the Enquiry Officer and reply of the petitioner to charge-sheet whereas the petitioner had specifically denied the allegations levelled against him. He further urges that learned Service Tribunal erred in law to dismiss the appeal of the petitioner and did not consider the affidavit of Shaukat Hussain in its true perspective wherein as mentioned above he had admitted the responsibility for shortage of the wheat in question.

4. Learned counsel of the respondents submits that learned Service Tribunal had given finding of the fact against the petitioner after proper appreciation of evidence on record. He further urges that petitioner's counsel has failed to point out any infirmity or illegality in the impugned judgment.

5. We have given our anxious consideration to the contentions of learned counsel of the parties and perused the record. It is an admitted fact that Enquiry Officer had found him guilty as charges were established against him. Thereafter the competent Authority after reappraisal of the record and after providing hearing to the petitioner dismissed him from service vide order, dated 23-11-1998. Thereafter the Appellate Authority also after reappraisal of record dismissed his appeal vide order, dated 28-4-1999 and finally learned Service Tribunal also re-considered all the material and had approved the finding and upheld the orders of respondents dated 23-11-1998 and 28-4-1999, meaning thereby all the Tribunals below had given concurrent findings of the fact qua the guilt of the petitioner after providing proper hearing to the petitioner in accordance with law. The learned Service Tribunal in narration of facts in para.3 of the impugned judgment stated that petitioner had himself accepted his responsibility in writing on 22-2-1998 for shortage in wheat and it was proved in the enquiry as well that he was responsible for the shortage of wheat in wheat stocks. It is an admitted fact that petitioner had not attached copy of letter, dated 22-2-1998 in which the petitioner had admitted the responsibility in writing. This fact alone is sufficient that contents of letter, dated 22-2-1988 with regard to his admission presumed to be correct and inference can/could be drawn against him under the provisions of the Qanun-e-Shahadat Order, 1984. Even if the said admission is excluded from consideration, the Enquiry Officer after proper appreciation of record found the petitioner guilty which was approved subsequently, by all the forums mentioned hereinabove. It is a settled proposition of law that this Court is not required to act as a Court of appeal for reappraisal of evidence recorded by the Enquiry Officer as the law laid down by this Court in Javed Aziz Qureshi's case 1998 SCMR 2553. However, in the interest of justice and fair play, we have gone through the record and found that the charges were supported by the evidence produced by the respondents. The impugned judgment of the learned Service Tribunal is in accordance with the dictum laid down by this Court in Abdul Rehman's case 1988 SCMR 1711. The learned counsel has failed to point out any evidence which should persuade us to hold that finding rendered by all the Tribunals against the petitioner are arbitrary, illegal or against the record. That being so, the concurrent actions of the respondents and judgment of the Service Tribunal are unexceptionable as laid down by this Court in Abdul Hameed's case 1979 SCMR

503. It is better and appropriate to reproduce Article 212(3) of the Constitution of Islamic Republic of Pakistan:-- "Article 212(1) and (2) ???????????????????????..? (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal." (Underline is ours).

6. The aforesaid words underlined by us are interpreted in various judgments, therefore, meaning of the aforesaid words are reproduced hereunder: -- Satisfied. "The phrase `satisfy' means simply makes upon to its mind as defined in Blyth's case 1966 AER

524. The word `satisfy' means only persuasion which means a mind not troubled by doubt or to adopt the language of Smith, which has reached clearly conclusion as held in Angland v. Payne 1944 N.Z.L.R. B 610, The word `satisfaction' means the existence of the state of mind persuation, much higher than mere opinion as interpreted by the superior Courts in the following judgments: Abdul Ghafoor v. The Crown PLD 1952 Lah. 624; Maulvi Farid Ahmad v. Government of West Pakistan PLD 1965 (W.P.) Lah. 135; Dr. Ejaz Hassan Qureshi and others v. Government of Punjab and others PLD 1978 Lah. 1419; Raja Abdul Qayyum v. Ch. Latif Akbar, Advocate and others 1994 CLC 2041; Kh. M. Sharif v. Federation of Pakistan through Secretary and others PLD 1988 Lah. 725 and Federation of Pakistan and others v. Haji Saifullah Khan and others PLD 1989 SC 166" Substantial question of law. "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from C difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well-settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law". Sir Chunilal v. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314. Public Importance. It is settled that public importance must include a purpose or aim in which the general interest of the community as D opposed, to particular interest of individual, is directly or vitally concerned. See Pakistan through the Secretary, Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37 and Hamabai Farm-Jee Petit v. Secretary of State for India AIR 1914 PC 20."

7. It is a settled law that if a mandatory condition in the exercise of jurisdiction by Court is not fulfilled then Court has no jurisdiction to assume the jurisdiction as law laid down by this Court in Mansab Ali v. Ameer and 3 others PLD 1971 SC '

124. It is settled maxim that the question whether the petitioner was responsible for causing loss to the Government is one essentially a fact as held by this Court in Riaz-ul-Haq and 2 others v. Deputy Director Food, Bahawalpur 1988 SCMR 1994.

8. Even otherwise, we are not satisfied that the case involves any substantial question of law of public importance which is condition precedent to grant leave to appeal by virtue of Article 212(3) of the Constitution.

9. In view of what has been discussed above, we do not find any merit in this petition which is dismissed. Leave is refused. M.H./M-12/SC??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.