1988 PLP (C (PLC(CS))

IHSANUL HAQ CHAUDHRY (CHAIRMAN).--The petitioners have moved these applications under section 151, C.P.C. and have prayed for withdrawal of Show-Cause Notices issued to them on 1-10-1987 to show cause why they should not be awarded major penalty as defined in the Efficiency and Discipline Rules, instead of minor penalty of withholding of increments for two years, awarded by the Authorised Officer. These petitions are exactly copy of each other and moved under the similar circumstances, therefore, we are disposing of the same by one order.

2. The brief background of the matter is that the petitioners were serving as Inspectors in Excise and Taxation Department, at the relevant time. They were posted in different Chemical Works, where Tinctures of various types are manufactured. These Tinc. contained very high percentage of Alcohol, therefore, sold in the underground market as cheap intoxicants and substitute for Alcohol. The Intelligence Wing of the Excise and Taxation Department raided different Chemical Works and found that the Excise staff posted there is directly responsible for flow of huge quantities of these intoxicants to the underground market; of course in partnership with the owners of the Chemical Works. The department decided to initiate disciplinary proceedings against the petitioners who were charge-sheeted and an Enquiry Officer was appointed to determine their guilt. The department examined five witnesses to prove the allegations against the petitioners whereas the petitioners examined one DW to rebut the allegations against them. The Enquiry officer reported that the petitioners were guilty of misconduct and inefficiency and recommended imposition of mar penalty. However, the Authorised officer intervened and imposed minor penalty of stoppage of two increments. The petitioners/ appellants thereafter filed departmental appeals which were dismissed. Thereafter they flied the title appeals before this Tribunal. The appeals were admitted to regular hearing on 11-8-1986 and final arguments were heard on 17-9-1987. It was noticed, while going through the record, that the appellants were involved in heinous offence against the Society and they have set at naught all precautions not only of the Department but of the Government of Pakistan to have a drug free society. It is interesting to note that Authorised Officer was fully conscious of the gravity of charges and defiance of prohibition Policy in the country by the petitioners as is clear from the closing paras of his order. While going through the record especially the report of the Enquiry officer and the order of the Authorised Officer, we felt that prima facie, the petitioners have been let off very cheaply and in fact the Respondent No.3, by imposing the minor penalty made mockery of the law. Therefore, we decided to issue show-cause notices to the petitioners as to why major penalty should not be imposed instead of minor penalty imposed by the Authorised Officer.

3. The appellants took exception to the notice and filed present petition wherein they have challenged jurisdiction of the Tribunal to issue Show-Cause Notice for major penalty. The show-cause notice is resi-3ted on the following grounds:- (i) Firstly, it is pleaded that important aspect of keeping equality amongst delinquents has not been kept in view. The petitioners in this behalf have stated that action was initiated against 8 Inspectors and one of them viz. Shahid Mehmood was exonerated and no action has been taken against Chemical Works. (ii) Secondly, according to section 5 of the Punjab Service Tribunals Act, 1974 the powers of this Tribunal are restricted to confirm, set aside, vary or modify the order, appealed against. It is explained that these four words do not include power of enhancement of penalty and there is no procedure prescribed for the same.

4. Notice of these petitions was issued to the Respondents. The learned District Attorney has filed reply to the petition and also attached with the same the quantity of the products which went into the wrong hands within a period of about six months and also the percentage of the Alcohol contained in various products. The sum and substance of the same is as under:- Mr. Salahud Din Name of the Product Alcoholic Strength Quantity in Lbs. Tincture Scillea Tincture Card Co 96% 97% 4,200 6,700 Total 10,9000 Sh. Tajammul Hussain Tr. Card Co. 97% 21,804 Tr. Auranti 116% 7,775 Tr. Zingiberis Mits. 150% 1,300 T. Scillea 96% 9,100 Spt. Ammomia Arromat 120% 5,858 Aqua Amisi Con. 110% 22,052 Total 68.109

5. The petitioner filed replication to the reply submitted by the Respondents. Thereafter we once again heard the learned Counsel for the petitioners and learned District Attorney both on the petitions as well as on merits.

6. We have considered the arguments of both sides. So far as first ground of discriminatory treatment is concerned, it is altogether irrelevant as neither the appeals of these officials nor orders passed in these matters are before this Tribunal and so far as the action against chemical works is concerned, the same is neither before us nor is covered by the Efficiency and Discipline Rules. However, we will deal this aspect in the final order at length. The Tribunal cannot take cognisance of in-action and irrelevant matters, therefore, the plea is without any merit.

7. The other argument of the learned Counsel for the appellant was that this Tribunal has no jurisdiction to enhance the penalty imposed by the departmental authorities under Punjab Civil Servants (E&D) Rules, 1975. The main reason advanced is that neither there is a provision for enhancement nor there is any procedure prescribed in the Punjab Service Tribunals Act, 1974, therefore, this Tribunal cannot enhance the penalty. On the other hand, learned District Attorney has submitted that the Tribunal is fully competent to pass any order including enhancement of the penalty. The arguments are two-fold. (i) Firstly, appeal is in continuation of original proceedings and after admission of the appeal to hearing the Tribunal is fully empowered either to confirm, set aside, modify or vary the order and in that process the Tribunal can increase or decrease the penalty imposed by the departmental authorities. (ii) Secondly, as per section 5 of the Punjab Service Tribunals Act, the Tribunal is competent to set aside, confirm, modify or vary the order. It is argued with emphasis that words modify and vary are exhaustive to cover all situations including enhancement of the penalty.

8. The learned District Attorney further argued that although no procedure is prescribed for enhancing the penalty yet in order to observe the principles of natural justice, a show-cause notice was imperative. The notice to this effect was, therefore, lawfully and legally issued by the Tribunal. The learned District Attorney concluded his arguments on this petition with the submission that since there is no bar in the Punjab Service Tribunals Act, 1974 or provision precluding the Tribunal from enhancing the penalty, therefore, the proceedings for enhancing of the penalty are lawful and within jurisdiction.

9. We have given our anxious considerations to the arguments of both sides. We agree with the learned District Attorney that appeal is in continuation of original proceedings and after admission the Tribunal is vested with all the powers enjoyed by the departmental authorities under the Punjab Civil Servants (E&D) Rules, 1975. The learned Counsel for the appellants did not dispute the proposition but he tried to build his argument in favour of the objection with the submission that since the penalties or punishments have not been provided for in Act IX of 1974 and there is neither any procedure nor any specific power to impose a greater penalty, therefore, Tribunal has . no jurisdiction. The argument is too superficial and without any merit for variety of reasons and the main reason being that penalties which can be imposed on a civil servant are those which are specified in Civil Servants (E&D) Rules, 1975. If the contention of the learned counsel, for argument sake, is accepted, then this Tribunal has jurisdiction only to confirm or set aside an order passed by the departmental authorities. In that eventuality this Tribunal will have even no power or jurisdiction to decrease a penalty inflicted on the civil servant because the penalties have not been provided for in the Punjab Service Tribunals Act. This obviously is against clear wording of the enactment and also against the will of the legislature. If this plea is accepted then the provisions of subsection (2) shall be rendered redundant besides negating the well-established principle that the appeal is in continuation of the proceedings and appellate Court enjoys all the powers vested in the original authority. This principle has been upheld by Supreme Court repeatedly but we are referring here only to the cases which pertain to service matters:- (1) We first of all refer to case of Sh. Abdul Aziz and others v . MBR and another reported as 1984 S C M R

65. The relevant portion of the judgment reads as under:- "The learned counsel for the petitioner also contended that once the order passed by the Commissioner as the appellate authority was found to be defective in law the Service Tribunal could not substitute it by an order of its own as if it were the departmental authority. The Tribunal being the appellate forum was required to examine the factual as well as the legal aspects of the case and could after such examination afford relief permissible under the law and as could be granted by the departmental authorities. In substituting the order of reduction in the manner in which it was done the Tribunal has committed no error of law." (2) Then comes case of H.M. Ashraf Ullah v. Secretary, Ministry of Communication and another reported as 1984 S C M R

684. The relevant portion of the same reads as under- "

5. In regard to the objection to the Tribunal itself having decided the question of suitability of the appellant for promotion instead of referring the matter to the competent authority, We find that this Court had in M. Yamin Qureshi v. Islamic Republic of Pakistan, held that the Tribunal for the purpose of deciding any appeal, was fully competent, and it was its duty, to examine on merits all questions of law and fact sought to be raised before it. Again, in Province of Punjab v. Ramzan Ali Khan, it had been held that "the Service Tribunal being an appellate authority, before which, on the preferment of an appeal against an order of a departmental authority, the whole matter gets reopened becomes empowered to confirm, set aside, vary, modify or substitute its opinion for that of the departmental authority." The Tribunal thus being fully competent to examine all questions raised before it, could decide the matter and was not bound to refer the same to the departmental authority if such reference, in its opinion, would serve no purpose. As held by this Court in Secretary, Government of Punjab v. Ahmad Kamaluddin "The limitations or the restraints exercised in giving relief in Constitutional jurisdiction do not extend to Tribunals and P L D 1980 SC 22, P L D 1982 SC 349, 1981 S C M R 392 authorities which are enjoined to hear appeals and determine questions of fact as well as of law."

6. On the second point, on which leave had been granted, the learned Deputy Attorney-General submitted that the record produced was of confidential nature and could not have been shown to the appellant. Be that as it may, we find, and there is nothing to show otherwise, that no objection had been taken before the Tribunal to the production of the record relating to the appellant's assessment for the promotion." (3) Then the third case in the series which we would refer to in this context is that of Province of Punjab v. Ramzan Ali Khan and others reported as P L D 1982 S C

349. The relevant portion reads as under:- "This is a finding of fact and such a finding could have been recorded by it as an appellate authority in preference to that of the departmental authority in the relevant regard, as held by this Court in M. Yamin Qureshi v. Islamic Republic of Pakistan, wherein, it has been observed that "it was the duty of the Service Tribunal to examine on merits all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal." It was also observed that "the Tribunal has wide powers under section 5 of the Act, as it may on appeal confirm, set aside, vary or modify the order appealed against. Under subsection (2) of the same section, the Tribunal for the purpose of deciding any appeal is to be deemed to be a Civil Court, and to have all the powers as are vested in such Court under the C.P.C. 1908". Thus, the Service Tribunal being an appellate authority, before which, on the preferment of an appeal against an order of a departmental authority, the whole matter gets re-opened becomes empowered to confirm, set aside, vary, modify or substitute its opinion for that of the departmental authority."

10. It is clear that the Tribunal while deciding appeal under section 4 is vested with all the powers of departmental authorities, which are contained in section 15 of Punjab Civil Servants Act and rules 4 and 15 of Efficiency and Discipline Rules, 1975. In this behalf we may refer to section 15 of the Punjab Civil Servants Act, 1974 which reads as under:- "

15. Efficiency and discipline.--A Civil Servant shall be liable to such disciplinary action and penalties and in accordance with such procedure as may be prescribed." The next relevant provision is contained in rule 15 of the Punjab Civil Servants (Excise & Taxation) Rules, 1975 and reads as under:- "

15. Determination of appeal: (1) The appellate authority shall cause notice to be given to the appellant and the authority or the authorised officer imposing penalty, of the time and place at which such appeal will be heard. The appellate authority shall send for the record of the case, if such record is not already with it. After perusing such record and hearing the appellant, if he appears, and a representative of the punishing authority, if he appears, the appellate authority may, if it considers that there is no sufficient ground for interfering dismiss the appeal or may:- (A) ..................... (B) ......................... (C) ......................... (D) Subject to the provisions of sub-rule (2), enhance the penalty. (2) here the appellate authority proposes to enhance the penalty, it shall-- (i) by order, in writing, inform the accused of the action proposed to be taken and the grounds of the action; and (ii) give him a reasonable opportunity to show cause against that action.

11. It is clear from the bare reading of section 15 of the Punjab Civil Servants Act that a civil servant is liable to such disciplinary action and penalties as may be prescribed. The penalties have been prescribed in rule 4 while rule 15 makes it abundantly clear that the appellate authority is fully empowered to enhance the penalty. Therefore, the power to enhance the penalty and procedure therefore has clearly been provided. The same powers and procedure are available to the Tribunal.

11. Now we take up the other part of the argument of the learned District Attorney i.e. that the words 'vary' and 'modify' appearing in section 5 clearly envisage enhancement of the penalty. The argument of the learned District Attorney in nutshell is that the word "vary" is of very wide amplitude and in its fold comes any change whether on the lower side or on the higher side. We agree with the learned District Attorney that the legislature has consciously and intentionally used the word "vary". It is cardinal principle of interpretation of statutes that each word used in the statute is to be given effect as the redundancy cannot be attributed to the legislature. The legislature is not supposed to be extravagant in the use of words.

12. The words "Vary" and "Modify" have since not been defined in Act IX of 1974, therefore, we have to look for the meanings assigned to these terms in various Law Dictionaries and other Statutes. The decision of the power to impose a greater penalty hinges on strict meanings and scope of these terms employed by the legislature one after the other. We, therefore, first take up the word "Modify". We have consulted various Law Dictionaries and find that this word has been assigned the meaning to make moderate, to change or to alter. The consensus is that the word 'modify' is used in the sense of mild, moderate alterations or changes. The matter is summed up in the English to Urdu Dictionary printed by M/s. Feroze Sons (Pvt) Ltd., Lahore. Modify (mod-i-fi) v.t. Tone down-

13. But in the process we have come across a case of Western India Theatres Ltd. v. Municipal Corporation of City of Poona reported as AIR 1959 Supreme Court

586. The relevant portion reads as under:- "

7. The last point urged by learned Counsel for the appellant is that, under cl.(xi) of S.59(i), the enhancements of the rates of tax in 1941 and again in 1948 were illegal in that the municipality had no power to do so under the Bombay Municipal Boroughs Act, 1925. According to learned Counsel for the appellant the judgment under appeal upholding the validity of such enhancements cannot be supported under S. 60 of that Act. That section reads as follows:- "Power to suspend 60(1) Subject to the re-reduce or abolish any requirements of clause (a) of the existing tax proviso to section 58 a municipality may, except as otherwise provided in clause (b) of the proviso to section 108 at any time for any sufficient reason, suspend, modify or abolish any existing tax by suspending, altering or rescinding any rule prescribing such tax. (2) The provisions of Chapter VII relating to the imposition of taxes shall apply so far as may be to the suspension, modification or abolition of any tax and to the suspension, alteration or rescission of any rule prescribing a tax. Reference is made to the marginal note where the words used are "Power to suspend, reduce or abolish any existing tax". It is suggested that the word "modify" in the body of the section in between the words "suspend" and "abolish" should be construed in the sense of reduction. The marginal note, according to him, shows that the several words were used in the section to indicate a progressive diminution in the quantum of tax until it was completely gone. Reference is made to the root meaning of the word "modify" which is to reduce or makes less but does not cover the idea of enhancement. In the first place, the marginal note cannot affect the construction of the language used in the body of the section if it is otherwise clear and unambiguous (see commissioner of Income Tax, Bombay v. Ahemdbhai Umarbhai and Co., Bombay, 1950 SCR 335 at page 353; AIR 1950 SC 134 and P.140). In the next place, it should be borne in mind that S .67 of the Bombay District Municipal Act (Bom. III of 1901) which was formerly applicable to municipalities used the word "reduce" in between the words "suspend" and "abolish" and that section had been reproduced in S.60 of the Bombay Municipal Boroughs Act, 1925, but that in the process of such reproduction the word "reduce" was dropped and the word "modify" was introduced. In the marginal note, however, the word "reduce" was not substituted by the word "modify", apparently through inadvertence. If the word "modify" is to be read as "reduce" then there could be no point in the provincial legislature substituting the word "reduce" by the word "modify". This change must have been made with some purpose and the purpose could only have been to use an expression of wider connotation so as to include not only reduction but also other kinds of alteration. Section 76 of this very Act also refers to "modification not involving an increase in the amount to be imposed" which makes the sense in which the word "modify" has been used in this Act perfectly clear, namely, that there may be a modification involving an increase. Reference may also be made to the decision of the Court of Appeal in England in the case of Stevens v. General Steam Navigation Co., Ltd., (1908)1 KB 890. "Modification" according to Collins M.R. in his judgment at p.898, implied an alteration and the word was equally applicable whether the effect of the alteration was to narrow or to enlarge the provisions. In our opinion the dropping of the word "reduce" and the introduction of the word "modify" in the body of S.60 of the Act under consideration clearly indicates an intention on the part of legislature to widen the scope of this section and the High Court was right in so construing the same.

14. We need not further deliberate on the word "Modify" because in, the Act word "Vary" has also been used by the legislature and in our opinion the word vary is comprehensive and it covers all sorts of alterations and modifications. In this behalf we refer to: - (a) Chambers Dictionary: Vary. v.t. to make different: to diversify, modify; to alter or embellish (a melody) preserving its identity (mus) to express variously (Shak.) to change to something else; to make of different kinds,--v.i. to alter or be altered: to be or become different: to change in succession: to deviate to disagree: to be subject to continuous increase or decrease (math.)-pr.p. (B) Ballentine's Law Dictionary: Vary. To alter to modify. To change to something else. Power given to trustees to invest and reinvest the trust funds and to "vary" the securities has been held to authorize the trustees to change the investment from one form of securities to another. Merchants Loan & Trust Co. v. Northern Trust Co. 250 111 86, 95 NE 59. (C) Aiyer's Manual of Law Terms and Phrases: Modify. The word 'modify' means not only to alter the tax which had already been levied (but not so as to increase the same) but also means to increase the tax. Cantonment Board, Poona v. Western India Theatres, 56 Bom L.R.45: I L R (1954) Bom. 647: A I R 1954 Bom. 261 (D . B .) . the word 'modify' in the context of section 16-G(3) (i) of the Intermediate Education Act has been used in a broader sense including the power to enhance." (Cf. Intermediate Education Act (1921), Sec. 16-G(3)(i) Baleshwari Prased v. Managing Committee, 1961 All L.J. 22. (D) Shorter Oxford Dictionary To undergo change or alteration; to pass from one condition, state, etc. to another. To differ, to exhibit or present divergence from something else: The Court after such notice may vary such order in such manner as it may think fit. (E) Oxford English Dictionary: (2) To differ, to exhibit or present divergence from something else; (6) (b) To change or alter in respect of conduct; (c) To move in different ways or directions; (7)(b) To make a departure in pleading; (9) To express in different words. (F) We last of all refer to English to Urdu Dictionary by M/s. Feroze Sons (Pvt.) Ltd., Lahore:- Vary (Va-ri) Make different, modify

15. We are, therefore, absolutely clear in our minds that the term "vary" is of very wide scope and in its fold comes increase and decrease both. It covers greater field than words modify or alter. We accordingly conclude that the use of word 'vary' in section 5 of the Punjab Service Tribunal fully empowers the Tribunal to increase or decrease the penalty imposed by the Departmental Authorities.

16. There is yet another strong argument which can be advanced in favour of the proposition that this Tribunal has the jurisdiction to impose lesser or greater penalties while hearing the appeals. The powers of the Tribunal while adjudicating an appeal under the Punjab Service Tribunals Act, 1974 are contained in section 5, relevant portion of which is reproduced below:- 5. (l) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against. (2) A Tribunal shall, for the purpose, of deciding any appeal, be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908) including the powers of ...." Therefore, it is evident that the Tribunal is vested with powers o civil Court under C.P.C. while deciding appeals. Therefore, we now 1 first of all refer to the provisions of C.P.C. pertaining to powers o appellate Courts: The same are contained in Part VII section 107, C.P.C., the relevant portion of which reads as under:- Section

107. Power of Appellate Court ...(1)..... (a) ...... (b)... ..... (c)....... ... (d).... .. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Court of original jurisdiction in respect of suits instituted therein. While rule 33, Order XLI, C.P. C. makes following provisions as to the powers of the Appellate Court:-

33. Power of Court of Appeal.--The Appellate Court shall have power o pass any decree and make any order which ought to have been passed or made and to pass or make 'such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or h objection: (Provided

)

17. It is clear that the appellate Court while hearing appeal against the decree of the trial or the first appellate Court shall have all the powers of the trial Court and can reverse the findings or modify the decree. It, therefore, can legally and legitimately be argued that this Tribunal possesses all the powers available to the departmental authorities under the provisions of Efficiency and Discipline Rules in respect of punishments. The proposition under consideration if looked from this angle, the natural consequence will be that Tribunal has power to increase the penalty in cases where the departmental authorities have failed to discharge their legal duty under the law or made the provisions merely a mockery. We are fortified in our view by the findings of Supreme Court of Pakistan in case of Province of Punjab v. Ramzan Ali Khan and others reported as P L D 1982 Supreme Court 349 and relevant portion reads as under:- "The Punjab Service Tribunal, which is the appellate authority in matters relating to the terms and conditions of service of Civil Servants in relation to the orders passed by the departmental authorities has been conferred the powers of the Civil Court under the Court of Civil Procedure. Under section107, C.P.C. an Appellate Court possesses the same powers and performs the same duties as are conferred and imposed on the Court of original jurisdiction. Thus, in view of section 107, C.P.C. read with section 5(2) of the Constitution 1974, whatever powers are enjoyed by the Departmental Authority are ipso facto vested in the Tribunal. Hence it can reverse or vary any order passed by a Departmental Authority,' and can itself determine a case finally or make any order which ought to have been or passed by that authority, including the substitution of an erroneous or improper order. As the powers of the Service Tribunal are co-extensive with the powers vested in the departmental authority, the order of the departmental authority could be set aside, varied, substituted by the Service Tribunal with a view to correcting any arbitrary, discriminatory, unjust reasonable or improper exercise of power by the departmental authority and for avoiding injustice, oppression or hardship to the aggrieved civil servant. Attention is invited to the recent judgment of this Court in the case of M. Yamin Qureshi v. Islamic Republic of Pakistan (1). Hence the decision of the Tribunal to the effect that the Circular dated 15-1-1981 applies also to the case of respondents and in this behalf substituted its opinion for that of the departmental authority, cannot be regarded as illegal or even improper."

18. The learned counsel for the appellant was all the way referring to the provisions of Cr.P.C. as to the enhancement of the sentence. The reference is irrelevant. The proceedings before this Tribunal are akin and pari materia with the proceedings before the Civil Court, therefore, from whatever angle we look at the proposition, it is clear that all the powers vesting in the departmental authorities are available to the Tribunal while adjudicating the appeals.

19. The sum and substance of our findings is that the Tribunal has powers to impose greater penalty for the reasons:- (i) Firstly, the appeal is in continuation of the original proceedings, therefore, the Tribunal is vested with the powers of the departmental authority. (ii) Secondly, the Tribunal for the purpose of deciding appeal is vested with all the powers of civil Court under section 107, Order XLI, rule 33, C.P. C. As such it can pass any order or impose any penalty which should have been made or imposed by the authorities below. (iii) Thirdly, the word "vary" is comprehensive and wide enough to cover imposition of greater penalty than awarded by departmental' authority.

20. We are, therefore, of the considered opinion that the Tribunal is fully competent in view of the provisions of section 5 of the Punjab Service Tribunals Act, 1974 to impose a greater penalty. The procedure to be followed is as contained in rule 15 of the Punjab Civil Servants Act, 1974 and to the same effect are the principles of natural justice. Therefore, the show-cause notices issued to the appellants are perfectly legal, valid and justified. There is no merit in the petitions by the appellants, therefore, the same are rejected.

21. The upshot of this discussion is that we find no merit in these applications and the same are hereby dismissed. M.Y.H./157-Sr.P Applications dismissed.