P L D 1996 Supreme Court 840 (PLP)

RAJA AFRASIAB; KHAN, J.‑‑‑The respondent, Muhammad Yousaf, a Test Inspector in WAPDA while performing his duties as such, was served with two explanation notices on 3rd of June 1985 and 27th of June, 1985. In the first letter, an allegation was levelled by the Sub‑Divisional Officer City Sub -Division, Gujranwala on the basis of a complaint disclosing that with his connivance, Butt Ice factory was stealing electricity, He had also been using ail official vehicle daily by going to Butt Ice Factory, Gujranwala without entitlement, In the second letter, it was alleged that he had stolen a meter and tampered with it by erasing the T.L. Number and affixed a fake T.L. Number thereon, assigning a bogus T.L. Number as KMK‑II‑655 on it whereas the actual T.L. Nos. of the Sub‑Division till then were up to KMK‑II‑280, The meter in ‑question was disposed of for illegal consideration. Replies to these notices/letters by the respondent. The department was not satisfied with, his explanation and as such, proceedings were initiated against him under rule 5(iv) of the WAPDA Employees (Efficiency and, Discipline) Rules, 1978 The Authority, however, held that formal inquiry was not needed in the matter in the given situation, After consideration of the defence of the respondent, show‑cause notices were given to him. He was also heard in person in both the cases. On 12th of January. 1986, the competent Authority awarded major penalty by reducing the respondent's rank for a period of two years, As regards the suspension period, the Authority held that the said period would be treated as Extraordinary Leave without pay. The emoluments of the 'respondent in respect of suspension period were forfeited. On appeal, the Departmental Appellate Authority vide order dated 12‑3‑1986 took a lenient view in the matter. In consequence, penalty imposed upon the respondent was reduced to stoppage of five annual increments for five years. In respect of suspension period, the Authority ordered that it would be regularised by granting Extraordinary Leave without pay. He would not be given anything other than subsistence grant for the suspension period. The validity of these orders was assailed by filing appeal before Federal Service Tribunal. Before the Tribunal, learned counsel for the respondent, at the very outset, stated that he would not contest the case on merits. He requested that penalty awarded to the respondent might be reduced by taking lenient view. In these circumstances, the learned Tribunal vide decision, dated 25th of February, 1992 reduced the penalty of stoppage of five annual increments to two annual increments for the years 1986 and 1987 without cumulative effect. The suspension period was ordered to be treated as having been spent on duty and consequential emoluments, after adjustment of the subsistence allowance, would be paid to the respondent. This Court, on 29th of March, 1993, granted leave with the following order:‑‑ "Leave to appeal has been sought in two separate petitions under Article 212(3) of the Constitution against two separate judgments of the Service Tribunal. The grievance is that though the delinquent civil servants did not contest the merits of the case the mitigation in punishment has been ordered by the Service Tribunal without attending, mentioning or taking note of the gravity of the delinquency attributed to them. A question of law of public importance arises viz. that where the merits of the fault found are not disputed and the fault is of dishonesty in employer's property by an employee, can the mitigation of the sort inferred by the Tribunal could at all be inferred. "

2. Learned counsel for the appellant has submitted that the respondent did not challenge the case on merits. There was, therefore, no justification with the Departmental Appellate Authority and the Federal Service Tribunal to have reduced the penalty imposed upon the respondent. In other words, according to the learned counsel, the commission of offences/irregularities has been proved against the respondent and as such, major penalty was rightly imposed by the Departmental Authority.

3. There is no substance in the argument and 'as such, it is repelled. It is well‑settled that the quantum of sentence to be given to a person had to be determined on the basis of circumstances of each case by the Tribunal/Authority/Court to meet the ends of justice. It appeared that the Tribunal was influenced/convinced to take a lenient view because the respondent made a clean breast of things by not contesting the case on merits. The Tribunal was competent to do so. Section 5 of the Service Tribunals Act, 1973 relates to he powers of the Tribunal about penalties to be awarded to the guilty/delinquent civil servants. The section reads:‑

5. Power of Tribunals

(1) 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 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‑‑ (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents; (c) issuing commission for the examination of witnesses and documents. Rule 4 of the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 provides minor and major penalties. Under rule 4 major penalties are:‑‑ "(b) Major penalties.‑‑(i) reduction to a lower post or time‑scale, or to a lower stage in a time‑scale; (iii) removal from service; and (ii) compulsory retirement; (iii) dismissal from service. In the case' in hand, first penalty was awarded to the respondent. Learned counsel for the appellant has admitted that any penalty falling under the heading of major penalties, could be given to the delinquent civil servant, but such an officer is under duty to give reasons while doing so. He argues that no such reasons were given by the Tribunal in exercise of his powers. We find that the learned Tribunal had adequately attended to the argument and reasons have also been advanced in that behalf. Learned Tribunal while dealing with he controversy observed:‑‑ "There is no denial of the fact that penalty of reduction in rank awarded by the competent Authority through letter dated 12‑1‑1986 was reduced on departmental appeal by the Chairman, Area Electricity Board Gujranwala. We feet that this reduction in penalty was in implied acknowledgement of the fact that the offence alleged to have been committed by the appellant should have been visited by a lesser penalty. We feel there is substance in the contention that a lenient view of the matter would have been sufficient to promote the ends of justice‑in the light of the circumstances of this case. It is further contended by the appellant's learned counsel that there was no legal justification for forfeiture of the dues in respect of the period of suspension which was from 13‑5‑1985 to 12‑1‑1986. It is further contended that this period being more than six months, forfeiture of the dues was not justified under the rules. Nor, it was argued, the Director of Administration was competent to treat this period as leave extraordinary without pay under the rules. This amounted to a penalty which does not find place in the Efficiency and Discipline Rules. It appears from the order passed in appeal that the period of suspension was treated as leave extraordinary without pay for the purpose of regularization. However, respondents' learned counsel has not been able to lay our hands on any provision of the rules which could have justified such a course. Keeping in view the punishment awarded by the competent Authority in the first instance and then on appeal, we see no reason why the period of suspension should not have been treated as having been spent on duty. For these reasons the appeal is accepted in part and penalty of stoppage I of five annual increments is reduced to stoppage of two annual 1 increments for the years 1986 and 1987 without cumulative effect. it is further ordered that the period of suspension shall be treated as having been spent on duty and consequential emoluments, after adjustment of the subsistence allowance, shall also be paid to the appellant for the period of suspension. There will be no order as to costs. Parties may be informed. " (Underlining is ours). From the abovequoted finding, it is evident that the reasons were given by the I learned Tribunal in support of lesser punishment. We hold the view that under I the abovequoted section 5, the Tribunal had the powers to confirm, set aside, C vary or modify the sentence or decision so given in a particular case, This view finds support from M. Yamin Qureshi v. Islamic Republic of Pakistan and another (PLD 1980 SC 221) wherein it was observed.‑ "It goes without saying that it lies within the jurisdiction of the Tribunal and, indeed, it is its obligation, to decide all question of law and fact sought to be raised by the appellant to challenge the order of his dismissal, including his contention that no evidence was heard in his presence, nor was he given any opportunity to show cause against the proved punishment. The appellant would be entitled not only to a full opportunity to present his case before the Tribunal, but also to inspect all relevant records which might have been taken into consideration by the competent Authority for the purpose of passing the impugned order. As we see the legal position, the Tribunal has wide powers under section 5 A 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 Courts under the Code of Civil Procedure, 1908, including the power of enforcing the attendance of any person and examining him or oath; compelling the production of documents; and issuing commission for the examination of witnesses and documents. We have no doubt that the Service Tribunal, presided over generally by a serving or a retired Judge of the High Court, would be able to dc full justice to the appellant." (Underlining supplied) This being the position, learned counsel was unable to point out any jurisdictional defects in the impugned decision or illegality having been Committed by the Tribunal in giving lesser punishment to the respondent. This was, undoubtedly, within its powers to do so under section 5 referred to above. The impugned decision is just and proper. It does not warrant interference under, such circumstances. Appeal is, accordingly, dismissed with no order as to costs. A.A./W‑154/S Appeal dismissed.