2003 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 212 (3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred seeking leave to appeal against the judgment dated 31-7-2001 passed by Federal Service Tribunal Islamabad, in a service appeal.

2. The petitioner, a carpenter of CDL Workshop Pakistan Railways, Rawalpindi, was proceeded against under Government Servants (E&D) Rules 1973 for the following charges:-- "(a) You produced fake school leaving certificate at the time of your appointment as "Muawan" in the year 1976 showing your date of birth as 15-9-1952. (b) You were also convicted by the Court of law in case F.I.R. No. 1102 dated 7-1-1955. You were awarded a sentence of rigorous imprisonment (RI) for seven years, but this fact was concealed by you."

3. The Inquiry Officer found the petitioner guilty of the charges and the competent authority in the light of findings of Inquiry Officer while taking a lenient view, awarded him the punishment of compulsory retirement from service vide order dated 11-5-2000. However, the Divisional Superintendent, Pakistan Railways, Rawalpindi in exercise of his powers under paras., 1724 and 1725 of RI Personnel Manual, issued a show cause notice dated 29-8-2000 to the petitioner for enhancement of penalty, from compulsory retirement to dismissal from service. The petitioner in reply to the show cause notice pleaded that the order passed by the competent authority attained finality for want of challenge through a departmental appeal and the same being just and proper, would call no interference.

4. The learned counsel for the petitioner, has contended that the Divisional Superintendent without assigning any reason, interfered in the order passed by competent authority and revised the quantum of punishment. The learned Deputy Attorney-General on the other hand, has contended that the Divisional Superintendent having considered-the nature of charge was of the view that the penalty imposed by the competent authority was inadequate, therefore, deemed it proper to revise the punishment and that the discretion exercised by him was not suffering from any legal defect to be interfered by the Tribunal.

5. According to the record of Directorate General of Registration, Government of Pakistan the petitioner was born in 1936 whereas his date of birth in the school leaving certificate is mentioned as 15-9-1952 which may lead to the conclusion that the school leaving certificate of the petitioner was not bearing the correct date of his birth but this contradiction itself would not be a conclusive proof of his school leaving certificate to be a fake document rather the inference would be drawn that the age of the petitioner at the time of joining the service was much more to that of the age given in the certificate and this would also be confirmed by the fact that in the year 1955 a criminal case was registered against the petitioner when he was of grown up age and not an infant child of three years. The petitioner served the department for 24 years with clean service record and probably the competent authority keeping in view this aspect of the matter, took a lenient view and awarded him the punishment of compulsory retirement from service. Undoubtedly, the Divisional Superintendent in exercise of his suo motu powers could revise the order passed by the competent authority after giving show-cause notice to the petitioner but the use of discretionary powers in the matter of quantum of sentence must not be arbitrary and the enhancement of sentence by the reviewing authority without recording reasons, would render the order illegal.

6. We having heard the learned counsel for the parties and perused the record and find that the discretion exercised by the Divisional Superintendent in the matter of quantum of punishment was without any justification and the punishment awarded to the petitioner by the competent authority would sufficiently meet the ends of justice in the given facts. We therefore, convert this petition into appeal and set aside the order of Tribunal. The appeal is allowed with no order as to costs. M.H./M-720/SC Appeal allowed.