2008 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 212(3) of the Constitution has been directed against the judgment of the Federal Service Tribunal whereby the appeal filed by the petitioner against the order of departmental authority, was partly allowed. The petitioner was proceeded against for the charge of indiscipline and unbecoming of a good officer as under:-- "As a result of policy decision you were allotted family accommodation in Steel Town along with other Officers of Pakistan Steel. You, however, did not comply with the lawful orders and submitted a petition, dated 28-12-2001 addressed to the Chairman, Pakistan Steel directly levelling therein vexatious and frivolous allegations against management; instead of giving any valid reasons for your not shifting to Steel Town. Your above acts are prejudicial to good service discipline and unbecoming of an officer."

2. The letter addressed by the petitioner to the Chairman is reproduced hereunder:-- "(2) Sir, it is pertinent to trace the background and the circumstances, resulting in the issuance of this letter. Throughout my service of 21 years in Pakistan Steel, I always earned outstanding reports and very kind remarks from all the senior officers, both reporting and countersigning. However, in the calendar year 2000, I incurred the displeasure of Mrs. Naureen Farooque, a Primary School Teacher of Grade-V, posted as Principal. Mashal Secondary School, who possesses deep influence on the competent authority, by not recommending her case for promotion, keeping in view the facts available on the file. The reaction to this was so violent, that an advisory entry was made in my ACR for the year 2000 by the Chairman, inspite of the fact that the highest grading was given to me by both the Reporting Officers, under whom I had the honour to work during the year."

3. The Inquiry Officer having held the petitioner guilty of charge submitted his report accordingly and the competent authority in exercise of the powers under. Removal from Service (Special Powers) Ordinance, 2000, vide order, dated 4-7-2002, awarded her major penalty of dismissal from service but the Service Tribunal in appeal filed by the petitioner modifying the penalty of dismissal from service into reduction to lower rank, partly allowed her appeal. The defence of the petitioner in the departmental proceedings was that she wrote the letter in question in good faith with a view to bring her grievance to the notice of relevant authorities and learned counsel for the petitioner has forcefully argued that the perusal of letter in question would show that neither the language used therein nor its contents were objectionable rather the circumstances under which the action was taken against the petitioner, would suggest that she was victim of personal malice. The learned counsel for the respondent on the other hand has contended that sending such a letter in the form of a representation directly to the higher authorities containing the derogatory, remarks regarding the personal character and behaviour of the senior officers, would squarely bring the matter within the definition of misconduct. 5. (sic) The expression "misconduct" has been defined in section 2(b) of the Removal from Service (Special Powers) Ordinance, 2000 as under: "misconduct" includes conduct prejudicial to good order or service discipline or conduct unbecoming for an officer and a gentleman or involvement or participation for gain either directly or indirectly in industry, trade or speculative transactions or abuse or misuse of the official position to gain undue advantage or assumption of financial or other obligations to private institutions or persons such as may cause embarrassment in the performance of official duties or functions."

6. The act of person which is prejudicial to the good order or service discipline or unbecoming of an officer and gentleman, is definitely a misconduct but mere sending the representation by a subordinate directly to a senior officer is not as such an act which may be treated prejudicial to good order or service discipline or unbecoming of a good officer and gentleman. The perusal of record would show that the petitioner a junior officer with the intention to bring her grievance to the notice of concerned authorities made a representation directly to the Chairman with the expectation of an appropriate relief and we have perused the letter in question, have not been able to find out anything objectionable in the language used therein to be treated insulting or derogatory against the senior officers constituting an act of indiscipline or of unbecoming of a good officer in terms of the definition of misconduct rather the initiation of action against the petitioner on such a ground would create an impression that she was victimized due to the personal annoyance.

7. In the light of the foregoing reasons, we are constrained to hold that filing of such a representation to bring to the notice of higher authorities the personal problem being face by the petitioner would not be ipso facto termed as misconduct and consequently, we convert this petition into appeal and while setting aside the penalty of reduction to lower rank, modify the judgment of Tribunal accordingly and allow this appeal with no order as to costs. S.A.K./R-9/SC Appeal accepted.