1998 PLP 2553 (SCMR)

AJMAL MIAN, C.J.

By this common judgment, we intend to dispose of the above two appeals which have been filed with the leave of this Court against the judgment dated 24-1-1993 of the Federal Service Tribunal, Islamabad, hereinafter referred to the Tribunal, passed in Appeal No.59(L) of 1989 filed by the appellant (respondent in Civil Appeal No.549 of 1994 and appellant in Civil Appeal No.595 of 1994), hereinafter referred to as Javaid Aziz Qureshi, against his dismissal from service on the ground of misconduct, allowing the same partly by converting the punishment of dismissal from service into that of compulsory retirement with the proviso that Javaid Aziz Qureshi shall be entitled to all benefits etc. in accordance with WAPDA Rules.

2. The brief facts are that at the relevant time Javaid Aziz Qureshi was posted as Executive Engineer (Operation) WAPDA. Bahawalpur. He was suspended on the ground of misconduct on 8-10-1986. He was charge-sheeted on 11-2-1987 in respect of as many as seven charges, except one relating to corruption demanding bribe. He submitted his reply to the above charge-sheet on or about 23-2-1987: An Enquiry Officer was appointed, who examined as mane as 24 witnesses P.W.1 to P.W.24. After concluding the enquiry he submitted his report, in which he found that all the charges were proved. After that the General Manager (Operation), WAPDA, as the competent Authority, by his order dated 13-10-1988 after hearing Javaid Aziz Qureshi passed the dismissal order. After availing departmental remedy, Javaid Aziz Qureshi filed the aforesaid appeal before the Tribunal, which was partly allowed in the aforestated terms. Thereupon, the Water and Power Development Authority, hereinafter referred to as the WAPDA, filed Civil Petition for Leave to Appeal No.598/L of 1993 (which has been converted into Civil Appeal No.594 of 1994) as it was aggrieved with the above substitution of penalty. Leave to appeal was granted to consider, as to whether in view of the judgment in the case of Water and Power Development Authority v. Sh. Zulfiqar Ali (PLD 1988 SC 693) the Tribunal was justified in reducing the punishment in view of the material available on record. Where Javaid Aziz Qureshi filed Civil Petition for Leave to Appeal No.422/L of 1993 (which has been converted into Civil Appeal No.595 of 1994), in which leave was granted on the ground that leave was already granted in aforesaid Civil Petition for Leave to Appeal No.598/L of 1993.

3. In support of Civil Appeal No.594 of 1994 Mr. Gul Zarin Kiani, learned Advocate Supreme Court appearing for the WAPDA, has vehemently contended that after the Tribunal having affirmed the finding recorded by the Enquiry Officer that the charges of corruption were proved, there was no justifiable reason to alter the above punishment from dismissal to that the compulsory retirement with all benefits. On the other hand, Sh. Masud Akhtar, learned Advocate-on-Record appearing for Javaid Aziz Qureshi, has vehemently contended that a perusal of the record would indicate that his client was innocent as the charges of corruption were not proved. His further submission was that Javaid Aziz Qureshi was not given fair opportunity inasmuch as 20 witnesses were examined in his absence though he was unable to attend the enquiry proceedings on account of his illness and illness of his wife.

4. Before touching upon the question of punishment, it will be appropriate that we may take up the case on merits. We have gone through the record and we find that P.W.1 to P.W.4 were examined in presence of Javaid Aziz Qureshi, who cross-examined them in detail but he was unable to bring on record any material which could have cast doubt about their veracity. It seems that Javaid Aziz Qureshi himself discontinued to participate in the enquiry proceedings after having found that the evidence of the above four witnesses was sufficient to warrant his dismissal from service. Sh. Masud Akhtar's submission that Javaid Aziz Qureshi had sent a telegram from Multan for his illness and the illness of his wife; it will suffice to observe that no medical certificate of any doctor working in a government hospital was sent in support of the allegation. The statements of aforesaid 24 witnesses were recorded between 23-5-1988 to 28-6-1988. There was sufficient time available with Javaid Aziz Qureshi to get a medical certificate of a Government doctor. The Tribunal after perusing the record found that the charges of corruption were proved against Javaid Aziz Qureshi. In our view, the above finding does not suffer from any legal infirmity keeping in view the evidence brought on record. It may be pointed out that this Court is not required to act as a Court of appeal for re-appraisal of evidence recorded by the Enquiry Officer. However, we have gone through the statements and find that the charges were supported by the witnesses produced by WAPDA.

5. It was submitted that most of the above witnesses who were consumers of electricity appeared against Javaid Aziz Qureshi on account of the fact that he had not obliged them and that some of the alleged witnesses had already obtained electricity connections before Javaid Aziz Qureshi was posted as Executive Engineer (Operation), WAPDA, Bahawalpur, on 15-4-1986. We are not impressed by the above submission. We cannot assume that all the 24 witnesses were prompted to depose against Javaid Aziz Qureshi on account of previous enmity.

6. As regards the substitution of punishment, it may be observed that there is no doubt that under subsection (1) of section 5 of the Service Tribunal Act, 1973, the Tribunal has the power to confirm. set aside, vary or modify the order appealed against. However, this power is to be exercised fairly and justly. In our view, a distinction is to be made between a charge of misconduct involving corruption and a charge of misconduct involving unauthorised absence or some act of insubordination. In the cases of first category, the accused employees are not entitled to any concession on the ground' that they have long periods of service at their credit. The menace of corruption, which has penetrated in all spheres of life in our country, cannot be effectively dealt with or eliminate without imposing punishment which may deter the other incumbents. Otherwise, the accused employees concerned can get away in spite of the fact that the charges of corruption are proved against them and it would, in fact, encourage corruption. Mr. Gul Zarin Kiani has referred to the case of Water and Power Development Authority v. Sh, Zulfiqar Ali (supra), in which this Court has dilated upon this aspect inter alia as follows:-- "In the case of Shah Imroz it was held that when the order under section 17(1-A) passed by the Departmental Authority is mala fide and tainted with bias, and thus, not passed bona fide, it would be within the power of the Tribunal to set aside the order of removal and substitute it with the order of reinstatement. This was, thus treated as a very strong case for mitigation also. In the other case of Firdaus Khan the mitigation (given the other requisites regarding mala fides, etc.) was not that strong, therefore, the alteration of removal to compulsory retirement (instead of reinstatement) was treated as the proper penalty. Thus, in order to remove the taint of arbitrariness from the orders of the Tribunal itself, it is essential that in such like cases, alteration of penalty should take place only after giving a finding of arbitrariness on question of penalty on the part of the WAPDA Authority. In this context when the authority orders removal, in a case of bribe; while upholding the finding of guilty, it might look odd for the appeal forum, to retire with all pensionary benefits, or to reinstate with the reward of the benefits of past emoluments. These observations are essential to illustrate the point and not to be read as direction in the present cases. The Tribunal shall be at liberty to support its view with cogent reasons so as to remove the criticism of arbitrariness; or if no such cogent reasons are available, to change the view itself. In the light of the foregoing discussion and the observations, these appeals are allowed. The impugned orders, to the extent of alteration of the penalty, are set aside. The cases are remanded to the Tribunal for such decision on the question of penalty in each case as it deems fit, in the light of the discussion on this point and the law."

7. We are in respectful agreement with the above view that in order to remove a taint of arbitrariness from the order of Tribunal itself, it is essential that the alteration of penalty should take place only after giving a finding of arbitrariness on the question of penalty on the part of WAPDA Authorities; or the Tribunal should record cogent/justifiable reasons. However, in a case of corruption if the Tribunal upholds the finding of guilt, it would not be a proper exercise of power under section 5(1) of the Service Tribunals Act to substitute the penalty of dismissal with that of compulsory retirement with pensionary benefits.

8. The upshot of the above discussion is that Civil Appeal No.594 of 1994 filed by WAPDA is allowed and the judgment of the Tribunal is modified by restoring the penalty .of dismissal from service originally imposed by the competent Authority; whereas Civil Appeal No.595 of 1994 filed by Javaid Aziz Qureshi is dismissed. However. there will be no order as to costs. M. B. A./G-21/S Order accordingly.