2004 PLP 294 (SCMR)

ABDUL HAMEED DOGAR, J.

This appeal with the leave of the Court is directed against the judgment dated 3-7-1999 passed by learned Federal Service Tribunal, Islamabad, (hereinafter referred to as the Tribunal), whereby Appeal No.244-L of 1999 filed by the respondent was accepted and was reinstated in service with all consequential benefits. It would be pertinent to mention here that Mr. Muhammad Ayub Khan, Member who authored the judgment accepted the appeal with costs and reinstated the respondent in service with all consequential benefits. He, however, burdened the Competent Authority (Secretary, Ministry of Housing and Work) with special costs of Rs.15.000. The other Member Syed Zafar Babar agreed on the main judgment but expressed his reservation as regards the imposition of special costs. The Chairman of the Tribunal Mr. Justice (R.) Gulbaz Khan concurred with the view of Syed Zafar Babar, Member and by majority passed the following order;

"By virtue of proviso (b) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the appeal is accepted with all consequential benefits, but the Competent Authority (the concerned Secretary, Ministry of Housing and Works, Islamabad) shall not be burdened with special costs of Rs. 15,000.

2. The facts leading to the filing of the instant appeal are that respondent Noor Jamal while working as Executive Engineer in Central Civil Division No.2, Pak PWD, Lahore, was dismissed from service on 28-7-1992 on the charge of inefficiency. Against which he preferred a departmental appeal to the Prime Minister of Pakistan on 12-8-1997 which was withheld on the ground that the President of Pakistan being competent appellate authority should have been approached. Accordingly, he preferred his appeal to the President of Pakistan on 2-11-1997 which remained un-responded, as such, he filed above mentioned appeal before the Tribunal. At the relevant time, respondent being the Divisional Head was entrusted with the development work to be carried on under Taamer-e-Watan Programme in addition to other duties, as such, the volume of works pending was huge as against the available paucity of funds. Being incharge of the above mentioned work, he was under great pressure from the officers as well as the public representatives. As development schemes relating to Taamer-e-Watan Programme were being executed under the guidance of M.N.As./ M.P.As. in their respective areas, consequently, a sum of Rs.29,00,000 was spent in excess of the allocated funds. Anyhow, there was no compliant of whatsoever nature from any quarter and on the contrary, all M.N.As. and M.P.As. appreciated his performance in execution of development schemes in their constituency. Instead of appreciation, he, however, was charge-sheeted in the year 1995 for inefficiency for incurring above mentioned excess amount on the above mentioned works. The respondent denied the charges and submitted his reply but the same was not considered satisfactory and was ultimately dismissed from service on 28-7-1997.

3. This Court granted leave to appeal to consider the following points:-- ."(i) Whether the impugned judgment of the learned Federal Service Tribunal is sustainable as the main judgment written by its learned Member (Mr. Muhammad Ayyub Khan), appears to be based on reactionary approach rather than the legal one, for not filing the parawise comments by the petitioners to the appeal of the respondent? (ii) Whether the inquiry report which is quite in detail and wherein the respondent fully participated, could be brushed aside by the learned Tribunal as no reference was made to it in the impugned judgment? (iii) Whether the respondent in view of the charges against him, was entitled to reinstatement in service with all consequential benefits?"

4. Ms. Naheeda Mehboob Elahi, learned Advocate Supreme Court for the appellant vehemently contended that the impugned judgment is not sustainable in law as the same is based on wrong assumption of facts and law. According to her, the main reason which weighed with the Tribunal to allow the appeal was that the department had failed to file parawise comments which in fact was not correct as the same were filed on 26-12-1998 a month earlier to 29-1-1999 on which date, the arguments were heard. Respondent had committed serious financial irregularity by misusing the financial powers thus failed to perform duties diligently which resulted in financial loss to the Government exchequer which act fell within the purview of misconduct as contemplated and under Rules 2(4) and 3(b) of the Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the Rules) and was thus rightly dismissed from service.

5. On the other side, Malik Muhammad Azam Rasool, learned Advocate Supreme Court for the respondent, controverted the above contentions of the learned counsel for the appellant and contended that the learned Tribunal has fully dealt with all the legal as well as factual aspects of the case. According to him, neither any show-cause notice was issued nor a regular inquiry was conducted, as such, the entire proceedings took place in violation of rule 6 of the Rules. He' next contended that the said works were thoroughly examined and inspected by F.I.A. and Special Team deputed by the Prime Minister's Secretariat and were found satisfactory and no allegation of corruption or corrupt practices was proved against the respondent. As regards the inquiry proceedings, the same were not conducted in accordance with the rules but were conducted by way of questionnaire without examination of witnesses in support of charge or defence. He emphasized that the principle of natural justice was ignored completely in the case of respondent inasmuch as he was even not allowed to summon the witnesses in defence of the charge leveled against him. The only allegation against the appellant was that of inefficiency, as such; the penalty of dismissal from service was too harsh and unjustifiable.

6. It is by now well-settled principle of law that in case or awarding major penalty, 'a proper inquiry is to be conducted in accordance with rule 6 of the Rules wherein a delinquent officer is to be provided an opportunity of defence and personal hearing after issuing show-cause notice, obtaining reply whereof and if the charges are proved in the regular inquiry, thereafter he is to be penalized. In the instant case, the inquiry proceedings pertaining to two charges were conducted' simultaneously by the Deputy Secretary (Admn.) being Enquiry Officer and it was on the basis of said fact-finding inquiry report, appellant No.2 Secretary, Ministry of Housing and Works took disciplinary action against him and awarded him major penalty of dismissal from service. The respondent, on the contrary, was exonerated in an inquiry conducted by F.I.A. meaning thereby, that there was no material available against him. In this context, reference can be made to the case of Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another (1993 SCMR 1440), wherein this Court on similar aspect of the case did not approve inquiry proceedings by way of questionnaire without examining the witnesses in support of charge or defence, being not consistent with the requirement of section 6 of the Rules. Similarly, in the case of Inspector-General of Police, Police Headquarters Office, Karachi and 2, others v. Shafqat Mehmood (2003 SCMR 207). It has been held that in the case of imposing a major penalty, the principle of natural justice requires that a regular inquiry is to be conducted in accordance with rule 6 of the Rules and an opportunity of defence and personal hearing is to be provided to civil servant proceeding again.

7. For what has been discussed above, we are of the considered opinion that the impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither, there is misreading, or non-reading of material evidence, nor misconstruction of facts and law. Moreover, the question of general public importance as contemplated under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973, is not involved in this case.

8. Resultantly, the appeal fails and is thus dismissed with no order as to costs. M.H./F-123/S Appeal dismissed.