2010 PLP 1345 (SCMR)

JAVED IQBAL, J.

This appeal with leave of the Court is directed against judgment dated 17-3-2005 passed by learned Service Tribunal whereby the appeal preferred on behalf of respondent has been accepted.

2. Facts of the case need to be reiterated as the same have been stated in the judgment impugned. Leave to appeal was granted by means of order dated 9-6-2006 which is reproduced hereinbelow for ready reference:-- "The learned counsel for the petitioners submits that respondent had filed departmental appeal after the prescribed period and his appeal was, therefore, incompetent before the learned Service Tribunal who condoned the delay without any justification or substainable reason. He next submits that the report of the Inquiry Officer is not binding on the competent authority. However, it had recorded reasons while disagreeing with the findings of the Inquiry Officer which were not even noted by the learned Tribunal which reducing the penalty of removal to stoppage of increment for one year by relying upon the report of the Inquiry Officer. In this view of the matter, we grant leave to appeal to consider, inter alia, the above contentions."

3. It is mainly contended by the learned Additional Advocate General that the learned Service Tribunal has failed to appreciate the legal and factual aspects of the controversy and the conclusion as arrived at is not inconsonance with the evidence which has come on record. It is next contended that the accusation of respondent has been substantiated by producing cogent and concrete evidence which has been ignored by the learned Service Tribunal on extraneous considerations and without assigning any reasoning whatsoever. It is argued that proper opportunity of defence was afforded and after having taken into consideration all the pros and cons the Competent Authority has rightly imposed the penalty of dismissal in view of the nature of the accusation which could not have been reversed by the learned Service Tribunal without any lawful justification which is lacking in this case.

4. We have carefully examined the view point as canvassed at bar by the learned Additional Advocate General and perused the judgment impugned with his eminent assistance. A careful scrutiny of the record would reveal that Asif Kamal (respondent) was a Storekeeper in DHQ, Charsaddah when charge-sheeted as under:- "(i) That while posted as Storekeeper of the main store of DHQ Hospital Charsaddah, he did not maintain proper record/stock of the 10cc syringes, showing no release of syringes to any unit of the Hospital during August and September, 2002 while showing bulk release of syringes during October and November, 2002 unsupported by demand vouchers/receipts from the concerned unit. (ii) That he seems to have collaborated with one Imdad Ali who was caught red-handed while stealing a bag full of 10cc syringes from the said store during office hours on 19-10-2002. (iii) That the admission of the mentioned thief during preliminary enquiry that the accused used to provide him medicines for the treatment of his sister and other relatives as indoor patient proves collaboration of the accused official in the commission of the theft."

5. A. thorough probe was made by Inquiry Committee consisting of Mr. Fazal Karim Khattak (DOR) and Dr. Ayub Roze (ADHO), Charsaddha who, after completion of necessary formalities and affording proper opportunity of hearing to respondent had recommended minor penalty without mentioning any detail to be imposed upon respondent being negligent as no other charge, according to the Inquiry Committee could be proved. The Competent Authority, however, did not agree with the inquiry report and imposed major penalty by means of order dated 13-10-2003 and dismissed respondent from service under section 3(i)(a and b) of the N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000. Being aggrieved a Departmental Appeal was preferred and after its rejection the learned Service Tribunal was approached by means of appeal which has been accepted as mentioned hereabove.

6. Let we make it clear at the outset that "the recommendations of the Inquiry Committee are not binding upon the Competent Authority". Abdul Rashid v. C.S.C. 1989 SCMR 1417 and any actions as may be deemed fit and proper can be taken by the Competent Authority subject to law with one exception that such action must be supported with reasoning. Before dilating upon the competency of the Competent Authority we intend to examine the inquiry report to see as to whether the recommendations made by the Inquiry Committee were in consonance with the evidence which has come on record or otherwise? A careful perusal of the inquiry report would reveal that every possible effort has been made to unveil the reality and all the necessary evidence was not only collected but scrutinized diligently. It has rightly been concluded by the Inquiry Committee after having taken into consideration the statements of Haji Noor Ullah, Fala-e-Amin and Imdad Ali that the accusation could not be substantiated. The learned Additional Advocate General was asked pointedly to point out the evidence showing that respondent had facilitated or abetted the alleged theft of syringes but no such evidence could be referred. The Inquiry Committee has rightly determined that "in view of the statement of the witnesses and the preliminary enquiry report the accused official can neither be connected with the bag of syringes recovered from Imdad Ali nor burdened with misappropriation. Therefore, he stands exonerated from the charges at S.No. (b) and (c) of the charge-sheet". The Competent Authority has not agreed with the recommendations made by the Inquiry Committee for the following reasons:-- "It is unfortunate that those who conducted the preliminary and the formal enquiries attempted clumsily, to manipulate as escape route for the accused official. It does not require the expertise and experience of a grade 18 officer to understand that the lot number, manufacturing and expiry dates of all he products of a firm cannot be necessarily the same nor do they determine "quality" of the product. That the syringes in the store and those recovered from Imdad Ali were both 10cc manufactured by Master indicates their "identicalness". Elevating Imdad Ali, admittedly a friend of the accused official, from an accomplice to a "star witness", the Enquiry Committee has relied blindly on his preposterous statement to the effect that the accused official was not involved; that an unknown person had handed over the bag to him for delivery to the accused official. Imdad Ali was not arraigned in this enquiry because he is not a Government servant. By way of abundant precaution, I called the accused official for a personal hearing with the advice to bring along any person on whom he depended for guidance. He was accompanied by his maternal uncle. In reply to a question, he readily conceded that the statement of Imdad Ali, to which the Enquiry Committee had accorded so much credence, was not convincing. And the unknown person has not turned up to date to claim back the syringes. He never will, because there was no ... such person. Further, the most material witness Noorullah has reiterated his original version about the occurrence before the Enquiry Committee, but the accused official opted not to question him in cross-examination, which tantamounts to an admission of the validity of what the witness said. Also, eye-witness Fazli Amin has not contradicted that version."

7. The version of Competent Authority does not find support from the evidence which has come on record. Respondent had rightly been exonerated in the circumstances and punished accurately for being negligent i.e. the only proved charge.

8. We have not been persuaded to agree with the prime contention of learned Additional Advocate General that the learned Service Tribunal could not have been condoned the period of limitation for the simple reason that the question of limitation squarely falls within the jurisdictional domain of learned Service Tribunal. It is well-settled by now that "sufficiency of cause for condonation of delay being question of fact is within the exclusive jurisdiction of learned Service Tribunal." Ali Hasan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086, Muhammad Azhar Khan v. The Service Tribunal, Islamabad 1976 SCMR 262, Yousaf Hussain Siddiq v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268 and "where the discretion condoning the delay is exercised by the learned Service Tribunal it cannot be reversed or disturbed by this Court without having sufficient lawful justification which is lacking in this case." WAPDA v. Abdul Rashid Dar 1990 SCMR 1513, Sher Bahadur v. Government of N.-W.F.P. 1990 SCMR 1519, Zahida v. Deputy Director 1990 SCMR 1504.

9. We have also adverted to the objection of learned Additional Advocate General that the Service Tribunal should have been agreed with the conclusion as arrived at the Competent Authority instead of endorsing the view point of Inquiry Committee. It may not be out of place to mention here that "where Service Tribunal based its decision on report of Inquiry Officer after having taken into consideration all the I relevant factors the leave to appeal was refused." Capt. Dr. Munawar Tahir Hussain v. Government of the Punjab through Secretary Health Department 1990 SCMR 1470.

10. In view of the provisions as enumerated in Article 212 Constitution of the Islamic Republic of Pakistan "leave to appeal to Supreme Court is competent only if case is involved the substantial question of law and public importance." Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1, Karamat Hussain v. Province of the Punjab 1982 SCMR 897, Razia Sultana v. Government of Punjab 1981 SCMR 715, M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22, Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722, Dilbar Hussain v. Province of Punjab 1980 SCMR 148, Muhammad Azhar Khan v. The Service Tribunal, Islamabad 1976 SCMR 262, M.A. Majid v. Government of Pakistan 1976 SCMR 311 and where "no question of law or public importance is involved leave to appeal may not be granted." Director Food v. Rashid Ahmad 1990 SCMR 1446, Muhammad Manzoor Ahmad v. Commissioner, Multan Division 1990 SCMR 560, Mst. Sattan v. Mst. Rani 1989 SCMR 1677, Abdul Razaq v. Province of Punjab 1980 SCMR 876, Muhammad Yaqub Sheikh, District Engineer District Council, Toba Tek Singh v. Government of the Punjab through Secretary Local Government and Rural Development Department, Lahore 1987 SCMR 1354. No question of law or public importance is involved in this appeal.

11. The findings as recorded by the learned Service Tribunal can neither be termed as perverse nor unjustified and judgment impugned being well based does not warrant interference. The appeal being devoid of merits is accordingly dismissed. S.A.K./G-7/SC Appeal dismissed.