2002 PLP 692 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J‑‑‑The petitioners Chairman, WAPDA and others seek leave to appeal against the judgment dated 19‑7‑2001 passed by the Federal Service Tribunal whereby appeal filed by the respondent against order, dated 23rd June, 1999 removing her from service on the charge of absence from duty has been allowed.

2. Operative para. from the judgment under examination is reproduced herein below: ‑‑ "We have given our anxious considerations to the arguments advanced from both the parties and have also gone through to the record of the appeal. A perusal of the appeal file clearly shows that the appellant is guilty of misconduct and she remained absent from duty for a long period. But at the same time we have also found that the appellant has served respondent‑Authority efficiently for more than 15 years and she has also given an undertaking that she will serve WAPDA after completion of her higher education abroad and we find that the WAPDA will be benefited by her experience and higher qualification. So, we taking a lenient view in the matter as stated above modify and vary officer order dated 23‑6‑1999 of 'removal from service to that of compulsory retirement from service' within the meaning of rule 4(i)(b)(iii) of the Pakistan WAPDA Employees, (Efficiency and Discipline) Rules, 1978. No order as to costs."

2. Learned counsel for the petitioner contended that the respondent got sanctioned 730 days' leave for advance study w.e.f. 17‑7‑1996 in her favour. After availing the sanctioned leave she did not join her duty and applied for further extension in the leave. Her such request, however, was declined and she was directed to resume her duty. But she instead of joining duty absented herself. Accordingly her explanation was called vide letter, dated 21st October, 1998 which she replied on 11th February, 1999. Competent Authority did not accept her explanation being unsatisfactory as such final show‑cause notice, dated 24th February, 1999 was issued which was also replied by her. Accordingly after observing codal formalities vide office order dated 23‑6‑1999 respondent was removed from service. Against the order of her removal from service, she filed appeal before the Service Tribunal which has been accepted vide impugned order. As such instant petition has been tiled. 3 Learned counsel for the petitioner contended that the Service Tribunal did not exercise powers judiciously conferred upon it under section 5(1) of the Service Tribunals Act, 1973 (hereinafter referred; to as "the Act, 1973)". According to him under the given circumstances of the case there was no occasion to vary or modify the sentence from punishment of removal from service to that of compulsory retirement. He was of the opinion that no cogent reasons were assigned for varying/modifying the punishment except observing that the WAPDA will be benefited from her experience and higher qualification in future. According to him such observation is self contradictory because once she is compulsorily retired from service within the meaning of rule 4(i)(b)(iii) of The Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, the WAPDA would not' be in a position to have benefit from her experience and qualification.

4. On the other hand learned counsel stated that the respondent is getting higher education outside the country at her own expenses, therefore, the punishment of removing her from service was very harsh, therefore, the Tribunal has passed a just order in her favour which may not be interfered.

5. The arguments so advanced on behalf of parties give rise to a question whether the Tribunal correctly exercised jurisdiction under section 5(1) of the Act, 1973, while converting the punishment of removal from service awarded to respondent into compulsory retirement? There is no dispute so far as availability of the powers of the Tribunal to vary or modify the punishment under section 5(1) of the Act, 1973 is concerned, however, such powers have to be exercised judiciously, depending upon the facts and circumstances of each case. That is why, this Court in the case of Water and Power Development Authority v. Sh. Zulfiqar Ali and others (PLD 1988 SC 693) observed that "cogent reasons should be given for altering the punishment. This is also necessary so as to avoid criticism of arbitrariness on e the part of the Tribunal itself". Later on, in the case of General Manager (Operation), WAPDA v. Javaid Aziz Qureshi and others (1998 SCMR 2553), it was observed that "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". Following these two principles, we are convinced to observe that the Service Tribunal while exercising powers under section 5(1) of the Act, 1973, is also required to keep before it the gravity of the charge qua the punishment which has been awarded to an employee by the Department and if proportionally both are not reconcilable, then in the interest of justice punishment so awarded to an employee should be varied or modified on furnishing strong/convincing reasons akin to judicial norms.

6. Surprisingly, in instant case, Service Tribunal observed that respondent is guilty of misconduct on account of her prolonged absence from duty but without assigning justifiable reasons reduced her sentence of removal from service into compulsory retirement merely for the reason that higher education received by her and the experience which she has on her credit would be beneficial for WAPDA in future. This reason itself cannot be considered to be justifiable in any manner because respondent after availing long leave did not opt to join service and even without caring to make arrangements for extension of leave opted to remain absent from duty and on account of her such conduct the Department decided to remove her from service on account of misconduct and once she is removed from service or is not allowed to join duty on account of compulsory retirement, in both cases, she would not serve the WAPDA. As such for such reason alone conversion of punishment of removal from service into compulsory retirement is not sustainable. Therefore, we are of the opinion that the impugned judgment warrants interference by this Court. Thus, as a consequence of above discussion, petition is converted into appeal and allowed. Resultantly, impugned judgment dated 12‑6‑2001 passed by Federal Service Tribunal is t aside. No order as to costs. M.B.A./C-50/S. Appeal allowed.