2013 PLP 372 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

The respondent while serving as Fuel Clerk was proceeded against for misconduct and following charge sheet was served on him:-- "(1) Being working as Fuel Clerk in FSLD Shed you maintained bogus record with the result that only during the period from January 1985 to November 1985 excess accountal of 1,36,935 litres of HSD Oil valuing Rs.5,58,700 (approximately) was noticed by the Internal Audit Team. The examples of which are as under:- (a) So many bogus entries were made e.g. No. fuel was added to DE Loco No.4440 on 11-1-1985 and quantity of 1937 litres was shown on fair OP-9 and hence wrongly taken on books. (b) So many times excess accountal was taken on record, e.g. for the fueling of DE. Loco No.4446 ALU-20 on 10-2-1985, excess accountal of 1000 Litres was taken by making entry of 1672 litres on fair OP-9 instead of 672 litres on rough OP-9. (c) So many times, total of the columns "Oil issued to engines of home shed" were overcastted and the total of the columns of "oil issued to engine other than home shed" were under casted for the like figures so that compensating the effect forgery may not affect the grant total for the same month e.g. for the month of January 1985 upto 24-1-1985. This total "Oil issued to engines of home shed" was shown as 113311 instead of 96448, producing the same difference of 16863. On the other hand the total of columns "Oil issued to engines other than home shed" was shown 132798 instead of 14966 litres producing the same (difference of 16863 litres."

2. The competent authority having considered the findings in the enquiry report awarded him major penalty of reduction by two steps in time scale for two years. However, the General Manager Railways during the hearing of appeal of some of the co-accused issued a suo motu notice of enhancement to him and thereafter enhanced the penalty to removal from service. The learned Service Tribunal allowed the appeal vide the impugned judgment and restored the original penalty of reduction by two steps in time scale for two years.

3. Learned counsel for the petitioner seeks leave on the ground that the learned Service Tribunal fell in error in holding that no notice was given prior to enhancement of penalty; that the General Manager of Pakistan Railways in terms of Rule 1725(a) of the Discipline and Appeal Rules can enhance the penalty even suo motu and that in partly allowing the appeal the learned Service Tribunal has not considered these aspects.

4. Having considered the submissions made, we find that the nature of misconduct on the part of the respondent was distinct from those of the co-accused who were his immediate superiors and on whose asking he made the entries in question. Those superiors/officials were proceeded against and were awarded major penalty of removal from service whereas the respondent was awarded penalty of reduction by two steps in time scale for two years vide order dated 5-6-1990. The General Manager Railways enhanced the penalty and awarded him penalty of removal from service. In terms of Rule 1725(b) of the Discipline and Appeal Rules, he had to give prior notice and the said notice had to specify reasons for the proposed enhancement. The show cause notice dated 5-11-1991 appended with the petition does not explicitly give reasons for enhancement and merely mentions that the penalty awarded was not commensurate with the gravity of the offence. Under the law broadly there are two kinds of penalties i.e. major and minor. The competent authority while awarding the penalty has to keep in mind the gravity of the charge in the attending circumstances. In partly allowing the appeal and restoring the original penalty awarded by the competent authority, the learned Tribunal was persuaded by the fact that the General Manager Railways while enhancing penalty had not given reasons. The said finding of the Tribunal has not been found by us to be arbitrary, against the record or the law declared. Learned counsel has not raised any question of law of public importance within the meaning of Article 212(3) of the Constitution either. The petition lacking in merit is accordingly dismissed and leave refused. MWA/G-1/SC Petition dismissed.