2000 PLP 1089 (SCMR)

MAMOON KAZI, J.

Respondent Tariq Aziz Piracha was a General Technician in the Pakistaa Institute of Medical Sciences, represented by the three appellants in this case. The said respondent was given a show -cause notice, dated 4-3-1996 indicating that, on 2-3-1996 he had misbehaved with two doctors of the said Institute namely Dr. Ghias and Dr. Naveed by use of abusive language with them and physically pushing them. It had been alleged that on 4-3-1996 at about 10-30 a.m. the said respondent, while on duty, had picked up a quarrel with his brother, Khalid Aziz. Dr. Ghias and Dr. Naveed, who were attracted by commotion caused by the respondent, tried to defuse the situation, but the respondent insulted them in presence of a large crowd off persons.

2. The respondent was also called upon by the said show-cause notice to explain his 'similar objectionable conduct prior to the said incident, but such being transactions past and closed, are not germane to the present controversy.

3. Be that as it may, but the said show cause-notice was replied to by the respondent on 9-3-1996 indicating that the respondent had only a quarrel with his brother when the said doctors intervened. The respondent, however, admitted the possibility of having done something to annoy the said doctors as he did not like involvement of strangers in his family affairs.

4. It appears that the competent authority was not impressed by the said reply, therefore, the respondent was compulsorily retired from service under Chapter VII (60-1) b-1(II) PIMS of the appellants' Service Regulations, 1990. The departmental appeal of the respondent was also rejected by the competent authority.

5. When the respondent approached the Service Tribunal in appeal, although, the Tribunal vide judgment, dated 30-7-1996, agreed with the charge of misconduct, but it altered the penalty by reducing ,increments of three stages without cumulative effect for two years as the said explanation of the respondent was found to be reasonable.

6. Leave was granted by this Court on the question, whether the Service Tribunal, by substituting the penalty of compulsory retirement had I acted within the jurisdiction vesting in it under the law.

7. Mr. M.A. Siddiqui, learned counsel for the appellants has argued that the Tribunal, having already held that the respondent was guilty of misconduct, it had no power to reduce the penalty imposed by the employer by giving its own explanation to the said misconduct. Mr. M. Zaman Bhatti, learned counsel for the respondent, on the other hand, has fully justified such interference by the Tribunal.

8. Both the learned counsel have relied upon precedents which indicate that divergent views have . been expressed by this Court in this regard. In Water and Power Development Authority v. Shan Elahi (1998 SCMR 1890) it was held by this Court that, the Service Tribunal is competent to either confirm or set aside or vary or modify the punishment awarded to the civil servant by a competent authority. It was, however, further held that such power is not to be exercised arbitrarily or capriciously or even on the basis of misconception of law. In General Manager (Operation), WAPDA v. Javaid Aziz Qureshi (1998 SCMR 2553), this Court allowed the appeal as in a case of corruption by an employee, after the Tribunal had agreed with the finding of guilt of the respondent, it substituted. the penalty of dismissal from service by that of compulsory retirement.

9. However, Mr. M. Zaman Bhatti has referred to a large number of judgments of this Court wherein substitution of the penalty by the Tribunal was upheld in view of the circumstances of the case. Reference may be made in this behalf to Aijaz Nabi Abbasi v. WAPDA (1992 SCMR 774), WAPDA v. Zahoor Ahmed (1994 SCMR 960), WAPDA v. Shah Amroz (1986 SCMR 840), WAPDA v. Abdul Sattar (1990 SCMR 934), Postmaster General v. Muhammad. Zorab (1996 SCMR 280) and WAPDA v. Fida Muhammad Khan (1996 SCMR 639).

10. So far as the circumstances of.the present case are concerned, the respondent in his reply to the said charges had indicated that interference by Dr. Ghias and Dr. Javed in the family affairs of the respondent had been disliked by him. While referring to the said explanation, the Tribunal has observed that even if the respondent had misbehaved with the said doctors at the time of the said quarrel, such mis-behaviour was not intentional. We are inclined to agree with the Tribunal to this extent that when a person is emotionally charged, he may not fully visualize the consequences of his act, However, whatever be the circumstances, the opinion of the Tribunal appears to be supported by material on record, So jurisdiction cannot be said to have been either arbitrarily or capriciously exercised by the Tribunal. Therefore, in our view, interference with the judgment of the Tribunal is net warranted, For the aforesaid reasons, this appeal was dismissed by a short order reads as follows;-- "For the reasons to be recorded later on, the appeal is dismissed with a warning to the respondent that in future he should not misbehave with his superiors. The appellants are directed to release the salary of the respondent including the arrears within a period of two months for the period during which he had been working after rent statement. " M.B.A./J-2/S Appeal dismissed.