1997 PLP (C (PLC(CS))

IRSHAD HASAN KHAN, J.‑‑‑This petition for leave to appeal is directed against the judgment dated 15‑1‑1996, passed by the Federal Service Tribunal, Islamabad, (hereinafter called the Tribunal) whereby Service Appeal No.423/R of 1995 filed by Muhammad Naheed petitioner herein against the respondents was allowed to the extent that the order of his dismissal from service was converted into removal.

2. The facts of the case are that the petitioner was an employee of Pakistan Railway Police. An inquiry was conducted against him on the complaint of one L‑NK Matloob of Pakistan Army, posted at Quetta, alleging that on 23‑12‑1994, while he was returning back to Quetta after spending his leave he was apprehended by four persons, two of whom were in uniform and the other in plain clothes. They demanded Rs. 2,000 from him and also snatched the pay book and Rs.500. The pay book was later returned when some local persons and a police constable arrived at the spot. The said constable, detected the petitioner as one of the accused. The complainant further alleged that he alongwith the accused petitioner herein was taken by the said constable to police station where the amount of Rs.500 extorted from him, was returned and he was helped to get the train for Quetta.

3. The allegations levelled against the petitioner were proved during the departmental proceedings by independent and reliable witnesses bearing no malice against the petitioner. The departmental appeal filed against his dismissal as well as the appeal filed before the Tribunal failed and it was found that all the legal formalities were duly fulfilled whereafter the petitioner was found guilty of grave indiscipline. However, having regard to his youth and length of six years of service in the Railway Police, his dismissal from service was converted into removal by the Tribunal.

4. Mr Muhammad Munir Peracha, learned counsel for the petitioner argued the petition on the sole point, that in terms of sub‑rule (2) or rule 16.1 of the Police Rules, 1934 (hereinafter called the Rules) only such departmental punishments could be inflicted upon the constables as listed in the second column of the subjoined table which are as follows:‑‑ S. No. Departmental punishment Inspectors Sergeants, Sub‑Inspec‑ tors, Assistant Inspectors Head Constables Constables 1 2 3 4 5 6

1. Dismissal Not relevant Not relevant Not relevant Superintendents of Police, Assistant Superintendent, Government Railway Police; Deputy Superintendents‑in charge of Railway Police Sub -Divisions; Senior Assistant Superintendent of Police, Lahore Officers‑ in‑charge of Recruits Training Centres.

2. Reduction -do- -do- -do- -do-

3. Stoppage Reduction Stoppage of increment of forfeiture of approved service for increment -do- -do- -do- -do-

4. Entry of Censure -do- -do- -do- Superintendent of Police, Also Senior Superintendent of Police, Lahore, Assistant Superintendent, Railway Police, Deputy Superintendent‑in‑charge of Railway Police Sub‑division, and Officers‑in‑charge of Police Recruits Training Centres, and subject to Confirmation by the Superintendent of Police any Assistant Superintendent of Police or Deputy Superintendent of Police of over three years' Gazetted service.

5. Confinement to quarters for a period not exceeding 15 days. -do- -do- -do- Superintendent of Police also Senior Superintendent of Police, Lahore, Assistant Superintendent, Railway not exceeding Police, Deputy Superintendent‑ in‑charge of Railway Police Sub‑Division, and Officers‑in‑charge of Police Recruits , Training Centres, and subject to confirmation by the Superintendent of Police any Assistant Superintendent of Police or Deputy Superintendent of Police of over three years' Gazetted service.

6. Extra-guard fatigue or other duty -do- -do- -do- -do-

7. Punishment drill not exceeding 15 days -do- -do- -do- -do-

8. Punishment drill not exceeding 10 days -do- -do- -do- Assistant and Deputy Superintendents

9. Punishment drill not exceeding 6 days -do- -do- -do- Inspectors

10. Punishment drill not exceeding 5 days. -do- -do- -do- Sub‑Inspectors The learned counsel further contended that under sub‑rule (1) of rule 16.2, the dismissal can be awarded only for the "gravest acts of misconduct" or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service, having regard to the length of service of the offender and his claim to pension. The precise submission was that the Tribunal having found that the punishment of dismissal from service was unwarranted, it had no jurisdiction to award unauthorised punishment of removal from service which is not mentioned in the table subjoined to sub- rule (21 of rule 16.1.

5. It is well‑settled that the Tribunal as an appellate forum can not only examine whether the order made by the departmental authority is supported by material, but in suitable cases can substitute the same when one which it deemed to be more proper. Refer Water and Power Development Authority v. Shah Imroz (1986 SCMR 840), Aijaz Nabi Abbasi v. Water and Power Development Authority (1992 SCMR 774), Water and Power Development Authority v. Fida Muhammad Khan (1996 SCMR 639) and WAPDA v. Abdul Sattar (1990 SCMR 934). However, the substitution of penalty has to be authorised penalty as contemplated by the relevant law. In the instant case, the penalty of removal from service is not one of the specified penalties Under rule 16.1. Additionally, no prejudice has been caused to the petitioner as result of being awarded a lesser penalty. We also find that the order of dismissal was lawful and .in conformity with rule 16.2(1), in that, the petitioner was found guilty of gravest service indiscipline. Such an act comes within the purview of "gravest acts of misconduct" as contemplated by the aforesaid rule.

6. It is doubtful whether in the circumstances of the present case there was any mitigating circumstance to alter the punishment. However, as the impugned order has not been challenged by the respondents we would refrain from expressing any further opinion on this point.

7. For the foregoing reasons, it is not a fit case to exercise our discretionary jurisdiction under Article 185(3) of the Constitution. Leave is refused. A.A./M‑3331/S Leave refused.