2007 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment, dated 3-8-2004 passed by Federal Service Tribunal whereby the appeal filed by the petitioner against his dismissal from service was dismissed.

2. The petitioner was employed as Senior Litigation Assistant (B.13) in Pakistan Railways, Lahore and was served with the following show-cause notice: "Whereas you made direct correspondence with Honourable Federal Minister for Communications and Railways and sent him a letter dated 28-3-2001 (copy enclosed). And whereas your above said action amounts to conduct prejudice to good order and service discipline and as such falls within the ambit of "misconduct" as defined in Removal from Service (Special Powers) Ordinance, 2000 (as amended by Ordinance No.V of 2001). And whereas your above said action is violative of rules 18 and 19 of the Government Servants Conduct Rules, 1964 and Government Instructions issued by Establishment Division as 21-6-1997 and circulated by General Manager/Personnel vide his letter No.324-E/O/IV(L)(E.Policy), dated 16-5-1997 and also violative of General Manager/Personnel letter No.831-E/689-Double Policy dated 4-12-1999, and as such tantamount to conduct prejudicial to good order and service discipline which clearly falls within the definition of misconduct as defined by Removal from Service (Special Powers) Ordinance, 2000 (as amended by holding an enquiry). And whereas being in possession of sufficient documentary evidence against you there is no need of holding an enquiry. Therefore, you are hereby called upon to show cause as to why you should not be dismissed from service for being guilty of the above referred misconduct as envisaged under Removal from Service (Special Powers) Ordinance, 2000."

3. The competent authority having not found the reply of the petitioner to the show-cause notice satisfactory, while dispensing with the requirement of holding the regular inquiry and providing him an opportunity of personal hearing, dismissed him from service. The petitioner after exhausting the remedy of departmental appeal, filed an appeal before the Federal Service Tribunal but the Tribunal dismissed the appeal with the observation that sending of the complaints against the senior officers to the Minister was an act of misconduct.

4. The learned counsel for the petitioner has contended that the letter allegedly addressed by the petitioner to the Federal Minister may not constitute an act of misconduct in terms of section 2(b) of Civil Servants Act, 1973, and in any case the major penalty of dismissal from service without a proper inquiry was mala fide and violative of the principles of natural justice as the petitioner was not given a fair opportunity of hearing to explain his position. Learned counsel appearing on behalf of the respondents, on the other hand, submitted that since the petitioner has not as such denied the sending of letter in question to the Minister, therefore, there was no need of holding the formal inquiry into the matter.

5. The charge against the petitioner precisely was that he by sending the complaint directly to the Federal Minister against his senior officers committed an act which was prejudicial to good order and service discipline. The `misconduct' under section 2(4) of Government Servants (Efficiency and Discipline) Rules, 1973, has been defined as under: "'misconduct' means conduct prejudicial to good order to service discipline on contrary to the Government Servants (Conduct) Rules, 1964 or unbecoming of an officer and a gentleman includes, any act on the part of a Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Government servant;"

6. It is not clear from the record that letter in question was written by the petitioner to the Minister in the course of official business or it was his private letter. The official correspondence is always made through proper channel as provided in Rules of Business but unofficial letters may not require the procedure of Rules of Business. However, the letter in question containing certain allegations of corruption and embezzlement of Government funds by the officers named therein sent by the petitioner to the Minister was not proper and notwithstanding the correctness of the allegations contained therein, it was certainly an act of indiscipline which could not be approved and tolerated but we find that the petitioner was not dealt with fairly as he was awarded major penalty of dismissal from service without proper inquiry probably for the reasons that senior officers due to the letter in question, were annoyed with him, as a result of which, the requirement of formal inquiry was dispensed with. Be that as it may, the purpose of providing major and minor penalties in the service law was to give choice to the departmental authorities to determine the quantum of punishment in the light of nature of misconduct and the concerned authorities may in their discretion award major or minor penalty but this power must not be exercised in an unjust and arbitrary manner. It appears that the competent authority in the present case, instead of taking a lenient view in the interest of reformation of the petitioner, proceeded to follow the concept of deterrent punishment even for less serious charge. This is correct that departmental authorities may not be obliged to strictly follow the procedure of law in the manner as is absorbed by the judicial forums but still they must observe the general principles of law and act independently to ensure fair treatment. This is a settled law that except in special circumstances, a civil servant must not be awarded major penalty of dismissal from service without proper inquiry and providing him fair opportunity to explain his position whereas in the present case, there was no extraordinary circumstance calling for dispensation of inquiry and summary proceedings, therefore, the imposition of major penalty of dismissal from service without inquiry, would suggest the element of bias and unfair treatment at least in the matter of quantum of sentence.

7. In the light of foregoing discussion we are of the considered view that in the peculiar facts of the case and the kind of charge the minor penalty of censure would be sufficient to meet the ends of justice and consequently we while converting this petition into appeal, partly allow the same with modification of penalty of dismissal from service into censure and direct the reinstatement of the appellant in service from the date of his dismissal with all back-benefits. There will be no order as to costs. M.H./M-302/SC Order accordingly.