2004 PLP 644 (SCMR)

CH. MUHAMMAD ARIF, J.

Through this common order we intend to dispose of Civil Petitions Nos.348-K and 355-K of 2001 which have been resorted to by State Petroleum Refining and Petrochemical Corporation Limited and Dr. Lateef Siddiqui respectively against the judgment dated 14-3-2001 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, in Appeal No.771-K of 1999 titled Doctor Lateef Siddiqui v. State Petroleum Refining and Petrochemical Corporation Limited with, among others, the following observations:-- "

18. As regard, the question of limitation is concerned, it is not the case of the respondent that the appellant had not faced prolonged litigation right from Civil Court to Hon'ble High Court and thereafter Hon'ble Supreme Court. The decision, which was made in favour of the appellant, was subsequently challenged by respondent No. 1 before Hon'ble Supreme Court where on joint statement of Advocates for the parties the appellant was required to file appeal before this Tribunal with specific direction to file application for condonation of delay, which was to be considered sympathetically. Such an application was filed by the appellant, which was duly supported by an affidavit where all these facts have been given. 'Even otherwise no solid ground has been taken by the respondent on this score excepting the bar of limitation in the parawise comments. Since the appellant has been able to justify such prolonged litigation, we allow the application under section 5 of Limitation Act and condone the delay. "

19. The appellant being custodian of the organization was required to have safeguarded the interests of the organization but this sort of plundering and looting the finances and so also the temporary misappropriation of funds have persuaded us to arrive at a conclusion that action should have been taken against the appellant by respondent No.1 but the way in which he has been dismissed appears to be too harsh. We are in agreement with the authorities cited by Mr. M.L. Shahani, but considering the allegations and the previous working of the appellant, we modify the order of dismissal into that of compulsory retirement from the date of the impugned order, i.e. 26-11-1995 with a direction to the respondent to allow all the benefits to the appellant viz. 50% of the salary and benefits retained during the period of suspension, bills and so also other ' pensionary benefits. "

2. Mr. Qamarul Islam Abbas, learned Advocate Supreme Court appearing in support of Civil Petition No.348-L of 2001 has contended that in the absence of any provisions in the Service Rules of the petitioner-Corporation for inflicting punishment of 'compulsory retirement from service upon any of its employees, the Tribunal was in error in converting the order of 'dismissal from service' into one for 'compulsory retirement'. He referred to the Tribunal's definite findings of: (i) commission of offences by the respondent-employee; (ii) such 'serious charges' standing proved; and (iii) the relationship between the petitioner-Corporation and respondent-employee being that of Master and Servant to contend that the Tribunal over-stepped its jurisdiction under the law while converting the order of respondent-employee's dismissal from service into 'compulsory retirement'.

3. Mr. Akhlaq Ahmad Siddiqui, learned Advocate-on-Record appearing on behalf of the private respondent/caveator in Civil Petition No. 348-K of 2001 and for the petitioner in Civil Petition No. 355-K of 2001 contended that the Tribunal is in error in imposing major penalty of 'compulsory retirement' despite having found that: (i) there has been breach of natural justice; (ii) none of the irregularities was proved against his client; (iii) the Inquiry Officer had already cleared him on rest of the charges: and (iv) his client was dismissed from service on 26-11-1995 without considering that there was not an iota of evidence against him to justify such order. It was also contended that the Tribunal could not convert the order of dismissal from service into any other penalty without setting aside the former order and establishing/discerning any nexus in that behalf with the proposed punishment/order.

4. Both sides are seriously contesting the vires of the impugned judgment of the Tribunal dated 14-3-2001.

5. Leave is granted to consider the pleas raised by the learned counsel for the parties, detailed in paras 2 and 3-post.

6. Meantime, the operation of the impugned judgment dated 14-3-2001 shall remain suspended. S.A.K/S-318/S Leave granted