1985 PLP 1963 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑Facts of this case briefly state( are that while petitioner was posted as Assistant Director of Import: and Exports, Karachi a departmental enquiry was held against him or 8 charges. The Enquiry Officer absolved him of 7 charges but help him guilty under one charge only, namely, charge No.1, to the extent that he "had manifested lack of care and caution in processing the documents in all the 163 cases" of import of cars. As a result, petitioner was dismissed from service under a notification dated 10th June, 1980. Petitioner filed a review petition against this order and after having awaited the reply for the statutory period of 90 days, he filed an appeal before the Federal Service Tribunal. The appeal was heard, in the first instance, by two learned Members of the Tribunal who were equally divided in their opinion. One (Mr. A.O. Raziur Rahman) was of the view that the appeal should be allowed and the petitioner should be re‑instated in service as the finding of the Inquiry Officer that petitioner had manifested lack of care and caution in processing the documents of the imported cars cannot be sustained. The second learned Member (Brig. Abdur Rashid), on the other hand, while agreeing with this view to some extent yet held the petitioner guilty not only on charge No. 1, but also on charges Nos. 2 and 8 of which he was exonerated by the Inquiry Officer. In view of the difference of opinion between the two learned Members, the appeal was finally heard by the Chairman of the Service Tribunal under the provisions of section 3‑A (2) (b) of Service Tribunals Act, 1973. Learned Chairman, however, took a totally different view, and allowed the appeal on the ground that petitioner "has been seriously prejudiced due to non‑supply of enquiry report to him, and also due to absence of notice requiring him to explain why the penalty of dismissal should not be imposed against him." For these reasons, while allowing the appeal, learned Chairman, directed that "the proceedings should start afresh from the stage the mischief was done", in that, petitioner "should be supplied with a copy of the inquiry report and the copy of the views of the Authorised Officer and should also be asked to explain as to why major penalty of dismissal may not be imposed upon him. These documents shall then go to the authority which shall make the final decision. Petitioner now seeks leave to appeal from the judgment of the Federal Service Tribunal, and Mr. Fakhruddin G. Ebrahim, learned counsel appearing in support of the petition submits that in view of the finding of one learned Member of the Tribunal, Mr. A.O. Raziur Rahman, that the documents of the imported cars could be processed in one day, which was accepted by the second learned Member, learned Chairman should have agreed with the opinion of the first learned Member and in any case since the proceedings of the departmental enquiry are of criminal nature, learned Chairman should have granted the benefit of doubt to the petitioner which legitimately accrued to him and‑ should have thus allowed the appeal. Another aspect that was pointed out was that instead of resolving the difference of opinion between the two learned Members learned Chairman chose to resort to a totally different course of action, namely, directing fresh disposal of the whole case, which has exposed the petitioner to the serious risk of being found guilty on the charges of which he was exonerated. In this behalf learned counsel for the petitioner also raised the plea that the Service Tribunal in exercise of its powers under section 5 of the Service Tribunals Act 1973 is not competent in law to remand the case to the departmental authorities for fresh disposal. We are not impressed with the last plea but the first two submissions and certain others raised in support of the petition deserve consideration. We, therefore, grant leave to appeal and allow the petition. The interim order of the Court dated 8‑12‑1984 shall continue to remain in force till the appeal is decided. M.B.A. Leave granted.