2020 PLP (C (PLC(CS))

GULZAR AHMED, C.J.

We have heard the learned counsel for the parties and have also gone through the record of the case.

2. The appellant was employed as a Senior Auditor in the office of the Accountant General, Punjab. Election for certain office was held on account of which some disturbance took place in the office of the Accountant General, Punjab and appellant with other employees took out a procession, which led to the lockdown and forced closure of the office of the Accountant General, Punjab. All the persons involved in such procession, lockdown and forced closure were proceeded against by issuing of show cause notices. The appellant was issued show cause notice on 27.11.2016. A fact finding committee was constituted and thereafter, the competent authority passed the order dated 07.02.2017 by which it dismissed from service the appellant and three other persons, namely, Muhammad Abid Jutt, Muhammad Sohail Anwar and Muhammad Ayub Qureshi and by the same order imposed penalty of compulsory retirement upon Khurram Islam. The appellant and the four above named persons filed service appeals before the Federal Service Tribunal, Lahore (the Tribunal), which was decided by a consolidated judgment dated 16.02.2018, which is impugned herein. After discussing all issues involved in the matter, the Tribunal, in para-20 of the impugned judgment, set aside the penalties imposed upon Muhammad Abid Jutt, Khurram Islam, Muhammad Sohail Anwar and Muhammad Ayub Qureshi and reinstated them in service with direction to the respondents to hold regular enquiry. In the case of the present appellant, the Tribunal dealt with the matter as follows:- "

21. The case of Muhammad Shoaib Ahmad is somewhat different from the other four cases. The reason is that the appellant, Muhammad Shoaib Ahmad, has reached the age of superannuation on 11.9.2017, therefore, the question of conducting a regular inquiry does not arise in this case nor he may be straightway reinstated for consideration of his retirement till the date of his superannuation i.e. 11.9.2017. The most important point relating to Muhammad Shoaib Ahmad appellant is that major penalty of "dismissal from service" was imposed upon him. In this way the appellant could not enjoy the monetary benefits of his long period of service, which is about 34 year on his credit. In this regard, it is a very harsh punishment to be deprived of all the benefits of his 34 years service. It has also been observed that without conducting regular inquiry and providing a chance to the appellant, the orders of dismissal/compulsory retirement was passed which is against the principle of natural justice so considering the aforesaid facts relating to the appellant Muhammad Shoaib Ahmad, the major penalty of dismissal from service is converted into compulsory retirement with all the back benefits from the date when the order of dismissal was passed, as permitted by law. "

3. Learned counsel for the appellant has contended the case of the present appellant is on all fours similar to that of the above named four persons and just because the appellant has attained the age of superannuation, his case could not have been treated differently and regular enquiry in his case too, ought to have been ordered by the Tribunal.

4. Learned Additional Attorney General, when confronted with this position, contended that the case of the appellant is similar to the above named four persons and the Tribunal ought to have also treated similarly.

5. Learned counsel for the appellant has contended that the above named four persons, were subsequently proceeded against and in the departmental enquiry, three of them were given penalty of censure while the case of Muhammad Sohail Awnar was closed as he had retired from service.

6. We find that the case of the present appellant was similar to that of the remaining four persons, as named in para-20 of the impugned judgment and the very fact that the appellant retired from service before his appeal came to be decided, this in itself, could not provide justification to the Tribunal to take a different view from the one taken in the case of the said four persons. Learned counsel for the appellant contends that the case of the present appellant may be remanded to the department for conducting of a regular enquiry.

7. In the circumstances, where the appellant seems to have been treated differently by the impugned judgment from four persons named above, the impugned judgment to the extent of the appellant is not sustainable in law. The same is, therefore, set aside and the matter is remanded to the respondent-department to hold regular enquiry in the case of the appellant and thereafter, to pass necessary order in accordance with law. This appeal is allowed in the above terms.

8. As the appellant has already retired from service, it is expected that the respondent-department shall complete the regular enquiry positively within a period of four months. C.M.A. is also disposed of. MWA/M-30/SC Appeal allowed.