2004 PLP 492 (SCMR)

JAVED IQBAL, J.‑‑‑This petition for leave to appeal is directed against the judgment dated 12‑6‑2001 passed by the N.‑W.F.P. Service Tribunal, Peshawar, whereby the appeal preferred on behalf of petitioner has been dismissed and order dated 3‑6‑1999 whereby three annual increments of the petitioner were stopped has been kept intact.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "the year, 1991 the appellant while holding the post of Sub‑Divisional Officer, Highway Sub‑Division, Hangu, the construction work of the Raisan Bridge in K.M. 27 Kohat Thall Road was started in mid‑November, 1991. He remained associated with the construction work for initial period of four months and on the eve of his transfer, he relinquished the charge of the post on 15‑3‑1992. After the lapse of four, years on completion of the bridge, certain technical defects were noticed and all the officials remained associated with the construction work, including the appellant, were held responsible. Mr. Abdul Aziz was appointed as an Enquiry Officer (Annexure‑A). Respondent No. l then served the appellant with a charge sheet alohgwith summary of allegations (Annexure‑B) and also conducted inquiry through the officer nominated. During the course of inquiry, the appellant was found innocent and he was exonerated by the Enquiry Officer in his findings. However, the Authorized Officer was pleased to impose minor penalty of stoppage of one increment (Annexure‑C) on the appellant. Thus the matter assumed finality and had become a past and closed transaction. Subsequently in the year 1997, respondent No. l illegally opened the matter and constituted an Enquiry Committee (Annexure‑D) to probe into the matter afresh for which the appellant was previously punished on the same charges. However, the charge‑sheet issued to him was dropped for certain obvious reasons (Annexure‑E) after short interval. On 1‑1‑1998, once again third charge‑sheet alongwith statement of allegations was issued to the appellant wherein the same charges were reproduced using refined language. However, the contents and substance was the same. (Copy is Annexure‑F). He submitted his reply to the charge‑sheet and explained his position by supporting documentary evidence and relevant record in rebuttal (Annexure‑G). On 5‑3‑1999, a show‑cause notice was served upon the appellant alongwith a copy of the enquiry report (Annexures H & I). From the contents of the enquiry report it transpired that the same is based on presumptions and self‑imported view which is doubtful and cannot sustain under the' law. The Enquiry Officer was quite cautious that the appellant has already been punished for loss of one increment and cannot be vexed twice for the same offence. The appellant once again explained his position (Annexure‑J) and his reply was well‑founded and based on legal principles and official record. On 3‑6‑1999, the appellant received the impugned order (Annexure-K) wherein his three increments were stopped. He filed his departmental appeal dated 8‑7‑1999 (Annexure‑L) before respondent No.1 which elicited no response within the prescribed period of 90 days", whereafter the petitioner approached the learned Service Tribunal by way of appeal which has been rejected, hence this petition.

3. Mr. Abdul Hakeem Khan Kundi, learned Advocate Supreme Court appeared on behalf of petitioner and contended 'strenuously that the learned Service Tribunal has not appreciated the legal and factual aspects of the controversy in its true perspective which resulted in serious miscarriage of justice. It is contended that the learned Service Tribunal has over‑looked that the first penalty of stoppage of one increment was imposed upon the petitioner on 4‑8‑1996 while the third charge‑sheet upon the same allegations was issued on 1‑1‑1998 which could not have been issued in view of the fact that the first penalty was already imposed on the same ground i.e. defective construction of Raisan Bridge. It is next contended that the learned Service Tribunal has erred while holding that subsequent penalty could have been imposed and enhanced in view of the provisions as contained in the N.‑W.F.P. (Efficiency and Discipline) Rules, 1973 which in fact have been misinterpreted and , misconstrued by the learned Service Tribunal. It is urged with vehemence that the petitioner was absolved in both the inquiries got conducted against him and thus the question of any penalty does not arise which amounts to double jeopardy and is in violation of Article 13 of the Constitution of Islamic Republic of Pakistan.

4. We have carefully examined the above contentions in the light of relevant provisions of law and record of tile case. We have minutely perused the judgment impugned. There is no denying the fact that the petitioner remained posted as S.D.O. and associated with the construction of Raisan Bridge in K.M. 27 Kohat Thall Road which was completed and opened for traffic in January, 1996, with effect from 18‑8‑1991 to 15‑3‑1992. It .is also an admitted fact that cracks were developed in nine out of twenty girder. As a result of comprehensive inquiry, the petitioner was held responsible for not following the skew and alignment correctly which could have not only played a havoc with the users of the bridge but also speaks a volume about the technical know‑how, efficiency and professional skill of the petitioner. There is no cavil with the proposition that successive inquiries could have been held to unveil the reality. The petitioner should be thankful to his stars that minor punishment of stoppage of three increments has been awarded which does not commensurate with the gravity of the charges. The penalty could have been increased by‑ the Competent Authority while exercising powers as conferred upon it under section 7‑A of the N.‑W.F.P. (Efficiency and Discipline) Rules, 1973 which has been enacted to meet such sort of eventualities which by no stretch of imagination can be equated to that of double jeopardy as pressed time and again by learned Advocate Supreme Court on behalf of petitioner. It is worth mentioning to note that the petitioner was never exonerated in any inquiry and no injustice whatsoever has been done with the petitioner. The entire disciplinary proceedings cannot be declared null and void due to some procedural lapses. "Even where the appeal was likely to succeed on question of law but case was otherwise unjust on merits and question involved in the case had already been settled by Supreme Court, to prevent failure of justice, dismissed the appeal with observation that any other course would have acted in aid of injustice". Muhammad Saleem v. Superintendent of Police, Sialkot and others PLD 1992 SC

369. It is well‑settled by now that "leave to appeal to Supreme Court is competent only if the case involves a substantial question of law and pubic importance". Muhammad Yousaf v. Government of Pakistan 1992 SCMR 1748; Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722 and Muhammad Azhar Khan v. Service Tribunal, Islamabad 1976 SCMR

262. It may be a case of individual grievance but no substantial question of law or public importance is involved in the matter. It has been held time and again by this Court that "Supreme Court does not ordinarily interfere with the concurrent finding of fact given by Departmental Authority and Service Tribunal". If any authority is required reference can be made to Muhammad Rinyamin v. Water and Power Development Authority 1991 SCMR 383; Faiz Ahmad v. Deputy Postmaster‑General, Lahore 1991 SCMR 368; Muhammad Munir Ahmad v. WAPDA 1990 SCMR 907 and Munir Ahmad v. Punjab Service Tribunal 1990 SCMR 1005. In sequel to above mentioned discussion, the petition being meritless is dismissed and leave refused. M.H./A‑1/S Petition dismissed.