Proportionality of punishment

2024 SCMR 309 SUPREME-COURT Judicial Precedent

S. 4(1)(c)(i)District Food CollectorEmbezzlement of food stockCase of 'negligence' as opposed to 'gross negligence'Withholding of part of pension for a certain periodProportionality of punishmentScope

Petitioner's absence from the site of embezzlement, albeit due to the nature of his job, could not be used as a handy excuse to absolve himself of the loss caused to the public exchequer

Nevertheless, the petitioner's negligence was not 'gross negligence' given that the petitioner's conduct was not so marked a departure from the normal standard of conduct of a professional man as to infer a lack of that ordinary care which a man of ordinary skill would display

Thus, Inquiry Committee's decision to impose major penalty of withholding 100% of petitioner's pension failed the tests of proportionality (of punishment), suitability, and necessity

Petition for leave to appeal was converted into appeal and partly allowed by modifying the impugned judgment in the terms that the petitioner's pension shall be confined to 50% from the period of service ranging from the year 2014 to 2016 only; whereas pension for the remainder of his service, apart from the aforementioned period of service, shall be paid in its entirety i.e. 100% by the department.

2024 PLC(CS) 344 SUPREME-COURT Judicial Precedent

S. 4(1)(c)(i)District Food CollectorEmbezzlement of food stockCase of 'negligence' as opposed to 'gross negligence'Withholding of part of pension for a certain periodProportionality of punishmentScope

Petitioner's absence from the site of embezzlement, albeit due to the nature of his job, could not be used as a handy excuse to absolve himself of the loss caused to the public exchequer

Nevertheless, the petitioner's negligence was not 'gross negligence' given that the petitioner's conduct was not so marked a departure from the normal standard of conduct of a professional man as to infer a lack of that ordinary care which a man of ordinary skill would display

Thus, Inquiry Committee's decision to impose major penalty of withholding 100% of petitioner's pension failed the tests of proportionality (of punishment), suitability, and necessity

Petition for leave to appeal was converted into appeal and partly allowed by modifying the impugned judgment in the terms that the petitioner's pension shall be confined to 50% from the period of service ranging from the year 2014 to 2016 only; whereas pension for the remainder of his service, apart from the aforementioned period of service, shall be paid in its entirety i.e. 100% by the department.

2016 PLD 398 KARACHI-HIGH-COURT-SINDH Judicial Precedent

R. 19Contract for supply of goodsAllegations of fraud and corruptionBlacklisting of contractorNatural justice, principles ofApplicabilityProportionality of punishmentScopePetitioner-contractor was permanently blacklisted due to allegation of fraud and corruption in the supply of goodsContention of petitioner-contractor was that no fair opportunity of hearing was afforded to himValidity

Procuring agency was competent to permanently or temporarily bar the supplier and contractor from participating in its procurement proceedings who failed to provide satisfactory performance or were found to be indulged in corrupt or fraudulent practice

Such supplier or contractor should be afforded adequate opportunity of hearing before blacklisting

Procuring agency could devise manner and mechanism to arrive at an inference for such decision which should base on some material and cogent reasons

Proceedings were conducted before the Standing Committee against the petitioner-contractor and he was given proper opportunity of hearing

No illegality was pointed out in the impugned order

Procuring agency could not be compelled to do business with a specific contractor and supplier

Decision to debar permanently or temporarily a contractor and supplier to participate in the procurement proceedings should depend upon the severity of alleged offence

Principles of natural justice and proportionality should be taken into consideration while awarding a punishment to a contractor for his malfeasance

Petitioner-contractor in the present case, had been permanently debarred from venturing into contractual obligations

Nothing was on record as to whether petitioner-contractor acted or omitted to act in collusion with other alleged culprits, the profits it gained and loss was suffered by the procuring agency

Permanently blacklisting the petitioner-contractor was harsh and heavy punishment in the present case

No right of appeal had been provided to the petitioner-contractor

Party affecting from an adversarial order should have right to challenge the same before the higher forum

If such right was abridged then there would be miscarriage of justice

High Court could examine such order on the touchstone of natural justice

Matter was remanded to the competent authority for decision afresh within a specified period

Constitutional petition was disposed of in circumstances.