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Petitioner: MUHAMMAD ASLAM VS Respondent: DIVISIONAL ENGINEER, PAK. RAILWAYS
1993 P L C (C
1993 P L C (C.S.) 972
[Supreme Court or Pakistan]
Present: Muhammad Afzal Zullah, C.J., Saleem Akhtar and Wali Muhammad Khan, JJ
MUHAMMAD ASLAM
Versus
DIVISIONAL ENGINEER, PAK RAILWAYS and 4 others
Civil Appeal No. 1337 of 1990, decided on 18th January, 1993.
(On appeal from the judgment dated 30‑6‑1990 of the Federal Service Tribunal, Islamabad, in Appeal No. 364‑L/87, 634(R)/89).
(a) Railway Servants (Efficiency and Discipline) Rules, 1975‑‑‑
‑‑‑‑Sched. V, R. 2(2) & (3)‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑ Removal from service‑‑‑Leave to appeal was granted to consider whether Divisional Engineer being a Grade‑18 Officer, was not competent to issue charge‑sheet to petitioner who was a Grade‑12 railway employee and whether the Deputy Head of the Department in Grade‑19 was Authorised Officer in the case of petitioner according to the list of Authorities/Authorised Officers in R.2(2) & (3), Railway Servants (Efficiency and Discipline) Rules, 1975 as shown in Sched. V, thus, rendering the entire proceedings as without jurisdiction.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 212‑‑‑Appeal before Supreme Court‑‑‑Competency‑‑‑Question raise in appeal was a mixed question of law and facts; even legal part thereof, was confined to the. particular case of appellant, being not one of general importance‑‑‑If question involved in the case was resolved by examining the facts and circumstances of the case decision thereof, would be relevant only t that case‑‑‑Question of law of public importance being not involved, provision of Art.212 of the Constitution was not attracted/satisfied‑‑‑Appeal was dismissed in circumstances.
Sh. Hamid Mukhtar, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record (absent) for Appellant.
Ch. Fazal‑i‑Hussain, Advocate‑on‑Record for Respondent No. 1.
Date of hearing: 18th January, 1993.
JUDGMENT
MUHAMMAD AFZAL ZULLAH, C.J.‑‑‑This appeal through leap of the Court has arisen out of a service matter. The leave to appeal w: granted as follows:‑‑
"This is a petition for leave to appeal against the order of Federal Service Tribunal, Islamabad, dated 30‑6‑1990.
The petitioner was serving in the Pakistan Railways as I.O.W. He ha 37 years of service at his credit but on 31st July, 1984 he was serve with a charge‑sheet by the Divisional Engineer alleging that the petitioner was inefficient and responsible for shortage of 965514 cft. of ballast and he was directed to deposit an amount of Rs.13,91,349. A reply was submitted by the petitioner denying the charge but he was proceeded against departmentally and an enquiry conducted again him. A joint enquiry committee consisting of AEN I, Lahore an APO‑2, Lahore found the petitioner guilty of the charges levelled against him. The Divisional Engineer‑II, Lahore served a show‑eau: notice upon the petitioner on 7‑7‑1987. The petitioner was, however found guilty and a major penalty was imposed upon him and he was removed from service on one month's pay in lieu of one month notice on 26‑7‑1987. The appeal of the petitioner before the departmental authority had failed and so was his appeal before the Service Tribunal.
The learned counsel for the petitioner has been heard. He contended inter alia, that the petitioner was a Grade‑12 railway employee. The Divisional Engineer who is a Grade‑18 Officer was not competent issue the charge‑sheet as it is only the Deputy Head of the department in Grade-19 who is an Authorised Officer in the case of the petitioner according to the list of Authorities/Authorised Officers in sub‑rule (2) and (3) of Rule 2 of the Railway Servants (Efficiency and Discipline) Rules of 1975 as shown in Schedule V, thus rendering the entire proceedings as without jurisdiction. He submitted that this point was urged before the Service Tribunal which was taken note of but has not at all adjudicated upon.
After hearing the learned counsel we think that the case requires consideration."
2. It is not denied that the following argument in this case is important:
"The Divisional Engineer who is a Grade‑18 Officer was not competent to issue the charge‑sheet as it is only the Deputy Head of the department in Grade‑19 who is an Authorised Officer in the case of the petitioner according to the list of Authorities/Authorised officers in sub‑rules (2) and (3) of Rule 2 of the Railway Servants (Efficiency and Discipline) Rules of 1975 as shown in Schedule V, thus, rendering the entire pr6eeedings as without jurisdiction."
However, it is not denied also that the question raised in the above argument is mixed one of law and fact. Even the legal part is confined to the particular case of the appellant. It is not one of general importance. If we resolve the same by examining the facts and circumstances of this case it will be a decision relevant only to the present case. Hence it is not a case in which a question of law of "public importance" is involved. Article 212 of the Constitution is thus not attracted/satisfied.
3. When we pointed out this difficulty in proceeding any further with the appeal learned counsel for the appellant tried to argue that it is a special case in which the appellant alone has been awarded somewhat harsh punishment. One of his colleagues was only retired and may be some more not at all proceeded against.
4. The statement made by the learned counsel does show a disturbing situation in so far as the dictates of justice and equal treatment before law is concerned but the remedy here is not the one that who has been rightly punished should also be granted benefits which were allowed to the others while they were not entitled to them. If some other persons are guilty and they have not properly been punished steps can be taken to punish them also properly, if they are guilty. But on that account the appellant cannot be allowed the benefit of acceptance of this appeal. The same, accordingly, is dismissed.
A.A./M‑1739/S Appeal dismissed.