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Petitioner: MUHAMMAD ASLAM SHEIKH VS Respondent: FEDERATION OF PAKISTANHonorable Justice MUHAMMAD RAZA KHANMuhammad Habibullah,Muhammad Saeed Akhtar
1999 P L C (C
1999 P L C (C. S.) 761
[Federal Service Tribunal]
Before Nasim Sabir Syed and Muhammad Raza Khan, Members
MUHAMMAD ASLAM SHEIKH
versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Cabinet Secretariat, Islamabad and another
Appeal No. 164(L) of 1997, decided on 17th July, 1997.
Civil service‑‑‑
Minor penalty‑‑‑Imposition‑‑‑Civil servant working as Assistant Commissioner of Income‑tax/Wealth Tax, who had a long service career and was at the fag‑end of his service was imposed minor penalty of "withholding of three increments without cumulative effect after charge‑sheeting him and holding inquiry against him on certain charges "‑‑‑Most of the charges against civil servant were merely of procedural nature giving no indication of any misconduct on part of civil servant‑‑‑Entire service record of civil servant had shown that he had never been charged for any misconduct or was proceeded against for inefficiency or indiscipline‑‑‑Terms 'misconduct "inefficiency" and "indiscipline" normally denoted an element of intentional omission or commission or deliberate mishandling of a matter with some motive, but in case of civil servant no indication of any ill‑intention, personal motive, deliberate omission or willful commission was found‑‑ Failure to follow the procedure strictly in accordance with its letter and spirit, could amount to negligence, but unless negligence was based on certain motive or had resulted in any financial loss to the State exchequer or based on any personal gain for himself, disciplinary action against civil servant was not justified for procedural irregularities‑‑‑Record had shown that alleged irregularities of civil servant had not resulted in any loss to the public revenue nor there was any indication of alleged personal gain out of alleged procedural irregularities or delayed completion of office record by civil servant‑‑‑Civil servant had been placed under suspension for over two years due to disciplinary proceedings against him and as a result of prolonged inquiry, minor penalty of withholding of three increments without cumulative effect had been passed by Authority knowing fully well that civil servant was already placed at the ceiling of the scale and was about to retire‑‑‑Imposition of penalty, thus, not only was meaningless, but intended to have no effect at all‑‑‑Imposition of such penalty, which otherwise could not be implemented could not be upheld‑‑‑Order imposing penalty on civil servant was set aside in circumstances.
Muhammad Habibullah for Appellant. Muhammad Saeed Akhtar, Bar‑at‑Law for Respondent.
Date of hearing: 16th July, 1997.
JUDGMENT
MUHAMMAD RAZA KHAN (MEMBER). ‑‑‑The appellant was working as Assistant Commissioner of Income Tax/Wealth Tax at Sheikhupura, in the year 1994, when a. surprise raid on the office was made by an Additional Commissioner of Income Tax and he impounded several files and registers. Thereafter, a charge‑sheet was issued on 30‑4‑1994 containing as many as seven charges. This charge‑sheet was supported by a detailed statement of allegations. The 4ppellant filed a reply to the charge sheet whereafter the inquiry was conducted and the inquiry report was submitted by the Inquiry officer somewhere in the end of 1995. A show cause notice was issued alongwith a copy of the inquiry report on 3‑12‑1995. It was replied by the appellant and consequently vide impugned order dated 16‑11‑1996, a minor penalty of "withholding of three increments without cumulative effect" was passed. After seeking departmental remedy vide appeal dated 18‑12‑1996, the present service appeal has been filed on 16‑4‑1997.
2. The respondents contested the case. Written objections were filed without any supporting document. We have listened to arguments on behalf of the parties.
3. In this case seven charges were levelled against the appellant and as per conclusion of the Inquiry Officer Charges Nos. 1, 3 and 7 have not been established while Charges Nos.2, 4 and 6 have been established. Charge No.5 is established to the extent that procedure was not properly carried out but the financial loss has not been quantified". The said Charges Nos.2, 4 and 6 read as follows:
"Charge No. ii.‑‑‑You completed assessment in 10 cases but order sheet was deliberately not written and completed in the regular manner in the course of proceedings, of Revenue regarding proper recording of proceedings on the order sheet.
Charge No. iv.‑‑‑You decided cases specified in the statement of allegations anti‑dated without any reasons and against the practice showing mala fide on your part.
Charge No. vi.‑‑‑You entered in D.C.R. certain cases (specified in the statement of allegations) without obtaining assessments in slip shod manner, causing loss of revenue.
"Charge No.5. is to this effect.‑‑‑You decided cases specified in statement of allegations in a casual manner in utter disregard to the norms, instructions and practice thus causing immense loss of revenue."
4. The perusal of the above charges and the report of the Inquiry Officer concludes that certain files were up‑dated, rather antedated by the appellant after the service of charge‑sheet and statement of allegations and most of the said charges are merely of procedural nature. There is no indication of any misconduct on the part of the appellant. It was argued in details on behalf of the appellant that surprise raid/inspection of the office of the appellant by the Additional Commissioner of Income Tax was a routine visit where compliance of procedural formalities are normally observed to see the omissions and commissions in the due compliance of the procedure therefore, if there was any omission on the part of the appellant, or commission, if may be due to unintentional negligence, rush of work and based on the spirit that the attention be focused primarily on the substance than on the formalities. The perusal of the entire record shows that the appellant had a long service career and presently he was at the fag end thereof. He has neither been charged for any misconduct, or proceeded against for inefficiency or indiscipline. The terms, misconduct, inefficiency and indiscipline normally denote an element of intentional omission or commission or deliberate mishandling of a matter with some motive. In the instance case, there has been no indication of any ill‑intention, personal motive, deliberate omission or willful commission. Failure to follow the procedure strictly in accordance with the letter and spirit may amount to negligence but unless the negligence is based on certain motive or has resulted in any financial loss to the State Exchequer or based on any personal gain for himself, disciplinary action is not justified for procedural irregularities. The record shows irregularities have not resulted in any loss to the public revenue nor there is any indication of illegal personal gain out of such procedural irregularities or delayed completion of the office record.
5. It may also be noted that the appellant had been placed under suspension for over two years due to the said proceedings and as a result of prolonged inquiry, the minor penalty of withholding of three increments without cumulative effect has been passed knowing fully well that the appellant was already placed at the maximum ceiling of the scale and was about to retire next year and, therefore, the imposition of so‑called penalty was not only meaningless but intended to have no effect at all. Civil Servants performing their functions in such a sensitive organization having so much of public relation and chances of personal gain, deserved to be appreciated on the satisfactory performance of their onerous duties involving huge financial responsibility. The entire blotless career of such a civil servant should not be spoiled by irresponsible and meaningless proceedings and conclusions particularly during the last couple of months of their lengthy service record. The appellant is said to have suffered the unfortunate attack of paralysis during the prolonged period of suspension and the lengthy inquiry stretching over of more than two years proved to be "much ado about nothing". The penalty imposed at the end of the entire episode had no effect of even a single penny for a single day on the appellant except to blot his unblemished career probably with the intention of serving as deterrent to others not to wish for spotless service.
6. Since the penalty imposed cannot be implemented and has admitted in the written objections, it was meaningless and ineffective. Therefore, the existence of such an infructuous penalty in the above stated circumstances cannot be upheld. Resultantly, we accept this appeal and set aside the impugned order dated 18‑11‑1996.
7. No order as to costs. Parties be informed.
H.B.T./235/Sr.F Appeal accepted.