Full Judgment Text & Judicial Ruling

2009 P L C (C

2009 P L C (C.S.) 98

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Ijaz-ul-Hassan Khan and Mian Hamid Farooq, JJ

CENTRAL BOARD OF REVENUE through Chairman/Secretary, Revenue Division, Islamabad

Versus

SHAFIQ MUHAMMAD and another

Civil Appeal No.717 of 2007, decided on 14th April, 2008.

(On appeal from the judgment/order, dated 6-12-2006 passed by Federal Service Tribunal in Appeal No.1081(R)(C.S.) of 2004).

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----R. 5(1)(iii)---Service Tribunals Act (LXX of 1973), Ss.4(1)(a) & 5---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to examine as to whether the Service Tribunal had condoned the delay of 4 years for justifiable reason and also to examine whether the Tribunal was justified to take the view that the absence of the civil servant from the office of petitioner for 5 years can be condoned when the department on having taken into consideration the facts found that he was absent from service for about 12 years out of which 7 years' absence was properly explained but there was no ground to justify the absence for another 5 years which finding of the department dated 10-9-1999 was upheld by the Appellate Authority when his departmental appeal was dismissed on 15-03-2000.

Per Muhammad Nawaz Abbasi J, Ijaz-ul-Hassan Khan J, agreeing Mian Hamid Farooq, contra, [Majority view]---

(b) Service Tribunals Act (LXX of 1973)---

---Ss. 5 & 4---Constitution of Pakistan (1973), Art.212(3)---Power of Service Tribunal under S.5, Service Tribunals Act, 1973---Scope---Service Tribunal may confirm, set aside, vary or modify the order appealed against, in an appropriate manner-Only limitation on the power of Service Tribunal is to satisfy the test of reasonableness---Service Tribunal, in the present case, having considered the question of law and facts raised in the appeal formed an opinion that the extreme penalty of dismissal from service was not in consonance with the nature and gravity of charge of absence from duty without leave-However while exercising powers under S.5, Service Tribunals Act, 1973 it converted major penalty of dismissal from service into stoppage of two increments for a period of two years---Such exercise of power by the Service Tribunal would not suggest that discretion exercised by the Tribunal was beyond the scope of law---Department had not been able to satisfy that Tribunal had committed any wrong in exercising the jurisdiction on the basis of test of reasonableness or any settled principle of law on the subject, which might be treated a jurisdictional error calling for interference by Supreme Court---Order of Service Tribunal, in circumstances, was in accordance with the concept of substantial justice.

(c) Service Tribunals Act (LXX of 1973)---

----Ss. 5 & 4---Constitution of Pakistan (1973), Art.212(3)---Absence from duty---Dismissal from service without regular enquiry---Hardship case---Exercise of discretion by Service Tribunal and conversion of dismissal from service by Service Tribunal into stoppage of increments for two years and condonation of delay in filing appeal before it--Interference by Supreme Court under Art.212(3) of the Constitution---Scope and extent.

The scope of interference of the Supreme Court in a case under Article 212(3) of the Constitution is confined to the extent of satisfaction of the court regarding involvement of substantial question of law of public importance, therefore, unless the order passed by the Tribunal is found to have been passed without jurisdiction, or coram non judice, mala fide or illegal, in respect of substantial question of law, Supreme Court may not interfere in the matter in exercise of its powers under Article 212(3) of the Constitution. In the present case, it appears that Tribunal firstly exercised discretion in favour of condonation of delay for the consideration that absence without leave may not be deliberate and intentional rather it was due to the abnormal situation which prevented the civil servant to return Pakistan and secondly, keeping in view the nature of charge and the circumstances under which he could not resume duty, it exercised discretion in favour of lesser penalty in the interest of substantial justice. The law authorizes the Tribunal to make a decision on the question of penalty awarded to a civil servant by the departmental authority and substitute the quantum of punishment in an appropriate manner in a suitable case in its discretion within the statutory command and this is settled law that a judicial power exercised in discretionary jurisdiction, is not supposed to be interfered by a higher judicial forum for collateral consequence in its discretion.

It is clear that Tribunal has to follow the limitations and restrictions of law in exercise of discretion in a manner, which may not offend the spirit of law. The concept of discretion in judicial power is to advance the cause of justice and exercise of this power in a judicious manner in aid of justice and not to perpetuate injustice whereas the executive authorities-have different considerations for exercise of such power. The judicial norms do not permit to encourage continuation of exercise of jurisdiction by a State functionary to deprive a person from his legitimate rights. It would be highly unlikely that Supreme Court imbued the discretionary action of a public functionary if the same was done in violation of the recognized principles of exercise of discretionary power. The distinction in the recognition of an action of a person and governmental authorization of public officer can be demonstrated by the test of determination whether deprivation of a right was the result of such an action of individual or the breach of law by a public authority. Where deprivation of some right or privilege is caused in consequence of an official act and the party charged with the deprivation is a person who acted as public functionary, the judicial powers necessarily have to be exercised in aid of protecting the rights and must not be exercised in aid of injustice. In the light of the facts and circumstances of the present case, the exercise of discretion by the Tribunal in condoning the delay as well as disposal of appeal with reduction of punishment without remand of case to the departmental authority for holding inquiry was quite in accordance with the concept of substantial justice in such a case of hardship.

The civil servant, in the present case, proceeded abroad with the permission of department and was also subsequently allowed ex-Pakistan leave on humanitarian ground, therefore, the element of wilful absence is not present in view of repeated explanation of civil servant regarding his difficulty, and his seeking extension in ex-Pakistan leave. The department at the first instance treating it a hardship case allowed ex-Pakistan leave and subsequently without change of circumstances, taking a harsh view, initiated departmental proceedings against him and ultimately awarded him extreme penalty of dismissal from service. In such circumstances, the remand of the case to the department would be futile. The regular inquiry in the departmental proceedings is a rule and dispensation is an exception depending on the facts of a case, therefore, the question whether regular inquiry in a case is necessary or not, it is to be kept in mind as to whether an adverse inference drawn without making probe into the facts in the light of explanation of a civil servant, would not amount to condemn a person unheard. The courts must not ignore cardinal principle that the hearing simpliciter does not mean providing of opportunity of written explanation to the show-cause notice rather in the facts of each case, it must be seen that the enquiry is just, proper and fair, therefore, no general rule can be laid down for dispensation of regular inquiry. The departmental proceeding on the charge of misconduct is a sort of semi-criminal proceeding in which initial burden is on the department to prove the charge and if the allegations are denied by the accused official the charge cannot be proved without producing evidence. In the present, case, the stand of civil servant, right from beginning, was that his absence was not wilful rather due to unavoidable circumstances, he was prevented from resuming duty. In view thereof, the procedure of dispensation of inquiry adopted by the department, was contrary to the law and consequently, the finding of the Tribunal in the peculiar facts and circumstances of the present case, that regular inquiry was essential to ascertain as to whether the question of wilful absence and dispensation of such an inquiry was not in accordance with the spirit of law in the given facts, was unexceptional. In view thereof, the major penalty of dismissal from service without regular inquiry was not justified. The contention that the Tribunal should have remanded the case instead of disposal of appeal on merits was not raised before the Tribunal and now it is too late to undertake such a futile exercise of remanding the case at this stage.

Appeal before the Tribunal appeared to be time barred but in view of circumstances pleaded therein, no exception could be taken to the condonation of delay by the Tribunal as the objection could conveniently be overruled in view of the fact that when the order of dismissal of appeal was conveyed to the civil servant he immediately filed the appeal. Therefore, in view of his bona fide, the objection of limitation, may have no significance. A civil servant could wait till communication of decision of departmental appeal and would not be non-suited on technical grounds.

The discretion exercised by the Tribunal in condoning the delay and disposal of appeal on merits with conversion of penalty of dismissal from service into stoppage of increment, was not illegal or improper exercise of jurisdiction. The departmental proceedings were initiated against the civil servant in the year 1998 which continued for a period of about 10 years and the impugned judgment having been already given effect, civil servant was performing his duty and in view thereof, it was not proper for the Supreme Court to interfere in the judgment of the Tribunal at this stage on technical grounds. The discretionary jurisdiction exercised by the Tribunal in respect of condonation of delay and conversion of penalty was not arbitrary, illegal or un-reasonable to attract the jurisdiction of Supreme Court under Article 212(3) of the Constitution.

Nawab Khan v. Government of Pakistan PLD 1994 SC 222; Secretary, Government of the Punjab v. Riaz-ul-Haq 1997 SCMR 1552; Basharat Ali V. Director Excise and Taxation 1997 SCMR 1543; Managing Director, S.S.G.C. Ltd. v. Ghulam Abbas PLD 2003 SC 724 and Chief Engineer (North) v. Saifullah Khan Khalid 1995 SCMR 776 ref.

Per Mian Hamid Farooq, J Contra.---[Minority view].

Mst. Hajran v. Sardar Muhammad PLD 1970 SC 287; Water and Power Development Authority v. Aurangzeb 1988 SCMR 1354; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 and Nawaz Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 22 ref.

Raja Muhammad Bashir, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 14th April, 2008.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.--- This appeal by leave of the Court, has been directed against the judgment dated 6-12-2006 passed by Federal Service Tribunal by virtue of which Service Appeal bearing No.1081(R)(C.S.) of 2004 filed by respondent No.1 challenging the order passed by the departmental authority whereby he was awarded punishment of dismissal from service, was partly allowed and the penalty of dismissal from service was converted into reduction of pay by two stages in the time scale for a period of two years with direction of reinstatement in service.

2. The facts of the case in small compass, leading to the filing of this appeal are that Shafiq Muhammad respondent herein an Additional Commissioner in Income Tax Department, was sent on a foreign training in U.S.A. for a period of about three years from 24-8-1992 to 31-12-1995 and on completion of the training, he applied for ex-Pakistan leave, which was granted to him for 731 days from 1-1-1996 to 31-12-1997 vide notification dated 2-5-1996. The respondent on expiry of the leave, applied for further leave which was declined vide order dated 5-1-1998 and he was directed to resume the duty. In consequence to the failure of the respondent to report for the duty, he was proceeded against for departmental action under the Government Servants (Efficiency and Discipline) Rules, 1973; and was served with a show-cause notice through Embassy of Pakistan, Washington. The respondent submitted his reply to the show-cause notice and competent authority having considered the circumstances explained by him in the reply which genuinely prevented him to return to Pakistan, allowed him ex-Pakistan leave for another period of 365 days from the date of expiry of earlier leave vide notification dated 9-7-1998. Consequently, the show-cause notice was withdrawn and departmental action against him was dropped. However, before expiry of the extended period of ex-Pakistan leave, the respondent on 15-12-1998 again sent an application for further extension of leave whereupon the department instead of acceding the request of respondent issued a fresh show notice to him on 23-2-1999. The respondent in reply to the show cause notice having given reasons for not resuming the duty, again requested for grant of ex-Pakistan leave. The competent authority after dispensing with the requirement of regular inquiry and completing formalities of law, concluded the departmental proceedings against the respondent with passing of the order of his dismissal from service vide notification dated 4-8-1999 which was conveyed to him on 18-8-1999 through usual channel of the Embassy of Pakistan, Washington, whereupon he filed a departmental appeal on 10-9-1999 which was rejected and on receipt of order rejection of the appeal, he preferred an appeal before the Federal Service Tribunal, Islamabad which was dismissed as time barred. This order was challenged by the respondent before this Court and ultimately this Court remanded the case to the Tribunal for decision of the appeal afresh on merits including the question of limitation. In post remand proceedings, the Tribunal partly allowed the appeal of respondent vide impugned judgment whereby his dismissal from service was converted into reduction of pay by two stage in the time scale for a period of two years and he was reinstated in service with direction that period during which he remained out of service, would be treated as leave of the kind due, if any, at his credit and the remaining period as extraordinary leave without pay. The C.B.R. feeling dissatisfied with the order of Tribunal filed the present appeal before this Court in which leave was granted vide order dated 7-2-2007 as under:--

"Leave to appeal was granted to examine as to whether the Tribunal had condoned the delay of 4 years for justifiable reason and also to examine whether the Tribunal was justified to take the view that the absence of the respondent from the office of petitioner for 5 years can be condoned when the department on having taken into consideration the facts found that he was absent from service for about 12 years out of which 7 years' absence was properly explained but there was no ground to justify the absence for another 5 years which finding of the department dated 10-9-1999 was upheld by the Appellate Authority when his departmental appeal was dismissed on 15-3-2000."

3. Initially the appeal filed by the respondent before the Service Tribunal was dismissed in limine on the question of limitation and this Court vide judgment dated 27-7-2006 passed in Civil Petition No.1422 of 2005 remanded the case to the Tribunal for decision of the appeal afresh after obtaining reply from the department on appeal as well as on miscellaneous application containing explanation for condonation of delay. In post remand proceedings, the Tribunal allowed the appeal of respondent vide impugned judgment.

4. The main ground of assailing the judgment of Tribunal before us in this appeal, relates to the question of condonation of delay in appeal before the Tribunal. The learned counsel for the appellant has contended firstly that the Tribunal after coming to the conclusion that the explanation offered by the respondent for condonation of delay was not sufficient, could have no justification to exercise discretion in favour of condonation of such a long delay and secondly that the long absence of respondent from duty without leave, was not deniable therefore, notwithstanding the principle of law that in the cases involving controversial question of fact regular inquiry as envisaged under the rules is necessary, the dispensation of such inquiry in the present case was not against the law and competent authority in exercise of powers under section 5(1)(iii) of Government Servants (Efficiency and Discipline) Rules, 1973, rightly while dispensing with the regular inquiry, passed the final order. Lastly, learned counsel argued that under section 4(1)(a) of the Service Tribunals Act, 1973 a civil servant on expiry of 90 days from the date of filing the departmental appeal, is not supposed to further wait for decision of appeal and must file appeal within next 30 days, failing which the appeal would be out of time and in support thereof, has placed reliance on Nawab Khan v. Government of Pakistan PLD 1994 SC 222 and Secretary, Government of the Punjab v. Riaz ul Haq 1997 SCMR 1552.

5. Learned counsel for the respondent on the other hand, with reference to the judgments of this Court in Basharat Ali v. Director Excise and Taxation 1997 SCMR 1543, Managing Director, S.S.G.C. Ltd. v. Ghulam Abbas PLD 2003 SC 724 and Chief Engineer (North) v. Saifullah Khan Khalid 1995 SCMR 776 without denying the position of law that if a departmental appeal/representation is not decided within a period of 90 days, the civil servant without waiting for the result of appeal/representation, can file an appeal before the Tribunal within next 30 days, submitted that an appeal filed before the Tribunal beyond 120 days from the date of order passed by the competent authority cannot be dismissed as barred. by time for the reasons that the original .order is merged in the order of the appellate authority, passed in appeal and without challenging the appellate order, an appeal against an original order may not competently succeed, therefore, the limitation of 30 days of filing an appeal before the Service Tribunal in a case in which the remedy of departmental representation/appeal is provided under the rules, would start from the date of communication of the order passed by the appellate authority. Learned counsel submitted that a civil servant without being aware of the reason of rejection of his appeal/representation may not be able to set up his case in appeal before the Tribunal and would not get a fair treatment in law.

6. Learned counsel argued that the Tribunal taking into consideration the extraordinary and abnormal situation leading to the absence of respondent from duty in the light of the facts of case in totality has rightly exercised discretion in favour of condonation of delay which was not unreasonable, unjust or unfair to be questioned before this Court. Learned counsel added that absence of respondent from duty without leave was not wilful rather it was due to the circumstances beyond his control and this fact was also acknowledged by the department by treating his case as that of hardship case, granted him ex-Pakistan leave for another period of one year. Learned counsel while summoning up his arguments, submitted that in view of the factual position in the background and plausible explanation of respondent for absence from duty, the condonation of delay by the Tribunal in its discretionary jurisdiction, was not contrary to law to be questioned.

7. The peculiar circumstances of the case in the background would give rise to the essential question for determination as to whether absence of respondent was wilful and he intentionally avoided to report for duty or he was prevented by the unavoidable circumstances to resume the duty. In the light of explanation of respondent that he under the compelled circumstances, prolonged his stay abroad, on the face of it, would suggest that his absence was not wilful, therefore, a contrary presumption would not be drawn without recording evidence and holding regular inquiry as the controversial question of fact whether absence was wilful or not, could not be decided on the basis of mere show-cause notice and its reply, therefore, the presumption of wilful absence raised by the competent authority for imposing major penalty of dismissal from service was not legal without providing a fair and proper opportunity of hearing to the respondent who was condemned unheard. Learned counsel lastly argued that the Tribunal in exercise of power under section 5 ,of the Service Tribunals Act, 1973, in the light of the facts of case, may modify the quantum of punishment and unless this discretionary jurisdiction is found to have been exercised beyond the scope of law, it may not call for interference of this Court.

8. Section 5 of the Service Tribunals Act, 1973, provides that Tribunal may confirm, set aside, vary or modify the order appealed against in an appropriate manner. The careful examination of this provision would show that only limitation on the power of the Service Tribunal is to satisfy the test of reasonableness. Section 5 of Service Tribunals Act, 1973, provides as under:-

"5. Power to Tribunals.---(1) A Tribunal may, on appeal confirm, set aside, vary or modify the order appealed against.

(2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of---

(a) enforcing the attendance of any person and examining him on oath;

(b) compelling the production of documents;

(c) issuing Commission for the examination of witnesses and documents."

9. In the present case, it appears that Tribunal having considered the question of law and facts raised in the appeal formed an opinion that the extreme penalty of dismissal from service was not in consonance with the nature and gravity of charge of absence from duty without leave and while exercising power under section 5 ibid, converted major penalty of dismissal from service into stoppage of two increments for a period of two years and careful perusal of the record would not suggest that discretion was exercised beyond the scope of law. The learned counsel for the appellant also has not been able to satisfy us that the Tribunal has committed any wrong in exercising the jurisdiction on the basis of test of reasonableness or settled principle of law on the subject, which may be treated a jurisdictional error calling for the interference of this Court. The scope of interference of the Supreme Court in a case under Article 212(3) of the Constitution is confined to the extent of satisfaction of the court regarding involvement of substantial question of law of public importance, therefore, unless the order passed by the Tribunal unless is found to have been passed without jurisdiction, or coram non judice, mala fide or illegal, in respect of substantial question of law, this Court may not interfere in the matter in exercise of its powers under Article 212(3) of the Constitution. In the present case, it appears that Tribunal firstly exercised discretion in favour of condonation of delay for the consideration that absence without leave may not be deliberate and intentional rather it was due to the abnormal situation which prevented the respondent to return Pakistan and secondly, keeping in view the nature of charge and the circumstances under which respondent could not resume duty, it exercised discretion in favour of lesser penalty in the interest of substantial justice. The law authorizes the Tribunal to make a decision on the question of penalty awarded to a civil servant by the departmental authority and substitute the quantum of punishment in an appropriate manner in a suitable case in its discretion within the statutory command and this is settled law that a judicial power exercised in discretionary jurisdiction, is not supposed to be interfered by a higher judicial forum for collateral consequence in its discretion.

10.…

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