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Petitioner: ANWAR ALI VS Respondent: CHIEF EXECUTIVE HESCO (WAPDA), HYDERABADHonorable Justice Iftikhar Muhammad ChaudhryHaider Hussain,Ch. Naseer Ahmed
2009 P L C (C
2009 P L C (C.S.) 963
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C. J., Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ
ANWAR ALI and another
Versus
CHIEF EXECUTIVE HESCO (WAPDA), HYDERABAD and others
Civil Petitions Nos.315-316 of 2009 and Civil Petitions Nos.457 of 458 of 2009, decided on 22nd May, 2009.
(On appeal from the judgment, dated 26-12-2008 passed by Federal Service Tribunal, Islamabad in Appeals Nos.400(R)(C.S.) of 2008 and 401(R)(C.S.) of 2008).
Service Tribunals Act (LXX of 1973)---
----Ss. 4 & 5---Dismissal from service---Bogus academic certificates---Service Tribunal, decision of---Principle---Civil servants produced bogus academic certificates at the time of their selection, therefore, they were dismissed from service---Service Tribunal partially allowed appeals filed by civil servants and converted dismissal from service into compulsory retirement with pensionary benefits---Validity---Had the Service Tribunal gone through documents placed before Inquiry Officer, there could have no occasion to show any leniency in favour of civil servants---Service Tribunal might have recommended department for further criminal action against such persons so that it might serve deterrence for likeminded persons in future---Instead of doing so, civil servants who were found guilty of gross misconduct and fraud, had been benefited by converting penalty of dismissal from service into compulsory retirement only for the reason that they had served department for about 27 years---Such reasons prevailed upon Service Tribunal were not acceptable in any context---Supreme Court converted petition for leave to appeal into appeal and set aside judgment passed by Service Tribunal---Supreme Court recommended authorities to examine poss ibility of getting registered criminal case against civil servants so that that in future no one should dare to commit such misconduct in government departments---Appeal was allowed.
Postmaster-General, AJK v. Muhammad Zorab 1996 SCMR 280 rel.
Haider Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.
Ch. Naseer Ahmed, Advocate Supreme Court for Respondents.
Date of hearing: 22nd May, 2009.
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- Listed petitions have been filed against the judgments dated 26-12-2008 passed by Federal Service Tribunal, Islamabad, therefore, we propose to decide them by this common judgment.
2. Facts giving rise to these petitions, in short, are that petitioners Anwar Ali and Muhammad Ishaq being in the service as Accounts Assistants of Hyderabad Electric Supply Company opted for the post of Divisional Accountant (Emergency Cadre) in pursuance of letter dated 30th January, 2003. It is significant to note that qualification prescribed under this letter was B.Com. (2nd Div.) with five years experience of accounting. Both of them submitted requisite degrees and were selected as Divisional Accountants (Emergency Cadre). Later on it transpired that the degrees of B.Com., produced by them are not genuine, therefore, they were called upon to provide attested photocopies of B.Com. degree signed by them, which they failed to do so. As a result whereof, departmental proceedings were initiated against them for placing bogus degrees of B.Com. for their placement as Divisional Accountant (E.C). Accordingly both of them submitted their written replies. As far as Ishaq is concerned, he admitted that' B.Com. certificate was arranged by him therefore, is feeling self guilty. Relevant para. from-his reply in this behalf is reproduced herein below:--
"Being a human I was looking for my bright future and trying to a B & AO enormously a fictitious B.Com certificate was arranged, for this negligency I am feeling myself guilty and requesting your kind to excuse me on this cheating. I further requested you to kindly I may be allowed to be heard in person."
Anwar Ali also filed reply but did not admit his guilt, however, his plea had been that someone else had produced a bogus/fake degree on the record of his service due to jealousy or enmity. The Inquiry Officer concluded that allegations have been proved against them. On dispensing with further proceedings of issuing the show-cause notice and taking the reply etc. they were dismissed from service. They preferred departmental appeals, which were rejected and ultimately they approached the Federal Service Tribunal and assailed the order dated 25th January, 2008 whereby they were dismissed from service. The Tribunal on having come to the conclusion that both of them have produced fake documents, instead of dismissing their appeals, converted their service into compulsory retirement with pensionary benefits vide impugned judgment.
3. Learned counsel appearing for Anwar Ali and Muhammad Ishaq in C.P.S.L.As. Nos.315 and 316 of 2009 stated that he has been instructed not to press the same. Order accordingly. Civil Petitions Nos.315-316 of 2009 filed on their behalf are dismissed as not pressed.
4. Learned counsel appearing in Civil Petitions Nos.457-458 of 2009, filed on behalf of HESCO contended that there is overwhelming evidence against both the respondents and including the departmental authority, the Service Tribunal had also concluded that they being the beneficiaries of the fake degrees have committed gross misconduct and. the Tribunal had no authority to convert the penalty of dismissal from service into compulsory retirement with pensionary benefits. Learned counsel for the respondents stated that they are not responsible for the same particularly, in the case of Anwar Ali because someone else has placed a fake degree on his service record, due to enmity, therefore, the Tribunal keeping in view of facts and circumstance and for the reason that both of them had served for a longer period to the department, rightly exercised jurisdiction in their favour.
5. We believe that in view of the admitted facts particularly in the case of Muhammad Ishaq, relevant para. is reproduced hereinabove, Inquiry Report and- other documents brought in the case of Anwar Ali, there is no need of entering into factual controversy, except to examine that under the circumstances, whether Tribunal had rightly exercised jurisdiction under section 4 of the Service Tribunals Act, allowing the benefit of compulsory retirement to them instead of maintaining the penalty of dismissal from service. Undoubtedly, Tribunal enjoys such jurisdiction but it is to be exercised judiciously. In the given circumstances of the case, when it has been established on the record that both of them had committed fraud and are guilty of gross misconduct, there was no occasion to show leniency in their favour. Whatever the arguments advanced by Mr. Haider Hussain, learned Advocate Supreme Court that Anwar Ali was not responsible for the placing on record bogus certificate for the purpose of selection/appointment as Divisional Accountant but the fact remains that they were the beneficiaries and the Inquiry Officer after having taken pain on the basis of available record has opined against them. Such Inquiry Report has not only been accepted by the Competent Authority but also by the Appellate Authority of the same department as well as, the Tribunal. Therefore, arguments raised by the learned counsel for the respondents are not acceptable. This Court in the case of Postmaster General, AJK v. Muhammad Zorab 1996 SCMR 280 has held that Supreme Court, while hearing appeal arising from derision of Service Tribunal would only interfere if order passed by Tribunal lacked application of mind or suffered from arbitrariness. Following this principle we have no option to hold that in the instant case Service Tribunal had not adhered to this principle correctly. Had the Service Tribunal gone through the documents placed before the Inquiry Officer, there was no occasion to show any leniency in their favour. Contrary to it, the Tribunal may have recommended the department for further criminal action against such person so that it may serve deterrence for a likeminded person in future. But instead of doing so, respondents who have been found guilty for gross misconduct and fraud, had been benefited by converting the penalty of dismissal from service into compulsory retirement only for the reason that they had served the department for about 27 years etc. Therefore, the reasons prevailed upon the Service Tribunal are not acceptable in any context.
6. Thus, for the foregoing reasons, Civil Petitions Nos.457 and 458 of 2009 are converted into appeals and allowed, as a result whereof, the impugned judgment dated 26-12-2008 is set aside with costs.
The department is free to examine possibility of getting registered criminal case against respondents so in future, no one should dare to commit such misconduct in the government departments.
M.H./A-51/SC Appeal allowed.