'MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 212 (3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment dated 8-3-2001 passed by the Federal Service Tribunal, Islamabad, in an appeal filed by the present petitioner against his removal from service.
2. The petitioner was employed as dispenser, (BPS-6) in Capital Hospital, C.D.A., Islamabad. The petitioner was served with a charge-sheet containing the allegation of theft of medicines worth Rs,1, 245.85 from Capital Hospital. The authorized officer, in pursuance to section 5 of the Removal from Service (Special Powers) Ordinance, 2000, constituted an inquiry committee for an inquiry into the matter and the inquiry committee under the following recommendations:-- "Though this unlawful action of Mr. Rizwan calls for an exemplary punishment of removal from service but taking a lenient view, enquiry committee recommends that for this misconduct, Mr. Rizwan Ashraf Dispenser, be demoted to a one step lower grade from his present grade."
3. The competent authority, on receipt of the report of inquiry committee, removed the petitioner from service with immediate effect vide order dated 10-1-2001. The petitioner having exhausted the remedy of departmental appeal preferred a service appeal before the Federal Service Tribunal, which was dismissed through the impugned judgment.
4. Learned counsel for the petitioner has contended that petitioner being an employee of Capital Hospital, (CDA) was entitled to avail the facility of medicines and he as per his entitlement had drawn the medicines from medical store of the hospital on medical slips issued to him in the prescribed manner for the use of his old parents who were his dependents and that there being no evidence in proof of the allegation of theft of medicines, the petitioner was proceeded against only on the basis of suspicion. The learned counsel submitted that in any case, in view of the recommendations of the inquiry officer for a lesser penalty, the removel of the petitioner from service was not proper.
5. Learned counsel representing the respondents, on the other hand, has vehemently argued that the recommendation of the inquiry officer was not binding on the competent authority and that in view of the nature of allegation, the petitioner would not deserve any leniency in the matter of punishment. The learned counsel added that the petitioner was removed from service after providing full opportunity of hearing and no prejudice was caused to him by proceeding against him under the Removal from Service (Special Powers) Ordinance, 2000.
6. The precise allegation against the petitioner was that he had drawn the medicines from the medical store with the help of his colleagues without showing medical card. The perusal of record would reveal that neither the inquiry committee nor the competent authority has bothered to fix the responsibility of the officials who were responsible for supply of the medicines to the petitioner from the medical store in an unauthorized manner. The observation of the inquiry committee that the administration must take strict measures to prevent supply of the medicines from the medical store without the prescription and medical cards, would show that unauthorized use of medicines was common practice in the Hospital and petitioner instead of taking pain of following the proper procedure for getting the medicines from the Hospital as per his entitlement, obtained the same from the store with the help of his colleagues and did not as such commit theft of medicines. The official who arranged medicines for the petitioner in an unauthorized manner were not proceeded against and probably the inquiry committee, for the said reason while taking a lenient view recommended for the minor penalty which aspect of the matter was not taken into consideration by the competent authority and also the Service Tribunal.
7. We, having considered the explanation offered by the petitioner and the circumstances in which the medicines were drawn ,from the medical store of Capital Hospital, CDA, are of the view that the Penalty of removal from service was excessive and was not in proportion to the nature of misconduct and consequently, in the light of recommendation of inquiry committee while upholding the charge of misconduct, direct that the penalty proposed by the inquiry committee would sufficiently meet the ends of justice, we therefore, convert the removal of the petitioner from service into the penalty of one step lower pay scale.
8. This petition with the above modification in the quantum of punishment is converted into appeal and is disposed of accordingly. The petitioner shall be reinstated in service but he shall not be entitled to salary for the period he remained out of service. There shall be no action as to costs.