' SARDAR MUAHMMAD RAZA KHAN, J--- Government of N.-W.F.P Chairman and Secretary N.-W.F.P.
Public Service Commission, Peshawar, through these petitions, seek leave to appeal against the judgment dated 21-4-2003 of N.-W.F.P. Service Tribunal whereby, while partially accepting Appeals No,150 and 151 of 2002 filed by the respondents, had modified the punishment from reduction to the minimum of time scale imposed by the departmental authority to stoppage of three increments without cumulative effect.
2. Brief facts of the case are that Muhammad Fayyaz Khan, respondent in his capacity as Assistant and Farman Ali as Daftri were served with charge-sheet and statement of allegations that they in collaboration with each other and while conniving with one Mr. Rahim Khan, candidate for the post of SO/DSP had tampered with the diary register by erasing the name of Muhammad Fayyaz Khan, Assistant and replacing his photograph with that of Mr. Rahim Khan, candidate, had helped him in becoming a genuine candidate whose application otherwise was time-barred. It may be remarked at this stage that Muhammad Fayyaz Khan, Assistant had also applied for the post aforesaid and having access to the record had helped Mr. Rahim Khan by replacement of photograph as well as the name of the said candidate.
3. During departmental proceedings it was held that the charge against both the officials was proved. They were reduced to the minimum of time scale under rule 4 (1 (b)(i) of N.-W.F.P.
Government Servants (Efficiency and Discipline) Rules, 1973. The Service Tribunal on appeal came to the conclusion that the charge was proved but the punishment imposed was not in accordance with law and the departmental authority could have reduced the respondents to only one lower stage in a time scale and not to the minimum thereof. Anyhow, despite such decision the Tribunal, instead of confining itself to the stages of a time scale, altered the punishment to stoppage of three increments without cumulative effect. The punishment modified by the Tribunal fell under rule 4(1)(a)(ii) resulting into conversion of major penalty into minor penalty.
4. As the Tribunal has only altered the penalty involved, the question arises as to whether an appeal before the Tribunal can be held competent if exclusively filed against the quantum of punishment. In this behalf, there is some difference between the Federal Law and the laws of the four Provinces.
5. The Service Tribunals Act 1973 (Federal) does not speak of any difference specifically related to the quantum of punishment. Section 4(2) (a)(b) visibly explains that in case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time scale or to lower stage in a time scale, the appeal shall be preferred to the Tribunal referred to in section 3(3) of the Act which speaks of a larger Bench. In any other case, the appeal would lie to a smaller Bench referred to in section 3(7) of the Act. There is thus no restriction of appeal against the quantum of punishment.
6. Section 4(2)(a)(b) of the Punjab Service Tribunals Act, 1974 is almost identical to that of the Federal Act except with the difference that when a Tribunal under section 3(7) for cases other than those mentioned in section 4(2)(a) is not available, all the cases would be heard by a Tribunal constituted under section 3(3) of the Act.
7. In Sindh Service Tribunals Act, 1973, all the cases are appealable in the normal course except where, like other laws of the Provinces as well as the Centre, the dispute involved is of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade. No other distinction in cases is contemplated with specific reference to quantum of punishment.
8. Now, we come to the laws in Balochistan and North-West Frontier Province. Section 4(b)(ii) of Balochistan Service Tribunals Act, 1974 and section 4(b)(ii) of N.-W.F.P. Service Tribunals Act, 1974 being almost identical laid down that no appeal shall lie to a Tribunal against the order or decision of a departmental authority determining: "the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry except where the penalty imposed is dismissal from service, removal from service or compulsory retirement."
9. A perusal of the above section would indicate that in the Provinces of N.-W.F.P. And Balochistan, the appeal qua the quantum of punishment shall lie only where the penalty imposed is dismissal from service, removal from service or compulsory retirement. In case of no other punishment a civil servant can file an appeal challenging the quantum of sentence alone. The wording of the section is further indicative of the fact that an appeal exclusively challenging the quantum of punishment is barred and not an appeal on the merits of the case challenging the very conviction. We are of the view that if holding guilty of a civil servant by the departmental authority is accepted and the appeal is preferred before the Tribunal against the quantum of punishment alone, it is clearly barred under the laws applicable to N.-W.F.P. And Balochistan. There is no bar against challenging the very conviction on merits regardless of what punishment has been imposed. In the instant case, both the respondents had challenged before the Tribunal the orders of the departmental authority both on merits as well as the quantum of sentence and hence it is held that the appeals were competent.
10. The second objection of the learned counsel for the Government was that the appeals filed by the respondents were hopelessly time-barred and there was no justification at all for the Tribunal to have had ignored this serious aspect of the case. He added that the impugned order of the departmental authority was passed on 27-2-2001 whereas the appeal before the Tribunal was filed on 11-3-2002. That even if, the time spent in representation is excluded the appeals were barred by eight months and ten days. That the Tribunal did not even discuss aspect of the case. It was further added that in order to give a fresh start to limitation, the respondent on 7-2-2002 filed an application before the departmental authority seeking a vague clarification about the minimum of pay scale. That this application having been rejected on 15-2-2002 they filed appeal on 11-3-2002.
That the respondents have cleverly attempted to create a fresh cause of action through filing uncalled for application, which amounted to playing fraud on statutes.
11. So far as, the factual position is concerned, it is established that the appeals before the Tribunal were hopelessly time-bared and that on 7-2-2002 they filed some applications seeking explanation about what had already been given in the impugned order dated 27-2-2001. Such explanation could have been asked for even after the filing of appeals before the Tribunals and moreover, it could be asked even through the Tribunal seeking comments of the department in writing, which are usually obtained in all such appeals.
12. Coming to the law concerning limitation Mr. Hafiz Aman, placed reliance upon three judgments of this Court. In Muhammad Hashim's case 1990 SCMR 1440, the civil servant was not given the benefit of second departmental appeal filed before the Investigating Officer I.-G. The condonation of delay having been refused by the Tribunal was upheld by this Court. In the instant case, a mere filing of second application is an act weaker than the one preferred by the civil servant in the above case.
13. A similar view was taken in Malik Muhammad's case (1992 SCMR 1136) where limitation was never condoned on the ground that the civil servant after filing a required representation, having been rejected, filed further appeal not warranted by law. A Full Bench of this Court in Khalid Wahid's case 1998 SCMR 1153, had deprecated such practice of filing repeated appeals, representations or applications before the departmental authority, holding that mere repetition of representation or appeal hoping to receive some reply from the department cannot help to extend the bar of limitation. In view of the factual position in the case as well as the law on the subject, we hold that the appeals of the respondents before the Tribunal were hopelessly time-barred and required to be dismissed on this score alone, which aspect, was not even attended by the Tribunal.
14. Now, we come to the most important aspect of the case that pertains to the imposition of penalty. Through the orders dated 27/28-2-2001, the authority had imposed major penalty of reduction to the minimum of time scale i,e, Rs,1725-116-3465 against. Muhammad Fayyaz, Assistant and reduction to the minimum of time scale i,e, Rs,1275-44-1935 against Farman Ali, Daftri. The Tribunal was of the view that under rule 4(1)(b)(i) of N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, the penalty of reduction to the minimum of time scale is not prescribed.
What really is prescribed under the aforesaid rules is not dilated upon by the "Tribunal because instated of remaining confined to the time scale or to the stages thereof, it took altogether a different course by converting such penalty into stoppage of three increments without cumulative effect. This aspect needs a thorough scrutiny of the law involved.
15. The relevant penalties are available in five different laws from Federal to Provincial, as follows:-- ' Federal Government: ' (G.S (E&D) Rules 1973)
' Rule 4 (1)(b)(i)--Reduction to a lower post or time scale, or to a lower stage in time scale.
' Punjab: (Punjab Civil Servants (E&D) Rules 1973)
' Rule 4 (1)(b)(i)--Reduction to a lower post or pay scale or to a lower stage in pay scale.
' Sindh: ' Sindh CS (E&D) Rules 1973)
' Rule 4(1)(b)(i)--Reduction for a specified period to a lower post or time scale or to a lower stage in time scale.
' N. -W . F. P .
(N.-W.F.P. Government Servants (E&D) Rules 1973) Rule 4(1)(b)(i)--Reduction to a lower post grade or time scale, or to a lower stage in a time scale.
' Balochistan: (BCS (E&D) Rules 1983)
' Rule 4 (1)(e)--Reduction to a lower grade or post or time scale, or to a lower stage in a time scale.
16. An overview of the provisions reproduced above would indicate that the Federal rule as well as that of Punjab is almost identical with the slight different that in. Federal Law, the word time scale is used which in the Punjab, is described as pay scale. In the Province of Sindh, the words are identical with the Federal Law with the difference that any reduction in time scale or to a lower stage of time scale or to a lower post was required to be done for a specified period. It was nothing but the incorporation of Fundamental rule 29 which even otherwise is to be followed by the departmental authorities and which reads as under:- "F.R.
29. If a Government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post, or to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent."
17. In N.-W.F.P. And Balochistan the provisions are identical. As we are presently concerned with N.- W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 with specific reference to rule 4(1)
(b)(i), we would confine ourselves to such provisions alone while making a detailed discussion.
Under the rule aforesaid, a departmental authority can impose the following different and independent penalties categorized as major penalties:-
(i) Reduction to a lower post.
(ii) Reduction to a lower grade or time scale.
(iii) Reduction to lower stage in a time scale.
' The question arises as to whether, with reference to the penalty imposed in the instant case, the departmental authority could penalize the civil servant by reducing him to the minimum of a time scale or it can reduce him to any of the stages in the time scale or to only one step lower in the time scale. It may be recalled that the words used are" to "a" lower stage in a time scale". What is meant by "a" lower stage in a time scale requires further elaboration.
18. First in preference is the word time scale. We are to comprehend its real meanings.
Fundamental rule 9(31)(a) defines a time scale as follows:- "(31)(a) Time-scale pay means pay which, subject to any conditions prescribed in these rules, rises by periodical increments from a minimum to a maximum. It includes the class of pay hitherto known as progressive."
' It means that when a pay periodically increases by specified increments reaching from a specified minimum to a specified maximum is a time scale; like, for example, in case of Muhammad Fayyaz respondent, he at the given time was in pay/time scale of Rs,1725-116-3465, Regardless of how many increments he had received, he was reduced to the minimum of time scale so as to take a fresh start. Each of the increments adding up periodically constituted different stages in the time scale through which the maximum of the scale is attained. However comprehended the time scale and the highest thereof, the question that remains to be answered is as to whether the words used by the Legislature as "a" lower stage are indicative of only one lower stage or any stage chosen by the departmental authority.
19. Words and Phrases Permanent Edition Volume-I describes the use of "a". This description is with reference to the legal decisions rendered on the subject. It lays down that "the" is the word used before nouns, with a specifying or particularizing effect, opposed to the indefinite or generalizing force of "a" or "an" U.S. v. Hudson, 65 F.68,
71. From this description one can observe that "a" or "an "are used for indicating the indefinite number of for generalizing force and can be used in plural sense contrary to the word "the", which has a specifying or particularizing effect of a singular.
20. In First Trust Joint Stock Land Bank of Chicago v. Armstrong, 269 NW, 502, 506, 222 Jowa 425, 107 ALR 873, it was laid down that the word "a" has varying meanings and uses. "A" means "one" or "any", but less, "emphatically than either". It may mean one where only one is intended and it may mean anyone of a great number. It is placed before the nouns of the singular number, denoting an individual object or quality individualized.
21. In State v. Martin, 30 S.W. 421, 422, 423, 60 Ark. 343, 28 L.R.A. 153, it was defined that the adjective "a" is commonly called the indefinite article and so called because it does not define any particular person or thing. Meaning thereby that "a" is commonly indefmite without particularizing a person or thing and can be used in the plural sense as well. People v. One 1940 Buick Sedan, 162 P.2d 318, 320, 71 C.A. 2d 160, held article "a" as synonymous with "any" thereby giving a sense of plurality. Similar connotation was given in Sanders, 54 Law J.Q.B. 331, 333 and National Union Bank v. Copeland 4 N.E.
794, 795, 141 Mass. 257, 267 and Crown Coach Co. v. Public Service Commission, 179 S.W. 2d 123, 127, 238 Mo. App.
387.
22. Bourland v. First Nat. Bank Bldg. Co. 237 S.W. 681, 683, 152 Ark. 139 also considered article "a" in a plural sense holding that article "a" is a word of vague meaning and too indefinite to limit the number. The article "a" is generally not used in a statute in a singular sense unless such an intention is clear from the language of statute, is a determination of the word "a" given in Lindley v.
Murphy, 56 N.E.2d 832, 838, 387 111, 506 and Dobbs v. Board of County Com'rs of Oklahoma Country, 257 P.2d 802, 809, 208 Old.
514.
23. From such discussion in detail, we have arrived at the conclusion that "a" is generally used for generalizing the number in the plural sense and not particularizing the same as is done by the article "the". It might have the impression of a singular but for that purpose each statute has to be seen in its own perspective and in the background of the legislative intention. With this conclusion in mind, we revert to the rule 4(1)(b)(i) in question.
24. It may be realized that the penalties imposed in the rule above are major penalties. If it is presumed that reduction to only one lower stage in the time scale was the intention of legislature, it would appear highly implausible because it amounts to snatching only one increment which can be snatched even by stoppage of increment or increments for future, which in turn is a minor penalty, it appears that with strict reference to major penalties the Legislature never intend the reduction to one lower stage in the time scale but to any lower stage in the time scale as deemed fit, to be selected by the departmental authority keeping in view the gravity of misconduct involved. The word "a" used in the instant case denotes the word "any" and not "one".
25. Had the Legislature intended the reduction to one lower stage in a time scale, it was not at all difficult for the law-maker to have used the word "one" instead of "a" or to have used the article "the" instead of "a". The very rule 4 (1)(b)(i) provides for a reduction to lower grade or time scale meaning thereby that the very time scale as such can also be reduced. If the entire time scale can be reduced to the lower time scale, then reduction to any stage in a time scale is not as serious as the former. We are clear in our mind that by using the word "a" for a lower stage in a time scale the intention of the Legislature was never restricted to one lower stage, rather, it was generalized to any lower stage in such time scale availed by the civil servant. The reduction to the minimum of the time scale in the instant case, was, therefore, not at all unlawful.
26. The reduction to more than one stages in a time scale is not a new phenomena and this Court has taken notice of it on numerous occasions without holding that such punishment could not be imposed. A Full Bench of this Court in the case of The Commandant, 502, EME Central Workshop, Rawalpindi (1997 SCMR 1471) was confronted with a similar situation where the Service Tribunal had converted penalty of removal from service into "reduction to three lower stages in the time-scale for a period of three years without cumulative effect", this Court upheld reduction of three lower stages in a time-scale. A case of Zain Yar Khan 1998 PLC (C.S.) 1484 came before a Full Bench of this Court where major penalty of reduction to lower stage by four steps in the time scale had been imposed, no exception was taken to such penalty by this Court. Similarly, the case of Aslam Javed, Deputy Superintendent, Dry Port, Lahore 2000 PLC (C.S.) 1180 came before this Court where the civil servant after departmental proceedings was awarded penalty of reduction to five stages in the time scale. This too was never taken an-exception to.
27. It may be appreciated that the Tribunal bad also held the respondents guilty but they had not filed any appeal against the said judgment and hence the guilt of the respondents is proved as well as admitted. The charge against Muhammad Fayyaz is so serious that even the removal from service would have been justified. The department has taken rather lenient view of the matter.
28. Consequently, as a result of detailed discussion above, we are of the view that the departmental authority had lawfully reduced the respondents to the lowest stage in the time scale and further that their appeals before the Tribunal were hopelessly time-barred. The present petitions are converted into appeal and accepted, the impugned common judgment dated 21-4- 2003 is set aside and the penalty imposed by the departmental authority is restored.