Sayed Zahid Hussain, J.--Akhtar Ali petitioner was Trained Under Graduate Teacher (TUGT) F.G High School (PRC), Mardan who on 19.8.2000 absented from duty. He was suspended on 27.9.2000 which suspension was extended latter on and was issued notice dated 19.4.2001 for being absent from duty. Since no reply was received show-cause notice dated 06.7.2001 was issued calling for reply thereto within 15 days. As this notice also remained un-responded, a final show-cause notice dated 04.9.2001 was issued in terms of section 3 (i)(b) of Removal From Service (Special Powers) Ordinance, 2000. He was eventually removed from service on 23.10.2001. Departmental appeal for reinstatement in service was made by him on 18.11.2002. Having no response to the same, he approached the Federal Service Tribunal through an appeal dated 06.2.2003, which was dismissed by the learned Federal Service Tribunal, Islamabad on 19.3.2008. Aggrieved thereby he has invoked the jurisdiction of this Court under Article 212(3) of the Constitution of the Constitution of Islamic Republic of Pakistan. In that notice to respondents was ordered to be issued by this Court to consider the quantum of punishment in the matter.
2. The learned counsel for the petitioner and the learned Deputy Attorney General have been heard primarily to consider as to whether the penalty of removal from service was justified in the facts and circumstances of the case. The contention of the learned counsel for the petitioner is that the absence of the petitioner from duty was due to the circumstances beyond his control as he had been involved in a murder case in case FIR No, 511 dated 19.8.2000 registered under Section 302/34 PPC, which fact was brought to the notice of the Headmaster of the School informing that due to threat to his life it had become impossible for him to attend the school and he may be granted leave with effect from 21.8.2000. It is contended that he was acquitted n that case on 13.11.2002 by the trial Court on the basis of compromise. Where after, he approached his school when he learnt of his removal from service and agitated the matter, departmentally and thereafter before the learned Tribunal. According to him the view taken by the learned Tribunal in the case was not based on correct appreciation of the matter. He places reliance upon Auditor-General of Pakistan and others Versus Muhammad Ali and others, (2006 SCMR 60) and Abdul Hassan versus Secretary, Education (S&L) N.W.F.P. and 3 others, (2008 PLC (C.S.) 77) to contend that harsh penalty of removal from service deserved to be reduced to some minor penalty.
3. The learned Deputy Attorney General, Pakistan, however, supports the order made by the departmental authority and the judgment of the Federal Service Tribunal and seeks dismissal of the petition.
4. The factual background is not in dispute. We have considered the matter from various angles and find that the petitioner who got employment as Teacher in the year 1984, had unblemished service record but due to involvement in the case he absented from duty with effect from 19.8.2000 due to threat to his life. He had made an application to the Headmaster of the School also to this effect. The notices dated 19.4.2001, 6.7.2001 and 4.9.2001 remained an responded having not been received by him. These were the circumstances preventing him from continuing to perform his duty as a Teacher. As soon as he was acquitted by the Court on 13.11.2002 he approached the authorities and agitated the matter for his reinstatement within the Department and before the Tribunal. No doubt he remained absent but the punishment he has been awarded i,e, removal from service, appear to be too harsh and disproportionate. It may be observed that while proceeding against a person under Section 3 of the Removal From Service (Special Powers) Ordinance 2000, the competent authority had the discretion to dismiss or remove from service or compulsorily retire from service, or reduce the person concerned to lower pat or pay scale or impose one or more minor penalties. It may be observed that Clause (a) of Section 3(1) of the Ordinance deals with the inefficiency of a person in Government service or being habitually absent from duty without prior approval of leave. But a person guilty of misconduct (clause b) or a person who is corrupt (clause c) etc. have been dealt with separately. While imposing penalty the competent authority is thus expected to keep in mind the gravity and severity of the allegations and past conduct of the person concerned. The petitioner's removal from service was not the only option for the competent authority. He could be awarded other penalty of lesser implications. When he filed appeal before the Federal Service Tribunal even the learned Tribunal did not advert to this aspect of the matter although under Section 5 of the Service Tribunals Act, 1973, the Tribunal had power on appeal to "confirm, set aside, vary or modify the order appeal against". There is no dearth of precedents where the Tribunal modified the orders of the departmental authority by converting the penalties and substituting order in place of removal from service. For instance in Abdul Hassan versus Secretary, Education (S&L) NWFP and 3 others, (2008 PLC (C.S.) 77), the NWFP Service Tribunal ordered the conversion of dismissal order from service with that of compulsory retirement.
Incidentally, in that case also the appellant had been involved in a murder case who had been sentenced to imprisonment for life and after undergoing the sentence, years after his dismissal from service he filed appeal before the Service Tribunal and the Tribunal altered the penalty. The petition for leave C.P. No, 249-P of 2007 filed by the Government of NWFP against the order of the Tribunal was dismissed by this Court on 24.12.2008. In Shamim Ahmed Kazmi versus Pakistan International Airlines Corporation and another, (2005 SCMR 638), the Federal Service Tribunal had ordered the conversion of dismissal from service into compulsory retirement which was maintained by this Court by dismissing the petition there against. In Agriculture Development Bank of Pakistan through Chairman and another versus Akif Javed, (2005 SCMR 752), the penalty of dismissal from service was modified by the Federal Service Tribunal to compulsory retirement where-against the petition was dismissed by this Court. In Auditor-General of Pakistan and others versus Muhammad Ali and others, (2006 SCMR 60), removal from service order was converted into reduction in time scale by the Federal Service Tribunal where against the appeal of the Department was dismissed by this Court. Reference may also be made to Javed Akhtar and others versus Chief Engineer, Highway Department and others, (2006 SCMR 1018). As to the scope of powers of the Tribunal under the Service Tribunals Act and of this Court under Article 212 reference may be made to Islamic Republic of Pakistan versus Dr. Safdar Mahmood, (PLD 1983 SC 100), Water and Power Development Authority, Lahore and 2 others versus Muhammad Yousaf, Test Inspector, (PLD 1996 SC 840), Mian Shafiuddin, Deputy Director and 4 others versus Surat Khan Marri, Director Regional Information Office, Islamabad and 41 others, (1991 SCMR 2216) and Aijaz Nabi Abbasi versus Water and Power Development Authority and another, (1992 SCMR 774).
5. Even this Court while hearing petition under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, had been exercising its jurisdiction in appropriate cases of converting the penalty C found not commensurate to the nature of the charge's. In Inspector-General (Prisons)
NWFP Peshawar and another versus Syed Jaffar Shah, Ex-Assistant Superintendent Jail and others, (2006 SCMR 815), the judgment of the Tribunal was modified to convert the penalties imposed by the departmental authority. In Abdul Sattar and another versus Director Food, Punjab and others (2007 PLC (C.S.) 319), this Court ordered the conversion of penalty of dismissal from service into compulsory retirement from service. In Muhammad Ali S. Bukhari versus Federation of Pakistan through Establishment Secretary, Islamabad and 2 others, (2008 PLC (C.S) 428), modifying the judgment of the learned Tribunal this Court ordered the conversion of penalty of compulsory retirement into reduction of two steps in time scale for a period of two years.
6. The object of making reference to the above cited precedents is that not only the Tribunal while dealing with an appeal under Section 5 of the Act has the power to vary and modify the order of departmental authority; this Court while sitting in appeal over the judgment of the learned Tribunal can also exercise such a power to meet the ends of justice dependent upon of course the facts and circumstances of each case.
7. In the instant case as noted above the petitioner who had a long unblemished service of about 17 years had by force of circumstances (involvement in a case in which he was latter on acquitted) been prevented from performing his duty as Teacher. He was absent from duty entailing some penalty under the law. His removal from service in the circumstances was too harsh a penalty for him. We had therefore, on conclusion of hearing passed the following short order:-- "For the reasons to, be recorded separately, after having heard the learned counsel for the parties at length, we are inclined to convert this petition into appeal which is accepted and penalty of removal from service is converted to that of compulsory retirement."
These are the reasons for the above order accepting the appeal partially with no order as to costs.