This appeal challenged a Federal Service Tribunal judgment that converted a major penalty of dismissal from service to a minor penalty of stoppage of annual increments for two years without cumulative effect. The respondent, an Assistant Sub-Inspector in FIA, was dismissed following disciplinary proceedings for failing to immediately report finding a passenger's wallet and retaining it for several hours. A key issue was that the Inquiry Officer had recommended a criminal case for theft of 8000 UAE Dirham, an allegation not included in the charge-sheet or show-cause notice. The Supreme Court dismissed the appeal, upholding the Tribunal's decision. The Court held that punishment cannot be awarded for allegations not precisely formulated in the charge-sheet. It reiterated that public functionaries and tribunals must decide cases with reasoned application of mind, and judicial orders must be 'speaking orders'. The Court also affirmed that Service Tribunals possess ample power to convert major penalties into minor ones, provided reasons are recorded, and that the Supreme Court generally does not substitute its findings under Article 212(3) of the Constitution without a substantial question of public importance.
' CH. IJAZ AHMED, J.--- This appeal is directed against the impugned judgment dated 17-11-2008 whereby the appeal of the respondent was accepted partly and her major penalty of dismissal from service was converted into minor penalty of stoppage of annual increments for a period of two years without cumulative effect by the Federal Service Tribunal, Islamabad.
2. Detailed facts have already been mentioned in para.2 of the impugned judgment and memo. Of appeal. However, necessary facts out of which the present appeal arises are that the respondent joined service in FIA as Assistant Sub-Inspector (BS-9) in August, 2004. She was posted at Islamabad International Airport. A flight from Dubai arrived at round about 2-30 p.m. When the respondent was on immigration counter. Respondent found wallet of a passenger namely Muhammad Qasim Bin Ghalib. Respondent did not immediately report the incident to Shift Incharge so much so that she kept the wallet for several hours though the complainant came over to the counter of the respondent immediately after missing his wallet several times. She did not bother to inform the complainant that she had found his wallet. Subsequently the wallet in question was returned by the respondent to PIA authorities at about 6-00 in the evening after stealing 8000 UAE Dirham from the wallet. The complainant Muhammad Qasim Bin Ghalib had reported the matter to the higher authorities of the respondent. Under the direction of the competent authority disciplinary proceedings were initiated against the respondent by the appellants and a charge-sheet dated 12-6-2006 was issued to her containing the following allegations:-- "You A.S.-I. (under suspension) Ms. Farheen Rasheed found the wallet of one Mr. Muhammad Qasim Bin Ghalib but you did not immediately report the incident to Shift and arrival in charge, rather kept the wallet for several hours, though the complainant right after losing his wallet had come over to your counter several times, however, you did not bother to inform him of finding the wallet."
3. Respondent submitted reply to the charge-sheet controverting the allegations levelled against her vides reply dated 19-6-2006. The competent authority appointed Malik Umar Hayat, Assistant Director FIA/Immigration, for ascertaining the facts of the incident in question who submitted his report with the following recommendations on 21-6-2006:- "Keeping in view the above narrated facts, statement of witnesses and collection of record reveals that A.S.-I. Farheen Rashid has been found guilty of the charges levelled against her.
Departmental/legal action is suggested against her."
4. The competent authority appointed Ch. Zulfiqar Ali, Assistant Director Legal FIA Crime Circle, as Inquiry Officer who issued charge-sheet to the respondent on 12-6-2006 on the allegations mentioned hereinabove. Respondent submitted reply to the charge-sheet controverting the allegations levelled in the charge-sheet. The Inquiry Officer after completing legal formalities submitted his report to the competent authority on 13-7-2006 with the following recommendations:--- "For what has been discussed above, the accused official does not deserve any leniency as she has hopelessly lost the scope of safeguarding the State interest in future also. If the accused official is allowed to continue with the service, she will commit such acts again causing embarrassment to the FIA. Therefore, in terms of provisions envisaged in Removal from Service (Special Powers)
Ordinance, 2000 and enactment thereto the undersigned in capacity of Inquiry Officer is constrained to recommend imposition of major penalty of "Dismissal" from service upon the accused official. Moreover, a criminal case of theft or misappropriation if deemed necessary, may also be registered against the accused official with concerned police station in order to recover the stolen 8000 UAE Dirham of the complainant."
5. The competent authority in the light of the fact finding and regular inquiry reports, issued a show-cause notice to the respondent on 15-7-2006 whereas respondent submitted reply of the show-cause notice by denying the allegations levelled against her. The reply of the respondent was found unsatisfactory by the competent authority. Consequently major penalty of dismissal from service had been imposed on her vide order dated 28-7-2006 w,e,f, 27-7-2006. Respondent being aggrieved filed departmental appeal before the Director General FIA who dismissed the same vide order dated 12-7-2007. Respondent being aggrieved filed Appeal No,961(R)(C.S.) of 2006 before the Federal Service Tribunal on 3-11-2006. The learned Service Tribunal as mentioned above partly accepted the appeal of the respondent by converting her major penalty of dismissal from service into minor penalty of stoppage of two increments for a period of two years without cumulative effect. Appellants/petitioners being aggrieved filed C.P. No,162 of 2009 in this Court in which leave was granted on 20-5-2009 in the following terms:--- Leave to appeal is granted, inter alia, to consider that the reasons advanced by the learned Tribunal in converting the dismissal of service into minor penalty of stoppage of two increments for a period of two years was justified under the facts and circumstances of the case in view of the allegation that she on having found the wallet of Mr. Muhammad Qasim Bin Ghalib did not immediately report about the incident to shift and arrival Incharge, rather kept the wallet for several hours though the complainant right after losing his wallet had come over to her counter several times but she did not bother to inform him of finding the wallet."
6. The learned counsel for the appellants submits that the learned Federal Service Tribunal erred in law to convert the penalty of respondent merely on surmises and conjectures without judicious application of mind.
7. Respondent submits that the learned Federal Service Tribunal was justified to convert her major penalty into minor penalty after considering each and every piece of evidence on record.
8. We have given our anxious considerations to the contentions of the learned counsel for the appellants and also heard the respondent. It is pertinent to mention here that the Inquiry Officer Ch. Zulfiqar Ali, Assistant Director Legal, FIA, had submitted report to the competent authority on 13- 7-2006 which has already been mentioned herein above wherein it was recommended that criminal case be also registered against the respondent with the concerned police station in order to recover the stolen 8000 UAE Dirham of the complainant. There is no allegation qua theft of the afore-said amount in the charge-sheet and show-cause notice. The competent authority dismissed the respondent on 28-7-2006 by countersigning the report of the Inquiry Officer as is evident from para.3.. Of the dismissal order dated 28-7-2006. See Ghulam Mohi-ud-Din's case PLD 1964 SC 829. The learned Service Tribunal although had converted the major penalty of dismissal into minor penalty as mentioned above yet the Service Tribunal had also not examined the facts that the charge-sheet and show-cause notice issued by the appellant to the respondent were defective. " After addition of section 24-A in the General Clauses Act, it is the duty and obligation of the public functionaries to decide the cases of their subordinates after application of mind with cogent reasons within reasonable time as law laid down by this Court in Messrs Airport Support Services's case 1998 SCM R 2268 and Aslam Warraich's case 1991 SCM R 2330. It is the duty and obligation of the Federal Service Tribunal to decide the appeal of the respondent after application of mind with reasons as law laid down by this Court in Gouranga Mohan Sikdar's case PLD 1970 SC
158. The relevant observation is as follows:--- "
"It is not for us to express any opinion as to the respective merits of the opposing contentions advanced before us but we have merely indicated them in order to show that this was not such a simple question as could have been disposed of by merely saying that there is no substance in the application.
' Such an order, we regret to say, does not disclose a proper application of the mind of the High Court to the merits of the case that was before it."
9. Similarly this Court laid down following principle in Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173:--- "There is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of a hasty offhand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying "there is considerable in the substance in the petition which is accepted", should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a patient and a judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with the painful results, that justice has neither been done nor seem to have been done is inescapable."
10. It is the inalienable right of every citizen to be treated in accordance with law as envisaged by Article 4 of the Constitution. It is the duty and obligation of the public functionaries to act within the four corners of the mandate of the Constitution and Law. Even the Chief Executive of the Country is not above the Constitution and is bound to obey the command of the Constitution as envisaged under Article 5(2) of the Constitution and law laid down by the Court in various pronouncements.
See Ch. Zahur Ilahi's case PLD 1975 SC 383 and Zahid Akhtar's case PLD 1955 SC 530. The word law used in the Constitution has been interpreted to include all such principles as having the binding force on account of moral, customary or other sociological reasons. "Late Hamood-ur-Rehman, J., defined the word law while interpreting Article 4 of the Constitution and the dictum laid down in Begum Agha Abdul Karim Shorish Kashmiri's case PLD 1969 SC 14 as under:-- "Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts."
11. Since respondent has not been charge-sheeted qua theft of 8000 .UAE Dirham, therefore, she could not be awarded punishment therein as she was not put to inquiry for that charge-sheet. "A charge-sheet is precise formulation of the specific accusation made against a person who is entitled to know its nature at the early stage. The object of the charge-sheet is to tell an accused as precisely or and concisely as possible the matter in which she is charged and must convey to her with sufficient clearances and certainty what the department intends to prove against her and of which she will have to clear herself during the disciplinary proceedings. The learned Service Tribunal did not advert to the contents of the charge-sheet, show-cause notice, inquiry report and dismissal order as the Inquiry Officer recommended for registration of criminal case against respondent with regard to recovery of stolen 8000 UAE Dirham of the complainant from respondent whereas the contents of the charge-sheet and show cause did not contain such allegations.
"However, the learned Service Tribunal had taken a lot of pain by mentioning reasons in para.6 of the impugned judgment and had given solid reasons for conversion of major penalty into minor penalty. The learned counsel of the appellants has failed to point out any infirmity or illegality in the impugned judgment and finding recorded by the learned Service Tribunal in para.6 of the impugned judgment. "The learned Service Tribunal has ample power to convert major penalty into minor penalty subject to record reasons for same as law laid down by this Court in various pronouncements. See:--
(i) Zulfiqar Ali's case PLD 1988 SC 693; (ii) Muhammad Idrees Khan's case 2006 SCM R 104 and (iii)
Akif Javed's case 2005 SCM R 752.
12. It is settled principle that this Court has no jurisdiction to substitute its own finding in place of finding of tribunals below while exercising power under Article 212(3) of the Constitution. "It is pertinent to mention here that respondent has not filed petition before this Court against the impugned judgment, therefore, we are not inclined to set aside the minor penalty awarded to the respondent by the learned Federal Service Tribunal. "The learned counsel for the appellants has failed to raise any substantial question of law of public importance as contemplated under Article 212(3) of the Constitution.
13. In view of what has been discussed above we do not find any infirmity or illegality in the impugned judgment, therefore, the appeal has not merits and the same is dismissed.
…and 43 more citing cases