Syed Hamid Ali Bukhari, Member.--With this judgment we shall decide the above titled appeals as their facts are identical.
2. The appellants were awarded three penalties (i) reduction to the rank of Sepoy; (ii) three months RI in Civil Jail; and (iii) dismissal from service under Section 8 (c) and 8 (e) (vii) of the F.C.
Ordinance, 1959. According to them their dismissals were summary in nature as they had not been provided any opportunity to defend themselves.
3. The appeals were resisted by the respondents by stating that the appellants while performing their duties in Operation Mountain Viper at Khwaza Khela (District Swat) abandoned Khwaza Khela Position on 01.11.2007 remained absent for 08/16 days as they were taken into custody and on their release they reported for duty in the unit on 08/16 November, 2007 which exhibits their cowardice in fighting with the militants (Talbans). The respondents instead of filing objections on appeals chose to argue the cases verbally and vocally depending on Section 8 of the F.C. Ordinance, 1959. He argued that the appellants were tried under sub-section (2) of Section 8 of the Ordinance, therefore, there was no need of holding a regular inquiry and giving personal hearing to them. He further argued that under this provision of Ordinance the appeals shall only lie to the Secretary and not to other person or Court, therefore, the Tribunal has no jurisdiction to adjudicate upon the matter. He finally argued that the appellants have administered cowardice, thus they do not deserve any leniency in the matter of punishment. Basing on these arguments, the learned counsel for the respondents prayed for dismissal of the appeals with costs.
4. We have heard the learned counsel for the parties and have also perused the memos. of appeals and other record produced by the parties.
5. First of all, we shall deal with the objection of the respondents with regard to jurisdiction. This objection was raised by the respondents earlier before the Hon'ble Supreme Court of Pakistan in Civil Review Petitions No,205 to 208 of 2006 and Civil Appeal No,712 of 2007 and it was resolved by the Hon'ble Court by holding that cases of the employees of the Frontier Corps were governed by the Frontier Corps Act, 1959 and the rules made thereunder, therefore, their appeals before this Tribunal are maintainable. The relevant portion of Order dated 23.11.2009 reads as under:-- "Thus, for these reasons we are inclined to hold that the members of the frontier Corps shall be governed under the provisions of Ordinance, 1959 and for limited purpose status of civil servants is given to them so that they may have remedy before the Service Tribunal for the redressal of their grievance in accordance with law."
In view of this law which is binding on us under Article 189 of the Constitution of 1973, the objection of the respondents regarding jurisdiction of this Tribunal is overruled.
6. It is an admitted fact that, in the circumstances, they were not provided any opportunity to defend themselves, as such, they were condemned unheard. It is a universally accepted principle of natural justice and fair play that no person can be condemned unheard, Even a criminal is entitled to defence. Furthermore, under the provisions of Article 10-A of the Constitution of 1973, it is a fundamental right of everyone to be tried in a fair and just manner. The appellants should have been issued. show-cause notices and provided an opportunity of personal hearing. They were deprived of a valuable right. Hence the penalties imposed upon them cannot be upheld. It is also an admitted fact that the appellants have been discriminated as their 29 fellow who fled away leaving the arms and ammunitions were imposed lesser punishments whereas the appellants had been made scapegoats. Discrimination is prohibited under the law. Reliance is placed on Articles 4 & 25 of the Constitution of Islamic Republic of Pakistan, 2002 SCMR 71, PLJ 2002 SC 1, 2001 SCMR 1566, 2001 CLJ 591, 1999 SCMR 467 & 1639, 1996 PLC (CS) 802, 1991 PLC (CS) 615, 621 & 1104 and PLD 1973 SC 341.
7. The learned counsel for the respondents conceded that personal hearing was not afforded to the appellants as, according to F.C. Ordinance, it was not mandatory. We are not convinced with this argument of the learned counsel. 'The Hon'ble Supreme Court has consistently held. that personal hearing would be considered as an integral part of every statute. Personal hearing is necessary before passing the impugned orders by the competent authority and before deciding the departmental appeals of the appellants by the appellate authority. We are fortified. to take this view from the judgments of the Hon'ble Supreme Court reported as 2003 PLC (CS) 479, 2002 PLC
(CS) 128, 2000 SCMR 1321, 1997 SCMR 1543 and 1994 SCMR 2232. The appellants have been vexed thrice as three penalties at a time have been imposed upon each of them on the same allegation.
Even no person can be vexed twice. Reliance is placed on 1995 SCMR 626 in which it is held that "the rule that no one shall be vexed twice for the same offence, has its roots in the ancient maxim "nemo bis puniture pro eodum delio" which means that no one should be subjected to peril twice for the same offence". This rule is enacted in Article 13(a) of the Constitution of Pakistan 1973, Section 26 of the General Clauses Act, 1897 and Section 403 (1) of Cr.P.C. In this view of the matter the reliance is also placed on PLJ 2004 Peshawar 166 (DB) and 2002 PLC (CS) 6.
8. The appellate authority had not given any reason as to why there was no need to hold inquiry and how such charges were taken to be proved without holding an inquiry. When initial order or act relating to initiation of proceedings was contrary to law then all subsequent proceedings and actions taken thereon would have no basis and would fall as when an employee has to be removed on the basis of misconduct allegedly committed by him he deserves fair opportunity to defend himself because if for such reasons he is dismissed from service then for all the time to come he carries a stigma of misconduct with him. We, without going into the merits and demerits of the case, find that the respondents have not followed the prescribed procedure before imposition of major penalties. The Hon'ble Supreme Court has consistently held that, of course, the provision of shorter procedure exists in the rules but the interest of justice demands that regular inquiry must be held. We are fortified to take this view from the judgments of Hon'ble. Supreme Court reported as PLD 2002 SC 667, PLJ 2002 SC 525 and 2009 SCMR 329, 339 & 415. Therefore, the impugned orders are neither maintainable nor sustainable in the eye of law and are liable to be set aside.
9. It is the fourth round of litigation. Firstly, the appellants approached this Tribunal against the same impugned order by way of filing Appeals No, 427 to 429(P)CS/2008 which were remanded with the direction to Respondent No, 1 to decide their departmental appeals within a period of 30 days and if aggrieved by such order they may seek remedy in accordance with law. The departmental appeals of the appellants were rejected by the respondents vide order dated 10.05.2010, therefore, they approached the Tribunal on 09.06.2010 by filing Appeals No, 269 to 271(P)CS/2010 which were dismissed vide Order dated 14.6.2010 being time barred. Against this Order, the appellant approached the Hon'ble Supreme Court of Pakistan in Civil Appeals No,902 to 904 of 2010 and the case was remanded to the Tribunal vide Order dated 07.05.2012 by holding that the appeals are within time and be decided afresh on merits.
10. Even otherwise, the Hon'ble Supreme Court of Pakistan in a judgment reported as 2003 PLC (CS)
396 SC delivered by five Judges Bench enunciating the following principle of law:-- "Administration of justice--Decision of the cases on merits always to be encouraged instead of non-suiting the litigations for technical reasons including on limitation."
The appellants cannot afford the fifth round of litigation. In the circumstances, we are of the view that it would not be fair that they are once again put at the mercy of the respondents.
11. Further, the appellants have suffered a lot as the impugned orders were passed as back as on 12.06.2008. They have consumed about precious five years of their lives, also spent a lot of money in litigation and suffered the agony of protracted trial. Moreover, the punishments awarded to them do not commensurate with their guilt.
12. For the above reasons, we consider it appropriate to modify the impugned orders dated 12.06.2008 and convert their penalties into stoppage of two increments for a period of two years without cumulative effect. As a consequence thereof the appellants are reinstated into service from the date of their dismissal with all back benefits.
13. There shall be no order as to costs.
14. Parties shall be informed accordingly.