SHAHID WAHEED, MEMBER:- Challenge in this appeal is to Notification No. 150/RHC/CJJ dated 13.07.2005 whereby a minor penalty of stoppage of three annual increments was imposed upon Muhammad Akbar Sajid Chaudhary, Ex-Civil Judge, Ist Class; and, to a letter No. 350/RHC/C-1 dated 25.03.2006 whereby review petition against the said notification was rejected.
2. This appeal under Section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 has arisen in the background that in the year 1999 the Authority decided to proceed against the appellant under the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975. In the disciplinary proceedings, the Authorized Officer dispensed with regular inquiry and issued show-cause notice dated 04.02.1999 containing following allegations: "That you got shifted unlawfully telephone number 85461 from the residence of its owner/subscriber, Ubaidullah Khan resident of Isa Khel, to your residence and used the same unauthorizedly. A civil suit filed by said Ubaidullah was pending in your Court and thus you obtained material benefit from a litigant. Your conduct in this context was unbecoming of a Judicial Officer. On the one hand you got unlawful gain from a litigant and on the other deprived the Pakistan Telecommunication Corporation Limited of revenues to which it was entitled in case of shifting/transfer of telephone unauthorized shifting manifested misuse of your official position as well and you, thus, are guilty of misconduct as defined in Rule (2) (d) of the germane Rules."
The appellant submitted reply to the show-cause notice and traversed the afore-cited allegations.
The Authorized Officer afforded opportunity of hearing to the appellant and vide report dated 17.05.1999 recommended imposition of minor penalty of stoppage of three increments. Consequent upon the recommendations of the Authorized Officer, a final show-cause notice No. 2180/RHC/1-C dated 11.12.1999 was issued to the appellant. Reply to the final show-cause notice was submitted.
The Authority under the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 agreeing with the recommendations of the Authorized Officer imposed minor penalty of stoppage of three increments upon the appellant vide Notification No. 150/RHC/CJJ dated 13.07.2005. Feeling anguished, the appellant filed a petition before the respondent seeking review of Notification No. 150/RHC/CJJ dated 13.07.2005. This petition was rejected vide letter No. 350/RHV/C-1 dated 25.03.2006. Hence, this appeal.
3. The moot point involved in this appeal is as to whether in the given facts and circumstances of this case a minor penalty of stoppage of three increments was reasonable and could be imposed upon the appellant on the basis of allegations set out in the show-cause notice. The appellant's counsel argued that if anything was proved against the appellant, it was only an inadvertent bona fide negligence in unauthorized shifting of telephone; that said negligence alone could not be made basis of punishment particularly when the same was not prompted by any mala fide, ill-will or ulterior motive; that the Authorized Officer wrongly came to the conclusion that the appellant had not paid the required transfer fee of the telephone whereas the shifting was not made by the appellant; and, that the punishment was uncalled for. On the other hand, learned counsel for the respondent has vehemently opposed this appeal and resisted the arguments of the appellant's counsel. He submitted that the act of unauthorized shifting of telephone was not justified; and that the conduct of the appellant was unbecoming of a Judicial Officer and a gentleman and thus a minor penalty of stoppage of three increments had been rightly imposed upon the appellant.
4. It is true that in service laws it is the choice of the departmental authorities to determine quantum of punishment in the light of nature of misconduct. However, penalty should be commensurate with the magnitude of the misconduct committed. In the case on hands, the charge against the appellant was two-fold. Firstly, the appellant had obtained material benefit from a litigant, Ubaidullah. Second charge was to the extent of unlawful shifting of telephone to his residence from the residence of a private person. As regards the first charge the Authorized Officer in his report stated that the appellant had not obtained any material benefit from a litigant. Thus, there is no need to dilate upon this charge. However, qua the second charge, the Authorized Officer in his report dated 17.5.1999 concluded that the "the charge to the extent of shifting unlawfully of telephone to his residence from the residence of a private person stands established against the accused. The accused also took material benefit from a private person without any justification.
The normal procedure in this case was not followed. No proper application was made to the Pakistan Tele Communication Corporation Limited nor transfer charges paid to the Pakistan Tele Communication Corporation Limited. The conduct displayed by the accused in the matter obviously was unbecoming of a judicial officer and a gentleman." On the basis of above said conclusion the Authorized Officer recommended imposition of minor penalty of stoppage of three increments on the appellant. It is an admitted fact that unauthorized shifting of telephone from one place to another is not a penal offence. The only penalty which Pakistan Tele Communication Corporation Limited could impose in such like cases was disconnection of unauthorizedly shifted telephone. This was a trivial infraction of rules governing the shifting of telephone. It goes without saying that purpose of deterrent punishment is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of society whereas the concept of minor punishment in the law is to make an attempt to reform the individual wrong-doer. In the present case, there is neither any allegation that act of shifting of telephone was prompted by any mala fide, ill-will or ulterior motive nor any evidence to establish that the appellant took material benefit from a private person by shifting of telephone. In this perspective, the unauthorized shifting of telephone may be construed as negligence and that too of a small nature which did not breach the discipline of service. In our view the said negligence although did deserve minor punishment yet not stoppage of three increments. Mercy in the Islamic Jurisprudence is a rule where the wrong is trivial. Even in modern jurisprudence doctrine of proportionality of sentence is recognized in service laws. Punishment of stoppage of three increments, in the case on hands, does not commensurate with the gravity of charge and thus we are inclined to convert the same into censure as it would serve the purpose. Before parting we are tempted to quote the following speech of Portia from William Shakespeare's The Merchant of Venice, which occurs during Act IV, Scene 1, set in a Venetian Court of Justice: The quality of mercy is not strained.
It droppeth as the gentle rain from heaven Upon the place beneath. It is twice blessed: It blesseth him that gives and him that takes.
'Tis mightiest in the mightiest. It becomes The throned monarch better than his crown.
His scepter shows the force of temporal power, The attribute to awe and majesty Wherein doth sit the dread and fear of kings, But mercy is above this sceptered sway.
It is enthroned in the hearts of kings.
It is an attribute to God himself And earthly power doth then show likest God's When mercy seasons justice Therefore, Jew Though justice be thy plea, consider this-- That in the course of justice none of us Should see salvation. We do pray for mercy, And that same prayer doth teach us all to render The deeds of mercy. I have spoken thus much To mitigate the justice of thy plea.
Which if thou follow, this strict court of Venice Must needs give sentence against the merchant there.
5. In the sequel, this appeal is partly allowed and the punishment of stoppage of three increments inflicted upon the appellant through Notification No. 150/RHC/CJJ dated 13.07.2005 is modified and the same is converted into censure.