' SALMAN ANSARI, MEMBER -- This matter has arisen after orders passed in C.P. No, 2292 of 2015 (The Director General, Anti-Narcotics Force, Government of Pakistan, Rawalpindi, etc. Vs. Ejaz Ali Bugti, Ex, Constable). The order given by the Hon'ble Supreme Court in the above C.P. Are as under: "We have heard learned counsel for the parties at some length. Since the Service Tribunal has not mentioned any reasonable ground for converting the respondent's dismissal from service into compulsory retirement as such he said portion of the impugned judgment is not sustainable.
Therefore, with the consent of the learned counsel for the parties, this petition is converted into appeal and allowed. The impugned judgment of the Service Tribunal is set aside and the case is remanded to the Tribunal for deciding the appeal of the respondent afresh within 60 days from the date of receipt of this order. The Tribunal shall also reconsider the appeal without considering the fact whether the same was time-barred or not."
2. The main reason for remanding back the matter to the FST being, "...Since the Tribunal has not mentioned any reasonable ground for converting the respondent's dismissal from service into retirement as such the said portion of the judgment is not sustainable..." Hence; after issuance of notice to both parties, matter was heard at length.
3. Learned counsel for the appellant has argued that in the inquiry conducted against the appellant he had been shown to have committed an offence both punishable by the Criminal Court as well as subject to disciplinary action and in the criminal case appellant was acquitted and in the appeal before the FST, in the first instance, appeal was allowed and the appellant was ordered to be reinstated in service with all back benefits by the judgment dated 22.1.2008.
Thereafter, the Hon'ble Supreme Court by its order dated 13.5.2013 passed in Civil Appeal No, 595 of 2008 filed by the D.G. Anti-Narcotics Force, Government of Pakistan, Rawalpindi, etc. Had concluded, "...Resultantly, instant appeal is allowed and the matter is remanded to the Tribunal for decision afresh upon the merits of the case and also to consider the question of limitation involved in the matter". Hence, having heard the arguments of both parties, judgment dated 1.6.2015 was passed by this Bench and, thereafter, the order, referred above, at para-1 has been received.
4. The respondents have filed their written arguments being that the appeal was time-barred; the inquiry as conducted was sound and well-reasoned and there was no grudge against the appellant or any ulterior motive, that allegations in the criminal case Would not in any way affect the disciplinary proceedings as it was due to lack of evidence; that the appellant was acquitted by the Judicial Magistrate; there was no prayer for lenient view in the prayer clause and this being a settled principle of law that relief is to be extended to the appellant to confined to as prayed for, it should not be vague, be based on cogent reasons. The length of service does not permit compulsory retirement of the appellant; hence, whole discipline of the force would be affected if a lenient view is adhered to.
5. That the appellant Ejaz Ali Bugti was serving as a Constable at Turbat Police Station, Balochistan and was in service since 1.9.1986 when an incident had taken place in which allegation of having resorted to aerial firing with his Government weapon were levelled against him and disciplinary proceedings were initiated and culminated by order dated 10.2.1998 whereby appellant was dismissed from Government service w.e.f, 8.2.1998. Appeal/mercy petition was filed and the matter was taken and decided by a previous judgment of this Tribunal dated 22.1.2008 and being remanded was decided by this Tribunal and again has been remanded back for deciding the question that why a lenient view has been taken against the appellant in awarding him punishment of compulsory retirement with immediate effect and intervening period shall be treated as leave of the kind due to the appellant with no order as to costs.
6. With due respects, the reasons behind taking a lenient view being that primarily the environment which existed at the time of incident shows that officers and other staff members had also allegedly indulged in serious criminal activities; like allegations against S.I. Humayun Majeed posted at Turbat Police Station, who was the main character and the complainant against the appellant which shows Humayun Majeed's involvement with smugglers and inspite of being on suspension, he was indulging in the activities of the Police Station which was resented by other staff members, this has been mentioned in the Inquiry Report, therefore, removing only the appellant from service is a very harsh act and circumstances required mitigating the same from punishment of removal from service to commensurate with the gravity of the misconduct, considering a sympathetic view is required as has also been taken by the superior Courts where circumstances require that a lenient view would serve the ends of justice. The appellant being only a Constable and was resident of Khairpur was serving at a out-station like Turbat where the inquiry report shows and there was no means of staff having any kind of recreation, therefore, such environment is bound to create tension between staff which at the times erupt into an overt act such as appellant has been accused of. We would like to quote here the concluding paragraph of the order dated 27.9.2005 passed by the Hon'ble Supreme Court in Civil Petitions 706 and 707- K/2004 (Mrs. Shahnaz Iftikhar Vs. Pakistan Steel Mills through its Chairthan):- "2. In view of the above, the petitioner may approach the concerned authorities for the relief being sought from this Court in this petition and we expect that the competent authority will consider the matter sympathetically. These petitions are dismissed. Leave is refused.'
' In 1999 SCM R 197 (Syed Aftab Ahmed and others Vs. K.E.S.C. And others), it was held:- "...We would, therefore, convert civil petitions, arisen from the judgments of the Service Tribunal and would remand the cases to it to decide the matters on merits in the light of the observations' contained herein. As regard's civil petitions in which the High Court has declined Constitution petitions on the ground that the petitioners should have approached the Service Tribunal, we would uphold the order of the High Court with the observation that in case the petitioners file application for condonation of delay till the filing of appeals, the same may be considered sympathetically and the petitioners may not be knocked out on technical ground."
7. For the above reasons this Tribunal had 'arrived at the conclusion that from perusal of the record it appears that the appellant was a poor man and if he received some remuneration by way of compulsory retirement, it would go to some extent in helping the financial condition of his family.
8. Furthermore, this Tribunal has powers to confirm, set aside, vary or modify the order appealed against, as provided under Section 5(1) of. The Service Tribunals Act, 1973.
9. In view of the above discussed facts and circumstances, we have arrived at the conclusion that the punishment of dismissal of the appellant from service be converted into Compulsory retirement with immediate effect and the intervening period shall be treated as leave of the kind due to the appellant with no order as to costs.
10. Parties be informed accordingly.