' Justice (Rtd.) Sayed Zahid Hussain, Chairman.--Khalid Mahmood, Counter Clerk, (BPS-11) Pension Branch, Lahore GPO, was charge sheeted on 02.12.2010 on certain allegations, such as; that he failed to perform legitimate duties; directly or indirectly responsible for defrauding the department; breach of trust and causing bad name to the department.
2. He refuted the allegations and eventually an inquiry was held in which the charge of "inefficiency" was found to have been proved and not the charge of "misconduct". In view thereof, he was inflicted the major penalty of "compulsory retirement" from Government service with immediate effect on 05.04.2013. His departmental appeal there-against after hearing was rejected on 30.07.2013. This appeal under Section 4 of the Service Tribunals Act, 1973 has been filed there- against.
3. The learned counsel for the appellant has assailed the impugned order of compulsory retirement, primarily on two grounds; that the action has been taken against him by an incompetent authority, as the competent authority, as per Pakistan Post Office Manual Vol-III, Schedule No, 8, was the "Head of the Circle in BPS-20", whereas the action was taken against him by a Deputy Postmaster General, who was in BPS-19. According to the learned counsel the impugned order is liable to be set aside on such a ground. It is further contended that persons like the appellant namely Tanvir Hussain was awarded punishment of "censure" only and in some cases the appeals before the Service Tribunal were filed and their penalty of compulsory retirement was altered and modified to "censure". It is contended that the appellant is left with only one year service in his normal retirement and may be dealt with in a similar manner. In this context, he has made reference to a judgment of the Tribunal *dated 10.06.2015 in Appeal No, 115(L)CS/2014 and judgment dated 21.09.2015 in Appeal No, 48(L)CS/2014, whereby the Tribunal modified the departmental penalty imposed upon the appellant to a lesser penalty.
4. The learned Standing counsel, while opposing the assertions of the learned counsel. For the appellant, relying upon notification dated 30.12.2011, contends that the order was passed by the competent authority and there is no illegality or lack of competency in passing the order. He has vehemently opposed the appeal and also pointed out that the main accused Israr Ahmed has been dismissed from service and criminal matter is pending against him with FIA.
5. The respective contentions of the learned counsel for the parties have been considered and the relevant material on record has been perused with their assistance.
6. The perusal of the charges qua which the inquiry was faced by the appellant and the report of the Inquiry Officer shows that he was found inefficient only whereas the charge of "misconduct" was not proved.
7. The appellant is said to have served the department for about 33 years and has unblemished record except the incident of alleged "inefficiency". He is not alleged to be a corrupt person or having made personal gains. At the fag end of his service he is facing this dilemma, because his counter was used five years ago by accused Israr Ahmed and thus held directly or indirectly responsible for misappropriation. The said Israr Ahmed stands dismissed from service. That seems to be the reason that the Inquiry Committee concluded that the charge of "misconduct" was not proved against him. Even no recovery was ordered to be made from the appellant. He has done nothing by himself and his counter was misused by someone. The question arises that did he deserve after such a long bootless service to leave the department with stigma of major penalty. It is thus that while inflicting penalty its quantum and implications need to be kept in view.
8. In such circumstances, it is to be seen whether the penalty imposed was commensurate to the inefficiency attributed to the appellant. There can be no cavil that while deciding an appeal, the Tribunal is vested with powers under Section 5 of the Service ' Tribunals Act, 1973 "to confirm, set aside, vary or modify the order appealed against., In this context, reliance may also be placed upon Akhtar Ali v. Director. Federal Government Educational Institution 2009 SCMR 1197 wherein it has been held: "...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 under Section 5 of the Service Tribunals Act, 1973, the Tribunal has power on appeal to "confirm, set aside, vary or modify the order appealed 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 v. Secretary, Education (S&L) N.W.F.P. And 3 others 2008 PLC (C.S.) 77, the N.W.F.P.
Service Tribunal ordered the conversion of dismissal order from service with that of compulsory retirement. The petition for leave C.P.No, 249-P of 2007 filed by the Government of N.W.F.P. Against the order of the Tribunal was dismissed by Supreme Court on 24.12.2008. In Shamim Ahmed Kazmi v. 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 Supreme Court by dismissing the petition there against. In Agriculture Development Bank of Pakistan through Chairman and another v. Akif Javed 2005 SCMR 752, the penalty of dismissal from service was modified by the Federal Service Tribunal where against the appeal of the Department was dismissed by Supreme Court. Reference may also be made to Javed Akhtar and others v. Chief Engineer, Highway Department and others 2006 SCMR 1018."
' Thus, it is settled law that the Tribunal while hearing and deciding the appeal under the Service Tribunals Act, 1973 has extensive powers.
9. In the context of imposition of penalty, there are instructive precedents of the Hon'ble Supreme Court of Pakistan and the principle of proportionality has been accorded importance and invoked.
Acts of serious misconduct deserve to be visited with major penalty, but at the same time, the facts and circumstances of each case and the nature of the allegation charge of "inefficiency" or "misconduct" brought home to the civil servant are not to be overlooked. It also is to be ensured that the sentence or penalty being imposed is commensurate with the nature/gravity of the charge that is not unreasonable or disproportionate. Reference in this context may be made to 2013 SCMR 817, [Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others] and 2006 SCMR 60 [Auditor-General of Pakistan and others v. Muhammad Ali and others].
10. In the circumstances and the background in which the appellant was compulsorily retired, we find that he was dealt with in a discriminator and unjust manner in the matter of awarding major penalty of compulsory retirement. To be treated equally and fairly is the fundamental principle on which rests the dispensation and administration of justice. The interests of justice will be fully met by modifying the penalty inflicted upon the appellant and converting the "compulsory retirement" to the one of "censure" as the charge of "misconduct", as per inquiry report, had not been proved against him. For the inefficiency of the type attributed to him, the penalty of 'censure' is found sufficient as was imposed on Tanvir Hussain by the departmental authority itself. He is accordingly reinstated into the service with back benefits by treating the intervening period as leave of the kind due. The pension received, if any, will be dealt with as per rules.
' In view of the fate of the appeal as mentioned above, we have no considered necessary to dilate upon the question of competency of the departmental authority.
11. The appeal is accepted in the above terms with no order as to costs.