Ch. Muhammad Ibrahim Zia, J.-- The captioned appeal by leave of the Court is filed from the judgment of the Service Tribunal dated 12.11.2014, whereby, the appeal filed by the appellant, herein, against the order of his dismissal from service dated 08.06.2009 has been dismissed.
2. The facts in brief are that the appellant was serving as Peon, grade B-1 in the office of the Custodian of Evacuee Property. On the allegation of absence from duty he was charge-sheeted and consequently dismissed from service vide order dated 08.06.2009. Feeling aggrieved, he challenged the said order before the Service Tribunal. The learned Service Tribunal, after necessary proceedings, vide impugned judgment dated 12.11.2014 dismissed the appeal on the ground that the impugned order has been issued in accordance with the prescribed procedure according to law. Dissatisfied, the appellant has now filed the instant appeal by leave of the Court to challenge the legality and correctness of the impugned judgment.
3. Mr. Muhammad Khalil Ghazi, Advocate, the learned counsel for the appellant, seriously objected to the impugned judgment of the Service Tribunal. He, while referring to the interim orders of the Service Tribunal submitted that it is proved from the record that the impugned judgment has been announced after three years' period from the date of hearing of the parties. This act of the Service Tribunal on the face of it is violative of the basic principles of the administration of justice which amounts to unheard condemnation. He also submitted that when the appeal was heard, at that time the composition of the Service Tribunal was quite different. During pendency of the appeal awaiting decision, a member of the Service Tribunal was changed and subsequently, the impugned judgment is passed by the member of the Service Tribunal who neither heard the appeal nor participated in the proceedings. Thus, it is another sheer violation of the principles of administration of justice and the statutory law. While arguing on merits of the case, he submitted that the whole proceedings have been conducted by the authority in violation of law. Neither, the proper opportunity of associating with the inquiry proceeding has been provided nor any legal evidence has been brought on record justifying therein the imposition of the major penalty of dismissal from service upon the appellant. Over and above, neither any copy of the inquiry report has been furnished nor the statutory provision relating to the inquiry proceedings have been complied with. The appellant having in his credit more than two decades' service has been deprived of his livelihood against law. If for the sake of arguments the allegation leveled against the appellant is deemed as correct, even then, the penalty imposed is too harsh. Therefore, while accepting this appeal, the impugned departmental punishment order may be set-aside with the direction of reinstatement of the appellant into service with full benefits from the date of his dismissal from service.
4. Conversely, Mr. Saadat Ali Kiyani, the learned Additional Advocate-General, forcefully defended the impugned judgment. He submitted that although the decision of the appeal has been made after three years' period from the date of hearing but as the written arguments have been submitted by the party, therefore, the principle of law laid down in the case reported as Sheikh Mahmud Ahmed vs. Azad Govt. of the State of Jammu and Kashmir through Chief Secretary [PLD 1987 SC (AJ&K) 21] does not apply. The gross misconduct of the appellant has been proved through evidence. He has been provided ample opportunity of defending the case.
He has filed objections/reply of the charge sheet. The proceedings have been conducted according to law. Not only the documentary evidence but also the statements of the concerned officials have also been recorded. The appellant intentionally opted for disassociation from the inquiry proceedings. The inquiry report is speaking one thus the authority has rightly imposed the major penalty. The impugned judgment of the Service Tribunal is quite in accordance with law calling for no interference.
5. We have considered the arguments of the counsel for the parties, examined the record made available. A very sorrowful state of affairs has been emerged from the examination of the record. According to the Service Tribunal's interim order passed on 17.10.2011, the counsel for the parties were directed to submit written arguments within 10 days and the judgment was kept reserved. Thereafter, on 09.01.2012, following interim order has been recorded. {{URDU TEXT}} Thereafter, the record from 9.1.2012 onwards till the announcement of judgment on 12.11.2014 is silent for almost near about three years' period. This state of affairs, on the face of it, is violative of the norms of justice and indication of highhandedness and lawlessness prevailing in the Service Tribunal demanding for necessary disciplinary action.
6. It is very amazing that the Service Tribunal especially, the Chairman has not taken notice of such illegality. If it is not the deliberate act, the Chairman or the member of the Service Tribunal must have inquired into the matter to determine the responsibilities and punish the concerned for such carelessness. For almost three years' period, keeping the judicial file pending without any proceedings; thereafter handing down the judgment without any proper action; prima facie, is a serious misconduct on the part of the concerned. Such like conduct justify the shaking of public confidence in the judicial institution. Therefore, we are constrained to direct the authority- Government to take the matter seriously and conduct proper inquiry determining the responsibility of such gross misconduct and violation of the administration of justice within three months time.
7. Now we would like to attend the case on merits. According to the admitted facts, the appellant who was employee of the department of the Administration of Evacuee Property, was dismissed from service under the AJ&K Civil Servants Removal from Service (Special Power) Act, 2001. The ex-parte proceedings were conducted by the Inquiry Officer appointed by the authority and consequently vide order dated 08.06.2009, he was dismissed from service.
8. As it has already been observed that before the Service Tribunal written arguments were filed and almost the grounds of appeal were repeated. Now almost 7 years' period has elapsed during pendency of litigation. In this state of affairs, whether on technical grounds while setting-aside the impugned judgment remand of the case back to the Service Tribunal will serve the purpose? In our considered view although in view of the proceedings conducted by Service Tribunal being violative of the principle of administration of justice, the impugned decision is not sustainable. But remand of the case to the Service Tribunal will amount to force the parties to face another round of litigation which may consume a further decade's period. Such like practice will surely not bring any fruits for both the prties and will creat hardships and also amount to denial of justice.
9. This state of affairs demands for exercise of constitutional inherent powers vested in this Court for doing complete justice to avoid technicalities and decide the matters conclusively so that the very purpose may not be defeated. It is the admitted position that the appellant is an employee having more than two decade's service in his credit. The sole allegation leveled against him in the charge sheet is of being habitual absentee from duty.
The appellant has explained the allegation and also submitted that he has availed leave sanctioned by the competent authority. He remained present but due to enmity and conspiracy of some other officials has wrongly been shown absent in the official record. He also explained that for some days, he could not join the duty due to illness of his mother and he submitted an application to the concerned authority i.e. Admin Officer.
10. It appears that the inquiry has been conducted ex-parte which is mostly based upon the statements of the officials against whom the appellant has leveled the allegation of conspiracy. The examination of the evidence brought on record reveals that it is not of such a standard to justify the imposition of major penalty. According to the celebrated principle of the administration of justice the penalty should be rational with the alleged misconduct of the accused. The punishment of dismissal from service to an employee having more than 20 years' service in his credit on the ground of absence from duty appears to be too harsh and is not consistent with the principles of the administration of justice. This Court has already in this context enunciated the principle of law in a case reported as Muhammad Yousaf Haroon vs. Competent Authority & 4 others [2014 SCR 1180], wherein, it has been observed as under:- "44. According to law, the punishment should be compatible with the allegation. The learned counsel for the appellant has rightly argued that the punishment should be compatible with the nature of the allegations. This Court is vested with the powers for modification in the punishment to make it compatible with the nature and gravity of the allegations. Our this view finds support from the case reported as Farhat Ali vs. Director General, Pakistan Post Office and others, [2012 PSC 1480], wherein after survey of case law, it has been observed as under:-
4. It is hard for the petitioner to refute this finding and so was the stance of his learned counsel but at the same time the other aspect of the matter which needs attention is that the matter was taken up by the National Accountability Bureau (NAB) and in the inquiry the petitioner is said to have been exonerated and Dawar Khan was proceeded against, where the petitioner appeared as a witness in the NAB Reference No.22 of 2005 (State v. Dawar Khan & another). In fact no monetary loss was suffered by the Government as the amount involved was credited. It ipso facto does not absolve the petitioner for not having taken timely steps for crediting of the amount but may have some relevance in considering the imposition of penalty. While deciding the appeal the learned Tribunal could go into this question as such a power vests with the learned Tribunal in view of provisions of S.5 of the Service Tribunal Act, 1973, which empowers the Tribunal to confirm, set-aside, vary or modify the order appealed against. In C.P. No. 704 of 2008, (Akhtar Ali vs. Director Federal Government) decided on 21.4.2009 this Court had taken the view that while imposing penalty the competent authority is expected to keep in mind the gravity and severity of the allegations and past conduct of the person concerned, and removal from service was not the only option for the competent authority, who could be awarded other penalty of lesser implications. When he filed appeal before the Federal Service Tribunal even the learned Tribunal did not advert to this aspect of the matter although under Section 5 of the Service Tribunal Act, 1973, the Tribunal had 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 vs. Secretary, Education (S&L) NWFP and 3 others, (2008 PLC (C.S.) 77), the NWFP Service Tribunal ordered the conversion of dismissal order from service with that of compulsory retirement and the petition for leave C.P.
No. 249-P of 2007 filed by the Government of NWFP against the said order of the Tribunal was dismissed by this Court on 24.12.2008. In Shamim Ahmed Kazmi vs. 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 this Court by dismissing the petition thereagainst. 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 to compulsory retirement where-against the petition was dismissed by this Court. In Auditor-General of Pakistan and others v. Muhammad Ali and others (2006 SCMR 60), removal from service order was converted into reduction in time scale by the Federal Service Tribunal where-against the appeal of the Department was dismissed by this Court. Reference may also be made to Javed Akhter and others v. Chief Engineer Highway Department and others (2006 SCMR 1018). As to the scope of powers of the Tribunal under the Service Tribunal Act and of this Court under Article 212 reference may be made to Islamic Republic of Pakistan v. Dr. Safdar Mahmood (PLD 1983 SC 100), Water and Power Development Authority, Lahore and 2 others versus Muhammad Yousaf, Test Inspector (PLD 1996 SC 840), Mian Shafiuddin, Deputy Director and 4 others v. Surat Khan Marri, Director Regional Information Office, Islamabad and 41 others (1991 SCMR 2216) and Ajaz Nabi Abbasi v. Water and Power Development Authority and another (1992 SCMR 774). So for as the jurisdiction and powers of tins Court is concerned, it has been held that even this Court while hearing petition under Article 212(3) of the constitution of the Islamic Republic of Pakistan, had been exercising its jurisdiction in appropriate cases of converting the penalty found not commensurate to the nature of the charges. In Inspector-General (Prisons), NWFP, Peshawar and another v.
Syed Jaffar Shah, Ex-Assistant Superintendent jail and others (2006 SCMR 815), the judgment of the Tribunal was modified to convert the penalties imposed by the departmental authority. In Adbul Sattar and another v.
Director Food, Punjab and others (2007 PLC (C.S.) 319), this Court ordered the conversion of penalty of dismissal from service into compulsory retirement from service. In Muhammad Ali S. Bukhari v. Federation of Pakistan through Establishment Secretary, Islamabad and 2 others (2008 PLC C.S) 428), modifying the judgment of the learned Tribunal this Court ordered the conversion of penalty of compulsory retirement into reduction of two steps in time scale for a period of two years. The object of making reference to the above cited precedents is that not only the Tribunal while dealing with an appeal under Section 5 of the Act has the power to vary and modify the order of departmental authority; this Court while sitting in appeal over the judgment of the learned Tribunal can also exercise such a power to meet the ends of justice dependent upon of course the facts and circumstances of each case'."
Thus, following the principle of law enunciated in the above referred judgment, while accepting the appeal, keeping in view the overall facts and circumstances of the case, the departmental punishment order of dismissal from service from the date of its issuance is converted into compulsory retirement. The appellant will be deemed compulsorily retired and entitled for all the admissible emoluments on retirement according to the rules and law.
The appeal stands disposed of in the terms indicated hereinabove. No order as to costs.
A copy of the judgment shall immediately be conveyed to the Chief Secretary of Azad Jammu and Kashmir for compliance of the direction given in paragraph-6 and submission of the final report.