' NAIMUDDIN, J.--Appellants in this appeal and Civil Appeal No,27 of 1988, were the Excise and Taxation Inspectors. They as Incharge Excise Officers in chemical works alongwith six other Excise and Taxation Inspectors were charge-sheeted under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, for inefficiency and misconduct. An enquiry officer appointed for the purpose found them guilty of the charges of inefficiency and misconduct. The Authorised Officer after hearing the learned counsel for the appellants decided to impose minor penalty of, withholding of two increments.
2. The appellants aggrieved by the orders of the Authorised Officer preferred two separate appeals with the Director, Excise and Taxation, Lahore, which were rejected by him by the orders dated 11-7- 1985. These orders led the appellants to file separate appeals before the Punjab Service Tribunal, Lahore. An objection was taken before the Tribunal that the department appeals could not be heard by the Director, Excise and Taxation. This objection was upheld and the appeals were remanded for hearing by the Director-General, Excise and Taxation, who after hearing the appellants dismissed the appeals vide separate orders both dated 22-6-1986. The appellants, still aggrieved filed fresh appeals before the Tribunal.
3. During the hearing of appeals the Tribunal found it necessary to issue show-cause notices to the appellants for enhancement of the penalty. Accordingly, on 1-9-1987, the Tribunal issued notices to show cause why they should not be awarded major penalty as defined in the Punjab Civil Servants (Efficiency and Discipline), Rules, 1975, hereinafter called 'the Rules' instead of minor penalty of stoppage of two annual increments. The appellants filed separate applications under section 151 C.P.C. Praying for withdrawal of the show-cause notices issued to them.
4. The Tribunal by a common order dated 2-12-1987 dismissed the applications holding that the Tribunal was fully competent in view of the provisions of section 5 of the Punjab Service Tribunals Act, 1974, to impose a greater penalty and thereafter by separate common judgment dated 6th December, 1987, dismissed both the appeals and enhanced the minor penalty of withholding of two annual increments to that of dismissal of the appellants from the service forthwith.
5. In enhancing the penalty the learned Tribunal relied on section 5 of the Punjab Service Tribunals Act, 1974, section 15 of the. Punjab Civil Servants Act, 1974, and rules 4 and 15 of the Rules and referred to the judgments of this Court in Sh. Abdul Aziz and others v. Member Board of Revenue (1984 SCM R 65), H.M.Ashraf Ullah v. Secretary Ministry of Communication and another (1984 SCM R 684) and Province of Punjab v. Ramzan Ali Khan and others (PLD 1982 SC 349). It also relied on the powers of Civil Court under the C.P.C. Particularly, section 107 and Order XLI, rule 33 thereof.
6. There is no doubt that section 5 of Punjab Service Tribunals Act, 1974, gives power to the Tribunal, on appeal, to confirm, set aside, vary or modify the order appealed against but the question does arise in what cases the Tribunal could do so. Could it do so when a party to the appeal prays for it or is found to be entitled to it?
7. Section 5 of Punjab Service Tribunals Act, 1974, reads as follows: - "5. Powers of Tribunals: (1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against.
(2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be, a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908) including the powers of--
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents; and
(c) issuing commission for the examination of witnesses, and documents.
(3) No court-fee shall be payable for preferring an appeal to, or filing, exhibiting or recording any document in, or obtaining any document from a Tribunal."
8. Before discussing the question it would be convenient for future reference if the provisions of section 15 of the Punjab Civil Servants Act, 1974, an I Rules 4 and 15 of the Rules, to which reference has been made by the Tribunal are also reproduced hereinbelow.
' Section 15 of the Punjab Civil Servants Act, 1974, reads as follows: - "15. Efficiency and discipline: A civil servant shall be liable to such disciplinary action and penalties and in accordance with such procedure as may be prescribed."
Rule 4 of the Rules described major and minor penalties. Rule 15 reads as follows:- "15. Determination of appeal: (1) The appellate authority shall cause notice to be given to the appellant and the authority, or the authorised Officer imposing penalty, of the time and place at which such appeal will be heard. The appellate authority shall send for the record of the case, if such record is not already with it. After perusing such record and hearing the appellant, if he appears, and the representative of the punishing authority, if he appears, the appellate authority may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may
(a) reverse the finding and acquit the accused; or
(b) order and direct that further or fresh inquiry be made; or
(c) alter the finding maintaining the penalty or with or without altering the finding, reduce the penalty, or
(d) subject to the provisions of sub-rule (2), enhance the penalty.
(2) Where the appellate, authority proposes to enhance the penalty, it shall:
(i) by order, in writing, inform the accused of the action proposed to be taken and the grounds of the action; and
(ii) give him a reasonable opportunity to show cause against that action.
(3) In dealing with an appeal, the appellate authority, if it thinks additional evidence to be necessary, may either take such evidence itself or direct it to be taken by the Authorised Officer and when such evidence has been taken the appellate authority shall thereupon proceed to dispose of the appeal."
9. The above-quoted rules are not directly relevant. Indeed we are here really concerned with the powers of the Tribunal under the Code of Civil Procedure as provided in section 5(2) of the Punjab Service Tribunals Act, 1974, quoted hereinbefore. The learned Tribunal in enhancing the penalty has mainly relied on the provisions of section 107 of the Code of Civil Procedure which reads as follows: "107(1) Subject to such conditions and limitations as may be. Prescribed, an Appellate Court shall have power-
(a) to detemine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Court of original jurisdictions in respect of suits instituted therein."
10. It will be seen that the exercise of powers under subsection (2) is made subject to the provisions of subsection (1) whereas in clause (a) appellate Court has power to determine a case finally. This power by, itself does not give power to enhance the penalty.
11. Then the other powers conferred on the appellate Court by the Code of Civil Procedure are contained in Rules 22 and 33 of Order XLI. Rule 22 provides that any respondent who has not appealed from any part of the decree may not only support the decree on any B of the grounds decided against him in the Court below but take any cross-objection to the decree which he could have taken by way of appeal within the period mentioned in the rule. This rule is not applicable for under the Punjab Service Tribunals Act, 1974, and the rules framed thereunder, there is no such provision for filing cross-appeal and in fact also no cross-appeal was filed from the order passed in appeal from the order imposing minor penalty in departmental proceedings.
12. Next provision to be considered is Rule 33 which states the 1 power of Court of appeal and is in the following terms:- "33. Power of Court of Appeal.--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only, of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: ' Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
'The above-quoted provisions conferred very wide discretion on the appellate Court but this power has to be exercised firstly, when a party to the appeal is entitled to it. In other words when there is a party who is dissatisfied or aggrieved by the order under appeal though it may not have appealed therefrom.
' Secondly,
(1) to avoid contradictory and inconsistent decisions on 'the same' question in the same suit. In other words to obviate coming into existence of impossible, contradictory or unworkable orders or decisions;
(2) to adjust the rights of the parties in accordance with justice, equity and good conscience;
(3) to do complete justice between the parties;
(4) to prevent the ends of justice from being defeated.
13 Taking up the first point, it may be said that in the present case in the departmental proceedings the final order passed was stoppage of two annual increments. The appellants being dissatisfied with. The order filed departmental appeals but the departmental appellate authority in appeals maintained the minor penalty imposed on them. Considering the same to be just and proper. This led to the filing of the appeals before the Service Tribunal. So far as the penalty awarded D to the appellants is concerned neither the authority which imposed the penalty could be said to be dissatisfied or aggrieved by the order because it itself chose to impose that penalty nor could the departmental appellate authority was dissatisfied or aggrieved by the order which it itself did maintain and which it could not challenge because under section 4 of the Punjab Service Tribunals Act, 1974, no right of appeal is given to the Government. The right of appeal is given only to a civil servant. Therefore, there was no occasion for the Tribunal to enhance the penalty as it did.
14., Taking up the second point, it may be pointed out that for exercise of powers under Rule 33, there were no contradictory or unworkable orders nor were there any rights of the parties which require adjustments in accordance with justice, equity and good conscience.
15. It may further be stated that when the departmental authority which imposed the penalty was satisfied with it and the appellate authority too was satisfied with the minor penalty imposed by the authority otherwise it would have imposed major penalty, it could not be said that justice had not been done or the ends of justice were defeated. Here the satisfaction of the departmental authority and the appellate authority could not be replaced by the satisfaction of the Service Tribunal moreso in the absence of an aggrieved or dissatisfied party.
16. Above all it has been held by this Court that the provisions of Rule 33 of Order XLI C.P.C. Are beneficial and dould be resorted to to give benefit thereof. See Messrs S.M. Yusuf Bros. v. Mir.Zr.
Muhammad Mehdi Pooya and another (PLD 1965 SC 15) wherein it was observed by Cornelius, C.J.
Who delivered the opinion of the Court at pages 20 and 21 of the report as follows:- "The terms employed to confer the power are of the widest amplitude to enable an appellate Court to pass decrees according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non-obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the appellate Court considers should be allowed within the framework of the suit. The- non-obstante clauses are particularly significant.
The fact that the appeal is as to a part only of the decree will not, by itself, restrain the appellate Court's power. Here the whole decree was before the appellate Court, but the other non-obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against Amanullah Kirmani would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle as stated. In the judgment of the High Court, namely, that "in the absence of a counter- appeal being filed a decree against another defendant cannot be given" not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule.
' We have accordingly referred to the earlier judgment of the same Court in the earlier case of Bakhsh Illahi & Sons to examine the arguments there set out. Four precedent judgments are cited.
From three of them, which are mentioned without reference to their particular facts, general propositions are extracted to the effect that the power given by the rule is widely expressed and must be applied with discretion, where interference is required 'to adjust the rights' of the parties in accordance with justice, equity and good conscience' or where the failure to exercise the power 'would lead to impossible, contradictory and unworkable orders'. These particular considerations undoubtedly are circumstances which would justify the exercise of the discretion conferred by the rule, but it is right that we should say that if these propositions are to be understood as limiting the exercise of the power within the circumstances specified, they would be in excess of the power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for, in each one, the application of the rule must be made beneficially (emphasis supplied) and in accordance with the relevant facts."
' Therefore, the powers could be exercised to give benefit and not to further burden the appellants with the harshest penalty of ,dismissal H from service.
17. Now, remain to be considered the cases relied upon by the Tribunal. The first case relied upon is of Sheikh Abdul Aziz v. Collector, Muzaffargarh and 2 others (1984.SCM R 65). In this case the petitioner was dismissed from service and it was held by this Court that the Service Tribunal could substitute order of reduction in rank with the order of dismissal passed by the departmental authority. It will be seen that in this case the civil servant was an ' aggrieved party and he got relief which the Tribunal could give. The next case of H.M. Ashraf Ullah v. Secretary, Ministry of Communication and another (1984 SCM R 684) has no relevancy to the point in issue in this case as in that case the question involved was the suitability of the appellant for promotion. The third case relied upon namely, Province of Punjab through Finance Secretary v.
Romzan Ali Khan and other (PLD 1982 SC 349) is also not relevant. In that case the main question was whether the finding that Private Secretaries of the High Court Judges could also avail of benefit of circular granting four advance increments to Stenographers etc. Was held not to be a question of law of public importance but a very limited question and it was therefore held that the appeal was not competent.
18. Accordingly, the orders passed by the Tribunal in the two appeals under consideration are not sustainable. We, therefore, allow these appeals, set aside the orders of the Tribunal dated 2-12-1987 and 6-12-1987 and as a result thereof the orders of the department dated 21-5-1985 imposing minor penalty of stoppage of next two increments which were confirmed in departmental appeals by the order dated 22-6-1986 are restored. These are the reasons for the short orders passed earlier to the above effect.