1. ' MUNAWAR ALI KHAN (CHAIRMAN).---The appellant Mian Dad, who was peon in the Court of Additional Sessions Judge, Karachi East, has filed this appeal to challenge the order of his dismissal from service passed by the District Judge, Karachi East on 13th June, 1989.
2. ' The facts of the case, as disclosed in the memo of appeal, arc that on 30-1-1989 while the appellant was working as Pcon in the Court of Additional Sessions Judge, Karachi East, he demanded a tip from Mr. Khanzada, Advocate, for the bail granted to his client a few days ago. The said Advocate complained to the Presiding Judge who in his turn, made a report to the District and Sessions Judge. On the basis of the report made against the appellant, he was served with charge- sheet accompanied by statement of allegations. After the appellant submitted his explanation, a regular enquiry was held by Mr. Iqbal Ahmad Khawaja, IIIrd Senior Civil Judge, Karachi East. On receipt of the enquiry report, the appellant was given final show-cause notice. He submitted his reply to the said notice. Ultimately the impugned order was passed by the District Judge awarding a major penalty of dismissal to the appellant. After availing the departmental remedy he filed the present appeal before this Tribunal.
3. ' While opening his arguments, Mr. Imdad Hussain Kazi, the learned counsel for the appellant, did not press the appeal on merits. However he vehemently opposed the extreme penalty of dismissal from service awarded to the appellant and prayed for reduction of the same. Mr. Salman Ansari, Goverment counsel had no objection if the penalty of dismissal was converted into compulsory retirement. Apart from the arguments made at the bar, we have carefully gone through the record of the case.
4. 'In view of the statement made by the learned counsel for the appellant, we need not go into the detailed discussion on the merits of the case. All that we have to consider is if the penalty awarded to the appellant is commensurate with charges levelled against him. As disclosed in the statement of allegations, there are, in substance, two charges against the appellant: one that the appellant was found to be mischievous man and was reprimanded by his officer several times but with no result; two, that the appellant demanded money from Mr. Khanzada, Advocate for the bail he had obtained for his client a few days back.
5. The first charge is manifestly of general nature. Of course the learned Judge in whose Court the appellant was working was in a better position to say about his general behaviour. However, the statement made by the learned Judge before the Enquiry officer was inconsistent. Though in his Examination-in-Chief before Enquiry Officer he stated: "Miandad was not mending his ways", yet in the same breath he admitted in his cross-examination that the appellant was submissive and not arrogant. He also certified the appellant to be punctual in his attendance in course of his cross- examination. Having said so the learned Judge had not explained how the appellant was of mischievous character and how he was not mending his ways. Moreover, there was not a trace of evidence to indicate that prior to the impugned proceedings he was even administered a simple warning for his wanton behaviour. Accordingly we regret our inability to agree with the Enquiry Officer that the said charge was proved.
6. ' As for second charge, that too, in our opinion was not specific inasmuch as that neither the amount demanded by the appellant was mentioned nor the other details about the case in which the demand was made were specified. According to the appellant's version, he was entrusted with the duty of delivering the release orders at the jail, and the parties concerned usually provided him conveyance up to jail. Thus, his statement seemed to suggest as if he was demanding the amount of money incurred by him in conveying the release order of the aforsaid Advocate's client at the concerned jail. In this connection reference to the enquiry report would also indicate that Enquiry Officer was unable to come to definite conclusion if the money demanded by the appellant was in the nature of bribe or was the expense he had incurred on delivery of release orders to the jail. In our opinion if the appellant had demanded the money in question prior to the delivery of the release order at the Jail, the money would have certainly assumed the colour of bribe. But the money demanded several days after the release order had been delivered to the jail and therby the work of the learned Advocate and his client had already been accomplished, could at best be treated as a "tip" which is invariably given by Advocates to the Court's 'peon' in such cases. But that did not mean that the appellant could unhesitatingly demand it as a matter of his right. Moreover, the way in which he demanded was certainly annoying as such as that the learned Judge felt disturbed in his work. To that extent the second charge was no doubt proved against the appellant.
7. ' The important question that agitated our mind was if the appellant deserved extreme penalty of outright ouster from service for his above kind of misbehaviour, particularly when the money demanded by him did not fall within the category of bribe. Moreover, we could not overlook the sufferings of his family members that would follow due to the appellant's becoming unemployed.
8. Even otherwise justice is always tempered with mercy. Despite what we have said above, the appellant cannot go unpunished for his wanton behaviour.
9. ' In view of the above, we direct that the penalty of dismissal from service awarded to the appellant be converted into stoppage of three annual increments D due to him on or after passing of the impugned order. Subject to this modification in the penalty, the appeal is dismissed with no order as to costs.