AJMAL MIAN, J: --Leave to appeal is sought against the judgment dated 20-12-1989 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, in Appeal No.337(R)/89/2(L)/87 filed by the petitioner, dismissing the same.
2. The facts to be noted are that at the relevant time the petitioner was employed as a Naib-Qasid in the Office of Controller, Imports and Exports, Lahore. It seems that on 17-6-1986 the petitioner was engaged in physically fighting with another Naib-Qasid Muhammad Bashir. While the above fighting was going on, Mr. Asaf Ghafoor, Deputy Controller, Imports and Exports, happened to pass by the site where the petitioner was having the above fight, but they did not stop the fight.
Consequently, disciplinary preceedings were initiated and the petitioner was charge-sheeted. The statement of allegations served upon the petitioner alongwith the charge-sheet reads as follows:- - "STATEMENT OF ALLEGATIONS You, Mr. Muhammad Younas Naib-Qasid of this Office was found physically fighting with Mr. Muhammad Bashir Naib-Qasid of this Office at the Licensing Counter of this Office on 17-6-1986 at about 12.30 p.m. By D.C.(Admn.). You had admitted yourself before the D.C. (Admn), the cause of fight as the acceptance of Rs.15 from one of the importers and its distribution among yourself. Thus, you have not only violated the disciplinary rules and acceptance of illegal gratification is a gross misconduct."
The petitioner submitted a reply to the above charge-sheet. The Enquiry Officer after concluding the enquiry recorded a finding of fact that the charge was proved against the petitioner.
Consequently, the petitioner was dismissed from service by an order dated 16-10-1986. Against the above order, the petitioner filed aforesaid appeal before the Tribunal which was argued by him in person. It may be pertinent to reproduce para 3 of the impugned judgment, which reads as follows:-- "3. The appellant who pleaded his case personally did not deny the incident. His defence was that Muhammad Bashir, Naib-Qasid had demanded his share out of Rs.15 given to the appellant by one of the visitors to the office. According to the appellant, since he did not agree to share, Muhammad Bashir had tried to forcibly snatch the money from him and this resulted in the scuffle. It was submitted by the appellant that as far .As he is concerned, he was not at all at fault. His alternative plea was the punishment awarded by the Respondent Department was much too excessive."
The Tribunal on the basis of the--above concession made by the petitioner had allowed the appeal partly by converting dismissal into removal. However, the petitioner has filed the above petition for leave to appeal.
4. In support of the above petition, Ch.M.Aslam Sandhu, learned A.S.C. Appearing for the petitioner, has urged that the petitioner was not provided any opportunity to cross-examine the witnesses relied upon by the Enquiry Officer in support of the charge, nor the petitioner was given an opportunity to produce the defence witnesses: In our view, the above contention is untenable in view of the aforesaid concession/statement made by the petitioner before the Tribunal. The petitioner having accepted the factum of the fight and the reason of fight cannot urge that the above charge has not been proved.
5. Then it was contended by Mr.Sandhu that there is a contradiction between the enquiry report and the finding recorded by the Tribunal inasmuch as in the enquiry report it has been inter alia stated that "thus they have violated the disciplinary rules and acceptance of illegal gratification is a gross misconduct", whereas in the impugned judgment the Tribunal has observed as follows:-- "---------..Since the respondent department did, not level the charge of corruption, we are refraining from making any comments on the nature of the payment made by the visitor, the sharing of which became the cause of the fight. But the mere fact that the appellant exhibited unruly behaviour would at least show lack of discipline in him:'
6. There seems to be some misunderstanding on the part of the Tribunal as to the finding recorded by the Enquiry Officer but it does not change the complexion of the case. The factum that there was a fight between the petitioner and the aforesaid Muhammad Bashir, another Naib-Qasid, which they did not stop even in presence of the Deputy Controller (Mr. Asaf Ghafoor), stands proved. This itself will constitute misconduct as has been held by the Tribunal in the above-quoted portion of the impugned judgment. The petition has no merits. Leave is accordingly refused.