SHAFIUR RAHMAN, ACTG. CJ. ---Leave to appeal was granted under Article 212(3) of the Constitution to examine whether without recording any reason the Service Tribunal could on the facts of the case come to a conclusion that "the punishment awarded in the this case was not commensurate with the amount of appellant's guilt" and thereafter proceed to reduce the punishment of reduction in rank for a period of three years to stoppage of one increment without future effect.
2. The respondent held the post of Executive Engineer when he was departmentally proceeded against on six charges. The first two charges were not proved in the inquiry but the others four were found fully established against him. The four charges which were found established were as hereunder:- "(3) No seal was found on the knob of MDI meter at the time of a conducted by Deputy Director (Surveillance) in your presence, whereas the same was shown to be affixed at the time of energizing the said connection. There is apprehension that the seal was not affixed on the knob of MDI every time it was read and re-set. MDI was not re-set by you every month which shows that the site was never visited by you and bogus readings of the meter were recorded. This is substantiated by the fact that at the time of raid conducted by the Deputy Director (Surveillance) on 17-10-1985 in your presence, the counter of re-set indicated 91, whereas at the time of installation it was at 28 which proves that it was re-set 63 times during a span of four months.
(4) The line loses of 11 KV Glottian Feeder on which the Steel Furnace was connected increased for the period from 7/85 to 10/85 (20.89%) compared to the period from 7/84 to 10/84 (13.95%) indicating that pilferage of energy was taking place but still no notice was taken b you.
(5) At the time of checking the Steel Furnace by Deputy Director (Surveillance) on 17-10-1985 in your presence the MDI reading was found to be 992 KW. Whereas MDI reading supplied by you during proceeding months never exceeded 408 K.W. Which gives clear indication that factual recording of MDI was concealed by you during these months.
(6) The sanctioned load of the Furnace was 372.68 KW. As mentioned o the Test Check Pro forma but even fabricated MDI Reading recorded by you have exceeded the sanctioned load. No action was taken by you in this respect for getting the enhanced load sanctioned or asking the consumer to reduce his load and submit fresh test report."
3. On receipt of the inquiry report, a show-cause notice was served o the respondent and the competent authority by an order dated 15-10-198 reduced him in rank for a period of three years with the direction that should not be given a field assignment. Having exhausted the departmen remedy he approached the Service Tribunal. The Service Tribunal by judgment dated 28-11-1991 set aside the penalty imposed and substituted I with one of stoppage of one increment without future effect.
4. The judgment of the Tribunal is reproduced as hereunder so far relevant and necessary for dealing with this appeal:- "As we see from the Inquiry Officer's Report, the appellant was exonerated of the first two charges out of the six made in the charge-sheet served by letter dated 1-4-1986. It is contended by the appellant's learned counsel that the allegations contained in the first two charges were somewhat serious in nature, but the Inquiry Officer's finding, as already mentioned, in respect of those charges was that he was not proved to have been guilty. As for the remaining four charges, it has been submitted by the learned counsel that the allegations contained in them were not so serious in nature as to justify the penalty imposed against the appellant, particularly in the absence of allegation regarding presence of ulterior motive. It is also his submission that a closer application to the allegations made in the last four charges is suggestive of the fact that the appellant's involvement was rather indirect and in some of the cases, he was not responsible for the performance of any duty in respect of meter reading. The allegations at the most, even if believed as correct, only spell out some sort of negligence on his part. Under the circumstances, even a lesser penalty would have been sufficient to promote the ends of justice.
' We have applied ourselves rather close to the allegations made by the competent authority in the last four charges and we are of the view that the learned counsel's contentions are not wholly without substance and that the punishment awarded in this case was not commensurate with the amount of appellant's guilt, and that a lenient view of the matter should have been taken under the circumstances.
' For these reasons, the impugned order is modified in partial acceptance of the appeal and substituted by an order of stoppage of one increment without future effect, in respect of the year 1987."
5. As noted in the leave granting order it appears that even the gravity of the charges proved was not kept in view while making the general observations which form the basis of the Tribunal's order.
This Court has pointed out in sufficient detail the Constitutional responsibility of the Service Tribunal in the case of Muhammad Ibrahim Khan v. Secretary, Ministry of Labour and others (1984 SCM R 1014). Being a final Court of fact the Service Tribunal is under duty to examine thoroughly and finally the questions of fact involved and dispose them of by reasoned observations and conclusions. The judgment given by the Tribunal in this case is as pointed out in Muhammad Ibrahim's case conforms to a model of what a judgment should not be.
6. The judgment of the Service Tribunal in this case proceeded on an assumption that the charges even if believed correct showed some sort of negligence. This presumption itself is wrong. It were not the acts of omission for which the respondent was charged. The acts were of commission. The acts complained of were not in the discharge of supervisory duties but in discharge of primary duties. There were instructions governing the respondent. These had to be examined. Even the admitting note of the appeal shows that there were substantial facts to be examined in the appeal and all these remained unexamined. The admitting note of the Service Tribunal dated 21-6-1988 is reproduced hereunder:- "it is inter alia, contended that the matter involved lot of technicalities but the inquiry was entrusted to a non-technical officer in contravention of the instructions contained in Office Memorandum dated 18th January, 1983, published in the WAPDA Manual of General Rules at page 32. It is also contended that there were mala fides behind the action taken against the appellant. The inquiry proceedings also have been attacked. Admit. Notice."
7. The learned counsel for the respondent has produced before us a copy of the circular of Chief Engineer Design (Dist.) Power dated 2-4-1984 in justification of his handing over the keys of OCB to the consumer himself.
8. All these matters have to be examined in the first instance by the Service Tribunal itself and a determinative finding recorded. In the circumstances, the appeal is accepted. The judgment of the Tribunal is set aside, and the appeal is remanded for rehearing and a decision afresh in accordance with law. No order is made as to costs