1. SAIDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is directed against the judgment of Federal Service Tribunal, Islamabad, dated 28-12-1992.
2. Respondent who was serving as Draftsman (BPS-11) with the appellant remained absent from duty from 7-5-1979 to 31-12-1983 without leave. The respondent reported for duty on 1-1-1984 but he was not allowed to resume duty. He was served with a charge-sheet on 5-3-1984 wherein he was asked to show cause why he should not be dismissed from service for remaining absent from duty for the above period without any valid reason and cause. The respondent submitted his explanation to the above charge-sheet on 6-3-1984 and took the stand that he was sick during the above period and, therefore, he could not resume his duties. In view of the stand taken by respondent, he was referred to Cairns Hospital, Pakistan Railways, Lahore, for medical check-up. He remained as an indoor patient in the said hospital up to 4-4-1984 under observations of a psychiatrist and, thereafter he was directed to appear before a Medical Board for examination. The Medical Board after examination recommended for keeping the respondent in the hospital for observation for a further period of six weeks and on expiry of this period he was declared fit for duty in July, 1984 by the Medical Board. The respondent was, however, not taken back on the duty and instead, was served with order dated 9-1-1985 removing him from service. The order for removal of respondent from service was, however, withdrawn later by the authorities on 3-8-1989 as follows:-- "PAKISTAN RAILWAYS HEADQUARTERS OFFICE, LAHORE NOTICE The notice imposition of penalty (form-c) containing the punishment of removal from service in case of unauthorized absence of Mr. Ghulam Rasool Ex-D/Man D.O./Signals, is hereby withdrawn.
2. De novo action will be started against him.
3. (Sd.)
4. Assistant Secretary No. 724-E/7599 (Adorn-I/Leave), dated 5-8-1989 Copy forwarded for information and necessary action to:-- H.C./Adorn-I/A, & H.C./Adorn-I, and Adorn-II/C.
(2) Mr. Ghulam Rasool/D. O./Signals..
(3) A.O./E.P. Rly.; Hd. Qrs. Office, Lahore.
(4) Superintendent, D.O./Signals."
5. Soon after withdrawal of the order removing the respondent from service, he was asked by letter dated 15-8-1989, to appear before Enquiry Committee on 22-8-1989, in connection with the charge relating to his unauthorized absence from duty. In reply to the above letter, the respondent took the stand that in view of his appeal against the order dated 9-1-1985 removing him from service, which was pending before appropriate authority, the fresh proceedings drawn against him were incompetent in law. As the respondent apparently did not appear before the Enquiry Officer on the date fixed for enquiry, he was removed from service by order dated 15-1-1990. The departmental appeal of respondent against the order dated 15-1-1990 was dismissed on 2-7-1990. The respondent then filed a service appeal before the learned Federal Service Tribunal seeking the following reliefs: -- "In view of the above it is respectfully prayed that this learned Tribunal may be pleased to declare the impugned orders of removal froth service of the appellant bearing No. 724-E/7599 (Admn.I), dated 9-1-1985 and subsequent orders bearing No. 724-E/7599 (Admn.I)/Leave, dated 18-1-1990 are illegal, void ab initio, ultra vires, inoperative, without jurisdiction and based on the mala fide intention of the respondents and that the respondents may kindly be directed to reinstate the appellant in service with all the back benefits, further directing the respondents to implement their own Order bearing No. 724-E/7599 (Admn.I)/Leave, dated 5-8-1989 whereby the orders of removal from service of the appellant were withdrawn.
6. Any other appropriate relief to which this Hon'ble Tribunal may deem fit and proper may also be awarded. "
7. The learned Service Tribunal after hearing the parties and examining the merits of the case allowed the appeal of respondent granting him the following relief:-- "6. After hearing the parties and going through the facts of the case, it is established as under:
(i) That initially the appellant had remained absent from 7-5-1979 to 31-12-1983 without any valid permission/sanction from the respondent Department and he had joined the duties with effect from 1-1-1984.
8. Since the appellant had given duty report on 1-1-1984 and disciplinary proceedings had been conducted in his absence by the Department, his duty report should be, reckoned with effect from 1-1-1984.
(ii) That the orders for withdrawal of removal dated 3-8-1989 had been withheld and not despatched to the appellant by some officials of the Department and the appellant had neither been reinstated nor paid for the relevant period, the action of the Department was mala fide, ultra vires and unlawful.
9. As such the respondent Department after withdrawal of the orders of first removal should have reinstated the appellant into service and paid accordingly. Also it was to be considered that this removal had not taken effect ab initio.
10. (i.e) That the Department had to consider the appellant in service right from 7-5-1979 (i.e. The date of his absence) till 17/18-1-1990 (i.e. The date of his final removal from service) and pay the appellant for the said period in accordance with the rules. .
11. The Department should have paid the appellant for the absence period from 7-5-1979 to 31-12- 1983 as E.O.L. Without pay and from 1-1-1984 to 17/18-1-1990 as duty period (but since restricted to perform duties it should be as leave period) as per his entitlement and admissibility under the rules.
12. (iv)The departmental action for not reinstating the appellant with effect from withdrawal of removal order dated 3-8-1989 and not paying him accordingly, is mala fide, ultra vires and not sustainable.
7. We, therefore, conclude, partially accept the appeal and direct the respondent Department to pay the appellant as indicated in sub-paras. (ii) and (i.e) above and further considering appellant's long service and mala fide and unlawful actions taken against him by the Department, we convert the punishment of removal of service into that of compulsory retirement. No order as to costs. Parties be informed. "
13. Leave was granted by this Court to consider the following questions of law:-- "Leave to appeal is granted to consider whether the Federal Service Tribunal was right to direct payment of salary to the respondent during the period he remained absent from duty as also whether the circumstances of this case justified the conversion of his removal from I service to that of compulsory retirement."
14. In support of the appeal Mr. Ch. Fazal-i-Hussain the learned counsel for the appellant contended before us that the learned Service Tribunal could not convert the penalty of removal from service, awarded by the competent Departmental Authority after holding an enquiry in accordance with the law, which the learned Tribunal also did not find suffering from any infirmity. It is further contended by the learned counsel for the appellant that the respondent having remained absent from duty throughout and having rendered no service to the appellant after 7-5-1979, could not be allowed payment of salary for the period from 7-5-1979 till his removal from service on 15-1-1990.
15. The learned counsel for the respondent supported the order of learned Service Tribunal.
16. We will first take up the contention of learned counsel for the appellant that the departmental enquiry against the respondent having been conducted in accordance with the rules and the punishment having been imposed by a competent authority which was also in accordance with the law, the Service Tribunal could not interfere with the order of departmental authority and convert the punishment of removal from service into compulsory retirement from service. The appellate powers of Service Tribunal are regulated by section 5 of the Service Tribunals Act, 1973 which reads as follows:--- "5. Power of Tribunals.--(1) 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;
(c) issuing commission for the examination of witnesses and documents. "
17. The above provision confers vide power on Service Tribunal to confirm, set aside, vary or modify the order appealed against. It may be mentioned here that unlike ordinary litigants who have access to ordinary Courts in the country to seek redress of their grievances; a Government servant is debarred from taking his grievance relating to the terms and conditions of his service before any Court. Such a grievance of Civil Servant is exclusively triable by a Tribunal establish under the provision of Article 212 of the Constitution of Islamic Republic of Pakistan. No doubt an appeal against the order of Tribunal set up under Article 212 (ibid) lies to this Court but such an appeal is very limited in scope as provided in sub-clause (3) of Article 212 which reads as follows:--- "An appeal to the Supreme Court from a judgment, decree,' order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal. "
18. In view of the exclusive nature of appellate jurisdiction exercised. By the Service Tribunal in respect of dispute relating to terms and conditions of service of a civil servant and the limited scope of appeal before this Court against the order of Service Tribunal, we are of the view that an appeal before the Service Tribunal against the order of departmental authority under section 5 of the Act is very wide in its scope and all questions of law and facts arising therein are open to be gone into by the Tribunal. The Service Tribunal, therefore, while hearing such an appeal has full power to confirm, alter, set aside, vary or modify the order of Departmental Authority keeping in view the facts and circumstances of the case and to meet the ends of justice. It is, therefore, not correct to argue that when the departmental authority has passed an order after following the procedure prescribed by law the Service Tribunal could not interfere with the order of departmental authorities. So long the order passed by the Tribunal in appeal against the order of departmental authority shows application of mind by the Tribunal and the reasons given by the Tribunal satisfy the test of reasonableness and do not suffer from arbitrariness, this Court will not interfere with such an order of the Tribunal. The scope of appellate powers of Service Tribunal was considered by this Court in the case of WAPDA v. Zulfiqar Ali and others (PLD 1988 SC 693) as follows:--- "It is now well-settled that the Service Tribunals are forums of appeal on questions of law as also facts; with all the necessary powers to uphold, set aside or vary the orders, impugned before them.
19. It is subject to the limitations imposed by any law-like section 17(1-A) of the WAPDA Act, 1958 as interpreted by this Court. That being so, the powers to alter the punishment in' appropriate cases has also been conceded to the Tribunal in a number of judgments by this Court. We, therefore, do not agree with the learned counsel for the appellant that they have no such power.
20. It is now to be seen whether there is any limitation on this power particularly in cases dealt under section 17(1-A) of WAPDA Act. One limitation is that the decisions of Tribunals being subject to appeal to this Court it is proper that, as on other question, cogent reasons should be Liven for altering the punishment. This is also necessary so as to avoid criticise of arbitrariness on the part of the Tribunal itself.
21. The other obvious limitation is that in fact also it should not be arbitrary. The reasons to be stated in the order should satisfy the standards of reasonableness. Guidance in this behalf can be sought from the cases of similar nature decided by the superior. Courts. For example, in matters of corruption and/or bribe the recent judgments by this Court on quantum of punishment in criminal cases, can be kept in mind. See Malik Muhammad Khan v. The State PLD 1987 SC 500. See also the same case on review, re-heard and decided on 10-5-1988".
22. The above passage from Zulfiqar Ali's (PLD 1988 SC 693) case was. Quoted with approval in the case of Postmaster-General, AJK v. Muhammad Zorab (1996 SCM R 280) by another Bench of this Court of which to of us (Saiduzzaman Siddiqui and Mukhtar Ahmed Junejo, JJ.) were also members. In that case the Federal Service Tribunal in the service appeal of an aggrieved civil servant modified the punishment of compulsory retirement from service into stoppage of to increments for a period of 2 years. The Postmaster-General AJK sought leave to appeal from this Court against the order of Federal Service Tribunal on similar ground as are urged in the present case before us but leave was decided after referring to the abovequoted passage from Zulfiqar Ali's case (PLD 1988 SC 693) as follows:--- "From the above quotations, it is quite clear that the service Tribunals are forums where questions of law and. Facts both can be agitated by the aggrieved persons. The limitation while hearing service appeals on the power of the Tribunals is only to the extent that while interfering on question of fact, the Tribunal has to state the reasons in the order which should satisfy the standards of reasonableness. This Court, therefore, while hearing the appeal arising from the decision of Service Tribunal would only interfere if the order passed by the Tribunal lacked application of mind or suffered from arbitrariness. "
23. Examined in the light of abovestated principles, we find that the learned Tribunal while converting the removal of respondent 'from Service into compulsory retirement took, into consideration besides over 20 years of long service of respondent with -be appellant, various other factors mentioned in paragraph 6 of the impugned judgment. The considerations kept in view by the learned Federal Service Tribunal in granting the above relief to the respondent were neither irrelevant nor resulted in exercise of discretion in an arbitrary manner so as to justify interference by us.
24. The next question arising for consideration in this appeal is, whether the learned Tribunal was justified in awarding the salary to the respondent for the period from 7-5-1979 to 18--1-1990. It is an admitted position in the case that the respondent absented from duty without leave from 7-5-1979 to 31-12-1983. He reported for duty on 1-1-1984 but he was not allowed to join the duty and was removed from service on 9-1-1985 as a result of departmental enquiry. However, the order of removal from service was withdrawn by the authorities on 3-8-1989. The natural effect of the withdrawal of the order of removal of respondent from service was that he stood reinstated in service, subject to a de novo second enquiry in the charges against him. The respondent was finally removed from service as a result of second enquiry on 15-1-1990. It is not disputed before us that although the respondent remained absent from duty without leave from 5-7-1979 to 31-12- 1983, but his services were not terminated and he was removed from service when he reported for duty on 1-1-1984. Therefore, from 1-1-1984 till his final removal from service on 15-1-1990 he was in service but for no fault of his, he was prevented by the department from resuming his duties. In these circumstances, the award of salary by the learned Tribunal to the respondent from 1-1-1984 to 15-1-1990 was unexceptionable. However, we find no justification for allowing salary to the respondent for the period from 5-7-1979 to 31-12-1983 which was the period during which the respondent was found absent from duty without any justification. We are, therefore, of the view that the respondent was not entitled to payment of any salary during the period of his unauthorised absence from duty from 5-7-1979 to 31-12-1989. The appeal is partly allowed to the extent mentioned above, with no order as to costs.