1. ' RAJA AFRASIAB KHAN, J.---On 23rd of February, 1997, leave to appeal was granted to the appellants with the following order:-- "The petitioners seek leave to appeal against the judgment of the Federal Service Tribunal by which the appeal filed by the respondent against the order of dismissal from service was set aside.
2. The respondent was charged that while he was operating move-over crane on 5-6-1994, a fire broke out due to his negligence and carelessness. On account of this fire valuable equipments and materials worth Rs,1.5 crores were burnt. After the inquiry the respondent was found guilty of negligence in performance of duty and was dismissed from service. In appeal there does not seem to be any dispute about the incident, but the plea taken by the respondent was that it was an unintentional incident causing loss to equipment and that it was no crime. The learned Tribunal observed as follows:-- "In view of the above position we feel that the appellant's action was not deliberate, therefore, not a crime. Concluding the whole discussion, we feel that the appellant did not commit any crime, hence, he should not be punished for that."
3. ' The learned counsel for the petitioners contended that the respondent was not charged of any crime. There was charge of negligence in performance of his duty and was accordingly dealt with under the Rules. The learned Tribunal has not considered the case as required by law and treated the departmental proceedings as a criminal case for granting the relief. Leave is granted. The petition is barred by four days. The learned counsel has filed an application for condonation of the delay. The delay is condoned." (Emphasis supplied).
4. ' Another order was passed by this Court on' 16-10-1997 which was to the following effect:-- "The application is allowed on the condition that the appellant will deposit amount of back benefits as well as the future monthly salary of the respondent with the Registrar of this Court. The back benefits including the salary for the month of September may be deposited within one month from today while the future salary will be deposited by the 10th of each following the current month. The stay granted earlier will continue until disposal of this appeal.
5. ' The amount deposited with the Registrar will not be paid except with the permission of the Court."
2. Mr. Gul Zarin Kiani, learned counsel 'for the appellants has submitted before us that the learned Tribunal has failed to consider the material facts available on record inasmuch as a finding having been recorded by the Inquiry Committee has not been taken into consideration. He further added that the Tribunal did not consider the correct version which was given on 7-6-1994 about the occurrence having taken place on 5th of June, 1994. At any rate, it has been argued that the Tribunal has not given proper finding in respect of the incident as to whether it has taken place accidentally or because of carelessness/negligence on the part of the respondent. According to the learned counsel, it was the duty of the Tribunal to have considered the facts and circumstances of the case while hearing the appeal of the respondent in their entirety. Learned counsel has relied upon Lal Suraj Prasad v. Ram Charitar Singh (AIR 1950 Patna 298), Sailajananda Pandey and another v. Laskhichand Sao and others (AIR 1951 Patna 502), Ghulam Shabbir v. The State (1995 SCM R 1166), Muhammad Sadiq v. Najeeb Ali (1995 SCM R 1632), Syed Iftikhar-ud-Din Haidar Gardezi and others v. Central Bank of India Ltd. And 2 others (1996 SCM R 669) and Pakistan Railways through General Manager v. Ghulam Rasul (1997 SCM R 1581).
3. After hearing the learned counsel for the appellants and the respondent in person at some length and, reading the record with care, we hold that these authorities do not help the case of the appellants because they proceed on facts which are not identical with the circumstances of this case. In case of Lal Suraj Prasad (supra) the Civil Court decided the controversy between the parties under Civil Procedure Code. This is a service matter which is governed by a special law. To the same effect is the rule laid down in the case of Sailajananda Pandey etc. (supra). It was held in the referred case that all questions of facts had to be decided by the Civil Courts. There is no cavil to this proposition provided the parties are vigilant and they raise and argue each and every point before the appropriate forums for their correct decision. In the case in hand, it appears that question relating to enquiry report has not seriously been raised or argued before the learned Tribunal. The rule laid down in the case of Ghulam Rasul (supra) has nothing to do with the controversy involved in these proceedings. In the referred case, it was held:- "Examined in the light of above-stated 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 the 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.
6. ' 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 unauthorized 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." (Emphasis supplied).
7. ' In other words, relief in part was given to the private individual in the above case. This Court in the case of Syed Iftikhar-ud-Din Haider Gardezi (supra) held that every matter pending before a Court had to be decided within reasonable period of time. This is not the dispute in this case. The cases of Muhammad Sadiq and Ghulam Shabbir (supra) are irrelevant because these proceed on different set of allegations which have nothing to do with this case.
4. Javed Iqbal, the respondent has himself argued the case. He states that he cannot be held responsible because fire took place accidentally and not on account of his negligence. His plea is that there is not an iota of evidence to demonstrate that he has acted negligently during the performance of his official duties. He has stated that he has excellent record of his service. We find that the points having been raised by the learned counsel before us have not been attended to by the Tribunal in their proper perspective. As to the allegation of negligence, the Tribunal has not taken into consideration the finding of the Inquiry Report. This may, however, be noted that the respondent has been preforming his official duties to the entire satisfaction of the appellant, WAPDA. This was the first incident in his entire service career in which loss to the property of the appellant took place. The Tribunal held that the respondent did not do this loss to the property of the appellant wilfully. If it is accepted as such, the impugned decision of the Tribunal may not be open to any valid objection. It was, nevertheless, the duty of the Tribunal to hear and decide the appeal of the respondent in the light of arguments of the learned counsel for the parties. It is an established proposition of law that whole original case stands reopened in appeal and as such, it is to be decided in the light of evidence of the parties. The Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 were framed under section 18 of the Pakistan WAPDA Act, 1958 and were promulgated with effect from 11th of February, 1978. The expression 'misconduct' has been defined under sub-rule (5) of rule 2 which is as follows:-- "Misconduct" includes-- (ii)...
8. (iii)......
9. (iv)......
10. (v).. .
11. (vi)... . . . . .
(vii) habitual negligence or neglect of work; (viii).. .....
12. (ix)..
13. (x)... ......
14. (xi)
15. (xii)...
16. It has to be proved on the strength of credible evidence that the respondent has been negligent by habit or he has continuously been neglecting his work in the past as well so as to constitute 'misconduct'. There is, however, no evidence brought on record to show that he has acted negligently in the performance of his duties. Before a penalty is imposed upon an employee, it is also necessary to prove that he has caused willful damage to or loss of the Authority's goods or property under clause (vi) of sub-rule (5) of rule 2. The Tribunal had said that the respondent did not cause loss to the property of the appellant willfully. According to the learned counsel, however, there is evidence to prove that the respondent has done the loss deliberately.
5. Be that as it may, all these aspects of the case have to be looked into by the Tribunal to fulfill the requirements of law and justice. In such a situation, the case is remanded to the Tribunal to rehear the appeal of the respondent for its decision afresh within two months from the date of this order.
17. In case, after hearing the learned counsel for the parties, the Tribunal comes to the conclusion that the respondent cannot be held responsible for the loss which has occurred to the property of the appellant, then the salary having been deposited with the Registrar of this Court would be paid to the respondent, Javed Iqbal within seven days.