' MUNAWAR AHMAD MIRZA, J.---These appeals by leave of the Court, are directed against judgment dated 10-11-1996 passed by Federal Service Tribunal. Islamabad, (hereinafter referred to as 'the Tribunal') in Appeal No,491 of 1996 Federation of Pakistan has filed Civil Appeal No,76 of 1997 whereas Amir Hamza filed Civil Apeal No, 77 of 1997. For the purposes of convenience hereinafter Amir Hamza shall be referred as the appellant and Federation of Pakistan as the respondent.
2. Relevant facts briefly mentioned are that the appellant was initially appointed. Inspector of Police. Northern Areas, on 28-11-1972. With passage of time he was promoted as Deputy Superintendent of Police towards April, 1976 and became Superintendent of Police in B-18 on 14-12- 1983. Subsequently he got promoted as Senior Superintendent of Police and on earning moveover was placed in B-19.
3. Admittedly Mrs. Shaista Shamim Hamza wife of the appellant during 1995 became Member of the Northern Areas Council. It so happened that on 24-7-1995. Chief Executive of the Council who was also Minister for Kashmir Affairs and Northern Areas held a meeting of the Council. During the course of said meeting Mrs. Shaista Shamim Hamza delivered a speech pointing out salient problems confronted by local residents of Northern Areas and sense of deprivation being felt by them besides criticizing the Chief Executive of the Northern Areas, about his neglecting members of the Council.
4. Three days after said episode i,e, on 27th July. 1995 the appellant was transferred from the post of S.S.P. Ghizer to KA&NA Division, Islamabad. The transfer order reads thus:-- "No,NA-112/13/94 ' Government of Pakistan ' Kashmir Affairs and Northern Affairs Division ' Islamabad, the 27th July, 1995.
' The Chief Executive Northern Areas has been pleased to approve the transfer of Mr. Amir Hamza S.S.P. Ghizer from Ghizer to KA&NA Division Islamabad with immediate effect and until further orders.
' The competent authority has also been pleased to allow Mr. Amir Hamza to draw his pay and allowances against the vacant post of S.P. Ghizer till further orders.
(Sd.) Hafiz M. Ziauddin Section Officer.
5. It appears that service record of the appellant was procured and scrutinized by the authorities.
Meanwhile some representations were also made by wife of the appellant to Prime Minister of Pakistan. Record reveals that on 5-11-1995 the appellant who primarily belongs to Police Service was transferred as Deputy Secretary (B-19) Food and Agriculture Northern Areas. For convenience the Office Order is reproduced below:-- "No,NA-112/1994 ' Government of Pakistan ' Kashmir Affairs and Northern Affairs Division ' Islamabad, the 5th November, 1995.
OFFICE ORDER ' The Chief Executive, Northern Areas has been pleased to approve the transfer of Mr. Amir Hamza, Superintendent of Police of Northern Areas Police as Deputy Secretary (BPS-19) Food and Agriculture Northern Areas with immediate effect and until further orders.
(Sd.) Secction Officer."
6. It may be seen that the appellant' while assuming charge in the capacity of Deputy Secretary, Food made certain unpleasant and awkward remarks purporting to highlight his grievance, besides pointing out illegalities committed by the authorities in his above posting. The competent authority took notice of the violent expression used by ' the appellant in charge assumption report and served him with show-cause notice on 7-8-1995. The appellant submitted a detailed reply on 26-12-1995. Later the appellant was placed under suspension under rule 5(1)(i) of Government Servants (Efficiency and Discipline) Rules, 1973 vide order dated 28th December, 1995. Eventually competent authority finding the appellant guilty of misconduct directed his dismissal from service vide office order dated 23-5-1996, which is also reproduced below:- "No, Res 22(2)/74 ' Government of Pakistan ' Chief Secretary Northern Areas.
' Gilgit, dated the 23rd May, 1996.
OFFICE ORDER ' The competent authority has been pleased to impose major penalty of dismissal from service with immediate effect on Mr. Amir Hamza and BPS-18 Officer of Northern Areas Police having been found guilty of misconduct in terms of rule 3 read with rule-I (1)(b)(IV) of Government Servants (Efficiency and Discipline) Rules, 1973.
(Sd.) (Mehmood Khan) Section Officer"
7.. The appellant thereafter submitted a representation to the President of Pakistan towards 20-6- 1996. Since no response was made to the said representation despite expiry of 90 days, therefore, on 24-9-1996 he filed Appeal No,491 of 1996 before the Tribunal. The appeal was partly accepted vide judgment dated 10-11-1996 whereby the order regarding dismissal from service was set aside converting into a minor penalty of withholding three increments without cumulative effect. It would be profitable to reproduce hereinbelow the operative portion of impugned judgment:- "33. Judged on the criteria of the type of behaviour that fell within the scope of 'misconduct' the type behaviour of the appellant without any doubt falls within the contents of misconduct, as is revealed from above. Being a Government Servant he, therefore, was not supposed to raise political/Constitutional issues under the above rule. Nor was he supposed to disobey the lawful instructions/orders of his superiors. Or adopt behaviour unbecoming of an officer or gentleman.
We, therefore, feel sorry not to subscribe to the views of the learned counsel for the appellant that type of behaviour of the appellant did not fall within the domains of misconduct.
34 We are of the opinion that issues/objections raised and reeling expressed by the appellant are clearly coloured and created by his political behaviour, which being a Government Servant he was not supposed to do so under the Government Servants. Conduct Rules, 1964, as also rightly pointed out by the learned Standing Counsel. These feelings and attitude, generated by his political behaviour would obviously prejudice the Government interest and would also adversely affect the behaviour of the other Government employees his colleagues. Such a behaviour is uncalled for and undesirable and prejudicial to Government interest, and cannot be condoned for any reason.
35. However, the learned counsel for the appellant has submitted that the penalty of dismissal from the services was highly excessive. According to him such a penalty and penalty of removal or compulsory retirement are awarded in cases of corruption, embezzlement or conduct involving moral turpitude. As such, the penalty was not in consonance with the magnitude of his guilt.
36. We are of the opinion that type of his behaviour which also contained his disobedience of his superior and non-compliance of their orders do fall within the domain of misconduct, on which the major penalty can be imposed upon an employee of the Government, and we feel, that he has correctly been penalized. Subsequently we also fed that to err is human and to forgive divine. We are conscious that one should not be pushed against the Wall, which might turn the person to become extremist. So, taking the lenient view in the circumstances of the case, we convert his penalty of removal from service into a minor penalty of withholding of three increments without cumulative effect. He shall be reinstated into the service w,e,f, the date he was removed, this period of absence from the date he was removed from service to the date when he will rejoin his service be treated as leave due.
37. The respondent" (Federation of Pakistan) aggrieved from the order regarding reinstatement of the appellant filed Civil Petition No,12 of 1997 (now Civil Appeal No,76/97) whereas the appellant dissatisfied from imposition of minor penalty by the Tribunal assailed above judgment through rCivil Petition No,98 of 1997 (now Civil Appeal No,77/97). Leave to appeal was, however granted on 11-2-1997 by evaluating the material on record and ascertaining correct legal position relating to controversy.
8. Maulvi Anwarul Hach Deputy Attorney-General appearing for the respondent contended that undisputed facts on record and the observations in the impugned judgment clearly establish unbecoming behaviour of a Civil Servant. According to him offending expressions of the appellant transcends limits of decency and constituted gross misconduct entailing major penalty. He maintained that conversion of penalty by "the Tribunal" was in excess of authority and highly unjustified besides contravening principles enunciated in cases reported as PLD 1988 SC 693 (WAPDA v. Zulfiqar Ali) and 1998 SCM R 1559 (WAPDA v. Karamat Ali Bajwa). He further argued that the appellant had disregarded the service discipline and persisted in his conduct, therefore, order of dismissal passed by the competent authority was proper and wrongly dismissal passed by the competent authority was proper and wrongly disturbed by the Tribunal.
10 Whereas Mr. Habibul Wahab Al-Khairi, Advocate Supreme Court, opposing the stand of Federation contended that 'the appellant' except depicting true legal OR Constitutional position had throughout obeyed the orders passed by concerned authorities, therefore, his action cannot be termed or equated with misconduct. It was emphatically argued that action of the government causing repeated transfers of the appellant' was mala fide. According to him secret inquiries were held and steps were being taken against 'the appellant merely to victimize him on account of speech made by his wife. Learned counsel canvassed that exposition of legal position or resort to Constitutional protection cannot constitute legitimate basis for intimidating or causing harm to 'the appellant'.
11. We have perused the available material in the light of above submissions and proceed to record our reasons.
12. Firstly, it is quite apparent that 'the appellant' "being Government Servant, was regulated by Efficiency and Discipline Rules. Even if strong and genuine reasons existed for believing that 'the appellant' was ill-treated by the competent authority, it was obligatory for him to display extreme tolerance and if possible challenge such adverse action within prescribed limits before competent forum. It was not open to him under any circumstances to show unbecoming behaviour, use any undersirable language or perform any prejudicial act detrimental to Government interest.
Undisputedly, a Government functionary during the course of employment must maintain decorum and service discipline by restraining himself from giving vent to political or parochial sentiments. However, responsibility to maintain restraints and displaying self-control, gains importance and becomes greater when such officer is serving in a disciplined force.
13. In the instant case apparently within three days after Mrs. Shaista Shamim Hamza, Member, Northern Areas Council, delivered speech reflecting element of dissatisfaction prevailing amongst the residents of the area that her husband appellant 'Amir Hamza' was transferred from Northern Areas. It hardly needs elucidation that no person can be condemned for the fault of others.
Therefore, resultant action taken against the appellant directing his immediate transfer manifestly suggests mala fides on the part of authorities and militates against good governance.
Nevertheless, fact remains that improper action of competent authority does not provide any justification or lever to the Government servant for reacting in an imprudent insolent or violent manner.
14. Second limb of argument which relates to raising of legal objection about competency of authority in affecting transfer of the appellant from Northern Areas or pointation of Constitutional position has no relevancy for settling existing controversy. Suffice it to observe that official business is administered and regulated in the said Northern Areas under the provisions of Northern Areas Legal Framework Order, 1994 and Northern Areas Rules of Business, 1994. The appellant after his dismissal from service had himself invoked jurisdiction of the Tribunal by preferring Appeal No, 491 of 1996 whereby relief as regards reinstatement subject to imposition of minor penalty of withholding three increments without cumulative effect was granted. Besides, 'the appellant' conceding the jurisdiction has further challenged portion of the impugned judgment to the extent of minor penalty awarded against him before this Court through Civil Appeal No, 77 of 1997. The very factum of his invoking jurisdiction of the Tribunal and preferring proceedings before this Court, negates legal and Constitutional objections raised by him. It may be observed that 'the appellant' cannot be permitted to approbate and reprobate in the same breath i,e, to challenge the constitutionality and jurisdiction of forum which he has himself invoked for seeking relief under the law.
14. Thirdly adverting to next aspect, learned counsel had stressed hard that the 'appellant' was employed specially to serve in Northern Areas, therefore, according to first proviso to section 10, Civil Servants Act, 1973, he could not be transferred outside its limits.
' Without entering into details of said controversy because under changed circumstances these points are not directly in issue and have acquired merely academic character suffice here to observe that second proviso to section 10 (supra) clarifies the position and whenever a civil servant is required to serve in a post outside his Service Cadre then terms and conditions as to pay shall not be less favourable than to those he would have been normally entitled.
15. Lastly, considering objections raised by learned Deputy Attorney-General, about powers of the Tribunal to modify the order in the light of reported judgment of this Court, it may be seen that in the instant case 'the Tribunal' has given substantial reasons for exonerating 'the appellant' from major penalty. Therefore, import or judgments relied upon by the learned D.A.-G. Is not attracted to the circumstances of present case. The impugned judgment contains exhaustive explanation fairly satisfying the test of reasonableness. There is no doubt that 'the Tribunal' enjoins ample authority' for modifying departmental orders provided cogent and sufficient reasons are duly assigned after complete application of mind to facts of the case. The principle is not only reflected on the above quoted reported judgment but is further supplemented by observations in case 1997 SCM R 1581 (Pakistan Railways v. Ghulam Rasul) and 1996 SCM R 280 (Postmaster General. AJ&K v. Muhammad Zorab). Thus, considering the overall impact and above discussion, we feel that 'the Tribunal' has properly dealt with every aspect and the findings arrived in the impugned judgment being well- founded do not warrant interference.
' Accordingly we do not find any substance in both the appeals, which are consequently dismissed with no order as to costs.