' NAZIM HUSSAIN SIDDIQUI, J.---The petitioners have impugned the judgment dated 3-5-2001 of learned Federal Service Tribunal, Islamabad, hereinafter referred to as "the Tribunal", whereby Appeal No,159(R) of 1999, preferred by respondent Aftab Ali Khan, was allowed and he was reinstated in service with all back benefits.
2. The facts relevant for decision of this petition are that the respondent was employed as a Meter Reader in the petitioner No, 1 's company. He was charge-sheeted on 18-4-1998 for having recorded false, fake and fictitious readings of different consumers on different occasions. After completion of all legal formalities, he was dismissed from service on 26-10-1998. The matter was finally decided by the Tribunal by judgment, which has been impugned in this petition.
3. The appeal of the respondent was heard by Chairman and a Member of the Tribunal. Learned Chairman reinstated the respondent with back benefits, while learned Member differed with him and held that respondent be removed from service. So, happened when the note of learned Member was placed before Chairman, the latter inveighed the observations made by learned Member and allowed the appeal relying upon section 3-A of the Service Tribunals Act, 1973, which is as follows:-- "Section 3-A. Benches of the Tribunal.--(1) The powers and functions of a Tribunal may be exercised or performed by Benches consisting of not less than two Members of the Tribunal, including the Chairman, constituted by the Chairman.
(2) If the Members of a Bench differ in opinion as to the decision to be given on a point:--
(a) the point shall be decided according to the opinion of the majority;
(b) if the members are equally divided and Chairman of. The Tribunal is not himself a Member of the Bench, the case shall be referred to the Chairman and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman; and
(c) if the members are equally divided and the Chairman of the Tribunal is himself a Member of the Bench, the opinion of the Chairman shall prevail and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman."
4. Bare reading of abovequoted section shows that under the circumstances, learned Chairman was not competent to pass order in terms of section 3-A(2)(c). The import of above-quoted section is that, as a rule, the matter shall be decided according to the opinion of the majority. In the instant case, the matter was heard by a Member and Chairman, who differed. Clause (c) is attracted only if there are more than one Member and they are equally divided and the Chairman is also a Member of said Bench. In such eventuality, the opinion of the Chairman shall prevail and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman. In the instant case, the Chairman and the Member differed and there was no third Member in the Bench.
In such circumstances, the Chairman was not competent to overrule the findings recorded by the Member.
5. Accordingly, the petition is converted into appeal and the same is allowed. The impugned judgments of the Chairman and the Member are set aside and the matter is remanded to Chairman for constituting a fresh Bench, excluding himself and said Member, to hear this matter again for deciding it on merits, as early as possible, preferably within four months from receipt of this order.