' JAVED IQBAL, J---This appeal, with leave of the Court, is directed against the judgment dated 8- 12-1997 whereby the learned Federal Service Tribunal, Islamabad, has dismissed the appeal preferred on behalf of appellant assailing the order dated 27-2-1996 whereby he was dismissed from service.
2. In order to appreciate the legal and factual aspects of the controversy, the leave granting order dated 17-6-1998 is reproduced herein below for ready reference:-- "Leave is sought against the judgment, dated 8-12-1997, passed by the Federal Service Tribunal, Islamabad, whereby the appeal filed by the petitioner was dismissed in limine.
2. The facts, in brief, are that Muhammad Saleem petitioner, who had been a Sepoy in the Collectorate of Customs, Quetta, was proceeded against under Government Servants (E.D) Rules, 1973, on the allegation that he in connivance of sweeper Parkash Masih clandestinely proved 3 sacks of seized plastic granules from the State warehouse, which was later on surrendered by him.
He was served with a show-cause notice. After getting reply to the notice and providing an opportunity of personal hearing to him, the Deputy Collector Customs, exercising the powers of authority, dismissed him from service vide order dated 27-2-1996.
3. The petitioner filed a departmental appeal in the Central Board of Revenue, which was dismissed on 18-10-1994. Whereafter, he filed an appeal before the Federal Service Tribunal, Islamabad, which too was dismissed in limine on 8-12-1997.
4. Learned counsel appearing on behalf of the petitioner contends that since disputed question of fact was involved, the Authority should not have resorted to the shorter procedure. Reliance in this behalf has been placed on the Secretary, Government of the Punjab, through Secretary Health Department, Lahore and others v. Riazul Haq (1997 PLC (C.S.) 873). He further maintains that since factual controversy was involved, the appeal filed by the petitioner should not have been dismissed in limine. Ali Muhammad v. Commissioner, Afghan Refugees, N.-W.F.P., and another (1995 SCMR 1675) is referred.
5. The petitioner is reported to have 14 years of service to his credit and was dismissed: from service on the allegation of removal of three sacks of plastic grannules, which as per contents of the show- cause notice were surrendered back by him.
6. Leave is granted, inter alia to consider whether in the circumstances of the case, shone procedure could be resorted to for awarding major penalty and whether the circumstances of the case justified awarding of major penalty."
3. Heard Sh. Riaz-ul-Haq, learned Advocate Supreme Court on behalf of appellant who reiterated all the contentions agitated before the learned Federal Service Tribunal and mainly contended that no penalty could have been imposed without conducting an inquiry in view of the nature of the alleged allegation.
4. Raja Abdul Ghafoor learned Advocate-on-Record appeared on behalf of respondents and vehemently controverted the view-point as convassed by Sh. Riaz-ur-Haq learned Advocate Supreme Court on behalf of appellant and supported the impugned judgment being free from any illegality, infirmity or irregularity. It is urged with vehemence that the appellant was dismissed pursuant to the provisions as contained in Rule 4(b) (iv) of the Efficiency and Discipline Rules, 1973 after completion of all the legal formalities. It is pointed out that in view of the definition of authorized officer as enumerated in rule 2(3) of the Efficiency and Discipline Rules, 1973 the authority is competent to perform all the functions of authorized officer in his absence.
5. We have carefully examined the respective contentions as agitated on behalf of the appellant and for respondents in the light of relevant provisions of law and record of the case. We have minutely perused the record concerning all the proceedings initiated under the Efficiency and Discipline Rules, 1973 as well as the impugned judgment. We are of the considered view that the learned Federal Service Tribunal after dilating upon all the arguments agitated on behalf of appellant in the light of relevant provisions of Civil Service Act and Efficiency and Discipline Rules, 1973 and having gone through the entire record has arrived at conclusion which is not only in accordance with law but settled norms of justice and being well based hardly calls for any interference. The said conclusion is also supported by the dictum as laid down in case titled Nawab Khan v. Government of Pakistan (PLD 1994 SC 222), wherein it was held that the question as to whether major punishment could be imposed upon any civil servant without holding inquiry would depend upon facts of each case. The operative portion of the impugned judgment runs as follows:- "We have perused the record and would like to deal with the second objection first. The definition of ' authorised officer' given in the sub-rule (3) of Rule 2 of the E&D Rules, 1973 includes the ' Authority' where there is no authorised officer'. In this case admittedly the ' authorised officer' the Assistant Collector Headquarters was on leave and was not available to deal with the matter. Accordingly, the Deputy Collector had no option but to issue the show-cause notice himself and we do not find any illegality in this respect. The Tribunal in a number of cases previously decided has observed that exercise of powers of the authorised officer by the authority in case the authorised officer is not available, was legal and in accordance with the rules. On the second point of the learned counsel for the appellant that an enquiry was required in this case before passing the impugned order, the Deputy Collector in his detailed order dated 27-2-1996 had categorically mentioned that the appellant at the time of personal hearing admitted his guilt and begged for forgiveness.
Therefore when the guilt was admitted there was no necessity of holding any detailed inquiry and the issuance of notice under rule 5 of the rules was not only legal but also justified in the circumstances of the case."
6. A careful perusal of the above reproduced operative portion of the impugned judgment would indicate that no illegality or irregularity whatsoever has been committed by the learned Federal Service Tribunal while disposing of the appeal. It is pertinent to mention here that in view of the alleged offence no detailed inquiry was called for. Besides that what has been stated hereinabove, no question of public importance justifying grant of leave is involved. It has, however, been observed that justification for the penalty of dismissal was for learned Federal Service Tribunal to determine considering circumstances of case and necessity of meeting the ends of justice which has been overlooked. In our considered view the penalty of dismissal from service appears to be somewhat harsh and accordingly the same is modified to that of removal from service. The appeal being devoid of merit is dismissed subject to above modification with no order as to costs.