AUDITOR GENERAL OF PAKISTAN and others vs MUHAMMAD ALI and others

Muhammad Nawaz Abbasi, J.--These connected appeals by leave of the Court; have been directed against the judgment dated 16.10.2000 passed by the Federal Service Tribunal whereby the major penalties of removal/compulsory retirement from service awarded to the respondents by the competent authority, were converted into reduction in time scale by three stages for two years without cumulative effect and the appeals of the respondents were partly allowed. These appeals, in which leave was granted vide order dated 26.2.2002, involving common question of law and facts, are proposed to be disposed of through this single judgment. Leave granting order is read as under: "Through this order we propose to dispose of above captioned three petitions Med on behalf of Auditor General of Pakistan to assail the validity of orders dated 16th of November 2000 whereby the Federal Service Tribunal accepted the appeals of the respondents, set aside their respective impugned orders and modified their penalty to that of reduction in time scale by three stages for a period of two years without cumulative effect with the consequence that they were reinstated in service with direction that their intervening period would be treated as leave of the kind due.

With the assistance of the learned counsel for the petitioner and respondents, we have gone through the judgment impugned in all three cases Hafiz S.A. Rehman ASC representing the respondents have attempted to argue that excess payments paid to recipient Government officers is being recovered from them through the process of law, but we do not find any substantial evidence or the material to believe the same. Any how, the crucial question for determination involved in these cases is whether on the ground of inefficiency and negligence, the manor penalty of compulsory retirement could have been converted and modified to that of reduction of time scale by three sages in exercise of the appellate jurisdiction of the Tribunal. Furthermore, so to what type of inefficiency and negligence could attract the imposition of major penalty. To consider these questions, we grant leave to appeal in all three cases with direction to office to fix them for final disposal at an early date."

2. The respondents namely, Kazim Ali, (Assistant Officer) Muhammad Ali and Syed Zahid Mumtaz, (Senior Auditor), were proceeded against for the charge of negligence and inefficiency based on the allegation that they were responsible of causing loss to the government exchequer on account of the over payment made in certain G.P.F. accounts on final payments. The inquiry Officer (Deputy Accountant General) having held the respondents guilty of the charge of negligence and inefficiency submitted his report and the authorized officer, on the basis of inquiry report, issued show-cause noticed to them proposing major penalty of removal from service. The competent authority, however, awarded the punishment of removal from service to Kazim Ali whereas Muhammad Ali and Syed Zahid Mumtaz were imposed the penalty of compulsory retirement. The respondents after exhausting the departmental remedies filed separate appeals before the Service Tribunal which were partly allowed and in consequence thereto, the punishment awarded to them by the competent authority was modified as stated above and they were reinstated in. service with direction of treating the intervening period as leave of the kind due.

3. The Learned Deputy Attorney General has contended that Tribunal having come to the conclusion that respondents were guilty of the charge of inefficiency and negligence was not justified in converting the major penalty of removal from service and compulsory retirement into the reduction of time scale by three stages. However, on pointing out that the Tribunal having taken into consideration the nature of charge, coupled with the fact that there was no allegation of wrongful gain through fraud, misappropriation or embezzlement formed an opinion that punishment of removal and compulsory retirement from service in the circumstances of the case was harsh, reduced the penalty, the learned counsel has not been able to satisfy us that the reasons given by the Tribunal for reduction of punishment in exercise of the powers under Section 5 of the Service Tribunals Act, 1973, were unfounded or unreasonable and unjustified. The learned DAG also has not been able to satisfy us that senior officers who equally shared the responsibility of negligence in the transaction of over payment, were awarded minor penalty of recovery of nominal amount of Rs, 5000/- each whereas respondents, the subordinate officials, on the basis of same set of facts, have been dealt with severely in the matter of punishment. The carelessness is definitely an act of negligence which may not strictly fall with the ambit of misconduct as defined in Section 2 of the Government Servant (E&D) Rules, 1975 but it is definitely a valid ground on the basis of which a government servant can be awarded penalty as provided in rule 3 of the above rules. The element of bad Faith and willfulness may bring an act of negligence within the purview of misconduct but lack of proper care and vigilance may not always willful to make it a case of grave negligence inviting severe punishment. The philosophy of punishment is based on the concept of retribution, which may be either through the method of deterrence or reformation. The purpose of deterrent punishment is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the Society, whereas the concept of minor punishment in the law is to make an attempt to reform the individual wrong doer. In service matters, the extreme penalty for minor acts depriving a person from right of earning would definitely defeat the reformatory concept of punishment in administration of justice. In view thereof, we would not take any exception to the view of the matter taken by the Tribunal.

4. In the light of foregoing discussion, these appeals fail and are accordingly dismissed. There will be no order as to costs.