NIAZ DIL KHAN vs NORTHWEST FRONTIER PROVINCE TEROUGH CHIEF

1. ' MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal is sought from the order dated 27-5-1979 passed by a Service Tribunal, whereby the petitioner's service appeal against his compulsory retirement was dismissed.

2. ' The charge against the petitioner was that while posted as a Tehsildar he "had torn 468 mutations of various villages as per list attached, in the month of May and June, 1975 and these mutations were not handed over to the office Kanungo/Tehsil upto 9th February 1978, in spite of the fact that several reminders for the purpose were issued ' The mutations, it was admitted by the petitioner, were not consigned to the record for about three years. This was found as misconduct. The Tribunal was of the view that the other charge of corruption has not been proved against the petitioner. In the circumstances of the case, the punishment of compulsory retirement was considered as proper and justified.

3. ' Learned counsel has contended that : the order of punishment was not passed by the competent "authority"-the Governor, because as admitted in para. (a) of the written reply to the memo of appeal before the Tribunal it was passed only 'with prior consent' of the authority by some one other than the authority ; that as admitted by the Government, the order of punishment was based (in addition to the charge established) on other considerations including the state of service record of the petitioner, which were not the subject-matter of any charge ; that the Tribunal having exonerated the petitioner of the charge of corruption, the order of punishment should have been modified because it is not known how far this charge contributed to the severity thereof ; that notwithstanding the option available under the rules to hold or not to hold enquiry, it was incumbent on the officer concerned to give reasons for his 'satisfaction' that in the circumstances of the case enquiry should be dispensed with, because without the reasons the case of the petitioner before the appellate forums would be prejudiced ; and that the petitioner's conduct did not fall within the definition of misconduct-it was only inefficiency.

4. None of the arguments has any force. It is mentioned in the order impugned before the Tribunal that the 'authority', agreeing with the `authorised officer', had passed the 'order'. The word 'consent' used in the written reply relied upon by the learned counsel, has to be read in that context. Learned counsel was unable to make a statement that the file was not sent to the Governor and that he had not passed the order. The Service Tribunal has exercised 'appellate' jurisdiction wherein it was competent to examine the propriety of the punishment. This exercise has been done in the impugned order without departing from any principle. The arguments in this behalf are thus untenable. The general argument that whenever an order is made appealable, it must contain reasons or that 'satisfaction' is to be reached after 'recording reasons' is too wide to be applied to every such situation. See Zulfiqar Ali Bhutto v. The State (1). There does not appear to be any justification to assume that the relevant rule required the reasons to be recorded. Had it been so, the same could have been made a necessary condition for dispensing with the enquiry. We have not been impressed by the last argument either, that in the circumstance it was not a case of misconduct.

5. ' No justification has been made out for interference. This petition is dismissed.

(1) PLD 1979 SC 53