SANOBAR KHAN vs GOVERNMENT OF N.-W.F.P. through the Chief Secretary

' NASIR-UL-MULK, J.---The appellant was serving as Deputy District Officer, Water Supply and Sanitation, Mardan, during the year 2004. Disciplinary action was taken against him on the allegation that on account of his negligence, the pipes of the value of Rs,2,13,723 were found missing and as such he had caused loss to the exchequer of the said amount. Inquiry was, therefore, ordered-. The Inquiry Officer found that the loss so shown was due to failure of the officer not to carry out the documentary formalities and to complete the same in time. That since the loss has also been made good, minor penalty of censure was recommended and eventually imposed upon him. The appellant assailed the departmental action and the punishment in appeal before the Service) Tribunal. The Tribunal dismissed his appeal Mainly on the ground that the appeal was not competent in view of section 4(b)(ii) of the North West Frontier Province Service Tribunals Act, 1974, which bars the filing of appeal against minor punishments. The said provision reads; "the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry, except where the penalty imposed is dismissal from service, removal from service, or compulsory retirement".

2. Mr. Atiq-ur-Renman Qazi, learned Advocate Supreme Court appearing for the appellant drew our attention to the case of Government of Balochistan v. Shabir Ahmed 1990 SCM R 1233 wherein it was held that the bar on filing service appeal is only against quantum of minor sentences whereas the question of guilt or innocence of an individual is still open for determination by the Service Tribunal.

We provided opportunity to the learned Additional Advocate-General to assist us on the issue and find out if a contrary view has been expressed by this Court. The learned Additional Advocate- General referred to a latter judgment of this Court in Abdul Majeed' v. Government of Pakistan 2006 SCM R 1415.

3. The case cited by the learned Additional Advocate-General is on a totally different proposition than the one before us. The question before the Court was whether the penalty of censure would be sufficient to order compulsory retirement of a civil servant in exercise of powers under section 13(1)(i) of the Civil Servants Act, 1973. The Court answered the question in negative. Here we are concerned with the maintainability of an appeal by a civil servant against the penalty of censure., This question has been squarely dealt with in the case of "Government of Balochistan v Shabir Ahmed" (ibid) where Mr. Shafiur Rahman, J., who delivered the judgment for the three Member Bench hearing the appeals, held "Any adjudication, even a departmental one under the Efficiency and Discipline Rules in the first stage requires a determination of guilt or innocence of the individual. In the second stage, there is the determination of an appropriate relief to be granted or consequential order to be passed following the determination of guilt or innocence. Where a person is adjudged guilty in the second stage the determination has to take place of the nature of the punishment and the extent of the punishment." It was concluded "It is the quantum of punishment which has been excluded from the purview of the Service Tribunal where the punishment happens to be minor. As regards the first stage namely, the determination of the guilt otherwise, there is no bar to the jurisdiction of the Tribunal."

4. The above appears to be correct statement of the law. It is only IA the quantum of punishment other than those mentioned in section 4(b)(ii) of the North-West Frontier Province Service Tribunals Act, 1974, against which an appeal by the aggrieved civil servant not maintainable. The bar does not extend to other matters arising out of the disciplinary departmental action against the civil servant. The Service Tribunal still has the jurisdiction to examine the guilt or otherwise of an aggrieved civil servant as well as all other ancillary matters arising out of the departmental inquiry, including the competency of the authority to initiate the action or any procedural flaw in the inquiry proceedings. It also follows that the Service Tribunal has no jurisdiction to alter or modify the quantum of sentence other than those mentioned in section 4(b)(ii) of the Act, namely, "dismissal from service, removal from service, or compulsory retirement". The Service Tribunal thus erred in dismissing the appellant's appeal on the ground of non-maintainability.

5. In addition to the question of maintainability of the appeal of the appellant, the Tribunal observed that no procedural defect was pointed out in the departmental disciplinary proceedings.

However, the focus of the Tribunal was on the issue of maintainability of the appeal before it and did not attend the factual aspects of the lis before it. It shall examine the merits of the case as well to determine whether the finding of guilt of the appellant can be sustained.

6. As we have held that the appellant's appeal before the Tribunal was competent and that the factual aspects of the case were not discussed, we allow this appeal, set aside the impugned judgment and remand the case to the Tribunal for decision on the appellant's appeal before it on merits.