Mehar MUHAMMAD NAWAZ Versus MANAGING DIRECTOR, SMALL BUSINESS FINANCE CORPORATION

IJAZ-UL-HASSAN KHAN, J.--- This appeal, with leave of the Court, is directed against judgment of the Federal Service Tribunal, Islamabad, delivered on 9-1-2003, whereby Service Appeal No.755(R)(C.E.) of 2000, preferred on behalf of appellant, an ex-employee of respondent-Corporation, has been dismissed.

2. Briefly stated the facts, leading to the filing of this appeal are, that appellant Mehar Muhammad Nawaz, joined the service of respondent-Corporation in 1979 as Assistant. He was promoted in due course. While working as Regional Manager, D.G. Khan, the appellant was charge-sheeted for having committed irregularities/malpractices in five cases of loan disbursement, bearing Nos.750, 751, 752, 844 and 1891. The appellant was issued another charge-sheet, containing 14 separate charges. The appellant submitted reply denying the allegations. He was placed under suspension and a final show-cause notice was issued along with copy of report of the Inquiry Officer. In the inquiry report, out of 14 charges, the Inquiry Officer held him guilty on five counts. Resultantly, major penalty was imposed on the appellant and he was dismissed from service vide order dated 29-6-2000. The appellant filed an appeal/review before the competent authority, which was dismissed vide order dated 17-8-2000. The appellant, feeling aggrieved thereby, challenged the action of the management by filing appeal before the Federal Service Tribunal, Islamabad, which was also dismissed per judgment impugned herein.

Sardar Muhammad Latif Khan Khosa, learned Senior Advocate for the appellant, without dilating upon the merits of the case, craved for conversion of dismissal of appellant from service into compulsory retirement. The learned counsel submitted that appellant has been discriminated and treated unfairly qua his colleagues, similarly placed and named in Audit Report. The learned counsel also contended that appellant passed away on 28-1-2008 during pendency of appeal, leaving behind a widow, a son and three daughters, wholly dependant on the deceased and they are entitled for pension and pensionary benefits of the appellant. In support of the last contention, reliance was placed on Muhammad Nawaz, Special Secretary, Cabinet Division, through his Legal Heirs v. Ministry of Finance, Government of Pakistan, through its Secretary, Islamabad 1991 SCMR 1192.

4. Mr. F.K. Butt, learned Advocate, representing the respondents-Corporation, on the other hand, while opposing the arguments of learned counsel for the appellant, contended that the allegations levelled against the appellant have been substantiated by cogent and concrete evidence. A comprehensive inquiry was conducted and proper opportunity of hearing was afforded to the appellant to vindicate his position and reply of the appellant having been found unsatisfactory, he was dismissed from service for valid and cogent reasons which are not open to legitimate exception. The learned counsel also contended that right to sue was not inheritable on the death of a civil servant and his legal representatives were not entitled to continue proceedings launched by him and thus appeal has abated and legal heirs of the appellant are not entitled for pension and other benefits of the appellant. The learned counsel invited our attention to section 2(b) of the Civil Servants Act, 1973 and urged that right of appeal under the Service Tribunals Act, 1973 has been given to a civil servant aggrieved by a final order whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service and there being no provision in the Service Tribunals Act, 1973 to provide any remedy to the successor in interest of a civil servant, legal heirs of the appellant are not entitled for pension and other benefits. Learned counsel in support of his contentions, referred to the judgments reported as Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others, PLD 2006 SC 602 and Muhammad Idrees v. Agricultural Development Bank of Pakistan and others, PLD 2007 SC 681.

5. On perusal of the record, it transpires that appellant joined the service of respondent-Corporation in 1979 as Assistant. He was promoted in due course. While working as Regional Manager, D.G. Khan, appellant was proceeded against on the charges of having committed irregularities/malpractices in five cases of loan disbursement. Resultantly, after completing legal formalities, appellant was dismissed from service. The appellant had 22 years of service to his credit. He had topped the recovery campaigns, of the respondent-Corporation consecutively for a period of three years from 1995 to 1997. Learned counsel for the appellant contended with justification that appellant has been discriminated and treated unfairly qua his successor Sadaqat Hussain, who was also dismissed from service vide order, dated 29-6-2000 on the basis of the same case, since he was Manager of respondent-Corporation, Multan branch, during the period when the loan in question was processed, sanctioned and disbursed. Nevertheless, Sadaqat Hussain's penalty was afterwards converted into compulsory retirement and the penalty of recovery was also set aside. Hassan Jamil and Khalid Masood, colleagues of the appellant, involved in the case were also treated in the like manner. There appears to be no marked difference between the case of the appellant and those of Hassan Jamil, Khalid Masood and Sadaqat Hussain. Needless to emphasize that while dealing with the case where the aggrieved party alleges discrimination, the Court cannot overlook the implication thereof. Equal treatment of all similarly situated is the basic principle on which rests justice under the law. If evenhanded justice is not administered, it can have many adverse and negative effects on a society. It can cause discontentment and frustration in the social set-up. There can be no denial that social justice is an objective and enshrined in our Constitution.

7.(sic) So far as the objection, regarding entitlement of the legal representatives of the deceased for pension and other benefits is concerned, reference can be made to the judgment of this 'Court, in Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and another v. Syed Afzal Muhammad Farooq and another and Dr. Qamar-uz-Zaman Ch. v. Syed Afzal Muhammad Farooq and others, 2005 PLC (C.S.) 1424, wherein it was observed:---

"It may be noted that during pendency of appeals Syed Afzal Muhammad Farooq-respondent No.1 had passed away although to the extent of his promotion as Director-General, Meteorological, his legal heirs had no cause of action but if his claim would have been accepted, by way of promoting him to next grade as Director-General, Meteorological Department, his legal heirs would be entitled for enhanced pensionary benefits, etc. But they have not been joined as party thus, in their absence it would not be fair to dilate upon the merits of the case. Therefore, leave granting order dated 30-6-1998 is rescinded, and Federation of Pakistan through Secretary, Establishment Division is directed to re-consider the case of both the respondents, as per the direction of the High Court and if late Syed Afzal Muhammad Farooq is found to be entitled for promotion to the post of Director-General, in accordance with law, then the pensionary benefits may be extended to his legal heirs."

8. In view of the above discussion, we partly accept the appeal, set aside the impugned judgment and convert the dismissal of the appellant from service into compulsory retirement. The legal representatives of the appellant shall be entitled to the pensionary benefits admissible under the law. We make no order as to costs.

M.B.A./M-87/SC Appeal partly accepted.