DIRECTOR GENERAL PAKISTAN POST OFFICE, ISLAMABAD Versus MUHAMMAD FAYYAZ

MUHAMMAD ALI MAZHAR, J.--- This civil petition for leave to appeal is directed against the judgment dated 29.03.2022 passed by the Federal Service Tribunal, (Tribunal) Lahore Bench in Service Appeal No.100(L)/2021.

2.According to the table of events, the Respondent No.1 performed his duties as AAO (Hon/RC) for two and a half years in the petitioner s department. Prior to this engagement, he was performing his duties as Accounts Officer (Loan Account). The respondent and another employee, Saleem, were signing alternatively as AAO, Loan Account Section and as AAO honorarium and RC. It was manifested from the record that the Respondent No.1 verified at least 34 fake schedules without comparing these with the actual schedules and without ascertaining their genuineness from Lahore Cantt. GPO. He also, on his own accord, exercised the powers of Accounts Officer (Concurrent Audit) and unauthorizedly passed 36 bogus loans and 80 cases of fake loan repayments instead of sending said cases to the concerned Accounts Officer. On account of disciplinary proceedings, the allegations levelled against him were proved and the major penalty of dismissal from service was imposed on him under the Government Servants (E&D) Rules, 1973. The Respondent No.1 approached the learned Tribunal and filed an appeal which was decided vide impugned judgment and the penalty of dismissal from service was altered by the learned Tribunal into compulsory retirement from the date of his dismissal.

3.Mr. Munawar Iqbal Duggal, learned Additional Attorney General, argued that the learned Tribunal ignored the fact that the Respondent, while working as AAO (Loan Accounts), failed to notice the entertainment of fake loan sanctions and repayment schedules presented by Mr. Iftikhar Ahmad, UDC and committed fraud in PLI loan payment and repayment on fake schedules. He failed to demand certain documents which were referred to by the enquiry officer with the request to provide the same through the D.R. vide memo dated 07.06.2017. It was further contended that the department had given full access to the relevant record/documents during the course of enquiry for cross-examination but Respondent No.1 never raised any written objection over the enquiry proceedings. It was further averred that the allegations raised against the Respondent No.1 were proved during inquiry, therefore, the competent authority after fulfilling all the requirements, awarded punishment to the Respondent which was in accordance with law but the learned Tribunal totally ignored the record of the case, including the inquiry report and converted the punishment of the Respondent in a slipshod manner. It was further contended that there were two different inquiries i.e. one against Saleem Ahmad and the other against the Respondent No.1 but without adverting to both the inquires, the benefit of Saleem Ahmed s case was accorded to the Respondent No.1.

4.The learned counsel for the Respondent No.1 argued that the appellant was sent on forced leave and subsequently arrested by the NAB. It was further contended that certain documents demanded by the Respondent No.1 were not supplied to prepare his defence which made the whole inquiry defective. It was further contended that the show cause notice was issued without providing relevant documents and not only the prosecution witnesses were examined in the absence of the appellant but he was also not afforded the right to cross-examine. While awarding punishment, the department discriminated against the Respondent No.1 as minor penalties were imposed on all other officials, whereas no allegation of corruption was proved against the Respondent No.1 but he was inflicted with the major penalty of dismissal from service which is against the principle of proportionality, therefore, the learned Tribunal has rightly converted the punishment of dismissal from service into compulsory retirement.

5.Heard the arguments. If we look into the gist of impugned judgment rendered by the learned Tribunal, it is gleaned from the findings that an organized fraud took place in the Office of A.D. (F) PLI, Lahore, Cantt. from 2013 to March, 2016 which was also reported to NAB, Lahore and the trial in process; the departmental action was completed against 21 PLI officials and 05 officials from GPO side; the enquiry report established that Respondent No.1 (Muhammad Fayyaz) was posted as AAO (Loan Account) from 16.06.2009 to 05.06.2013 as overall Incharge; Iftikhar Ahmad, UDC got 122 bogus loan sanctions in 71 cases of PLI Policy Holders and the Respondent No.1 committed fraud in 34 fake schedules amounting to Rs.8,986,030/- without comparing with actual schedules; the Respondent No.1 also exercised the powers of A.O. (CA), unauthorizedly audited and passed 36 bogus loans amounting to Rs.12,589,000/- and 80 cases of fake loan payments/fake loan interests instead of sending these cases to the concerned A.O; the Respondent No.1 was arrested by the NAB on 26.05.2017 and was also placed under suspension; the impugned judgment further articulates that the Respondent No.1 was furnished with most of the requisite documents to prepare his defence and he was given enough opportunity of presenting his oral as well as written defence; instead of appearing before the authorized officer, he submitted his medical certificate; the relevant record indicates that the authority as well as the appellate authority granted personal hearing to the appellant before awarding and upholding of the major penalty of dismissal from service. When all was said and done, the learned Tribunal despite sensitizing the gravity of charges, took the somersault and instead of vetting the allegations against the Respondent No.1 and proof of charges during inquiry, out of the blue held that co-accused Saleem Ahmad, was also charged on fraudulently sending the documents and causing loss to the national exchequer and was also dismissed but the Appellate Authority converted the penalty of dismissal into reduction to a lower post for a period of 02 years in terms of Rule 4(i) (b) of Government Servants (E&D) Rules, 1973. Mindful to the analogy of modifying the punishment of Saleem Ahmad, the learned Tribunal in the case of Respondent No.1 considered his tenure of service and altered the punishment of dismissal from service into compulsory retirement.

6.The raison d' tre of altering penalty in its entirety was predisposed and subjective to the case of Saleem Ahmed without realizing that the departmental inquiry and penalty imposed in both cases were based on two different inquires. On one hand, the learned Tribunal maintained that the charges were proved and ample opportunity was provided to the Respondent No.1 during the course of inquiry. Then again, without further ado, in paragraph No.11, regardless of perceiving that the department has observed all codal formalities, converted the major penalty of dismissal from service into compulsory retirement. To our mind, sooner than putting forth the freedom of choice for modifying the punishment, it was de rigueur for the learned Tribunal to skim through the vista of inquiry reports to grab hold of whether the allegations against both persons were same and whether they both were found guilty by the inquiry officer with the same gravity or not but mere reliance on the case of co-accused was not sufficient to dislodge the case against the Respondent No.1 even for conversion of punishment.

7.The wisdom of setting up the Service Tribunal under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is to deal with and decide the matters relating to the terms and conditions of service of civil servants. The Services Tribunal, for the purposes of deciding any appeal, is deemed to be a Civil Court and has the same powers as are vested in such court as a preliminary fact finding judicial right of entry for civil servants with exclusive jurisdiction. It is a well-settled doctrine that in the disciplinary proceedings initiated under the Civil Servant Laws or Labour/Industrial Relations Laws, the employer/competent authority has the exclusive prerogative to decide the quantum of punishment in case of proven misconduct or the employee is found guilty after due process. In unison, the choice of imposing minor or major penalty/penalties also rests on the employer s strength of mind, nonetheless, before taking such action, it is to be ensured in all circumstances whether a proper inquiry was conducted with an ample opportunity to the delinquent to defend the charges of misconduct. However, the choice of punishment should be complemented and harmonized with the catalogue of penalties and punishments provided under the relevant service/labour laws and rules and not farther than.

8.The next important question is that the punishment must be proportionate, fair-minded and nonpartisan vis- -vis with the allegations and proven guilty of misconduct during regular inquiry rather than outrageous and exceptionally disproportionate to the seriousness of misconduct charges assimilated in the show cause notice and statement of allegations. While imposing the punishment, certain benchmarks and indicators may be kept in mind i.e. the past conduct/track record; length of service; whether the act of misconduct was intentional and conscious or it was unintentional or inadvertent and last but not least, the impact of such misconduct on the overall discipline, decorum and general supervision and administration of the establishment. The Courts and Tribunals more often than not refrain from meddling with the penalty imposed by the employer under its administrative control and domain but under the power of judicial review the proportionality and/or disproportionality can be examined by the Courts/Tribunals with due diligence but not without proper application of mind which encompasses the meticulous concentration in comparison with the quantum of punishment, the allegations/gravity of charges and prove of guilt in the departmental inquiry.

9.The proportionality test in some jurisdictions is also exemplified as the least injurious means or minimal impairment so as to safeguard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Proportionality is more concerned with the bull's eye of the decision maker, while the Court/Tribunal has been entrusted errand of judicial review whether the decision is proportionate or not? There is no unbridled discretion that vests in the Court/Tribunal that in all circumstances or in all cases it should modify/alter the quantum of punishment come what may without adverting and justifying the mitigating circumstances and inconspicuously dwell on that punishment seems to be harsh which alone is no justification unless the Courts/Tribunal elaborate not only the reasons which impresses for mitigation or vindication, but should also examine the case in depth including the inquiry report and findings as a first fact finding forum of exclusive jurisdiction which is duty-bound to ensure complete and substantial justice. So for all intents and purposes, neither the Service Tribunal should act out as a rubber stamp to the employer's decision nor should it act as benefactor of employee come what may but within the bounds of its exclusive jurisdiction, it is obligated to comprehensively and fair-mindedly examine the merits, discuss the evidence on record, and provide reasons before deciding to confirm or reduce a penalty or even mitigating circumstances. How it was attainable and practicable in the case in hand? Had the learned Tribunal vetted and flicked through both the inquires distinctly and independently to fathom out the allegations, its severity and proof of guilt as per separate conclusions and recommendations of inquiry officer including the evidence, both oral as well documentary evidence if any recorded, the question of mitigating circumstances and discrimination in choosing and awarding the quantum of sentence by the competent authority could have been decided more conveniently if quantum of punishment seemed to be wrong in the fine sense of judgment of the learned Tribunal, it could be altered/modified but this exercise was not possible without matching the similarity of role and allegations attributed to both the accused of misconduct and the benefit of one s lesser punishment cannot be awarded to other in the doctrine of parity unless the role is virtually analogous but one was let off on same allegations or was awarded minor punishment by the employer while another in a similar role was awarded major punishment out of vengeance.

10.In the case of Allah Ditta v. Deputy Postmaster General (Admn.), Office of The Postmaster General, Northern Punjab Circle, Rawalpindi and another (2023 SCMR 770) , (one of us while speaking for the bench) held that the Court ordinarily would not substitute its own finding with that of the competent authority taken in the disciplinary proceedings unless it is found to be unreasonable or against the law. The award of punishment is the function of the competent authority and the role of the Tribunal or Court is secondary. In case of fraud and misappropriation of public money, the responsible person cannot be let free or exonerated with a low degree of penalty. Merely for the reason that the petitioner served the department for 34 years is no justification to convert the punishment of dismissal from service into compulsory retirement. If such type of leniency is shown in the heinous matters of misappropriation of public money or public funds, then it will amount to giving a license to all such civil servants to first join service, then serve at considerable length and commit crimes or misconduct at the verge of retirement without any fear of disciplinary proceedings, but with the confidence and assurance that the dismissal order from service will be converted into compulsory retirement by the competent authority by taking a lenient view or else the same request will be made to the Court or Tribunal to convert the punishment into compulsory retirement under the garb of long length of service which is a dangerous idea and cannot be fortified or encouraged as it would seriously spoil the entire corpus and fabric of the civil servants service structure. It was further held that the embezzlement of public money cannot be treated as misconduct of a minor nature which is also a matter of public confidence in public institutions that should not be depreciated or shaken. The petitioner does not deserve the conversion of punishment into compulsory retirement merely for the reason that he refunded the misappropriated amount, which does not vitiate the gross misconduct of misappropriation.

11.In the wake of above discussion, this Civil Petition is converted into an appeal and allowed. As a consequence, the impugned judgment of the learned Tribunal is set aside. The matter is remanded to the learned Tribunal to decide the appeal of the Respondent No.1 on its own merits after providing ample opportunity of hearing to both the parties and after considering both the inquiry proceedings and inquiry reports independently including the allegations of misconduct and evidence against the Respondent No.1 and accused Saleem Ahmed with proof of culpability. It is expected that the matter shall be decided expeditiously preferably within a period of three months.

UN/D-3/SC Appeal allowed.