ABDUL GHAFFAR QURESHI vs FEDERATION OF PAKISTAN
This matter concerns a petition for leave to appeal against a judgment of the Federal Service Tribunal regarding the dismissal of a civil servant. The petitioner, an Assistant Director of Imports and Exports, was dismissed following a departmental enquiry. Upon appeal to the Service Tribunal, the two members were equally divided in their opinions regarding the petitioner's culpability. Consequently, the Chairman of the Tribunal, exercising powers under the Service Tribunals Act 1973, remanded the case for fresh proceedings, citing procedural irregularities, specifically the failure to supply the enquiry report and the lack of a show-cause notice regarding the penalty. The petitioner challenged this remand, arguing that the Tribunal lacked the legal competence to remand cases to departmental authorities and that the Chairman should have resolved the deadlock by granting the benefit of the doubt. The Supreme Court granted leave to appeal, noting that the contentions regarding the Tribunal's power to remand and the proper resolution of the deadlock between members deserved further judicial consideration.
- Does the Federal Service Tribunal possess the legal authority under the Service Tribunals Act 1973 to remand a case to departmental authorities for fresh disposal?
- What is the appropriate procedure for the Chairman of the Service Tribunal to follow when there is a difference of opinion between the members of the Tribunal?
- Section 3-A(2)(b), Service Tribunals Act 1973
- Section 5, Service Tribunals Act 1973
1. ABDUL KADIR SHAIKH, J.--Facts of this case briefly state( are that while petitioner was posted as Assistant Director of Import: and Exports, Karachi a departmental enquiry was held against him or 8 charges. The Enquiry Officer absolved him of 7 charges but help him guilty under one charge only, namely, charge No.1, to the extent that he "had manifested lack of care and caution in processing the documents in all the 163 cases" of import of cars.
2. As a result, petitioner was dismissed from service under a notification dated 10th June, 1980.
3. Petitioner filed a review petition against this order and after having awaited the reply for the statutory period of 90 days, he filed an appeal before the Federal Service Tribunal. The appeal was heard, in the first instance, by to learned Members of the Tribunal who were equally divided in their opinion. One (Mr. A.O. Raziur Rahman) was of the view that the appeal should be allowed and the petitioner should be re-instated in service as the finding of the Inquiry Officer that petitioner had manifested lack of care and caution in processing the documents of the imported cars cannot be sustained. The second learned Member (Brig. Abdur Rashid), on the other hand, while agreeing with this view to some extent yet held the petitioner guilty not only on charge No. 1, but also on charges Nos. 2 and 8 of which he was exonerated by the Inquiry Officer.
4. In view of the difference of opinion between the to learned Members, the appeal was finally heard by the Chairman of the Service Tribunal under the provisions of section 3-A (2) (b) of Service Tribunals Act, 1973. Learned Chairman, however, took a totally different view, and allowed the appeal on the ground that petitioner "has been seriously prejudiced due to non-supply of enquiry report to him, and also due to absence of notice requiring him to explain why the penalty of dismissal should not be imposed against him." For these reasons, while allowing the appeal, learned Chairman, directed that "the proceedings should start afresh from the stage the mischief was done", in that, petitioner "should be supplied with a copy of the inquiry report and the copy of the views of the Authorised Officer and should also be asked to explain as to why major penalty of dismissal may not be imposed upon him. These documents shall then go to the authority which shall make the final decision.
5. Petitioner now seeks leave to appeal from the judgment of the Federal Service Tribunal, and Mr. Fakhruddin G. Ebrahim, learned counsel appearing in support of the petition submits that in view of the finding of one learned Member of the Tribunal, Mr. A.O. Raziur Rahman, that the documents of the imported cars could be processed in one day, which was accepted by the second learned Member, learned Chairman should have agreed with the opinion of the first learned Member and in any case since the proceedings of the departmental enquiry are of criminal nature, learned Chairman should have granted the benefit of doubt to the petitioner which legitimately accrued to him and- should have thus allowed the appeal.
6. Another aspect that was pointed out was that instead of resolving the difference of opinion between the to learned Members learned Chairman chose to resort to a totally different course of action, namely, directing fresh disposal of the whole case, which has exposed the petitioner to the serious risk of being found guilty on the charges of which he was exonerated. In this behalf learned counsel for the petitioner also raised the plea that the Service Tribunal in exercise of its powers under section 5 of the Service Tribunals Act 1973 is not competent in law to remand the case to the departmental authorities for fresh disposal.
7. We are not impressed with the last plea but the first to submissions and certain others raised in support of the petition deserve consideration. We, therefore, grant leave to appeal and allow the petition.
8. The interim order of the Court dated 8-12-1984 shall continue to remain in force till the appeal is decided.