MUHAMMAD YOUNUS vs SECRETARY, MINISTRY OF COMMUNICATIONS and others

' SALEEM AKHTAR, J.---This appeal with the leave of the Court challenges the judgment of the Federal Service Tribunal whereby the appeal filed by the appellaht was partly allowed and the reduction of the appellant to the lower rank was specified for five years without effecting his future increments.

2. The appellant was employed as Assistant Engineer/Sub-Divisional Officer when respondent No,4 claiming to be the authorised officer served a charge-sheet dated 2-5-1983 and the statement of allegations stating the facts on which charges were based. Simultaneously Mr. Shaikh Imam Ali, Divisional Enigneer (Phones), SITE, Karachi, was appointed as Inquiry Officer in the case. It has been alleged that Inquiry Officer did not supply any details or particulars and the appellant submitted his explanation without having access to the objectionable material. Thereafter the appellant received a letter from the Inquiry Officer that he has been found partly responsible for the financial indiscipline during the year 1981-82 and he has been imposed a penalty of `censure'. The appellant was not supplied with the copies of the inquiry report which he needed for filing the appeal.

However, by letter dated 7-3-1984 Mr. Bakhtiar Hussain supplied a letter dated 15-1-1984 to the appellant on 26-3-1984 informing him that inquiry held by Mr. Shaikh Imam All had since been scrapped by respondent No,2 and that a fresh inquiry on the same charges was to be conducted by Inquiry Committee comprising himself (Mr. Bakhtiar Hussain), DE (Phones), South-I Division and Mr. Maqbool Hussain, DE (Phones), C-II Division, Karachi. The appellant claims that no documents necessary for submitting a reply were supplied to him and the inquiry committee did not record any evidence. The appellant was served with a show-cause notice dated 17-5-1984 by respondent No,3 calling upon him to show cause as to why the penalty of dismissal from service be not imposed upon him. A copy of the inquiry report was also supplied with the show-cause notice. The appellant was awarded the punishment of his reduction to the lower post of Engineering Supervisor under the Government Servants (Efficiency and Discipline) Rules, 1973, issued under notification dated 30th August, 1984, from the office of the Director-General, T&T, Islamabad. The appellant, filed appeal before the Federal Service Tribunal. It may be mentioned that the memo. Issued did not specify the period for which penalty was imposed. However, during the pendency of appeal the Authority fixed the period at 3 years. This fact was brought to the notice of the Federal Service Tribunal and a proper application was also filed as stated by the learned counsel for the appellant.

It seems that without taking note of the fact that the Authority had fixed the period to 3 years the Tribunal proceeded on the assumption that the penalty had been imposed for an unlimited period and, thus, partly allowed the appeal fixing the period to 5 years. Leave to appeal was granted to consider the following questions:-- "(1) Whether access to the record was denied to the petitioner so as to prejudice his defence?

(2) whether the reopening of the departmental enquiry after a censure had been competently awarded was in accord with law?

(3) Whether the Tribunal could enhance the period of reduction in rank from three years which was ultimately ordered by the competent authority under Fundamental Rule 29 to five years ignoring the order of the competent quthority."

3. After hearing the arguments in our view it is not necessary to dilate upon the first question as the

(sic) two questions. Mr. Shahanshah Hussain, the learned ASC for the appellant, contended that after censure had been imposed by the authorised officer who was competent to pass the said order under Rule 5(1)(iv) of the Civil Servants (Efficiency and Discipline) Rules, 1973, the case could not be reopened even under Rule 6A without any notice to the appellant. It seems that after the censure was imposed the Authority sought to revise that order as no confirmation was needed from him. The Authority passed the order for fresh enquiry after about five months which was communicated to the appellant about two months thereafter. However, before reopening the case no notice was issued to the appellant. Mr. Shahanshah Hussain referred to Maqsood Ahmed Shaikh v. Islamic Republic of Pakistan, 1987 SCM R 1562, where it was observed as follows:- "If a case disposd of by the authorised officer is intended to be reviewed by the authority in exercise of powers under rule 6-A, no order adverse to the interest of the accused officer can be passed without affording him an opportunity of hearing. The rule of natural justice, as is well established is to be read into the provisions of law authorising a statutory functionary to pass orders in relation to rights of citizens. It is not the case of the Government that action was taken under the aforesaid rule after notice to the appellant."

' This point, therefore, seems to have conclusively been settled and needs no further elucidation.

4. Mr. Shahanshah Hussain further contended that in the facts and circumstances of the case as the Authority had imposed punishment of reduction in rank for a period of three years which was brought to the notice of the Tribunal, it could not have enhanced it to five years. There seems to be some misunderstanding otherwise the enhancement of punishment would not have occurred. It seems that the Tribunal had taken into consideration the original order of the authority reducing the appellant in rank for an unlimited period. It perhaps seems to have escaped the notice of the Tribunal that subsequently the time was fixed to three years otherwise the Tribunal ,would not have observed that the appeal has partly been allowed. Be that as it may, the fact remains that punishment imposed by an Authority cannot be enhanced by the Tribunal. In this regard the learned ASC for the appellant has referred to Salahuddin Butt v. Tajammal Hussain PLD 1989 SC 597, where after, discussing a large number of cases as well as the provisions of law it was observed as follows:-- "So far as the penalty awarded to the appellants is concerned, neither the authority which imposed the penalty could be said to be dissatisfied or aggrieved by the order because it itself chose to impose that penalty nor the departmental appellate authority was dissatisfied or aggrieved by the order which it by itself did maintain and which it could not challenge because under section 4 of Punjab Service Tribunals Act, 1974, no right of appeal is given to the Government. The right of appeal is given only to a civil servant. Therefore, there was no occasion for the Tribunal to enhance the penalty as it did.

' It may further be stated that when the departmental authority which imposed the penalty was satisfied with it and the appellate authority too was satisfied with the minor penalty imposed by the authority otherwise it would have imposed major penalty, it could not be said that justice had not been done or the ends of justice were defeated. Here the satisfaction of the departmental authority and the appellate authority could not be replaced by the satisfaction of the Service Tribunal moreso in the absence of an aggrieved or dissatisfied party."

' We, therefore, allow the appeal and set aside the order of the Tribunal dated 20-6-1990 and order of the department dated 18-8-1983 imposing penalty of reduction in rank.