MUHAMMAD NAHEED vs SUPERINTENDENT, PAKISTAN RAILWAY
This petition for leave to appeal arose from a judgment of the Federal Service Tribunal which had converted the petitioner's dismissal from service as a Pakistan Railway Police constable into removal from service. The petitioner was found guilty during departmental proceedings of grave misconduct involving extortion and indiscipline. The core legal question was whether the Service Tribunal, upon finding dismissal unwarranted, could substitute it with removal from service, a penalty allegedly not listed in the Police Rules, 1934, and whether dismissal was justified under rule 16.2(1) of the said Rules. The Supreme Court held that while the Tribunal has appellate powers to substitute penalties, such substitution must be authorized by law, and removal was indeed not a specified penalty under rule 16.1 for constables. However, the Court found that the original dismissal order was lawful and fully justified as a punishment for the 'gravest acts of misconduct' under rule 16.2(1). Consequently, as the lesser penalty of removal caused no prejudice to the petitioner and the respondents did not challenge the Tribunal's decision, the Supreme Court refused to exercise its discretionary jurisdiction and dismissed the petition.
- Whether the Service Tribunal has the jurisdiction to substitute a departmental penalty with a penalty not specified under the relevant service rules?
- Does an act of extortion and grave indiscipline by a police constable constitute one of the gravest acts of misconduct warranting dismissal under rule 16.2(1) of the Police Rules, 1934?
- Can the Supreme Court interfere under Article 185(3) of the Constitution when a lesser penalty has been awarded to a petitioner causing no legal prejudice?
- Rule 16.1, Police Rules 1934
- Rule 16.2, Police Rules 1934
- Article 185(3), Constitution of Pakistan 1973
IRSHAD HASAN KHAN, J.---This petition for leave to appeal is directed against the judgment dated 15-1-1996, passed by the Federal Service Tribunal, Islamabad (hereinafter called the Tribunal) whereby Service Appeal No.423/R/1995 filed by Muhammad Naheed petitioner herein against the respondents was allowed to the extent that the order of his dismissal from service was converted into removal.
2. The facts of the case are that the petitioner was an employee of Pakistan Railway Police. An inquiry was conducted against him on the complaint of one L-NK Matloob of Pakistan Army, posted at Quetta, alleging that on 23-12-1994, while he was returning back to Quetta after spending his leave he was apprehended by four persons, to of whom were in uniform and the other in plain clothes. They demanded Rs.2,000 from him and also snatched the pay book and Rs.500. The pad- book was later returned when some local persons and a police constable arrived at the spot. The said constable, detected the petitioner as one of the accused. The complainant further alleged that he alongwith the accused/petitioner herein was taken by the said constable to police station where the amount of Rs.500 extorted from him, was returned and he was helped to get the train for Quetta.
3. The allegations levelled against the petitioner were proved during the departmental proceedings by independent and reliable witnesses bearing no malice against the petitioner. The departmental appeal filed against his dismissal as well as the appeal filed before the Tribunal failed and it was found that all the legal formalities were duly fulfilled where after the petitioner was found guilty of grave indiscipline. However, having regard to his youth and length of six years of service in the Railway Police, his dismissal from service was converted into removal by the Tribunal.
4. Mr. Muhammad Munir Peracha, learned counsel for the petitioner argued the petition on the sole point that in terms of sub-rule (2) of rule 16.1 of the Police Rules, 1934 (hereinafter called the Rules) only such departmental punishments could be inflicted upon the constables as listed in the second column of the subjoined table which are as follows:--- S. No.Departmental punishment InspectorsSergeants, Sub- Inspectors, Assistant Inspectors Head Constables Constables 1 2 3 4 5 6 2 Dismissal Not relevant Not relevant Not relevant Superintendents of Police, Assistant Superintendent, Government Railway Police; Deputy Superintendents- in-- charge of Railway Police Sub-- Divisions; Senior Assistant Superintendent of Policy, Lahore Officers-in-charge of Recruits Training Centres.
2 Reduction -do- -do- -do- -do- 3 Stoppage of increment of forfeiture of approved service for increment-do- -do- -do- -do- 4 Entry of Censure -do- -do- -do- Superintendent of Police, Also Senior Superintendent of Police, Lahore, Assistant Superintendent, Railway Police, Deputy Superintendent- in- charge of Railway Police Sub-division, and Officers-in-charge of Police Recruits Training Centres, and subject to confirmation by the Superintendent of Police any Assistant Superintendent of Police or Deputy Superintendent of Police of over three years'
Gazetted service.
5 Confinement to quarters for a period not exceeding 15 days -do- -do- -do- Superintendent of Police also Senior, Superintendent of Police, Lahore, Assistant Superintendent, Railway Police, Deputy Superintendent-in- charge of Railway Police Sub-Division, and Officers-in- charge of Police Recruits Training Centres, and subject to confirmation by the Superintendent of Police any Assistant Superintendent of Police or Deputy Superintendent of Police of over three years' Gazetted service.
6 Extra-guard fatigue or other duty -do- -do- -do- -do- 7 Punishment drill not exceeding 15 days -do- -do- -do- -do- 8 Punishment drill not exceeding 10 days-do- -do- -do- Assistant and Deputy Superintendents 9 10 Punishment drill not exceeding 6 days Punishment drill not exceeding 5 days-do- -do- -do- -do- -do- -do- Inspectors Sub-Inspectors The learned counsel further contended that under sub-rule (1) of rule 16.2, the dismissal can be awarded only for the "gravest acts of misconduct" or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service, having regard to the length of service of the offender and his claim to pension. The precise submission was that the Tribunal having found that the punishment of dismissal from service was unwarranted, it had no jurisdiction to award unauthorised punishment of removal from service which is not mentioned in the table subjoined to sub-rule (2) of rule 16.1.
5. It is well settled that the Tribunal as an appellate forum cannot only examine whether the order made by the departmental authority is supported by material, but in suitable cases' can substitute the same with one which it deemed to be more proper. Refer Water and Power Development Authority v. Shah Imroz (1986 SCM R 840), Aijaz Nabi Abbasi v. Water and Power Development Authority (1992 SCM R 774), Water and Power Development Authority v. Fida Muhammad Khan (1996 SCM R 639) and WAPDA v. Abdul Sattar (1990 SCM R 934). However, the substitution of penalty has to be authorisd penalty as contemplated by the relevant law. In the instant case, the penalty of reinovai from service is not one of the specified penalties under rule 16.1. Additionally, no prejudice has been caused to the petitioner as a result of being awarded a lesser penalty. We also find that the order of dismissal was lawful and in conformity with rule 16.2(1), in that, the petitioner was found guilty of gravest service indiscipline. Such an at comes within the purview of "gravest acts of misconduct" as contemplated by the aforesaid rule.
6. It is doubtful whether in the circumstances of the present case, there was any mitigating circumstance to alter the punishment. However, as the impugned order has not been challenged by the respondents we would refrain from expressing any further opinion on this point.
7. For the foregoing reasons, it is not - a fit case to exercise our discretionary jurisdiction under Article 185(3) of the Constitution. Leave is refused.