Ch. AFTAB AHMAD vs GENERAL MANAGER (PLANNING), PLANNING DIVISION, WAPDA, LAHORE and anothers
This is an appeal with leave of the Court against the judgment of the Federal Service Tribunal dismissing the appellant's service appeal against his dismissal from service by WAPDA. The core legal question was whether the Tribunal erred in failing to consider the statements of court-witnesses examined during the proceedings and whether the departmental and Tribunal orders were sustainable. The Supreme Court held that the Tribunal's failure to consider the statements of the court-witnesses vitiated its judgment, declining to draw any presumption that the Tribunal deemed them irrelevant. The Court laid down the principle that appellate and tribunal forums must explicitly consider and evaluate all material evidence and witness statements brought on record before rendering a decision, setting aside the impugned judgment and remanding the matter to the Tribunal for a fresh decision.
- Whether a service tribunal can omit to consider the statements of court-witnesses examined in the case?
- Can an appellate court presume that a tribunal considered evidence irrelevant merely because it was not mentioned in the judgment?
- Does the failure of a tribunal to evaluate material witness statements warrant setting aside its judgment and remanding the case?
- Rule 12, Pakistan WAPDA Employees (E & D) Rules, 1978
1. ' AJMAL MIAN, C.J.---This is an appeal with the leave of this Court against the judgment dated 21-1- 1993 passed by the Federal Service Tribunal (hereinafter referred to as the Tribunal) in Appeal No, 228(L) of 1984 filed by the appellant against the order dated 27-6-1984 of his dismissal from service, dismissing the same.
2. ' The brief facts are that the appellant was working as Senior Engineer at the relevant time in the service of respondent No, 1 . He was served with a charge-sheet containing 9 charges dated 9-6- 1983, which was accompanied by a statement of allegations. The appellant submitted his reply dated 30-6-1983. It seems that the respondent department was not satisfied with the above reply and they on 18-7-1983 appointed Col. (Retd.) B.A. Kaif, Director (Inquiries), WAPDA to hold inquiry against the appellant and Muhammad Aslam, another Senior Engineer. The Inquiry Officer submitted his report to the competent Authority on 29-10-1983 which was followed by service of final show-cause notice dated 2-11-1983 on the appellant, to which the appellant submitted his explanation dated 27-12-1983. It appears that eventually the competent Authority (General Manager (Planning), WAPDA) imposed on the appellant the major penalty of reducing him to the lowest stage in his time scale for a period of two years by office order dated 27-2-1984. It was also stated in the above order that after the lapse of two years the appellant would be entitled to earn increments but without the benefit of past service in the time scale. The appellant filed appeal against the above order dated 27-2-1984. It seems that while the above departmental appeal was pending, General Manager (Administration) issued notice dated 11/13-5-1984 on behalf of respondent No,2 under Rule 12 of the Pakistan WAPDA (Efficiency and Discipline) Rules, 1978, calling upon the appellant to show cause as to why the aforesaid punishment should not be revised. The appellant submitted his reply to the above notice, but the respondent No,1 by the aforesaid order dated 27-6-1984 dismissed the appellant from service. After that the appellant filed above appeal assailing the aforesaid two orders dated 27-2-1984 and 27-6-1984 before the Tribunal, which was dismissed. Thereupon, the appellant filed petition for leave to appeal, which was granted to consider whether the order dated 27-6-1984 purported to have been passed by the authority under Rule 12 of the Pakistan WAPDA Employees (E & D) Rules, 1978 was sustainable as it did not disclose any reason for enhancement of the punishment.
3. ' In support of the above appeal Mr. Farooq Zaman Qureshi, learned counsel appearing for the appellant has vehemently contended that the inquiry proceedings before the Inquiry Officer suffered from very grave legal infirmity inasmuch as Mr. Bashir Ahmad Noon, Auditor, who was the star witness of the department in the above departmental inquiry was examined behind the back of the appellant without providing to the appellant an opportunity to cross-examine the above witness. According to him, this was such a serious infirmity and that the above departmental inquiry proceedings and the resultant orders pursuant thereof were vitiated. His further submission was that the Tribunal examined 4 persons as the Court-witnesses including aforesaid Bashir Ahmad Noon, Auditor, but the Tribunal has not even referred to their statements in the judgment under appeal.
4. ' Mr. Ghulam Hasan Gulshan, learned counsel appearing for the respondents is unable to controvert the above position that the Tribunal has not referred to the statements of the above four Court-witnesses. However, he submitted that it should .Be presumed that the Tribunal did not find their statements as relevant.
5. We cannot draw any inference of the nature as urged by the learned counsel for the respondents.
6. In our view, it will be just and proper to remand the case to the Tribunal. We, therefore, allow this appeal and set aside the judgment under appeal and remand the case to the Tribunal with the direction to decide the matter afresh after taking into consideration the statements of the above four Court-witnesses and also to examine whether the punishments awarded to the appellant were warranted by law. There will be no order as to costs.