FAQIR MUHAMMAD and others vs SECRETARY, MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN, RAWALPINDI and others

ORDER

' KHALIL-UR-REHMAN KHAN, J.---This order will dispose of four Civil Petitions for Leave to Appeal Nos.458 of 1996, 542 of 1996, 771 of 1997 and 927 of 1997, as common questions of fact and law are involved in these Petitions and also arise out of one and the same allegations of irregularities and misappropriation of Government Stores.

2. The petitioners filed departmental appeals against the orders of punishment passed against them. The appeals so filed were rejected without assigning reasons in the case of Faqir Muhammad, Muhammad Sarwar and Ghulam Sarwar, A.S.I. Petitioners in Civil Petition for Leave to Appeal No,458 Of 1996, 542 of 1996 and 771of 1997 respectively. Rejection or otherwise of departmental appeal filed by Muhammad Fazil, petitioner in Civil Petition for Leave to Appeal No,927 of 1997, was, however, not communicated to him who then filed service appeal before the Federal Service Tribunal after awaiting the prescribed period of ninety days.

3. The appeal filed before the service Tribunal by Ghulam Sarwar A.S.I. Petitioner was partially accepted vide judgment dated 25-3-1996 with the direction that the departmental appeal filed by him be disposed of by an appropriate and well reasoned order after affording opportunity of hearing. The Secretary, Ministry of Defence thereafter afforded opportunity of hearing to Ghulam Sarwar A.S.I. And decided the appeal vide detailed order dated 26-10-1996. The said order was then assailed again by filing an appeal before the Federal Service Tribunal which has been dismissed vide impugned judgment dated 10-5-1997. The appeal filed by Muhammad Fazil was also dismissed by the same judgment dated 10-5-1997, while appeals filed by Faqir Muhammad and Muhammad Sarwar were dismissed by two separate orders/judgments dated 22-4-1996 and 21-7- 1996 respectively. This led to the filing of the present Petitions for leave to appeal.

4. In the two Petitions in which no reason has been given while rejecting the departmental appeals reliance was placed on the judgment of this Court in Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others (1991 SCM R 2330) and Rule. 6(2) of the Civil Servants (Appeal) Rules, 1977 to contend that the Federal Service Tribunal should have accepted the appeals and remanded the matters for recording of the reasons by the departmental appellate authority as was done earlier in the case of Ghulam Sarwar In the third Petition in which the appellate authority had not conveyed the order, if any, passed in the departmental appeal, it was argued that on account of non-consideration of the appeal the Service Tribunal should have required the departmental authority to dispose of the appeal pending before it by passing a reasoned order as is required under Rule 6(2) of the Civil Servants (Appeal) Rules, 1977 and as such the impugned judgment of the Service Tribunal is not sustainable in law.

5. On merits it was argued that various pleas taken in the Memorandum of Appeals and urged before the Service Tribunal have not been attended to, such as shortage was not attributable to the petitioners as the Stock Registers/Ledgers did not represent the actual stocks position; that the petitioners were held liable as the shortage came to notice during their period of posting whereas the stocks had not been physically checked and weighed for the last many years; and that the apportionment of the loss was not done on any reasonable basis. It was also urged that according to Financial Regulations, 1986 framed in exercise of the powers conferred by section 176-A of the Pakistan Army Act, 1952 and section 203 of the Pakistan Air Force Act, 1953, the Court of Inquiry was illegally constituted, as such the findings recorded by the illegally constituted Court of Inquiry stand vitiated. It was urged that the Court of Inquiry was to compose of the officers not belonging to M.E.S. These contentions appear not to have been dealt with in the order passed by the departmental appellate authority in the case of Ghulam Sarwar A.S.I. while in the case of two other petitioners the order rejecting the appeals does not contain any reason and in the case of Muhammad Fazil, the fourth petitioner, the order passed, if any, on his appeal has not been conveyed. Rule 6(2) of the Civil Servants (Appeal) Rules, 1977 provides for supply of the reasons of the order passed in departmental appeal whereas proviso to section 4 of Service Tribunal Act, 1973 provides that no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation and a period of ninety days has elapsed from the 'date on which such appeal, application or representation was preferred. Thus, he need not wait for disposal of his appeal or the order, with reasons, passed thereon. The question raised is whether these provisions require to be reconciled. Leave to appeal is, therefore, granted to examine this question as well as other points raised hereinabove.

6. Orders passed by this Court staying recovery of the amount from the petitioners in Civil Petition 498 of 1996, Civil Petition 542 of 1996 and Civil Petition 771 of 1997 shall continue till disposal of appeals.