2021 S C M R 345
[Supreme Court of Pakistan]
Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ
DIRECTOR GENERAL FEDERAL DIRECTORATE and another---Petitioners
Versus
TANVEER MUHAMMAD and another---Respondents
Civil Petition No. 692 of 2020, decided on 18th
December, 2020.
(Against
the Order dated 16.12.2019 passed by the Federal Service Tribunal, Islamabad in
Appeal No. 52(R)CS of 2018)
(a) Government Servants (Efficiency and Discipline)
Rules, 1973---
----R. 4(1)(b)(iv)---Allegation of physical
assault, using verbal abuse and threatening a colleague---Penalty of 'Dismissal
from service' converted into 'withholding of increment for a period of five
years' by the Federal Service Tribunal---Legality---Respondent had physically
assaulted and tortured a female worker, which fact was substantiated not only
by the eye-witness account but also corroborated by the Medico Legal Report of
the victim---Such violence was perpetrated within the school premises which
violated the sanctity of an educational institution, and constituted an act of
gross misconduct---Internal inquiry Committee, consisting of three independent
senior officers, found the respondent guilty of all charges---No bias,
partiality or mala fides was alleged against the Inquiry Committee---Respondent
was given fair opportunity to defend himself which he failed to do---Tribunal
had itself recorded findings to the effect that the respondent had committed
misconduct but that the penalty imposed upon him was too harsh and did not
commensurate with the charge---In the face of proof of charges against the
respondent, it was not understandable how the penalty of dismissal from service
imposed by the department was too harsh or did not commensurate with the
offence alleged---Further, the judgment of the Tribunal was devoid of any
reason let alone cogent---Petition for leave to appeal was converted into
appeal and allowed, judgment of Service Tribunal was set-aside and the penalty
of dismissal from service imposed by the department was restored and affirmed.
(b) Service Tribunals Act (LXX of 1973)---
----S. 5(1)---Service Tribunal, powers
of---Structured exercise of jurisdiction---Scope---Where the Tribunal exercised
jurisdiction under S. 5 of the Service Tribunals Act, 1973, legally sustainable
reasons must be recorded---Merely and casually making an observation that the
penalty imposed (by the department/forum below) was not commensurate with the
gravity of the offence was not enough and constituted arbitrary capricious and
unstructured exercise of jurisdiction---Order must show that the Tribunal had
applied its mind to the facts and circumstances of the case and exercised its
discretion in a structured, lawful and regulated manner keeping in view the
dicta of the superior Courts in the matter.
Moulvi
Ejaz ul Haq, DAG, M. Ahmed, A.D. (L) FDE and Syyeda B.H. Shah,
Advocate-on-Record for Petitioners.
Respondent
No. 1 in person.
Date
of hearing: 18th December, 2020.
ORDER
IJAZ
UL AHSAN, J.---Leave to appeal is sought against a judgment of the Federal
Service Tribunal, Islamabad dated 16.12.2019. Through the impugned judgment a
Service Appeal filed by the petitioner was partly allowed to the extent that
the penalty of dismissal from service was converted into withholding of
increment for a period of five years. The Appellant was reinstated into service
from the date of his dismissal.
2 Briefly
stated the facts of the case are that the Respondent was employed as a
Chowkidar and was performing his duties in the Federal Directorate of
Education, Headquarter at Islamabad. While on a visit to his parent institution
on 12.05.2015 i.e. Islamabad Model School No.2, Sector G-8/2, Islamabad he had
an altercation with Mst. Parveen Akhtar, Aya of the said school, He allegedly
physically assaulted her, used abusive language and threatened her in various
ways. The occurrence was seen by various members of the school staff including
the Principal. She lodged a complaint against the Respondent before the Federal
Ombudsman under Protection against Harassment of Women at Workplace. She also
lodged an FIR against the Respondent with the concerned Police Station. The
Federal Ombudsman referred the matter to the department with a direction to
conduct an inquiry. Show cause notices dated 10.11.2015 and 12.01.2016 under
E&D Rules were issued to the Respondent. After processing the matter and
conducting an internal inquiry, major penalty of dismissal from service was
imposed on the Respondent vide order dated 10.05.2016. His departmental appeal
was rejected on 23.11.2017. Aggrieved, he approached the Federal Service
Tribunal, Islamabad. Such appeal was allowed.
3. Moulvi
Ejaz-ul-Haq, learned Deputy Attorney General appearing on behalf of the
petitioner submits that there were serious allegations of physical violence
resulting in multiple injuries to the victim which were duly reflected in the
medico-legal report ("MLR"), The said position was also confirmed by
eye-witnesses who were examined by the Committee. Such acts of violence and
especially against women within the premises of a school constituted serious
misconduct and was appropriately punished by the competent authority. He
further submits that imposition of major penalty of dismissal from service was
justified in the facts and circumstances of the case, The Tribunal therefore
had no lawful reason or justification to modify the penalty and reduce it to
stoppage of increments for five years. He submits that it is settled law that
mere fact that the Respondent was acquitted in criminal proceedings does not
constitute basis for interfering in departmental proceedings because the same
are separate and distinct matters under different laws and requiring different
standards of proof.
4, The
Respondent is present in person and submits that the occurrence in question did
not take place. He maintains that the victim had a grudge against him and had
started the fight herself and he only held her arms to prevent her from
inflicting any physical injury on him. He further submits that the action taken
by the department was harsh and disproportionate to the gravity of the offence
allegedly committed by him.
5. We
have heard the learned Deputy Attorney General as well as the Respondent
present in person and also gone through the record.
6. We
find that there is sufficient and adequate material on record to establish the
charge of using physical violence against Mst. Parveen Akhter, Aya of the
school. The said fact was substantiated not only by the eye-witness account but
also corroborated by the Medico Legal Report which confirmed commission of
physical violence and infliction of injuries on the person of the victim. The
internal inquiry found him guilty of all charges. No bias partiality or mala fides
is alleged against the inquiry Committee. The Respondent was given fair
opportunity to defend himself which he failed to do. The fact that the
Respondent was acquitted by the Court of Judicial Magistrate, Islamabad is
inconsequential in view of the fact that the departmental proceedings which
were independently undertaken are separate and distinct proceedings and have a
different standard of proof. In accordance with service laws and departmental
procedure, the said standard was adequately met. Further, the Tribunal has
itself recorded findings to the effect that "no doubt the appellant has
committed misconduct but the penalty imposed upon the appellant by the
respondents is too harsh and does not commensurate with the charge".
7. We
are afraid, we do not subscribe to the said finding of the Tribunal for the
reason, that the Respondent had physically assaulted and tortured a female
worker of the school. Such violence was perpetrated within the school premises
which violated the sanctity of an educational institution. In our opinion this
constitutes an act of gross misconduct. We also notice that the internal
inquiry Committee consisted of three independent Senior Officers namely Ms.
Farida Yasmeen, Director School (Female), Major Abdul Waheed Khan, Deputy Director
(O&M Cell) Member and Mr. Muhammad Azhar Khan, Supervisor (Monitoring)
Member. The said Committee acted fairly, in accordance with law and gave the
Respondent ample opportunity to defend himself. The charges of harassment,
violation of service norms by physical violence and torture perpetrated on Mst.
Parveen Akhter, Aya of the school, use of blackmailing tactics and spoiling the
congenial environment and sanctity of the Educational Institution stood fully
established. In the face of proof of such charges, we fail to understand how
the penalty imposed by the department was "too harsh or not
commensurate" with the offence alleged against the Respondent. Further,
the judgment of the Tribunal is devoid of any reason let alone cogent for converting
the major penalty of dismissal from service into withholding of increments for
a period of five years.
8. This
Court has repeatedly held that where the Tribunal exercises jurisdiction under
section 5 of the Service Tribunals Act, 1973, legally sustainable reasons must
be recorded. Merely and casually making an observation that the penalty imposed
is not commensurate with the gravity of the offence is not enough and
constitutes arbitrary capricious and unstructured exercise of jurisdiction. The
order must show that the Tribunal has applied its mind to the facts and
circumstances of the case and exercised its discretion in a structured, lawful
and regulated manner keeping in view the dicta of superior Courts in the
matter. All of the above factors are conspicuous by their absence in the
judgment of the Tribunal impugned before us. We, therefore, find the impugned
judgment of the Tribunal to be unstainable and liable to be set aside.
9. For
reasons recorded above, this petition is converted into an appeal and allowed.
The impugned judgment of the Federal Service Tribunal dated 16.12.2019 is set
aside. The punishment imposed by the department is restored and affirmed.
MWA/D-1/SC Petition allowed.