ORDER SHEET
HIGH COURT OF SINDH, KARACHI
C.P.
No.D-2761 of 2010
Date Order with signature of Judge
Present: Mr. Justice Gulzar Ahmed
Mr. Justice Muhammad Ali Mazhar
Date of hearing : 10.11.2011.
Petitioner : Saud Nasir Qureshi.
Respondents : Federation of Pakistan and others.
Mr. Mugees Ahmed Samdani, Advocate for the petitioner.
Mr. Mazhar Jafri, Advocate for respondent No.2.
Muhammad Ali Mazhar,J.:- The petitioner has challenged the order dated 27th October, 2003, whereby the competent authority of the respondent No.2 after examination of inquiry report and reply to the show cause notice decided to reduce the petitioner to one stage lower in the pay grade i.e. demotion to the position of Junior Officer PSF-I(b).
2. The brief facts as stated in the petition are that the petitioner was issued statement of allegations and charges on 08.09.2003 under the Removal From Service (Special Powers) Ordinance, 2000. The charges against the petitioner in the statement of allegations dated 08.09.2003 were as under:-
“Mr. Rasheed Ahmed, Manager (PDN) booked Quaid-i-Azam Park Lawn for the wedding ceremony of his daughter on 23.8.2003 and made requisite payment/ charges.
On the day of function at about 0005 hours, you came to the above officer on the lawn where he was sitting with his guests and demanded Rs.1000/- as “midnight charges”. You were asked by the above officer to get all the payment whatsoever payable as per rule at the end of function. But you insisted for immediate payment and threatened that in case otherwise electric supply will be switched off and the function spoiled.
Due to late arrival of guests on account of some unavoidable the function was delayed and finished at 0115 hours. You again demanded additional amount of Rs.1000/- in a rude and humiliating manner from Mr. Rasheed Ahmed, Manager (PDN).
Your above acts of demanding additional charges and using harsh and humiliating language in presence of the guests of the party amount to bringing had name to Pakistan Steel and being detrimental to the interest of the Organization are prejudicial to good service discipline”.
3. The petitioner had submitted his reply, thereafter inquiry was conducted and he was found guilty, therefore, vide order dated 27th October, 2003, he was reduced to one grade and demoted to the position of junior officer.
4. After awarding the aforesaid penalty, the petitioner had moved a departmental appeal under the provisions of R.S.O 2000 which was declined/rejected by the competent authority, hence he preferred an appeal to the Federal Services Tribunal which was finally disposed of vide order dated 26.5.2010 on the ground that Pakistan Steel does not have backing of statutory rules and the petitioner was advised to seek remedy before the appropriate forum.
5. The learned counsel for the petitioner argued that the petitioner was deputed for collecting midnight charges at the rate of Rs.1000/- per hour for the use of electricity. He further argued that during inquiry, the charges were not proved against the petitioner. He further argued that no witness was produced to substantiate that the petitioner ever demanded the midnight charges in front of any guest or misbehaved with Mr. Rasheed Ahmed, who lodged the complaint. He further argued that complainant Rasheed Ahmed, Manager Power Distribution Network had booked Quaid-e-Azam Park lawn owned and operated by respondent No.2 and since the petitioner was deputed for collecting midnight charges, therefore he simply performed his official responsibilities and after the incident, he approached the complainant and tendered his regret. The learned counsel further argued that no penalty can be imposed for an indefinite period.
6. The learned counsel for the respondent No.2 argued that the action against the petitioner was taken purely in accordance with law and since the charges against him were proved in the inquiry, therefore instead of awarding the punishment of removal from service, the petitioner was demoted to lower stage. He further argued that though the petitioner was deputed to collect the midnight charges, but he was not supposed to misbehave with the complainant Rasheed Ahmed. Such behavior was highly objectionable. He further argued that proceedings were initiated against the petitioner under the RSO 2000. The duly appointed inquiry officer conducted the inquiry proceedings and after providing ample opportunity to the petitioner, the inquiry proceedings were concluded and he was found guilty. Learned counsel further averred that the petitioner has failed to show that the impugned action taken against him is violative of any law and since the factual controversy is involved and punishment/penalty was awarded under the provisions of R.S.O 2000, therefore constitutional petition is not maintainable.
7. In so far as, the question of maintainability is concerned, In the judgment reported in 2010 P L C (C.S.) 1360, (Shahid Mehmood Versus House Building Finance Corporation), the divisional bench of this court in which one of us (Gulzar Ahmed. J) was member has already held that if an employee of a State owned/controlled organization is proceeded against under the provisions of the Removal from Service (Special Powers) Ordinance, 2000 and if no other remedy is available to him, he shall be entitled to maintain a constitutional petition under Article 199 of the Constitution for the purpose of scrutinizing as to whether the action taken by the departmental authorities is in accordance with the provisions contained in the RSO. The dictum laid down by this court supra is equally applicable to Pakistan Steel (respondent No.2), hence this Constitution Petition is maintainable.
8. We have also examined the inquiry proceedings and found that the inquiry was conducted in accordance with law and ample opportunity was also provided to the petitioner therefore, the petitioner was rightly awarded the punishment but at the same time, it cannot be overlooked or ignored that vide impugned order dated 27th October, 2003, the petitioner was reduced to one stage lower in the pay grade i.e. demotion to the position of junior officer but this penalty has been imposed for an imprecise and indefinite period, which is not permissible. No doubt that the competent authority is vested with the powers under R.S.O 2000 to award punishment in accordance with law but in the cases of penalties imposed for demotion or reduction to lower grade, a reasonable period of time in which the incumbent has to hang about/suffer under demotion should have been specified/mentioned in the reversion/demotion order and the punishment cannot be awarded in vacuum for an indefinite period to continue without its culmination which has been precisely done in the case in hand.
9. In the case reported in 2008 SCMR 1165 (Member (A.C.E. & S.T.), Federal Board of Revenue, Islamabad versus Muhammad Ashraf), the petitioner FBR had challenged the judgment passed by Federal Service Tribunal in the case of four employees. In this case, the competent authority awarded the punishment to the employees of reduction to five stage in time-scale and this punishment was assailed in the Federal Service Tribunal by the aggrieved employees. The learned Federal Service Tribunal in the appeal of Muhammad Ashraf and Dilawar Hussain modified the sentence and reduced the same to two stages in time-scale for a period of two years. Similarly, the penalty awarded to Mushtaq Ahmed and Shahid Mahmood was ordered to be effective only for a period of two years whereafter they shall stand restored to their original ranks. The judgment of learned Federal Service Tribunal was assailed in the Hon’ble Supreme Court in which while refusing the leave, the Hon’ble Supreme Court held that admittedly the penalties imposed by the authority upon respondents do not specify the length of time. The penalty for indefinite period is not provided in law as such the impugned judgment whereby penalties awarded to the respondents were modified and reduced to time as mentioned above was proper in law.
10. Bad faith and willfulness may bring an act of negligence within the purview of misconduct but lack of proper care and vigilance may not always be willful to make it a case of grave negligence inviting severe punishment. The philosophy of punishment is based on the concept of retribution, which may be either through the method of deterrence or reformation. The purpose of deterrent punishment is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society, whereas the concept of minor punishment in the law is to make an attempt to reform the individual wrong doer. In service matters, the extreme penalty for minor acts depriving a person from right of earning would definitely defeat the reformatory concept of punishment in administration of justice. Reference can be made to 2006 SCMR 60.
11. Though we are not convinced or inclined to set aside the reversion/demotion order dated 27.10.2003 in its entirety, which has been passed after proper inquiry but since the penalty for reversion has been imposed for an indefinite period, therefore, being fortified by the dictum laid down by the hon’ble Supreme Court (supra), we have no hesitation to hold that penalty for an indefinite period is not provided under the law, consequently, the penalty awarded to the petitioner for reduction to lower stage is hereby modified and reduced for a period of two years only. The petition is disposed of in the above terms.
Judge
Judge