ISLAMABAD: The Supreme Court held that judicial discretion must be exercised strictly within the confines of the law, being reasonable, fair and justifiable.
“This Court (SC) has repeatedly declared the manner in which the Tribunal should exercise discretion under Section 5 of the Act stressing on the principle that the Tribunal must give its reasons for reducing the punishment,” said the judgment authored by Justice Ayesha A Malik, who headed a three-member bench.
It also said that this Court has consistently held that where the penalties awarded by the competent departmental authorities are to be interfered with in exercise of the discretionary powers of the Tribunal, such discretion has to be exercised in a circumscribed, restricted and structured manner by giving legally sustainable reasoning which justifies the conclusions reached by it.
Judicial discretion must be exercised judiciously and transparently, based on established principles and sound reasoning.
In this case, it is an admitted fact that the respondent was absent from duty and the department has laid out sufficient reasons to show why they did not want the respondent to continue with his service, considering that he wilfully absented himself, did not obtain clearance before traveling, and started looking for jobs after traveling abroad, all of which the Respondent was unable to sufficiently rebut. While due process has been observed and followed in the instant case, this Court has gone as far ahead as to hold that where the absence from duty is admitted, there is no need to hold regular inquiry8. Under the circumstances, we see no justifiable reason for the Tribunal to reduce the punishment from major penalty of removal from service into compulsory retirement on the pretext that the punishment was harsh given that the Respondent had studied abroad and was an asset for Pakistan. Hence, we find that the Tribunal has exceeded its jurisdiction by arbitrary exercise of discretion which is illegal and without lawful authority.
The three-judge bench ruled against the judgment passed by Federal Service Tribunal, Islamabad (Tribunal) on 28.01.2022 whereby the appeal of Akhtar Tanveer (respondent) was allowed. Akhtar Tanveer sought ex-Pakistan leave with effect from 13.09.2010 to 30.07.2014 for study abroad in China.
He was granted ex-Pakistan leave on 22.09.2010 with the condition that he will serve the petitioner for a period of five years. He applied for an extension in the Ex-Pakistan leave from 13.08.2014 to 31.12.2014 which he was granted and ultimately, he resumed work on 01.01.2015.
He then sought ex-Pakistan leave with effect from 06.05.2015 to 30.05.2015 and at the same time he applied for an extension of this leave from 01.06.2015 to 07.01.2015. In the meanwhile, he proceeded to China on 06.05.2015 without obtaining the ex-Pakistan leave and without waiting for security clearance. Given that he left for China without ex-Pakistan leave, he was issued a show cause notice and a charge sheet on 08.08.2015 to which he responded and ultimately, was found guilty of absenting himself from duty without any permission or sanction from the competent authority.
Copyright Business Recorder, 2024
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