ISLAMABAD: The Supreme Court said the wisdom of setting up a Service Tribunal under Article 212 of the Constitution is to do complete and substantial justice between the parties with a rational denouement of the case.
A two-judge bench, comprising Justice Sajjad Ali Shah and Justice Muhammad Ali Mazhar, passed the judgment on the appeal of Usman Ghani, a time-scale clerk in GPO, Karachi. The bench set aside the Federal Service Tribunal, Islamabad, (Karachi Bench) verdict dated 6 November 2019.
The appellant (Usman) was awarded punishment of stoppage of next annual increment for five years without future effect with recovery of Rs10,29,546. The appellant preferred the departmental appeal to the Chief Post Master, Karachi, who vide order dated 17 December 2018 converted punishment of stoppage of annual increment for five years into one step reduction to a lower stage in his time scale for period of one year without future effect.
The appellant assailed both these orders before the Tribunal, which considered only the original order of penalty dated 29 September 2018 and dismissed the appeal. He; therefore, filed an appeal before the apex court.
The apex court noted that the Tribunal has not at all adverted to the appellate order rather confined itself to the original order. The SC judgment said the Tribunal failed to mull over and ruminate the inquiry report and the evidence recorded during the inquiry and even the effect of statement of Muhammad Amin Khan was not considered, wherein, he accepted the entire liability and also confessed that no other person is responsible for the loss.
The judgment said under Section 5(2) of the Services Tribunal Act, 1973, the Tribunal for the purposes of deciding any appeal be deemed to be a Civil Court and have the same powers as are vested in such a court.
It stated that as a forum of exclusive jurisdiction, the Tribunal articulates and commands to do the complete and substantial justice between the parties with a rational denouement of the case.
The judgment noted that the foremost aspiration of conducting departmental inquiry is to find out whether a prima facie case of misconduct is made out against the delinquent officer for proceeding further. The guilt or innocence can only be thrashed out from the outcome of inquiry and at the same time it is also required to be seen by the Service Tribunal as to whether due process of law or right to fair trial was followed or ignored.
The judgment said a distinction also needs to be drawn between a regular inquiry and preliminary/ fact-finding inquiry. A regular inquiry is triggered after issuing show cause notice with statement of allegations and if the reply is not found suitable then an inquiry officer is appointed and regular inquiry is commenced.
It is obligatory for the inquiry officer to allow even-handed and fair opportunity to the accused to place his defence and if any witness is examined against him then a fair opportunity should also be afforded to cross examine the witnesses.
The standard of proof looked-for in a departmental inquiry deviates from the standard of proof required in a criminal trial. In the departmental inquiry conducted on the charges of misconduct, the standard of proof is that of “balance of probabilities or preponderance of evidence” but not a “proof beyond reasonable doubt”, which strict proof is required in a criminal trial.
The doctrine of natural justice communicates the clear insight and perception that the authority conducting the departmental inquiry should be impartial and delinquent civil servant should be provided fair opportunity of being heard.
The SC judgment said if the order of the competent authority based on inquiry report is challenged before the Service Tribunal then it is the legal duty of the Service Tribunal to give some reasons and there should be some discussion of evidence on record, which is necessary to deliberate the merits of the case in order to reach just conclusion before confirming, reducing or setting aside the penalty.
Copyright Business Recorder, 2021