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Officials guilty of fraud can’t stay in govt service: Supreme Court


ISLAMABAD:

The country’s top court has ruled that the government officials who are found involved in embezzlement of the state property or money can never be allowed to continue in employment.

“The government properties and the government funds are not to be doled out by the government officials, either to private persons or to themselves and such conduct amounts to fraud with government.

“The person(s) committing fraud or embezzlement of the government property or money could in no circumstances be treated leniently in disciplinary proceedings and in appropriate cases, be allowed to continue in the service,” said a five-page order authored by Chief Justice of Pakistan (CJP) Gulzar Ahmed.

The CJP – heading a division bench – issued the order on a petition filed against the Punjab Service Tribunal order to reinstate a senior revenue official, who had admitted that he illegally transferred government land measuring 270 kanals – situated in District Jhang – to private individuals.

A departmental inquiry had declared the official guilty and proposed his dismissal.

However, the Punjab Service Tribunal declared that the act of the revenue official was not misconduct and that the penalty of dismissal from service, was not commensurate with the gravity of the offence.

The tribunal had later converted the penalty imposed on the respondent by departmental authorities into forfeiture of two year’s approved service.

Setting aside the tribunal’s order, the apex court noted that its judgment was altogether misplaced – more particularly, when looked at from the point of view that the respondent had transferred/mutated government land in favour of private parties, causing huge loss to the government exchequer.

The order noted that the tribunal has for a considerable time been taking a lenient view of misconduct by government servants even where an employee of the department has admitted the commission of an offence constituting serious misconduct or the offence has been proved through inquiry.

“Despite this, the tribunal reduced the penalty imposed upon such an employee by the department, considering the same to be harsh and not commensurate with the gravity of the offence, without assigning any legally sustainable reasoning.

“[The tribunal only stated that it] enjoys “vast powers” under Section 5 of the Service Tribunals Act, 1973 to confirm, set aside, vary or modify orders passed by the departmental authorities.”

The court asked as to how vast are these powers and whether these powers are discretionary – totally unstructured and unlimited – and they could be exercised at the whims of the tribunal.The order said once misconduct is established, it is the prerogative of the department to decide on the quantum of punishment, out of the various penalties provided in law.

“Unless the tribunal finds exercise of such prerogative by the departmental authority to be perverse and totally disproportionate to the gravity of the offence/misconduct for which reasons have to be recorded, the penalty imposed by the departmental authorities cannot be interfered with.

“Such reasons must be valid and meet the standards of logical and judicial reasoning,” it added.

The court observed that the powers of the tribunal under Section 5 of the Punjab Service Tribunals Act, 1974 – to confirm, set aside, vary or modify orders appealed against – are neither discretionary nor unbridled.
“Such powers have to be exercised cautiously, carefully and with circumspection where the order imposing the penalty is wholly perverse or ex-facie so demonstratably disproportionate and excessive for the offence/misconduct, that to let it stand would be unfair, unjust and inequitable.”

It stated that where powers are exercised under section 5 ibid, detailed reasons must be recorded justifying such exercise which would withstand the test of judicial scrutiny by this court.

The tribunal has in this case reduced the penalty without much ado and no reasoning although the respondent was found guilty of misconduct by all forums in all departmental proceedings, it said.

The court noted that the order of the tribunal is self contradictory in excess of jurisdiction and devoid of any reasoning let alone cogent and legally acceptable.

“The impugned judgment of the tribunal can therefore not be sustained. The appeal is accordingly allowed and the impugned judgment is set aside. Consequently, the order passed against the respondent for his dismissal from service is restored,” it said.

The apex court also ordered its office to supply the copy of this order to the chairman as well as members of the Federal Service Tribunal and all the provincial service tribunals.

While hearing another case, the apex court on August 10 ordered the Punjab government to remove a member of the Punjab Service Tribunal for declaring taking ‘illegal gratification/bribe’ a ‘minor offence’.

A three-judge bench, also led by CJP Gulzar Ahmed, had issued a nine-page order on an appeal filed against the decision of the Punjab Service Tribunal Member-1 to restore service of a police official Muhammad Hanif who was found guilty of taking a bribe of Rs20,000.



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