ISLAMABAD: The Supreme Court has held that doling out public property or funds by officials to private persons or even to themselves amounts to fraud and those committing fraud or embezzlement of government property or money can’t be treated leniently in disciplinary proceedings or be allowed to continue in service.

Thus, maximum penalty like dismissal from service should be imposed on the government employees involved in embezzling state lands rather than forfeiture of certain service years, explained a five-page order authored by Chief Justice Gulzar Ahmed.

A two-judge SC bench that also comprised Justice Ijaz-ul-Ahsan passed the order on an appeal against the March 3, 2017 decision of the Service Tribunal, Lahore. The appeal was moved by the commissioner of Faisalabad division against one Allah Bakhsh.

“Where the respondent himself has admitted the commission of the offence that he transferred the government land measuring 270 kanals, situated in Chak No. 492/ JB, District Jhang, causing loss of millions of rupees to the government exchequer, such conduct of the respondent could not be considered as mere negligence, rather it constitutes misconduct and maximum penalty under the law has to be imposed upon him,” the chief justice observed.

Additional Advocate General Chaudhry Faisal Hussain earlier told the court that the respondent had himself admitted to the offence. But the Punjab Service Tribunal had held that the conduct of the respondent Allah Bakhsh of signing mutation of the government land in favour of the private person did not constitute misconduct, because no loss was caused to the government. Therefore, it was stated, the penalty of dismissal from service imposed upon him by the department did not commensurate with the gravity of the offence.

Apex court sets aside service tribunal’s ‘lenient’ order in land scam

The service tribunal then converted the penalty imposed on the respondent by departmental authorities into forfeiture of two years’ approved service.

However, the Supreme Court in its order held that the tribunal had taken a lenient view of misconduct by government servants even where an employee of the department has admitted the commission of the offence constituting serious misconduct. Despite this, the SC bench observed, the tribunal reduced the penalty imposed on the employee by the department considering that it was harsh and did not commensurate with the gravity of the offence.

The apex court held that the tribunal instead of assigning any legally sustainable reasoning stated that it enjoyed 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 question is how vast are the powers of the tribunal,” the Supreme Court said, also asking whether these powers were discretionary at the whims of the tribunal and totally un-structured and unlimited.

When the conduct of the respondent came to light, the government machinery took steps to rectify such transfer of the government land to the private persons. The mere fact that despite commission of the offence no loss was caused to the government exchequer or the loss caused was recovered cannot be a mitigating factor in punishing a government servant whose misconduct stood established, the verdict declared. “If he gets scot-free or with a minor penalty what is there to prevent him from repeating the same offence and the next time loss may actually be caused and not recovered,” the apex court questioned.

This was the inherent flaw in the argument of the counsel for the respondent, the order added.

“In view of the matter, we have found the order of the tribunal to be self contradictory in excess of jurisdiction and devoid of any reasoning let alone cogent and legally acceptable,” the order said, adding that the impugned judgement of the tribunal could not be sustained. Thus, the appeal was accordingly allowed and the impugned judgement was set aside, the order said.

Consequently, the order passed against the respondent for his dismissal from service was restored, the Supreme Court held, adding the copy of this order should also be supplied to the chairman as well as members of the Federal Service Tribunal and all the provincial service tribunals.

Published in Dawn, August 30th, 2020