Find a Lawyer

Regular Second Appeal No. 23 of 1982, heard on 23rd February, 1987.

‑‑‑R.4‑‑Misconduct‑‑Penalty for‑‑Competent Authority being empowered under R.4(3) of Railway Servants (Efficiency and Discipline) Rules, 1961 to impose any of punishments mentioned in R.4(1) thereof, for misconduct, held, could rightly inflict punishment of dismissal from service‑‑Guidelines provided in the rule would not restrict the power of competent authority if in the attending circumstances of a particular case it is of the view that adherence to such guidelines would bring about a result not in the interest of organisation.

‑‑‑R.4‑‑Civil Procedure Code (V of 1908), S.100‑‑Second appeal‑‑Word "partly" used in order of Appellate Court‑‑Connotation of‑‑Order passed by First Appellate Court clearly showing that Court after accepting appeal remanded case to Trial Court to adjudicate afresh after affording appellant opportunity of once again presenting his case as regards the only issue involved in case viz. legality of communication order‑‑Word 'partly' used in order of Appellate Court below, held, could not be read disjunctively so as to hold that appeal, in fact, was partly accepted by Court‑‑On appeal against order of Trial Court, total controversy could be re‑opened by Appellate Court below in circumstances.

‑‑‑Ss.96 & 100‑‑First appeal‑‑Second appeal‑‑Appellate Court below for legitimate reasons differed with findings of Trial Court on the only issue involved in case and came to findings contrary to that of Trial Court‑‑Findings of Appellate Court below, held, unexceptionable in circumstances.

C.R. Aslam for Appellant.

Syed Muhammad Naqi for Respondent.

Date of hearing: 23rd February, 1987.

This second appeal calls in question judgment and decree dated 13‑9‑1981 passed by the learned Additional District Judge, Lahore.

The facts necessary for the purposes of this appeal briefly stated are that the appellant Ghulam Ali was working in the Electrical Shop of Power House, Mughalpura Workshop, Lahore, where on 16‑7‑1968 he picked up a quarrel with one Mistri Jamal Din on the basis of whose complaint an enquiry was held into the conduct of the appellant and ultimately he was discharged from service by order dated 30‑9‑1968 passed by the Assistant Electrical Engineer, on being held guilty of misconduct. The appellant challenged the order of discharge aforementioned through a suit for a declaration which he instituted in the Court of Senior Civil Judge, Lahore. It was prayed for in the plaint that the order of termination of plaintiff's service be declared to be absolutely illegal, void and inoperative'. The learned Senior Civil Judge by his judgment dated 25‑10‑1973 decreed the suit of the appellant. The respondent went up in appeal before the learned Additional District Judge, Lahore (Mr. Jacob Issac) who accepted the appeal and remanded the case to the trial Court by his judgment and decree dated 25‑9‑1975 with a direction to decide the case afresh in the light of the discussion made in his judgment.

On remand Mr. Ikramul Haq, Civil Judge, Lahore, again decreed the suit by his judgment dated 16‑4‑1978, whereupon the respondent filed an appeal before the learned Additional District Judge against the judgment and decree of the trial Court which was accepted by him by his judgment dated 13‑9‑1981 and the suit of the plaintiff was dismissed. The parties were, however, left to bear their own costs. The appellant‑plaintiff feeling aggrieved of the aforementioned judgment of the lower appellate Court has come up to this Court in the present second appeal.

The learned counsel for the appellant raised the following contentions only:

(1) That the judgment of Mr. Jacob Issac indicates that the appeal had been partly accepted and, therefore, re‑opening of the total controversy by the lower appellate Court afresh and dismissing the suit of the appellant was not justified.

(2) That the lower appellate Court has wrongly interpreted Rule 4 of the Railway Servants (Efficiency and Discipline) Rules, 1961 so as to hold that even removal from service or dismissal from service could be inflicted in the case of misconduct on basis other than corruption or subversion. He argued that the above major penalties could only be imposed in the case of corruption and/or subversion as is apparent from sub‑rule (3) of Rule 4 ibid.

On the contrary, the learned counsel for the respondent submitted that Rule 4(3) ibid can in no manner be interpreted to restrict the power of competent authority for inflicting the punishment of removal from service or dismissal from service only in cases of subversion or corruption. He submitted that the plenary powers are given to the' competent authority to inflict any of the punishments mentioned in l sub‑rule (1) in case of misconduct.

I am afraid the contentions raised on behalf of the appellant have no force. Rule 4(3) ibid interpretation of which is required to be made in this appeal is reproduced hereunder for facility of reference:

Rule 4(3)

"For misconduct any penalty in sub‑rule (1) may be imposed but the penalties to be ordinarily imposed for inefficiency shall be those set‑out in clause (c), (d), (e), (f) or (g) of that sub‑rule and for corruption or subversion those set out in clause (g), (h) or (i) of the sub‑rule."

A plain reading of the above rule shows that for misconduct any of the penalties mentioned in sub‑rule (1) could be imposed although a guideline has been given in the following lines of the rule that ordinarily the penalties to be imposed for inefficiency shall be those as set out in clause (c), (d), (e), (f) or (g) of sub‑rule (1) and for corruption or subversion those set out in clause (g), (h) or (i) thereof. The guidelines, therefore, cannot be read so as to restrict the power of the competent authority if in the attendant circumstances of a particular case it is of the view that those guidelines if adhered to will bring about a result not in the interest of the organization. Another way of looking at it is that guideline is intended only for cases of disciplinary action against the employees qua their inefficiency or acts of corruption or subversion whilst as regards misconduct of other natures the power of the competent authority to award punishment is without any guideline even and it is at liberty to inflict any of the punishments for other misconducts as are given in sub‑rule (1) of Rule 4 ibid. I, therefore, see no reason to differ with the interpretation placed by the learned Additional District Judge on the rule aforementioned. His findings in this regard are, therefore, affirmed.

Adverting now to the first contention raised on behalf of the appellant, I suffice by observing that the word "partly" used in para. 6 of the judgment of Mr. Jacob Issac dated 25‑9‑1975 cannot be read disjunctively so as to hold that the appeal, in fact, was partly accepted. The said para if read in totality clearly leads to the inference that the appeal had been accepted and the case remanded to the trial Court for adjudication afresh in accordance with law. In fact para. 5 of the said judgment also shows that the matter had been remanded in order to give the appellant himself an opportunity of once again presenting his case as regards the only issue involved in the suit, viz. whether his termination was void. inter alia, for the reason that he was not afforded an opportunity of hearing before order of removal from service was passed against him The second contention of the learned counsel for the appellant also, therefore, fails.

Before parting with the case I may also observe that the findings of the lower appellate Court in the impugned judgment on merits of the case are also unexceptionable and for legitimate reasons he has differed with the findings of the trial Court on the only issue involved in the case and come to a finding contrary to that of the trial Court.

In view of the foregoing discussion I find no merit in this appeal which is accordingly dismissed.

There will, however, be no order as to costs.

H. B. T./G‑19/Lb./S

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.