CPLA No. _______/2024

[Insert Petitioner Name] Ex-LDC Regional Tax Office, University Road, Sargodha Postal Address: [Insert Petitioner Address]

.……..…..… Petitioner

VERSUS

1. The Secretary, Revenue Division/Chairman Federal Board of Revenue FBR House, Constitution Avenue, Islamabad

2. The Member (Administration), Federal Board of Revenue FBR House, Constitution Avenue, Islamabad

3. The Chief Commissioner, Inland Revenue Regional Tax Office, University Road, Sargodha

.….…..… Respondents

CIVIL PETITION UNDER ARTICLE 212(3) OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973 FOR LEAVE TO APPEAL AGAINST THE JUDGMENT DATED 29-02-2024 PASSED BY THE FEDERAL SERVICE TRIBUNAL, ISLAMABAD IN SERVICE APPEAL NO. 172 (R) CS/ 2023

Respectfully Sheweth:-

QUESTIONS OF LAW

That the Petitioner challenges the validity and legality of the Impugned Judgment dated 29/02/2024 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 172 (R)CS/2023. The following questions of law arise in the instant case, which are provided hereunder:-

1. Whether the Federal Service Tribunal was justified in dismissing the Appeal on the ground of limitation, despite the appeal being filed within the stipulated time by the appellant on 04-03-2020?
2. Did the Federal Service Tribunal take into account that the appellant, with over 27 years of service, was terminated without adequate justification by the department?
3. Whether the inquiry officer was authorized to recommend a major penalty against the appellant, while disregarding relevant provisions of the law?
4. Whether the major penalty imposed by the department and the subsequent removal of the appellant’s services, based solely on the allegation of absence during legitimate leave, was justified?
5. Whether the respondents violated the Rule 5, 20 and 24 of the Revised Leave Rules, 1980 while imposing the major penalty against the appellant and ignored by the Federal Service Tribunal while deciding the case?
6. Whether the Federal Service Tribunal has considered this material aspect that admittedly appellant has served the department more than 27 years as LDC and the Income Tax Department removed him from the service while imposing the major penalty without any lawful justification?
7. Whether the opportunity of hearing was given to the appellant before the inquiry officer and the inquiry officer considered the reply submitted by the appellant?
8. Whether the ex-parte order passed by the inquiry officer was justified against the appellant by ignoring the basic principle of law, rules and justice?
9. Whether the major penalty imposed by the department was justified and the services of the appellant were removed on the allegation of only absence of the appellant from the office which was his legitimate leave period?
10. Whether the Learned Federal Service Tribunal has considered this point that the appellant was granted leave by the department and his leave was due. The department never intimated that his leave has been expired and he should join the duties?
11. Whether this point has been considered on the appellate forum that the appellant served during the period which was considered his leave period by the department?
12. Whether the inquiry officer is authorized to recommend the major penalty against the appellant by ignoring the relevant of provision of law?

FACTS OF THE CASE

1. That the appellant joined government service in the former income Tax Department as lower Division Clerk with a fact from 26-07-1992. He has rendered 27 years 7 months service and served the department to the utmost satisfaction of his superiors. As far as his performance is concerned, he was always rated as a humble and hardworking official. He continuously performed his duty in any circumstances.
2. That the appellant due to some unavoidable domestic problems proceeded on 05 days casual leave w.e.f. 05-09-2018 with the prior approval of the competent authority. After expiry of the leave he could not join duty and was constrained to apply for further leave on full pay 90days with w.e.f. from 10-10-2018 to 07-01-2019 owing to his ill health and personal issues. He requested for extension upto 31-01-2019. All the sufficient leave on full pay was available at his credit but leave was neither sanctioned nor rejected.
3. That rule 5 of the revised leave rules, 1980 provide that the maximum period of leave on full pay that may be granted at one time will be as follows:-
4. Without medical certificate ……….120 days
5. With medical certificate ………..180 days

                  Plus

1. On Medical certificate from

Leave account in entire service………365 days

4. That in addition to the provision contained in rule 5, rule 20 of the said rules provide that “it shall not be necessary to specify the reasons for which leave has been applied so long as that leave is due and admissible to a civil servant”. Moreover, rules 24 also states that “A civil servant may apply for the type of leave which is due and admissible to him and it shall not be refused”.
5. That the appellant was entitles to avail leave on full pay for 120 days in terms of rule 5 of the Revised Leave Rules 1980 but his request was not considered in accordance with rules and was neither sanctioned nor rejected. He therefore joined the duty on 01/02/2019 and started performing duty. He continuously performed duty till the date of his removal from service. In any circumstances Rule 9(3) also provides that extraordinary leave may be granted retrospectively in lieu of absence without leave.
6. That after lapse of 2 months and 23 days of resuming disciplinary proceedings under the Government Servants (Efficiency & Discipline) Rules, 1973 were initiated against the Appellant on the charges of “Misconduct & inefficiency” vide charge sheet dated 24-04-2019 without statement of allegations.
7. That the appellants submitted his defense reply to the charge sheet to the inquiry officer stating therein as under:-
8. The he proceeded on 5 days casual leave w.e.f. 05-10-2018 to 09-10-2018 owing some domestic issues and his own treatment. The problems could not be settled during the short period of leave therefore, he was constrained to request for grant of 90 days leave so as to settle the domestic issues peacefully and also for his own treatment. During the period of leave his aliment was aggrieved and he was forced to proceed abroad for his proper treatment where he undergone laser Therapy of kidney.
9. That after settling his domestic issues and treatment he joined duty on 01-02-2019.

• That as regards the allegation of renewal of passport is concerned his original passport was issued showing his profession as business due to ignorance and misguiding by the agent through whom he applied for issuance of passport. His profession was not changed when renewing the passport because the original passport contained this profession.

8. That as regards the issuance of passport is concerned the issue has already been decided by the competent authority and major penalty of “Censure was imposed upon the appellant. This allegation is past and closed transaction and cannot be re-opened to penalize him at any cost. The inquiry officer has altogether ignored his submission, facts and leaves Rules and finalized inquiry without providing opportunity of hearing.
9. That the inquiry officer has exceeded his legal position while recommending the major penalty of removal from service. Under rule 6(6) of the government Servants (E&D) Rules, 1973 it is provided that

“The inquiry officer are committee, as the case may be shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authorized officer, submit his or his findings and the grounds thereof to the authorized officer”

The inquiry officer influenced/instigated the authorized officer unlawfully by assigning the role of Authorized officer because as per Rule 5(1) (iv) of Government Servants (E&D) Rules, 1973, a penalty whether (major or minor) has to be recommended to the competent authority by the authorized officer and not by the inquiry officer. In this regard the powers of the authorized officer regarding recommendation of the penalty are as under;

“On receipt of inquiry report of the inquiry officer or inquiry committee or, where no such officer or committee is appointed, on receipt of explanation of the accused, if any, the authorized officer shall determine whether the charge has been proved. If he proposed to impose a minor penalty, he shall pass order accordingly. If it is proposed a major penalty, he shall forward the case to the authority along with charge sheet and statement of allegations served on the accused, the explanation of the accused, the findings of the inquiry officer or inquiry committee, if appointed, and his own recommendations regarding penalty to be imposed. The authority shall pass such orders as it may proper. ”

10. That the competent authority decided the case without going into the merit and facts of the case which were brought into his notice and imposed harsh penalty of “ Removal from service” vide order dated 25-02-2020 without considering his satisfactory service spreading over 27 years’ service.
11. That the appellants submitted departmental representation on 04-03-2020 under civil servants (appeal) Rules, 1977 against imposition of major penalty of removal from service vide order dated 25-02-2020 which has been rejected on 08-02-2023 “received on 15-02-2023. Appeal filed before the Federal Service Tribunal was dismissed vides order dated 29-02-2024.
12. That the major penalty of removal from service was imposed upon the appellant under Government Servants (E&D) Rules, 1973 on the charges of unauthorized absence from duty. The appellant preferred departmental appeal, dated nil which was rejected vide appellate impugned order dated 08-02-2023.
13. He joined duty on 01-02-2019. Appellant submitted his reply explaining reasons. He further explained that in regard to passport the appellant already given minor penalty of “Censure”. The inquiry officer has ignored submission of appellant, facts and rules. Inquiry officer cannot recommend a penalty but only establish or rebut a fact and thus he has exceeded the powers vested in inquiry officer under Rule-6(6) of Government Servants (E&D) Rules, 1973. Recommendations of inquiry Officer influenced and prejudiced the mind of Authorized Officer which is against the principles of justice. The appellant was not provided a copy of inquiry report. Appellant submitted departmental appeal against impugned order, dated 25.02.2020 which was rejected 08-02-2023.
14. Apex Court has held (2008 SCMR 2014) that major penalty imposed on charge of absence, due to non-sanction of leave, is not misconduct. He further referred to 2001 PLC (CS) 190 whereby penalty of removal from service was converted into compulsory retirement due to 23 years of service. While the appellant has rendered more than 27 years of service and thus removal on absence charge is too harsh. He further relied on 2008 SCMR 214 as penalty of compulsory retirement was converted into reduction of two steps in time scale for a period of two years. It was held in 2008 SCMR 1369 that while imposing major penalty full right of defense is to be provided to the civil servant. The penalty of dismissal was set aside.
15. The Federal Service Tribunal has passed the judgment against the appellant vide order dated 29-02-2024 without touching the Merits of the case.

 GROUNDS 

1. That the impugned order of removal from service is illegal, unlawful and void ab-initio and not sustainable under the law and Constitution on account of following legal infirmities/irregularities:-
2. That the charge sheet was issued without a statement of allegations which is a mandatory requirement.
3. That the Respondents without any documentary evidence and providing proper opportunity of defense proceeded ex-parte on the charge of availing leave.

• That the malafide of the respondents is apparent as they were bent upon to impose the major penalty on petty and unsubstantiated charges. The Honorable Supreme Court has deprecated such practice and reinstated the Civil Servant. Reliance is placed on judgment reported as 2007 SCMR 17.

1. That a fair and impartial inquiry which is sine qua non of disciplinary proceedings has not been conduct. Thus the penalty has no legs to stand.
2. That non provision of inquiry report to the Appellant is a blatant illegality not provided under the Government Servants (E&D) Rules, 1973 and therefore, the penalty is to be set aside.
3. That there is no allegation of embezzlement, corruption or any financial loss to the government.

• As per section 2(4) of the Government Servants (Efficiency and Discipline) Rules, 1973, request for leave does not constitute misconduct as above section clearly defines “misconduct” as under:-

“Misconduct means conduct prejudicial to good order or service discipline or contrary to Government Servants (Conduct) Rules, 1964 or unbecoming of an officer and, a gentlemen and includes any act on the part of a civil servant to assert or attempt to assert political or other exterior influence directly or indirectly to bear on the Government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Government servants.”

• That the quantum of charges/allegations has not been kept in view while imposing major penalty of removal from service as one of the charge of acquiring passport had already been investigation and minor penalty was imposed. No one can be punished for an offence twice.

1018. That the charge of misconduct framed against the Appellant on the basis of main allegation i.e. leave is not an act of misconduct. As such the charge is leveled on the basis of conjectures and not on any adverse report tangible documentary evidence. Therefore, these cannot be used for imposing the harsh penalty of dismissal. Reliance is placed on 2010 SCMR 1018.
1019. That it is also not understandable as to what was the cause of action for imposition of major penalty subsequent to joining duty when the cause of absence from duty has come to an end and the intensity of the charge stood mitigated which required that the competent authority should have taken a lenient view and exonerated the Appellant from the charge of absence.
1020. That when the period of alleged absence which was due and admissible under the leave rules, penalty cannot be imposed.
1021. That the Honorable Supreme Court in its judgment reported as 2008 SCMR 214 has set aside the major penalty imposed on charge of absence because unproved absence is not misconduct.
1022. That the conclusions drawn by the authority are based on surmises conjectures, suppositions and probabilities. It is well settled that a charge can be proved by direct evidence only, and not by suppositions, doubts, surmises and conjectures. Reliance is placed on PLD-1989-SC-335, 1995-SCMR-1345,1999-PLC-(CS)-1332, 2004-PLC-CS-1003.For the sake of convenience, the following extract of the apex court’s verdict reported in 1995-SCMR-1345may be perused:-

“For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.”

”Accused is stated to be a favoured child of law and he is presumed to be innocent unless proved otherwise and the benefit of doubt always goes to the accused not to the prosecution as it is for the prosecution to stand its own legs by proving all allegations to the hilt against the accused. Mere conjectures and presumptions, however strong could not be made a ground for removal from service of civil servant.”(1999-PLC-CS-1332).

In light of above, it is clear that the impugned order is only based on the doubts, surmises, suppositions and probabilities.

g)That the appellant’s previous service record spread over a period of 27 years and 7 months which is quite satisfactory has not been considered before imposing harsh penalty of removal from service.

h)That the benefit of judgment passed by the Supreme Court of Pakistan on a question of law is to be extended to all citizens falling in the relevant category. On this, reliance is placed on Supreme Court’s ruling reported as 2009-SCMR-I which inter alia states as follows:-

“It was held by this Court in the case of Hameed Akhtar Niazi V. the Secretary, Establishment Division. Government of Pakistan and others 1999 SCMR 1185 that if a Tribunal or this Court decides a point of law relating to terms of service of a Civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings; in such a case, the dictates of justice and rule of good government demand that the benefit of the said decision be extended to other civil servants also, who may not be parties to that litigation instead of compelling them to approach the Tribunal or any other legal forum. This view was retirement by this Court in the case of Tara Chand and others V. Karachi water and Sewerage Board, Karachi and others 2005 SCMR 499 and it was held that according to Article 25 of the constitution of Islamic Republic of Pakistan, 1973 all citizens are equal before law and entitled to equal protection of law.”

PRAYER

In the luminosity of aforementioned facts and circumstances, that the appellant has around 28 years’ service at his credit as well as above mentioned facts and grounds, It is therefore respectfully prayed that

1. Leave to appeal against the impugned Judgment dated 29-02-2024 passed by the Learned Federal Service Tribunal, Islamabad in Appeal No. 172(R) CS/2023, may kindly be granted.
2. The Honorable Supreme Court may be pleased to set aside the major penalty of removal from service imposed vide order dated 25/02/2020 as well as the appellate order 08/02/2023 and the impugned order dated 29/02/2024 with all the back benefits as the order of removal is illegal, unlawful and void ab-initio and not sustainable under the law.

Any other relief which this Honorable Court may deems fit and proper may kindly be granted in the interest of fair justice.

Filed by

Anis Muhammad Shahzad

Advocate on Record

Supreme Court of Pakistan

Islamabad

CERTIFICATE

• Certified under instructions that earlier to this, no other Petition were filed by the petitioner against the impugned Judgment dated 29-02-2024 passed by the learned Federal Service Tribunal, Islamabad in Appeal No. 172(R) CS/2023, before this Honorable Court.
• All the clear/legible copies of the illegible documents have been compared word to word and found correct in all respect.

Advocate on Record

Dated: 5.04.2024

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

CPLA No. _______/2024

[Insert Petitioner Name] Ex-LDC Regional Tax Office, University Road, Sargodha Postal Adress: [Insert Petitioner Address]

.……..…..… Petitioner

VERSUS

The Secretary, Revenue Division/Chairman Federal Board of Revenue FBR House, Constitution Avenue, Islamabad & others

.….…..… Respondents

AFFIDAVIT OF     [Insert Petitioner Name] Ex-LDC Regional Tax Office, University Road, Sargodha Postal Adress: [Insert Petitioner Address]

I, the above named deponent do hereby solemnly affirm and declare as under:-

1. That I am petitioner of the case. I may state here that the facts as contained in the accompanying CPLA, are true and correct to the best of my knowledge and nothing material has been kept concealed.

SWORN at Islamabad on this _______day of April          , 2024.

DEPONENT

Verification

 Verification on oath of the _________day of ___________ that the contents of above mentioned Affidavit are true and correct to the best of my knowledge and belief and nothing material has been kept concealed

DEPONENT

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

CPLA No. _______/2024

[Insert Petitioner Name] Ex-LDC Regional Tax Office, University Road, Sargodha Postal Adress: [Insert Petitioner Address]

.……..…..… Petitioner

VERSUS

The Secretary, Revenue Division/Chairman Federal Board of Revenue FBR House, Constitution Avenue, Islamabad & others

.….…..… Respondents

AFFIDAVIT OF SERVICE

Anis Muhammad Shahzad

Advocate on Record

Supreme Court of Pakistan

Islamabad

I, the above named deponent do hereby solemnly affirm and declare as under:-

1. That I did serve the Respondents of my having filed the above noted CPLA against the impugned Judgment dated 29-02-2024 passed by the learned Federal Service Tribunal, Islamabad in Appeal No. 172(R) CS/2023, in the Supreme Court of Pakistan at Islamabad.

SWORN at Islamabad on this    day of March, 2024

DEPONENT

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

CPLA No. _______/2024

[Insert Petitioner Name] Ex-LDC Regional Tax Office, University Road, Sargodha Postal Adress: [Insert Petitioner Address]

.……..…..… Petitioner

VERSUS

The Secretary, Revenue Division/Chairman Federal Board of Revenue FBR House, Constitution Avenue, Islamabad & others

.….…..… Respondents

NOTICE

To,

1. The Secretary, Revenue Division/Chairman Federal Board of Revenue FBR House, Constitution Avenue, Islamabad

2. The Member (Administration), Federal Board of Revenue FBR House, Constitution Avenue, Islamabad

3. The Chief Commissioner, Inland Revenue Regional Tax Office, University Road, Sargodha

Please take Notice that I have today filed CPLA against the impugned Judgment dated 29-02-2024 passed by the learned Federal Service Tribunal, Islamabad in Appeal No. 172(R) CS/2023, in the Supreme Court of Pakistan at Islamabad. 

Anis Muhammad Shahzad

Advocate on Record

Supreme Court of Pakistan

Islamabad

Dated: 5.04.2024

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

CMA No. ________/2024

IN

CPLA No. _______/2024

[Insert Petitioner Name] Ex-LDC Regional Tax Office, University Road, Sargodha Postal Adress: [Insert Petitioner Address]

.……..…..… Petitioner

VERSUS

The Secretary, Revenue Division/Chairman Federal Board of Revenue FBR House, Constitution Avenue, Islamabad & others

.….…..… Respondents

APPLICATION ON BEHALF OF THE PETITIONERS UNDER ORDER-V RULE 2(18) READ WITH ORDER XXXIII RULE-6 OF THE PAKISTAN SUPREME COURT RULES, 1980 FOR SUSPENSION OF THE IMPUGNED JUDGMENT DATED 29-02-2024 PASSED BY THE FEDERAL SERVICE TRIBUNAL, ISLAMABAD IN SERVICE APPEAL NO. 172 (R) CS/ 2023

Respectfully Sheweth:-

1. That the petitioner has filed the above noted Petition against the impugned judgment of the learned High Court before this Honorable Court stating full facts of the case alongwith the law points and the grounds of Petition, may kindly be read and treated as integral part of this application as well.

2. That from the above it is clear that the petitioner has a good primafacie case in his favour and that the Petition is most likely to succeed. It is submitted that if the impugned judgment is not suspended, the petitioner shall suffer irreparable loss and will be put to great hardships.

It is, therefore, respectfully prayed that pending disposal of the case, the impugned judgment be suspended, in the interest of justice.

Anis Muhammad Shahzad

Advocate on Record

Supreme Court of Pakistan

Dated:  5.04.2024

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

CPLA No. _______/2024

[Insert Petitioner Name] Ex-LDC Regional Tax Office, University Road, Sargodha Postal Adress: [Insert Petitioner Address]

.……..…..… Petitioner

VERSUS

The Secretary, Revenue Division/Chairman Federal Board of Revenue FBR House, Constitution Avenue, Islamabad & others

.….…..… Respondents

CONCISE STATEMENT

1. Subject matter & the law The matter is regarding service of the appellant which was terminated vide order removal from service without following the due process of law.

1. II. Actual Controversy: The actual controversy between the appellant was awarded the major penalty of removal from services without providing him an opportunity of hearing and violated the relevant provision of law. The appellant served more than 27 years and this fact was not considered at any stage. The Federal service Tribunal passed a judgment against the appellant on the sole ground of limitation which was not justified.

III. Which side has filed                             The petitioner filed Service Appeal

this petition                                                  before Service Appeal

CERTIFICATE

Certified that I have myself prepared this Concise Statement and that it is found correct.

                                                                                      Anis Muhammad Shahzad

                                                                                    Advocate on Record

                                                                                    Supreme Court of Pakistan

                                                                                    Islamabad

Dated: 5.04.2024

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

CPLA No. _______/2024

[Insert Petitioner Name] Ex-LDC Regional Tax Office, University Road, Sargodha Postal Adress: [Insert Petitioner Address]

.……..…..… Petitioner

VERSUS

4. The Secretary, Revenue Division/Chairman Federal Board of Revenue FBR House, Constitution Avenue, Islamabad & Others

.….…..… Respondents

Court Appealed from:                               Federal Service Tribunal, Islamabad

                                                                 Judgment dated 29/02/2024 passed               in Appeal No. 172 (R)CS of 2023

Counsel for the Appellant:                                         Anis Muhammad Shehzad

Advocate Supreme Court

Advocate on Record

CIVIL PETITION UNDER ARTICLE 212(3) OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973 FOR LEAVE TO APPEAL AGAINST THE JUDGMENT DATED 29-02-2024 PASSED BY THE FEDERAL SERVICE TRIBUNAL, ISLAMABAD IN SERVICE APPEAL NO. 172 (R) CS/ 2023

INDEX

Certified that the Paper book as binded is complete and correct.

Date: 30-03-2020

Anis Muhammad Shehzad

Advocate Supreme Court

Advocate on Record