' JUSTICE (RTD.) ABDUL GHANI SHAIKH (CHAIRMAN).- both these appeals involve common question of facts and law were heard together and are being decided through this common judgment.
' The facts, necessary for the purpose of disposal of these appeals are that appellant Muhammad Usman Mari was Incharge Sub-Bulk Depot, Sindh Agricultural Supplies Organizatioon (S.A.S.O.) Kunri District Umerkot while appellant Abdul Qudoos was Palledar/Chowkidar at said Depot. On account of complaint of misappropriation, adulteration and shortage of stocks at the Sub-Bulk Depots, appellant Muhammad Usman, and appellant Abdul Qudoos were transferred. Appellant Muhammad Usman Marri was directed to hand over the charge to his successor but he failed and absented himself. Therefore, in order to check .The stocks lying at the depots under the charge of appellant Muhammad Usman Marri, the services of Mr. Mitharam, Mukhtiarkar/First Class Magistrate, Kunri were acquired and in his presence the locks of the depots were broken open and such mashirnamas were prepared. During inspection, S.A.S.O. Stock valuing Rs,24,58,646 was found short, detailed as under:- {{TABLE}} DAP 40.32 bags 21,57,120.00 SOP 545 bags 2,99.750.00 N. Phos. 16 bags 1,776,00 23:23 (damaged)
24,58,646.00 Besides, the following stock was found in excess which does not belong to S.A.S.O.
1. TSP 2 bags
2. DAP 1446 bags (Stony powder and underweight)
3. Gypsum (filled) in 557 bags S .0.P Bardana
4. Suspicious (filled) 177 bags in DAP Bardana) {{TABLE}} ' Accordingly both the appellants were served with separate show-cause notices dated 18-11-1998 issued by the District Agriculture Supplies Officer, S.A.S.O. Mirpukhas, alleging that. They in collusion with each other misappropriated the S.A.S.O. Stock. Both appellants in their respective replies denied the allegations vehemently and while explaining their position they levelled certain allegations against their higher-ups, particularly against Mr. Akhtar Hussain Memon, District Agrl, Supplies Officers and Mr. Ghulam Muhammad Leghari, Deputy Director, S.A.S.O. Their replies were not found satisfactory and they were served with final show-cause notice(s), which too they replied and reiterated their earlier stand. However, by common order dated 4-3-1999, they were awarded major penalty of dismissal from service and recovery of losses sustained' by S.A.S.O. They preferred departmental appeal(s) which were rejected by the Authority and such rejection order was communicated to them separately through letter dated 1-5-1999. They have now invoked the jurisdiction of this Tribunal through these appeals praying for setting aside the impugned orders and for their reinstatement is service.
2. In support of appeals, learned counsel for the appellants submitted that allegations levelled in the show-cause notice were false and baseless and despite the fact that appellants denied the same vehemently no regular departmental enquiry was ordered/conducted and in view of settled law the imposition of major penalty without conducting regular enquiry being illegal, ab initio null and void is liable to be set aside. Further, he contended that both, the appellants were very much present at the depots and they themselves offered to hand over charge and that the charge of some depots were properly hand over after physical varification of the stock and that there was no shortage at all. Learned counsel while, referring to the mashirnama of the stocks of SASO prepared by the Mukhtiarkar/F.C.M. Kunri, argued that the same were not prepared in presence of the independent witnesses and thus lost its validity and sanctity and cannot be made basis for awarding major penalty to the appellants. Next, he argued that the original impugned order of dismissal from service is based upon the findings of the fact finding enquiry conducted by the Officers who were inimical to the appellants and they themselves played a vital role in misappropriating the S.A.S.O. Stocks and put blame on the appellants and that major penalty on the basis of fact finding enquiry under the settled law cannot be sustained and liable to be set aside. Lastly, he stated that so far appellant Abdul Qudoos the Chowkidar of S.A.S.O. Is concerned, there is nothing adverse against him and no allegation of misappropriation of S.A.S.O. Stock was made against him and that in the absence of any incriminating material, he cannot be held guilty.
3. On the other hand learned counsel for respondent fully supported the impugned orders. He submitted that there is ample convincing and reliable evidence against the appellants that they in collusion with each other misappropriated huge stock and put S.A.S.O. In heavy losses. The enquiry was conducted by Mr. Ghulam Hussain Memon, Director, Agricultural Extension Sindh, Hyderabad under the directions of the Secretary, Government of Sindh, Agriculture Department, Karachi, who was independent and impartial officer. Learned counsel further submitted that as a matter of fact, appellant Muhammad Usman Marri had accepted his guilt of misappropriating the S.A.S.O. Stocks and he showed his willingness to deposit the amount of stock found short and that in his application dated 18-3-1996 addressed to District. Agricultural Supply Officer, Umerkot, he admitted that he supplied the S.A.S.O. Stock i,e, fertilizer/seed to local dealers on loan and on receipt of its amount he deposited the same in S.A.S.O. Account through separate pay slips dated 27-2-1996 and 10-3-1996. In the end, he submitted that from the defalcated amount of Rs,24,58,646 the appellant had deposited Rs,5,83,274 at S.A.S.O. Account through challans dated 16-4-1996 and 17- 4-1996 and further showed his willingness to deposit the remaining amount within weeks time but failed, therefore, in view of the admitted fact there was no necessity of further enquiry. In support of his contention, he relied upon: (i) 2002 SCM R 684, (ii) 2002 SCM R 886, (iii) 2003 SCM R 41, and (vi)
2003 SCM R 367.
1. We have considered the above submissions, minutely perused the material placed on the record and have gone through the case-law referred to above.
2. There is no denial of the fact that appellant was Incharge of Sub-Bulk Depot, Kunri where the stock of fertilizer, seed etc. Worth millions of rupees was lying in the depots. His duty was to sell the said products/stock to the agriculturists and growers of the area as per Government fixed rates and was required to deposit its sale proceeds in S.A.S.O. Accounts. If there was any shortage, defection illegal sale, adulteration etc., it was the appellant Muhammad Usman Marri to account for and explained his position. It appears from the perusal of record that there were large number of complaints of misappropriation of S.A.S.O. Stocks at almost all sale depots of defunct-District Umerkot. In order to check the stocks a Board was constituted to inspect the sale depots. The members of the said Board also vested sub-Bulk Depots of which the appellant Muhammad Usman Mari was Incharge but he was always found absent. It was for that reason that he was transferred with a direction to hand over the charge to his successor Mr. Abdul Jabbar Solangi, but instead of doing so he absented himself. The stocks, therefore, were checked by Mr. Akhtar Hussain Memon, District Agricultural Supply Officer, S.A.S.O., Umerkot in presence of Mr. Mitharam, Mukhtiarkar and F.C.M. Kunri. During which stock valuing Rs,24,58,646/- was found short, besides some other stock was lying in excess. Appellant Muhammad Usman was served with show-cause notice in reply thereof he instead of showing plausible explanation of shortage of stock, levelled allegations against his higher-ups. Perusal of the record reveals that appellant was in habit of misappropriating the S&SO stock of seed and Fertilizer etc., 'In his own application dated 18-3-1996 addressed to District. Agricultural Supply Officer, Umerkot he admitted in clear terms that he had sold large number of bags of T.S.P. And D.A.P. To local dealers on credit basis in order to increase the sale and that as and when he received payment he used to deposit the same in S.A.S.O.
Account. According to his own admission, he deposited an amount of Rs,82,900 and 1,65,800 being the value of 600 bags of T.S.P. In S.A.S.O. Account through pay Slip Nos.12930 and 12931 dated 27-2- 1996 so also an amount of Rs,12,320 through pay Slip No,01522 dated 10-3-1996 being sale price of 22 bags of D.A.P. Sale of Government/S.A.S.O. Stock on credit basis without prior permission or approval of the higher-ups by itself is sufficient proof that appellant Muhammad Usman committed serious misconduct calls for major penalty.
' In the instant case, the stock valuing Rs,24,58,646 was found short from the depots under the charge of appellant Muhammad Usman and when this shortage was pointed out to him, he deposited an amount of Rs,5,83,275 through two separate challans dated 16-4-1996 and 17-4-1996.
An amount of Rs,1,51,200 was again deposited by him vide Challan No,0152913 on 20-5-1996, thus out of total defalcated amount of Rs,24,58,464, he had deposited an amount of Rs,7,34,474 as is evident from the enquiry report of Mr. Ghulam Hussain Memon, Director General, Agricultural Extension Sindh, Hyderabad submitted to the Section Officer (A-II), Government of Sindh, Agriculture Department, Karachi vide Letter No,DG/Enquiry/494/1997 dated 26-6-1997. Appellant Muhammad Usman has neither challenged the veracity of said enquiry report nor alleged any foulplay against Mr. Ghulam Hussain Memon. The deposit of sumptuous amount by appellant after detection of heavy shortage of S.A.S.O. Stock at the bulk depots of which he was Incharge is an ample proof of his involvement in defalcation/ misappropriation which tantamount to admission of guilt. It is by now a well-settled principle of.Law that in presence of the admission of guilt, there was no necessity of holding any formal enquiry against the civil servant concerned. Reference is invited to the case of Akbar Khan v. Federation of Pakistan and others, (2002 SCM R 684), wherein some other reported judgments of our Apex Court were also referred. In another recent case of Shamshad Ali v. Senior Postmaster (DELY), Islamabad G.P.O. 2003 SCM R 367, it has been observed that in presence of the overwhelming evidence coupled with civil servants own admission, holding of regular enquiry was not necessary.
3. So far appellant Abdul Qudoos is concerned the allegation against him is that he being Palledar/Chowkidar at S.A.S.O. Bulk Depots was in collusion/league with appellant Muhammad Usman Marri. However, as it appears from the Tecord made available before us, except allegation of his being in collusion with main culprit. Muhammad Usman Marri, there is nothing against him which connects him with the commission of the offence. Neither there is any allegation that he received the stock nor that he was Incharge of any of Sub-Bulk depot nor there any other tangible proof that with help, aid and assistance the huge stock of S.A.S.O. Was misappropriated. In view of the material available on record appellant Abdul Qudoos appears to be innocent.
4. For what has been discussed above, we are of the considered opinion that appellant Muhammad Usman Marri was rightly awarded major penalty of dismissal from service and recovery of pecuniary loss sustained by S.A.S.O. Accordingly, his Appeal No,155 of 1999 is dismissed.
So far appellant Abdul Qudoos (Appeal No,156 of 1999) is concerned he is found innocent.
Accordingly, Appeal No, 156 of 1999 is allowed. The impugned order dated 4-3-1999 and 1-5-1999 are partly maintained to the above extent. Appellant Abdul Qudoos is directed to be reinstated in service. His intervening period be treated as 'leave if due'. There shall be no order as to costs.
5. Announced in open Court.