' JUSTICE (RID) ABDUL GHANI SHAIKH (CHAIRMAN).---The facts in, nutshell are that appellant while working as a District Food Controller was served with a show-cause notice dated 26-11-1998 by the Director Food Sindh/Authorized Officer under the Sindh Civil Servants (E&D) Rules, 1973. The details of misconduct are as under:
1. That as per policy/procedure wheat stocks dispatched within and . Outside the District are to be reconciled immediately.
2. That as per report of Mr. Lashari dated 31-8-1998, you while working as District Food Controller, Khairpur did not reconcile the wheat stocks of crop 1996-97 in time which gave free hand to transporters for indulging in misappropriation.
3. That due to your slackness/negligence in reconciliation in time, huge shortage/misappropriation has taken place.
4. That you issued a bogus certificate dated 14-1-1997 to Rab Dino contractor that his work is satisfactory and no Government dues are outstanding against him. However, the 9052 bags were reported short. You being District Food Controller should have verified the dispatches etc., before issuing no due certificate.
5. That you attested the specimen signature of Rab Dino Contractor and his representative Mr. Atta Muhammad and forwarded to Zone Chief PASSCO who arranged dispatches knowing that he was Chowkidar of Food Department.
6. That you were asked by Deputy Director Food Sukkur vide letter dated 28-1-1997, 17-2-1997, 14-3- 1997 and 3-4-1997 to initiate action against Rab Dino and Sardar Contractor for misappropriation of 6435 wheat bags but no action was taken by you against them though you were reminded time and again.
7. That during lifting of stock from 12-12-1996 to 8-1-1997 a contractor Mr. Rab Dino was inducted in order to accelerate the pace of lifting. You being District Food Controller did not obtain security deposit of Rs.50,000 as required under the policy and no agreement was executed.
8. That as per letter dated 15-1-1997, Zonal Head PASCOO, stocks of 21710 bags were dispatched to Sukkur Food Office, whereas the District Food Controller, Sukkur intimated arrival of 12659 bags.
Thus 9052 bags were received short. The Deputy Director Food, Sukkur vide his letter dated 28-1- 1997 asked you to reconcile the stocks, make recovery from Contractor/officials and in case of failure hand over the case to ACE, but no action was initiated by you.
9. That you are as such guilty of misconduct and negligence."
' In his detailed reply, appellant denied the allegations vehemently and explained his position, which was not found satisfactory. He was served with final show-cause notice dated 26-2-2000, which too was replied by him and again controverted the allegations. Finally, vide Notification dated 4-9-2000, he was awarded major penalty of 'Removal from Service' by Respondent No.1 Feeling dissatisfied, appellant preferred departmental appeal to the Respondent No.2 and on getting no response within stipulated period, he preferred the instant appeal before this Tribunal.
2. While supporting the impugned action, Respondent No.1 in his written statement which is also adopted by Respondent No.1. Stated that on appearing a news item in daily 'Umat' dated 29-8- 1998 regarding misappropriation of Government wheat stocks in Sukkur Food Region, an enquiry was conducted through Mr. Mushtaque Ahmed G. Lashari, Additional Director Food, who in his report dated 31-8-1998 reported en-route shortage/misappropriation of 9876 wheat bags by M/s. Sardar Ali, Rab Dino, Ali Muhammad and Muhammad Ali Shah Transport Contractors because District Food Controller, Khairpur/Sukkur and Centre Incharge could not reconcile wheat dispatches of Crop 1996-97 in time which gave free hand to Transport Contractors for indulging in misappropriation. Further, it is averred in the written statement that appellant being the District Food Controller was fully responsible for such huge shortage of wheat bags, therefore, he was rightly awarded major penalty after observing all the legal formalities as per the Sindh Civil Servants (E&D) Rules, 1973.
3. In support of the appeal, learned counsel for the appellant contended that as per impugned punitive order, the Authorized Officer had simultaneously recommended two punishments i.e. I)
Reduction in rank for a period of 6 months, and Removal from Service, which is against the mandatory provisions of the Sindh Civil Servants (E&D) Rules, 1973. He stated that although in the impugned order it has been mentioned that charges against appellant were of serious nature yet no regular enquiry, as required by law, was conducted rather ordered and instead a short cut procedure was adopted, which is against the canons of justice. Further, it is argued that appellant was awarded major penalty on the basis of fact-finding enquiry report furnished by Mr. Mushtaq Ahmed G. Lashari, Additional Director Food which has no legal value in the eye of law as the same was conducted behind the appellant who at no stage was called to participate in the said so- called ex parte proceedings. On merits, learned counsel for the appellant while referring to the enquiry report furnished by Mr. Mushtaq Lashari and the comments of Deputy Director Food submitted to the Director Food, Sukkur dated 25-11-2000, has argued that appellant had neither misappropriated wheat bags or its amount nor gave free hand to anyone to misappropriate the same, the appellant was held responsible only for not reconciling dispatches of wheat in time, which in no way tantamount to misconduct as defined in Sindh Civil Servants (E&D) Rules, 1973. He argued that the impugned penalty is illegal and ultra vires is not maintainable may be set aside. In support of his contentions he relied upon, (i) 1990 PLC (C.S.) 313, (ii) 1996-SCMR 240, (iii) PLD 1994- SC 222, (iv) 1997 SCMR 1543; (v) 2001 SCMR 1566; (vii) 2000 PLC (C.S.) 1252 and (vii) 1992 PLC (C.S.)
1199.
4. In rebuttal, learned Asstt. A.G submitted that there was ample documentary evidence against the appellant to connect him with the allegations of misconduct levelled against him in the show- cause notice and that under rule '5(3) of the Civil Servants (E&D) Rules, 1973, the authorized officer was competent to dispense with a regular inquiry, thus he committed no illegality or irregularity in dispensing with a regular enquiry and that it is not necessary that in each and every case there must be a regular enquiry, the same depends on the facts of each case. He stated that appellant was served with show-cause notice containing series of misconducts and he was given ample time to defend his cause, his reply was considered by the department in the light of the enquiry report of Mr. Lashari which was not found satisfactory and the appellant was served with final show-cause notice so also he was afforded personal hearing, thus all the formalities as required by the Rules were fulfilled/complied with. Lastly, he urged that appellant was found guilty of misconduct and was rightly awarded major penalty of Removal from Service which being legal and proper in the circumstances of the case be maintained.
5. We have considered the above submissions, perused the material placed on the record by both the parties and have gone through the case-law referred to by the learned counsel for the appellant.
6. Admittedly, the authorized officer had recommended major penalty of "Reduction in rank for a period of six months" against the appellant. The Authority, however did not agree with the recommendation of Authorized Officer and awarded major penalty of "Removal from Service" to the appellant on the ground that in the final show-cause notice issued to the appellant, the Authorized Officer had proposed to recommend major penalty of "Removal from Service" and further that the charges were of serious nature which also involves moral turpitude. Be that as it may, the Authority was supposed to act fairly, justly and in a manner which does not violate the principles of natural justice. Though both the penalties viz "Reduction in Rank" and "Removal from Service" are major as defined in the Sindh Civil Servants (E&D) Rules, 1973, but the latter penalty is more harsh than the former penalty and if the Authority intended to impose penalty more harsher than as recommended by the Authorized Officer, it had to issue notice to the appellant to enable him to explain his point of view, but this was not done.
7. The main allegation against the appellant was that due to his slackness/negligence in reconciliation of wheat stocks in time, huge shortage/misappropriation of 9876 wheat bags had taken place, which .Allegation was of serious nature as admitted by Authority itself in the impugned order, therefore, it was not a case of adopting summary procedure but holding of a regular enquiry as necessary. The Honourable Supreme Court of Pakistan in the case of Nawab Khan v.
Government of Pakistan PLD 1994 SC 222, after referring/relying number of cases on the subject had observed that: "An authorized officer has discretion to decide, whether in a disciplinary proceedings against a civil servant in response to his reply to the charge-sheet, a regular inquiry should be held or not. The above discretion is not controlled by any precondition or guideline but nevertheless this discretion like all other discretions is to be exercised fairly and reasonable and not arbitrarily or capriciously with the object to deny the civil servant the right of fair defence. So if the charge is founded on admitted documents/facts, no full-fledged enquiry is required but if the charge is based on disputed questions of fact, a civil servant cannot be denied a regular inquiry, as the same cannot be resolved without recording evidence and providing opportunity to the parties to cross-examine the witnesses. In such a matter if findings of facts are recorded without recording any evidence the same will be based on surmises and conjectures, which will have no evidentiary value as to warrant imposition of any punishment on the civil servant concerned."
8. In the instant case, the appellant in his reply to the show-cause notice vehemently denied the allegations of slackness, negligence, misappropriation, shortage, issuance of bogus certificate etc. In this view of the matter, the procedure adopted in holding the preliminary enquiry and dispensing with regular enquiry was not warranted by law and was contrary to law. In a recent case of Abdul Qayyum v. D.C. Project Management Organization, JS HQ. Rawalpindi and 2 others, 2003, PLC (C.S.)
353, the Honourable Supreme Court of Pakistan has observed that:-- "The perusal of record shows that the preliminary inquiry was held only for the purpose of collecting the evidence in support of the allegations for holding a regular inquiry under the Government Servants (E&D) Rules, 1973. The serving of charge-sheet with a statement of allegation to the petitioner was necessary under the Rules to provide him a fair opportunity to submit reply to the charges. He was also entitled to cross-examine the witnesses and produce evidence in rebuttal in the regular inquiry and on the conclusion 'of the inquiry, the competent Authority in the light of the evidence and the findings of Inquiry Officer, could pass an appropriate order but the respondent Without observing the procedure of inquiry awarded major penalty of dismissal from service to the petitioner on the basis of preliminary inquiry. This is correct that the requirement of regular enquiry can be dispensed with in exceptional circumstances but if the recording of evidence is necessary to establish the charge, the departure from the requirement of regular enquiry under the rules, would amount to condemn a person unheard."
9. The appellant was served with a show-cause notice on the basis of fact-findings enquiry said to have been conducted by Mr. Mushtaq Ahmed G. Lashari, Additional Director Food, wherein the appellant was not associated but it was conducted behind the back of appellant and even the copy of said enquiry report was not supplied to him. In these circumstances, the removal of appellant from service on the basis of consideration of his written reply and personal hearing could not be held to be a valid exercise of power by the Authority.
10. The upshot of the above discussion is that the impugned Notification dated 4-9-2000 removing appellant from service issued by Respondent No.1 is set aside. The appeal is allowed. The department is however, at liberty to initiate fresh disciplinary proceedings against appellant according to law/Rules. The appellant is directed to be reinstated in service. The intervening period be treated as 'Leave if due'. In the circumstances of the case, we make no order as to costs.
11. Announced in open Court.