' Through this common judgment, I intend to dispose of Appeal 167 of 2005 brought by Muhammad Boota Javed, former Store Keeper and Appeal 168A of 2005 by Muhammad Hanif, former Accountant, both employed in the office of District Health Officer, Sahiwal, as common questions of fact and of law arise and further the charges and allegations being similar and identical.
2. Both the appellants are aggrieved by the order dated 22-12-2004 whereby their review petition was dismissed by the competent Authority maintaining the penalty of compulsory retirement from service vide order dated 26-4-2004 while proceeding under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000.
3. The District Health Officer, Sahiwal, a co-accused was awarded penalty of withholding of increments for two years being indicated of identical charges. Appellants while working as Store Keeper and Accountant respectively in the office of the District Health Officer, Sahiwal were served with the charge-sheet and following statement of allegations:- ' Failed to discharge your official obligations in. Connivance with Dr. Abdul Sattar, DHO, Sahiwal, you attempted to defraud the public exchequer by:--
(a) Getting six bogus bills to the tune of Rs.20,00,000 on account of purchase of medicines and other articles, passed from the treasury.
(b) Giving bogus certificates on these original bills that:--
(i) Medicine/items purchased and received in good condition as per specification.
(ii) Medicine/items purchased and entered by the Store Keeper (M) on the stock register.
(iii) Medicine purchased by the sanction of DHS and according to the instructions of DHS mentioned in sanction orders.
' With mala fides intention/ulterior motives whereas actually the medicines/articles were not received.
(c) Not recording these certificates on the "Office copies" of these bills.
(d) Not fulfilling codal formalities and at higher rates. Hence this statement of allegations against you."
' Appellants denied the charges and stated that they have also, been involved in criminal case registered vide F.I.R. 46 of 2000 under sections 409/240/418/471 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, in which the Investigating Officer at the close of the investigation vide opinion dated 17-10-2000 did not find the criminal case to endure the rigours of trial by the Special Judge, Anti-Corruption, rather opined that judicial action under the relevant disciplinary proceedings be taken against the appellants. As regards the point-wise denial of the charges, it was stated by both the appellants that the District Health Officer, Sahiwal, a co-accused wanted to utilize the maximum budget for the year 1999-2000 as per directions of the Government and in pursuit of his desire, they were ordered to record his report and follow the formalities well in advance, the reason being that the bills be passed before 30-6-2000 to avoid lapse in the budget. Appellants stated that they were directed to record their remarks on the bills that the medicines have been received, once again a statement to save the District Health Officer, Sahiwal from the irregularity of not utilizing the budget at their disposal, although in reality, the medicines had not been received. However, letters were addressed to the pharmaceutical companies and on their assurance that the medicines would be supplied, the remarks were made on the bill. As regards charge (b), it was stated that the companies at the last moment failed to provide the consignment which caused embarrassing situation as the bills were passed after removal of objection before 30-6-2000, but since medicines were not delivered on 1-7-2000, a request was made by the District Health Officer, Sahiwal for cancellation of the bills, which was duly done and no loss was caused to the Government as neither the medicines arrived nor the amount was expended. The Inquiry Officer in his inquiry report which covered 10 pages, filled the inquiry report with irrelevant repetitions by giving the background repeating the charge-sheet which was identical to all the three co-accused, once again rewriting their replies which were also identical and fianally giving his conclusions, parawise without lacing it with any reasons or concrete and tangible evidence or proof either in the form of oral or documentary evidence. The Inquiry Officer recommended penalty of reduction to a lower stage in a pay scale ,upon. Dr. Abdul Sattar, District Health Officer, Sahiwal and penalty of dismissal from 'service upon the appellants. The hearing officer designated by the Authority in the final paragraph observed as under:- "However, keeping in view the previous record and general reputation of former District Health Officer, and the fact loss to the financial exchequer was prevented, it would be suffice to meet the ends of justice by compulsory retiring accused persons from service (the accused persons meant the two appellants and the District Health Officer, Sahwial)."
' The Authority however imposed the penalty of withholding of increments for two years upon Dr. Abdul Sattar, District Health Officer Sahiwal and proceeded to compulsorily retire the appellants.
The said order has been assailed in the instant appeal.
4. Learned counsel for the appellants contended that the bills for the purchase of medicines were submitted to the District Health Officer, Sahiwal who demanded the procurement of Non- Availability Certificate by the. Health Department, which was the sole responsibility of the District Health Officer, Sahiwal, who failed to fulfill the same, as such the non-supply of medicines from the Pharmaceutical Companies which was shown to, have been received only made the District Health Officer, Sahiwal liable and that responsibility could not be shared by the appellants as they were petty officials. It was also submitted that no loss to the Government exchequer having been caused, and the whole exercise undertaken by all the accused was to save themselves from the lapse of the financial budget, which usually is the practice in all the Government -Departments at the fag end of the financial year. Lastly, it was contended that although the charges against all the co-accused were identical and the appellants acted on the orders of the District Health Officer, in the matter of penalty, ranks discrimination was meted out while imposing upon the main accused.
The District Health Officer a minor penalty, the appellants working under the main accused were given a doze of major penalty of compulsory retirement, which offended the equality clause of the Constitution of Islamic Republic of Pakistan, 1973. Learned District Attorney on the other hand, with his usual candour, stated that the charges were framed on the complaint of the Army Monitoring Team and were blown out of all proportions as the exercise, which resulted in alleged misconduct was undertaken out of a desire to save oneself from the irregularity of non-utilization of the financial budget, rather of any mala fide intent.
5. I have heard the arguments at length and also perused the record.
6. While hearing the arguments, a letter dated 10-6-2000 issued by the Director Health Services Multan Division addressed to all District Health Officers in Multan Division as placed on record and the directions given in the last paragraph are pertinent to be reproduced:-- "You were further directed to ensure 100% utilization of modified grant and no fund should be lapsed on 30-6-2000. ' In case of non-compliance of above instructions, the Drawing and Disbursing Officer will be directly and personally held responsible in this respect."
' The core intent of all the rigma-role, which led to the framing of the charges, is the reproduced directions of the Director Health Services, Multan Division. It was to escape any liability that hurriedly documents were prepared which all the accused admitted to have done it, bills were passed from the District Accounts Officer, Sahiwal, however, the medicinesdid not reach its destination as the companies filed to deliver it, and in order to save themselves from the said wrath, the misstatement was made that the medicines had been received. If there was any mala fide intention on the part of the appellants, they would not have got the bills cancelled on 1-7-2000 from the District Accounts Officer, Sahiwal, coupled with the fact that the letter dated 15-7-2000 signed by the District Health Officer, Sahiwal addressed to the Secretary Health, Government of the Punjab, Lahore urging to blacklist the firm by the name of Dan Villey lets the cat out of the bag. No doubt the mis statements were made by all the accused and facts were written, which were not according to ground reality, and later on, in order to save their skin, each one of the accused indulged in mud slinging to throw blame on each other. This was not at all necessary as basically, the state of mind, which is known as mens rea in criminal law was apparently missing, which is quite obvious and manifested by the subsequent conduct already observed. I must say so with regrets that the Inquiry Officer tried to save the District Health Officer, Sahiwal by imputing acts of misconduct on the part of the appellants in the absence of any tangible evidence to support it. This attitude is not only deplorable, but also condemned in law.
7. Since some facts were wrongly stated, as observed, to escape liability, therefore imposition of penalty becomes necessary. The penalty imposed upon the District Health Officer, Sahiwal of withholding of two increments was the most appropriate penalty in the given circumstances of the case. However, compulsory retiring the appellants was out of all proportions to the gravity of the misconduct committed. The Tribunal has observed time and again that the charges were identical and so was the acts performed by all. Therefore, I must say so that'in the matter of imposition of penalty, discrimination has been practised. To restore parity, I in the best of my judgment convert the penalties of compulsory retirement to withholding of two increments to be imposed upon the appellants by partly accepting their appeals. The order of the Authority dated 22-12-2004 and 26- 4-2004 is modified accordingly. Appellants shall be reinstated in service, but only if they return the pensionary benefits which they might have derived as a result of the_ imposition of penalty of compulsory retirement. However the intervening period between the compulsory retirement and reinstatement*shall be treated as extraordinary leave without pay as at no stage ,he appellants even adverted to the fact that they did not work for gain with any other employer or engage themsselves in any lucrative business during the interregnum. There shall be no order as to costs.