AKBAR M. MEMON, MEMBER.- Appellant hereinabove, who was lastly working as National Saving Officer (B-16) (under suspension) is aggrieved of the order dated 21.1.1998, whereby he was compulsorily retired from Government service. The appellant after usual formalities filed the present service appeal on 23.6.1998. The order in question is reproduced hereunder:- "WHEREAS Mr. Naeemullah Khan, National Savings Officer BPS-16 (under suspension) was proceeded against under Government Servants (E&D) Rules, 1973 and was served with charge- sheets under RDNS, Hyderabad No. F.2(11-B)Pt-III Admn/90-386, dated 28.1.90 and of even fC2p3726 dated 18.11.1991.
AND WHEREAS, he was served with a Final show- cause notice under No. F. 2 (11-B) Admn/96-998, dated 23.5.199B. The reply to the charges furnished by the accused was examined and found guilty of the charges levelled against him.
NOW THEREFORE the competent authority after having considered the case, has been pleased to impose upon the accused, the major penalty of "COMPULSORY RETIREMENT FROM GOVERNMENT SERVICE" in terms of Rule 4(b)(ii) of Government Servants (E&D) Rules, 1973 with immediate effect alongwith recovery of Rs. 33, 187.50 (misappropriated by him) from the amount of gratuity payable to the accused under the rules."
2. Mr. Hamid Hussain, learned counsel for the appellant has argued that the appellant, who had joined the respondent-Department as LDC on 19.2.1970 had reached the position of National Savings Officer by sheer dint of his merit and hard work and he was posted at Hyderabad where his misfortune started. He has contended that in the year 1995. Mr. Abdul Salam Baloch was posted as Joint Director, Hyderabad Region where the appellant was not able to fulfill his illegal demands due to which the said Joint Director has spoiled his ACR for the year 1987 as Countersigning Officer. On representation the ACR for the period from 1.1.1987 to 31.12.1987 was declared to be invalid vide Central Directorate National Savings, Islamabad letter dated 22.8.1988. He has contended that the misfortune of the appellant did not end there and on 22.4.1989, he was charge-sheeted, which was followed by statement of allegations and Mr. Tariq Awan, was appointed as Inquiry Officer, which was resisted by the appellant by moving application for change of the Inquiry Officer and one Mr. Khuda Bux Leghari was appointed in his place. Thereafter another show-cause notice was issued on 14.12.1987. in the year 1989 vide office order dated 22.4.1989, the authorized officer on receipt of the report in respect of the charge-sheet dated 9.7.1987 exonerated the appellant. Similarly on 19.12.1988, the appellant was exonerated of the show- cause notice issued by Mr. Abdul Salam Baloch; Joint Director on 14.12.1987. The competent authority, however, did not agree with the findings of the authorized officer in respect of show cause dated 14.12.1987, and in exercise of powers as required under rule 6(a) of Government Servants (E&D) Rules, ordered de novo disciplinary proceedings against the appellant and appointed Syed Saleh Shah, Joint Director, Sukkur to act as authorized officer in case of the appellant, who then appointed Mr. Saeed-uz-Zafar as Inquiry Officer, in the meantime, Mr. Abdul Salam Baloch suspended the appellation 10.6.1989, where after the appellant was reinstated, but he was again placed under suspension after lodging of FIR with the FIA. On 28.1.1990, the authorized officer issued the same charge-sheet followed by statement of allegations. On 8.10.1990, the appointment of Inquiry Officer, Mr. Saeed-uz-Zafar was cancelled and Haji Bashir Ahmed Mazari was appointed as Inquiry Officer vide order dated 3.11.1990.
He has contended that the appellant then continuously remained in correspondence with the Inquiry Officer for supply of papers, but the required documents were not supplied. At the same the, he has contended that another show-cause notice was issued on 18.9.1991, which was withdrawn on 19.10.1991. Again a charge-sheet was issued on 18.11.1991, which was containing 4 allegations. The said charge-sheet was followed by statement of allegations. Prior to the issuance of the above charge-sheet, a show-cause notice was issued on 22.2.1991, which ended with the imposition of penalty of 'censure' vide order dated 29.1.1992. in the meantime, the appellant was admitted in hospital and when he was not supplied compete documents, he once again sent a letter on 21.12.1995. The said letter was then followed by several other letters and a telegram but the same were not responded. Inquiry was then conducted by the Inquiry Officer, who held the appellant guilty of all charges, vide report dated 24.4.1996. The appellant was issued final show-cause notice, which was replied and thereafter he was given personal hearing. Again personal hearing was granted to the appellant by the competent authority as well. Thereafter the appellant was compulsorily retired from service oh 22.1.1998 with recovery of Rs. 33, 187.50 from his gratuity. He has contended that the said order was subsequently modified on 24.1.1998 where the recovery was ordered to be made from G.P.Fund balance instead of gratuity. He has contended that the appellant has been victimized as he had levelled allegations against Mr. Abdul Salam Baloch, who was the Joint Director at the relevant the and subsequently the final order was passed by him in the capacity of Acting Director General. He has contended that the Inquiry Officer on whose report the impugned order has been passed had not touched the various aspects of the case. He has contended that various copies of the documents were not supplied and the Inquiry Officer without examining the witnesses, who were material for the just and proper decision, had held him guilty ignoring the fact that the payment of Rs. 33,187.50 was received, which fact is evident from the day book. He has contended that the Inquiry Officer has altogether ignored to verify the record and also ignored to examined the witnesses and had opined that it might be possible that the amount in question was pocketed by the appellant in connivance with the Cashier or some body else from the office. This shows that the Inquiry Officer had not given definite finding about the involvement of the appellant. He has contended that the entire inquiry was based on the letter of the Nazir, High Court of Sind, and according to law of Evidence/Qanun-e-Shahadat, the author of the letter was to be examined as an important witness, but this was not done by the Inquiry Officer, which shows that the very inquiry was conducted in haphazard manner. Even witness, Muhammad Hanif, whom the appellant handed over the charge, was not examined and similarly the objection of the appellant in respect of Inquiry Officer was also not considered. He has contended that the victimization of the appellant is evident as the learned Special Judge Anti-Corruption (Central)
Karachi, while granting pre-arrest bail had observed that there was no evidence against the appellant and it was the sole responsibility of the Cashier who had made payment of the disputed amount by showing the same in the Day Book and when the Cashier/UDC was dismissed from service on the same charge, how the appellant could have been penalized by imposing major penalty of compulsory retirement and so also the recovery of the disputed amount. He has contended that out of 4 charges, 3 charges were not proved and one charge, according to the papers, was proved but the same was without referring the documents and in case the Inquiry Officer would have acted vigilantly and would have examined the witnesses this would not have been the position. Lastly he has contended that inquiry was dragged for more than seven years and in spite of requests complete documents were not shown/delivered to the appellant and instead of accepting such a responsibility, the appellant has been blamed and has been made responsible for using delaying tactics. The levelling of this type of allegation itself speaks of mala fides as the appellant throughout remained under suspension and the poor fellow, who had to support large family could not have done so and on the contrary was eager to get it finalized as early as possible, therefore, the allegations levelled by the department are not sustainable, in such circumstances, Mr. Hamid Hussain has contended that the impugned order is liable to be set aside.
3. Mr. Niaz A. Khan, standing counsel appearing for the respondents, at the very outset, has contended that the record of the appellant itself speaks of his misconduct. He has contended that during the period from 1983 to 1991, 8 charge-sheets and show-cause notice and 4 adverse ACRs reveal that the appellant had not conducted himself as a good civil servant. He has contended that, no doubt, one ACR was expunged, but the others remained in the field. He has contended that the last charge-sheet was based on letter dated 24.5.1989, which was received from the Nazir of High Court of Sind. He has contended that on receipt of the charge-sheet, the appellant did not reply the charge-sheet, right from 1990 to 1996 and throughout he remained non- cooperative and he was in habit of raising objections one after the other. He has contended that rule 6(3) of the E&D Rules was followed and it was not necessary to afford personal hearing at every stage as has been held in PLD 1967 SC 62. At the same the, he has contended that if the witnesses were not examined it would not invalidate the inquiry. Referring to the arguments of learned counsel for the appellant, he has contended that it was not a judicial inquiry so that provisions of rule 7 of the (E&D) Rules should have strictly been followed. He has referred to para 7 of the reply objections and has contended that, assuming for the sake of arguments, the documents were supplied to the appellant after long correspondence and when he got documents in the year 1995, but the inquiry was conducted in the year 1996,. Therefore, the appellant should have confronted the papers, but it was not done and even not a single defence witness was examined. He has contended that no such ground was taken in departmental appeal and this has only been taken during the course of arguments. He has contended that, no doubt, the appellant was exonerated in the first inquiry, but fresh inquiry was ordered by the authority under rule 6 (a) ibid and the authority was competent to do so. On this point, he has placed reliance on 1984 PLC (CS) 659 and 1992 PLC (CS) 952. He has contended that past conduct of the appellant is also to be seen and merely by leveling allegations against superiors, the appellant could not have been able to get himself exonerated of the charge, in support of his contentions, he has placed reliance on AIR 1970 SC 1789. He has contended that the order, which was passed by the authority, was justified and since the same is not a mechanical order the same is liable to be sustained, in such circumstances, he has contended that he supports the punishment and the appeal is liable to be dismissed.
4. Mr. Hamid Hussain learned counsel for the appellant, in reply, has contended that onus of proving the charge was on the respondents, but since they have failed to do so, the same cannot be sustained as it is a case of evidence.
5. After hearing the arguments of learned counsel appearing for the parties we have gone through the appeal file and so also the authorities cited by Mr. Niaz A. Khan.
6. This is a unique case of its nature in which a person, against whom allegations were levelled by the appellant, has finally passed order whereby the penalty of compulsory retirement has been imposed in capacity of "authority." No doubt, the respondents have placed reliance on an Office Memorandum issued by the Cabinet Secretariat (Establishment Division) wherein it is mentioned a senior person who is subjected to indisciplined conduct by his subordinate or junior cannot be said to have become a party in the case" but the way in which the present matter has been dealt with clearly speaks of unusual bureaucratic, which, in our view is based on false ego and so-called prestige. This entire exercise of issuing of charge-sheets, show-cause notices appear to have been started pouring in after 17 years of service of the appellant, who was initially appointed as LDC on 19.2.1970 and till 1987 his record was neat and clean due to which he was finally promoted as NSO (B-16) during the period of 17 years, but when he did not fulfill the illegal demands of the Joint Director. Mr. Abdul Salam Baloch, his ACR was damaged by this very officers as Countersigning Officer in the first instance, which was also declared invalid vide order dated 22.8.1998. Thereafter he was charge-sheeted and inquiry was ordered, in the said inquiry he was exonerated, but the competent authority while exercising revisional jurisdiction under rule 6(a) ordered de novo inquiry whereafter he was again charge sheeted, which was followed by number of charge-sheets and show-cause notices. One of the show-cause notices ended in imposition of penalty of 'censure'.
Thereafter two main inquiries pertaining to the years 1989 and 1990 prolonged on the pretext that the appellant was non-cooperative as he did not file reply to the charge sheets, but record reveals that numerous letter and reminders were sent by the appellant, but the required documents were not supplied to him. Finally some of the papers were supplied in the year 1995 whereafter the inquiry proceeded, it is matter of record that the appellant was placed under suspension in the year 1989 and he was reinstated in the year 1990, but on account of the fact that the matter was referred to FIA and a case was registered against him and one other, he was again placed under suspension. This suspension period continued till the imposition of penalty in the year 1998. Record shows that only once there was extension of the suspension period on 23.1.1990, thereafter no letter notifying the extension has come on record, which is also in violation of the rules. The Inquiry Officer without supplying the complete set of papers and without examining the material witnesses concluded the inquiry and held the appellant guilty of the charge of misappropriation of Rs.
33,187.50, but his findings are to the effect that the payment of profit of Rs. 33,187.50 has already been shown in the record by the accused to have been paid, but it was not paid to the party, which may be in collaboration/connivance of the staff. As against this, the said amount has been shown to have been paid and such entry appears in the Day Book. At the same the, if such an amount was not paid to the party, then under the rules the Cashier had to return back the amount to the Incharge, but this was not done. This aspect of the matter has not been looked into and the only objection which has been raised is to the extent that when the entire amount of the Khas Deposit Certificate was being paid by cheque, then why this amount was paid in cash. For this act of omission, the appellant has been held responsible though the appellant had explained that the cheque was issued earlier and there was no legal bar if the amount was paid in cash as on several occasions amount of profit was paid to Nazir High Court of Sind in cash, through his authorized officer, and in order to prove such payments, the appellant has produced as many as 15 letters of the Nazir High Court of Sind which prove that the profit was received by the authorized officer on number of occasions, it is worth mentioning here that when criminal case was registered against the appellant and one other by the FIA, the learned Special Judge Anti- Corruption (Central), while granting interim pre-arrest bail, had observed that no material was available against the appellant and it was the sole responsibility of the Cashier, who was to make payment of the said amount to the officer duly authorized by the Nazir High Court of Sind. Subsequently this Cashier, namely, Sakhawat Hussain, was dismissed from service, then too, not only the penalty of compulsory retirement was imposed, but, at the same the, recovery of the said amount has also been ordered to be made from the GP Fund of the appellant.
7. No doubt, there were two charge- sheets, one was in respect of misappropriation of Rs. 33, 187.50 and the other one was containing four allegations, which were proved during the course of inquiry by the Inquiry Officer, but the authorized Officer did not agree with the Inquiry Officer and charges (a), (b) & (c), according to him, were not established whereas one charge of inefficiency whereby the appellant/accused officer while posted at NSC-NS House, Karachi during the year 1982 had paid Rs. 2,400/- on different NDAS during the shut period by violating the standing instructions, was proved and on these two charges, the impugned order was passed, but the fact remains unresolved as to whether the Inquiry, which was conducted in respect of first charge-sheet dated 28.1.1990 and the inquiry conducted in respect of said charge-sheet was, in fact, based on documentary evidence or was an act of victimization. As discussed above, neither the appellant was not provided complete documents nor the material witnesses were examined and even the relevant record was not verified by the Inquiry Officer as is evident from the minutes of personal hearing produced on 1.9.1996 where the Departmental Representative had given an undertaking to produce certain documents, but this was not done. Even the observation of learned Special Judge, Anti-Corruption (Central) was not taken into consideration, which shows that the inquiry was conducted in haphazard manner and when on the same charge the Cashier was dismissed from service, the appellant could not have been dealt with in a way which he has been dealt with. This clearly shows that the Inquiry Officer was biased/prejudiced, as such, it is a clear case of victimization. Summary, available on the file with the parawise comments as Annexure-III, page 208, shows that the authorized officer had recommended for imposition of penalty of reversion from B-16 to 14, but here again the bias and prejudice Mr. Abdul Salam Baloch was on the peak and he while disagreeing with the authorized officer, imposed the penalty of compulsory retirement knowing well that the appellant had levelled allegations against him when he was Joint Director and he himself had spoiled the ACR of the appellant in the year 1987 in capacity of Countersigning Officer. This shows that the authority has acted as a Judge of his own cause, which is against the spirit of natural justice. When the very findings of the Inquiry Officer and the entire structure raised thereon were based on an order which was passed on conjectures and surmises, the same cannot be sustained as it was not done on the basis of proper verification of record and without examining the material witnesses. Under these circumstances, we will not be in a position to maintain the order passed by the respondents. Accordingly impugned order is hereby set aside and the respondents are directed to reinstate the appellant with all back benefits from the date of passing of the impugned order without recovery of amount of Rs. 33, 187.50. in case the appellant has reached the age of superannuation, then too, he is entitled to get benefits till that particular date from the date of passing of the impugned order.
8. Under these circumstances, there will be no order as to costs. Parties concerned be informed accordingly.
9. Before parting with the order, we feel it our duty to bring it on record that the poor appellant was compelled by the circumstances to remain under suspension and had faced the torture and agony of litigation for 8 years during which period he was beseeching the respondents to supply papers for submitting reply so that the inquiry be concluded, but on account of departmental victimization he was supplied incomplete papers after the lapse of over five years and on this score, we intended to compensate the appellant by directing the authority to pay a substantial compensation from his personal pay, but since it has come to our knowledge that the authority viz Mr. Abdul Salam Baloch, has retired from service, as such, we refrain from passing such order and we are sure that to the compliance of the order, already passed by us, will be made in letter and spirit.