' ABDUL RASHID BALOCH (MEMBER)---The above captioned three (03) appeals are identical in nature, involving similar facts and points of law, and are thus disposed of through single judgment, mainly being recorded in Appeal No.295(K)CS/2002 (Abdul Malik versus the President of Pakistan and others).
2. The appellant joined the Central Directorate of National Savings (CDNS) on 20-12-1981 as UDC.
While serving at' Rizvia National Saving Centre Karachi he was issued charge-sheet dated 3-7-2001 by respondent No.3 that during his posting there, a fraud had been committed to the tune of Rs.67,50,000 by Syed Furon Raza DNSO with has connivance. He submitted reply thereto on 7-8- 2001 to respondents Nos.3 and 4, denying the allegations. The Inquiry Committee consisting of respondents Nos.5 and 6 conducted an inquiry and recorded the statements of witnesses etc. And submitted the report. The respondent No.3 issued Show-Cause Notice on 27-10-2001 along with the Inquiry Report dated 18-8-2001. He submitted application dated 10-11-2001 to respondent No.4 for supplying the copy of relevant journals dated 11-1-2001 to enable him to submit reply to show- cause notice but the same was declined by the said respondent latter dated 21-11-2001. Thereafter, the appellant tendered his reply on 11-12-2001, rebutting the charges levelled against him. The appellant, in compliance of respondent's letter dated 6-4-2002, appeared for personal hearing on 9-4-2002, and explained his case. Consequently he was imposed major penalty of Removal from Service vide order dated 19-4-2002, under Removal from Service (Special Powers) Ordinance, 2000.
He submitted departmental representation on 3-5-2002 to respondents and having no response thereto within statutory period, he preferred the IA instant appeal in this Tribunal.
3. The learned counsel for the appellant assailed the appeal. He stated that the respondent No.3 had not appointed the Authorized Officer in the matter and as such the imposition of major penalty suffered from grave irregularity. He further stated that the findings of the Inquiry Committee were based on hearsay evidence, which could not warrant the punishment in question. According tg him, as the appellant carried BPS-7, respondent No.3 was not the prescribed Authority and Competent Authority in his case was an officer of BPS-18, as such the disciplinary action suffered from inherent legal infirmity and liable to be set aside. He contended that the statements of the appellant as well as the witnesses were recorded by respondents Nos.5 and 6 under coercion, were not admissible and did not call for any punishment. He further contended that fraud, if any, was committed by Mr. Furqan Raza, Incharge of National Saving Centre (NSC) who admitted his guilt and deposited the defrauded amount with the respondent-Department and the appellant was in no way involved in the scam except he was the subordinate of the former. He argued that major punishment of Removal from Service awarded to the appellant was even otherwise harsh and improportionate to the alleged nature of guilt. He argued that the inquiry was conducted by way of question and answer form, which was not permissible in evidence. He referred to 1999 PLC (CS)
1187, 1994 PLC (CS) 477, 1995 PLC (CS) 32 and 116, 1977 PLC (CS) 657, PLD 1980 (SC) 22, 1981 PLC (CS)
277,and 825, 1982 PLC (CS) 249, 1983 PLC (CS) 171, 1986 SCMR 30, PLD 1965 Lah 279, 1984 PLC (CS)
1397, 1986, PLC (CS) 253 and 308, 2000 PLC (CS) 1285, 1997 SCMR 1581, 1988 SCMR 691, 2002 SCMR 857, 1996 SCMR 802, 1993 SCMR 1440, 1993 PLC (CS) 1140, 2000 PLC (CS) 857 and 2001 TD (Service)
361, in support of his contentions. He prayed that the appeal may be accepted, the impugned order be set aside and the appellant be reinstated in service with all back-benefits.
4. The learned counsel for the respondents opposed the appeal. He stated that action against the appellant has been taken as performance relevant rules/law, by affording him full opportunity of defence in accordance with prescribed procedure and by holding an inquiry by Inquiry Committee, in terms of Ordinance, 2000. He further stated that all the prosecution witnesses pointed that the appellant has made cuttings/over-writings and alterations in the relevant record on the instruction of Mr. Furqan Raza, Officer Incharge, NSC. He contended that there was no pressure either on the appellant or on witness and that the inquiry was conducted in transparent, fair and just manner. He contended that the fraud was committed by Mr. Furgan Raza, in collaboration of the appellant and the confession of Mr. Raza did not absolve him of his role and involvement in the misconduct of fraud. He prayed that the appeal may be dismissed.
5. We heard the learned counsel for the parties and perused the relevant record.
6. To analyse the points emerging from the memo. Of appeal, written comments, and pleading of the parties, we consider it appropriate to reproduce the charge-sheet dated 3-7-2001, as under:-- STATEMENT OF ALLEGATIONS
(1) That he while posted as UNC at NSC, Rizvia Market, Karachi made cuttings/over-writings and alterations with the mala fide intention in the relevant/auditable record of SSC (R) and RIC on various dated and with his connivance/collaboration S. Furqan Raza the then Officer Incharge of the Centre succeeded in committing the embezzlement of Government money of Rs.68, 50,000 on various dates as evident from the Discharge Journal of the SCC(R)/RIC, application forms for purchase of certificates (SC-1) and statement dated 10-5-2001 of Mr. Qamar Abbas, UDC, before the Investigation Committee.
(2) That he with mala fide intention concealed the facts about the embezzlement of huge amount of Rs.67,50,000 in SSC (R) and 'RIC on various dates and did not brmg it into the knowledge/notice of the Administration, while he was fully aware about the embezzlement committed by S. Furqan Raza as confessed/admitted by him in his written statement dated 10-5-2001 before the Investigation Committee. Thus he provided shelter/assistance to the culprit committing the embezzlement of Government money.,
(3) That he with mala fide intention made bogus entry of profit against Profit Coupon No.48 of RIC Reg. No.1021 in the Profit Payment Journal under JE No.1491 dated 11-1-2001 for, Rs.1,500 without having any valid payment voucher after altering/converting Reg: No.723 to 1021 and as result of his connivance/collaboration Mr. Furqan Raza the then Officer Incharge of NSC, Rizvia Market, Karachi succeeded in committing the fraud/embezzlement of Government money.
(4) That on 11-1-2001 the entry of bogus profit against Coupon No.21 of RIC Reg No.4647 was made in the Profit Payment Journal under JE No.1468 dated 11-1-2001 for Rs.1,500 without any valid vocher after altering/converting Reg. No. From 4239 to 4647 and as a result of his mala fide intention/connivance the amount was embezzled by Mr. Furqan Raza, DNSO, the then Officer Incharge of NSC, Rizvia Market, Karachi.
(AHMED OWAIS PIRZADA) Director General/Authority
7. The appellant's contention is that he was not responsible for the cuttings, over-writings and alterations in question, forming basis of commission of embezzlement of the amount in question by Syed Furqan Raza. According to him, during his more than 22 years clean record of service, he was never served charge-sheet, show-cause notice was ever issued to him and was never communicated any adverse report. He did not conceal any fact about the said embezzlement and had no collaboration or connivance with Mr. Raza. He also submitted that Syed Furqan Raza had returned/deposited the amount pertaining to alleged bogus entries and he had no concern therewith, adding that the abatement of a junior employee to his senior was hardly possible and thus had no role in the entire episode. On the other hand, the inquiry report dated 15/18-8-2000 concluded that the "cutting/over-writing" made in the relevant record by the appellant cleared the way for Mr. Furqan Raza, DNSO, Incharge of the Branch in committing the fraud. The entry was made by the appellant clearly knowing that the cutting/over-writing was wrong/irregular and uncalled for. There was bad'and mala fide intention therefore to cover the wrong doing which showed his connivance with Mr. Furqan Raza who committed fraud of huge amount. In this way the charge. No.1 is established/proved. Since the appellant concealed the fact about fraud and embezzlement and being aware of the facts did not inform the Administration just to shelter/protect Mr. Raza, the charge No.2 is proved and similarly charges Nos.3 and 4 were also proved. The Inquiry Committee, however recommended that "keeping in view to consideration his length of service of about 20 years", the penalty of Removal from Service may be imposed upon him.
8. It may be evident from the preceding paragraphs that respondent No.3 i.e. Director General, CDNS didn't appoint any person as Authorized Officer which was contravention of relevant law and thus imposition of major penalty suffers from irregularity. As for the prescribed Authority for the appellant, he is a BPS-7 employee and the charge-sheet/statement of allegations and final show- cause notice were issued by Director General/Authority a BPS-20 officer and we do not find any irregularity therein. The inquiry has been conducted in the form of question-answer which has been approved by the Honourable Superior Judiciary and as such the punishment imposed on the basis thereof could hardly be sustainable in the eye of law. Further, the findings of the Inquiry evidence on record to that effect. We, however, do not subscribe to the contention of the appellant that statements of witnesses were obtained under pressure or coercion. The main allegation against the applicant is that cuttings/over-writings and alterations made by him paved the way for Furqan Raza to commit fraud/embezzlement. Causing loss to the Respondent Department/Government Exchequer. He has also been charged of concealment of facts relating to commission of fraud by Furqan Raza as he failed to inform the Administration or higher authorities.
In that respect his plea is that he did not know about the act of Mr. Furqan Raza and being a subordinate, it was not possible for him to report against his boss. Thus his fault would at the most be termed as `negligence' for which a minor penalty would suffice. He has more than 20 years' clean record of service imposition of major penalty under the given circumstances (sic). However, as for Inquiry report and his own admission, he made cuttings/over-writings and alterations in the entries and thus being not cautious in the discharge of his duty, he cannot be completely absolved of his responsibilities. We may also seek guidance from the principles laid down in 2001 TD (Service)
361, 1993 SCMR 1440 (S.C) and 2002 SCMR 857 (S.C.)
9. Foregoing in view, we are constrained to partly accept the appeal, set aside the impugned order and reinstate the appellant in service. The major penalty of Removal from Service is modified and converted into minor penalty of stoppage of three increments for three years without cumulative effect. However, the intervening period from the date of Removal from Service to that of his reinstatement will be treated as the leave of the kind due.
10. This judgment mutatis/mutandis will be applicable to Appeals Nos.294(K)CS/2002 (Syed Qamar Abbass versus President of Pakistan and others).
11. No order as to costs. Parties be informed.