' MUHAMMAD NAWAZ ABBASI, J.--- These connected appeals by leave of the Court directed against the judgment, dated 21-4-2001 passed by the Punjab Service Tribunal, Lahore, involving common question of law and facts are proposed to be disposed of through this single judgment.
2. The Tribunal vide impugned judgment, dismissed the appeals filed by the appellants whereby they challenged the legality of the order, dated 21-6-2000, passed by the departmental authority by virtue of which they were awarded major penalty of dismissal from service with recovery of the half of total loss caused to the Government in equal proportionate. The leave was granted in the present appeals by this Court vide order, dated 2-2-2003 as under:-- "As common question of law and facts are involved in these petitions, which are directed against the judgments of the Punjab Service Tribunal, Lahore (hereinafter referred to as the Tribunal), dated 27-4-2001, passed in Appeal No,3094 of 2001, therefore, we intend to dispose of the same by this consolidated order.
(2) The facts in brief are that imported wheat was dispatched in NLC carrier and through Railway wagons from Karachi, which was to be received by the petitioners at Khanewal and thereafter the same was to be stored in the godowns. The petitioners, who were serving in the Food Department at Khanewal, were served with charge-sheets crux of which reads as under:-- "that while posted at P.R. Centre, Musa Virk during 1985-86 scheme, they declared unjustified en route shortage of imported wheat weighing 442.132 M. Tons in the stock received from Karachi.
Their misdeed has caused a heavy loss to the State on account of showing less receipt of imported wheat by them deliberately with mala fide at the destination station than with weight advised in the consignment."
' The petitioners replied to the charge-sheets. Authorized Officer appointed the Enquiry Officer to conduct the inquiry, who vide his inquiry report dated 2-10-1995 exonerated the petitioners from the charge levelled against them. However, Authorized Officer after adhering to the rules recommended major penalty and forwarded the case to the Authority concerned. The Authority after hearing the petitioners vide order dated 21-6-2000 dismissed the petitioner from service and penalty of Rs,12,37,969 was ordered to be recovered from them in equal proportion within one month on the passing of the order in lump sum through legal or coercive means.
(3) Feeling aggrieved, petitioners filed appeals before the departmental authorities, but the same were not decided within 90 days, therefore, they filed appeals before the Tribunal, which were dismissed vide impugned judgment, dated 27-4-2001. Hence, these petitions.
(4) Learned counsel for the petitioners, inter alia, contended:--
(a) that in an identical case on the same charges Qaswar Ali Abbas, Storage and Enforcement Officer, Rana Muhammad Afzal Assistant Food Controller and Ghulam Farid, Food Grains Inspector, the departmental authorities initiated disciplinary action against them and awarded minor penalty in reduction in the time scales of their pay by three stages dated 28-4-1997 and 16-7-1997:
(b) that thereafter the above-noted Nos.2593/97, 2686/97 and 2638/97 the Tribunal accepted their appeals and set aside the penalty awarded by the departmental authorities vide judgment dated 19-10-2001, copy of which is available at page 14, Part II of paper book of C.M.A. No,40 of 2002 in C.P.
No,2002/L of 2001.
(c) that the Inquiry Officer exonerated the petitioners herein from the charges levelled against them; but after lapse of 10 years the Authorized Officer in his report found them guilty, but it is very strange to note that in this very report he also observed as under:
(d) that on the one hand the departmental authorities had held the petitioners guilty of the charges and on the other hand District Food Controller, Multan, had filed claim regarding shortage of wheat with the Railway authorities through Letter No,8989- 91/CC, dated 11-3-1986, which is available at page 64 of the paper book of C.P. No,2002-1 of 2001;
(e) that the Tribunal could not dismiss the petitioners appeals without taking into consideration the point of discrimination as well as the action of the departmental authorities, which was in violation of Articles 4 and 25 of the Constitution;
(t) that the Tribunal could not dismiss the appeal without adhering to the point that the dispute related to 1985 whereas the departmental proceedings against the petitioners were initiated in the year 1995 at a very belated stage i,e, after a span of 10 years.
(5) Leave to appeal is granted to consider, inter alia, the above points raised by the learned counsel for the petitioners. Interim relief already granted to the petitioners by this Court vide order, dated 27-6-2001 shall continue till the disposal of the appeals, which may be fixed for hearing within six months time.
(6) The parties are permitted to file necessary documents/concise statement, if they so desire."
2. The appellants were proceeded against under the Punjab Civil Servants (E&D) Rules, 1975 for the charge of misconduct on the basis of allegation that they while posted at P.R. Centre, Musa Virk, Khanewal, having misappropriated the imported wheat of 442.132 Metric Tons caused heavy loss to the Government. The appellants inconsequence to the departmental inquiry, were found guilty of the charges and were dismissed from service.
3. The learned counsel for the appellants contended that there was no direct evidence in support of the allegation that the imported wheat was misappropriated by the appellants at P.R. Centre Khanewal and factually the shortage of wheat happened due to the wastage in the transit which was evident from the het that the department much before the initiation of departmental proceedings against the appellants claimed damages from Pakistan Railways for the shortage of the wheat in the carriage from Karachi to Khanewal. He submitted that in these circumstances, it was unfair to proceed against the appellants for the charge of shortage of wheat as the possibility of shortage of wheat in the carriage because of mishandling in the transit or for such other reason could not be ruled out and further in absence of any positive evidence that shortage took place after the delivery of wheat at P.R. Centre, the appellants could not be held responsible.
4. The learned A.A.-G. In reply to the arguments of the learned counsel for the appellants has submitted that there was nothing on record to show that the shortage of the wheat took place in the transit or that Railway has accepted the liability of payment of damages. He argued that as per record, maintained at the P.R. Centre it was not a case of short delivery and the appellants being custodian of the wheat at the centre would be directly responsible for the loss caused to the Government. The learned A.A.-G., however, has submitted that if ultimately damages claimed by the Government from Pakistan Railways are paid, the appellant may claim refund of the amount required to be deposited by them in terms of the order of departmental authority.
5. The perusal of record with the assistance of learned counsel for the appellants, revealed that shortage of huge quantity of wheat was not shown by the appellants in the record of P.R. Centre which was subsequently, deducted in the process of physical check up, and consequently the sole question requiring determination would be whether it was a case of en route shortage of wheat from Karachi to Khanewal or the shortage happened at the centre after delivery of the consignment. In B absence of any evidence that the shortage of huge quantity of wheat was the result of short delivery of consignment or wastage due to the wreckage in the transit, a legitimate presumption would be raised that shortage was caused at P.R. Centre, therefore, it could not be treated a case of short delivery and thus, no exception could be taken by the Tribunal to the finding of the departmental authority qua the responsibility of the appellant.
6. Notwithstanding the making of the claim of damages by the department against the Pakistan Railways for the loss caused to the Government, the appellants having failed to show the shortage of wheat in the record relating to the stock at P.R. Centre or inform the higher authorities about the shortage at the relevant time, were rightly held responsible for the loss caused to the Government.
In view of the above factual position, we have not been able to find out, any substance in the contentions raised by the learned counsel in support of these appeals and he also has not been able to point out any legal defect or factual lacuna either in the departmental proceedings or in the judgment of Tribunal calling for our interference. Learned counsel for the appellants, has submitted that in the similar circumstances, in an identical case pertaining to Multan Centre, the concerned officials have been awarded the punishment of reduction in rank whereas the appellants, who have legitimate expectation of normal retirement, with clear service record of more than 30 years service, have been awarded the major penalty of dismissal from service, on the basis of presumptive liability and requested for conversion of their penalty of dismissal from service into compulsory retirement.
7. Having considered the question relating to the quantum of punishment, we have found that in the circumstances of the case, the penalty of dismissal from service awarded to the appellants was harsh and instead the penalty of compulsory retirement would be sufficient to meet the ends of justice. Consequently, we convert the penalty of dismissal from service awarded to the appellants into compulsory retirement with direction that the amount recoverable from them as loss of Government in terms of order of departmental authority shall be C deposited by them within three months and if the damages claimed by the department from Pakistan Railways are ultimately paid to the Government, the amount deposited by the appellants will be refunded to them. These appeals with the above modification in the quantum of punishment, are partly allowed with no order as to costs.