' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).---The appellant had been serving as Steno-Typist in Accountant-General Sindh (A.-G. Sindh), office at Karachi, when vide order dated 16-2-2002, a major penalty of reduction to three lower stages in time scale was imposed upon him, under Rule- 4 (1)(b)(i) prescribed in the Government Servants (Efficiency and Discipline) Rules, 1973 as laid down in Section3(i)(e) of Removal from Service (Special Powers) Ordinance, 2000. He preferred a departmental appeal to the Respondent No,1, but it was not responded to within the statutory period of 60 days; hence, he filed this appeal before the Tribunal on 30-5-2002, praying to set aside the impugned order dated 16-2-2002 and to grant consequential and back-benefits to him.
2. Briefly, the facts leading to this appeal, as revealed from the record, are that as per orders of the A.-G., the incoming time to office of the officers of A.-G. Sindh, was noted normally daily and submitted to the A.-G. Sindh in the morning. The record of attendance was later on also maintained on the computer in the room of P.A. To A.-G. On 19-2-2001, the A.-G. Asked the appellant for a printout of the attendance record of Mr. Shah Faisal Rind and Abdul Hamid Khoso. Both Assistant Accountant General (A.A.-Gs.). The appellant obtained the printout of such attendance from the computer operator Faraz. The A.-G. Sindh had left the office for some official business; hence, the appellant could not submit the printout to the A.-G. In the meantime, while the (printout) was lying on the table, Shah Faisal Rind, A.A.-G. Entered the room of the Appellant for a phone call and picked up the attendance sheet and after having a glance over it, returned it to the appellant.
The appellant put it in the drawer from where it disappeared. Next day, when the A.-G. Asked for the attendance sheet, the appellant got another printout from Faraz and submitted the same to the A.-G. There was a difference between the time shown in the prihtout and the manual record of the attendance, as such, explanation of the appellant was called, vide letter dated 22-9-2001. In his reply dated 25-9-2001 to. The explanation, the Appellant admitted all the facts mentioned above, except tampering the computer date of attendance. He alleged that the tampering was done by some one who did not know that the A.-G. Also kept the manual data of attendance. It appears that his explanation did not find favour with the competent authority i,e, the Additional A.-G. Sindh, who, vide his order dated 31-10-2001, ordered inquiry into the matter through Shah Nawaz Ali, Deputy Accountant General and Syed Javaid Ahsan, Accounts Officer, and also issued a statement of allegations dated 31-10-2001 to the appellant. Such allegations are reproduced as under:-- "(1) He tampered the attendance fed in the P.C. Of A.-G. Secretariat with the collaboration of Mr. Shah Faisal Rind, Assistant Accountant General.
(2) It is quite clear that the already fed in the Computer of A.-G. Secretariat can not be changed unless the involvement of Mr. Fareed Alam Khan attached with A.-G.
(3) On the day of event, he was on duty and it was his responsibility to take care of the room and watch over the movement of persons entering into the room.
(4) He gave sufficient assistant to the officer and has changed the original context of the attendance."
' The appellant submitted his reply dated 7-11-2001 to the statement of allegations on the same lines, as his reply to his explanation. Inquiry was held, accordingly. The relevant findings and recommendations of the inquiry committee are reproduced as under:- "The Inquiry Committee after gone through all relevant details to the questions dated 27-11-2001 (Annx:1) given by Mr. Faraz, and (sic) other circumstantial evidences observed that attendance record on computer was tampered/changed by the accused himself or allowing Mr. Faisal, A.A.-G.
By leaving the room unattended. The accused failed to exercise due care and behaved highly irresponsible by leaving his room, computer and even A.G's telephone unattended and accessible to unauthorized persons. The examination of relevant record, data gathered from inquiry and the circumstantial evidence show that he was directly or indirectly involved with tampering of official record of attendance maintained on computer under A.-G. 's orders. He was therefore guilty of inefficiency/misconduct. The Inquiry Committee therefore, recommends that the major penalty of reduction to lower stage may be imposed upon him."
' The inquiry was followed by a show-cause notice dated 21-1-2002 issued to the appellant by the Additional A.-G. Sindh, proposing imposing of major penalty of dismissal from service upon him on the charges of inefficiency and misconduct. In the show-cause notice the appellant was asked whether he desired to be heard in person. The appellant replied the show-cause notice vide letter dated 4-2-2002 and desired to be heard. Consequently, vide letter dated 6-2-2002. The appellant was directed to appear before the Additional A.-G. Sindh on 9-2-2002, for personal hearing.
Thereafter, vide impugned order dated 16-2-2002, the penalty of reduction to three lower stages in the time scale was imposed upon the appellant.
3. In the written comments, filed on behalf of the respondents, stand was taken up that after holding disciplinary proceedings against the appellant, in accordance with law, he was rightly penalized by the competent authority viz., the Additional A.-G. Sindh on the charges of inefficiency/misconduct. It was stated that during the personal hearing, the appellant admitted his fault and prayed for clemency; that the appellant had signed the recorded hearing to confirm his admission of charges in writing. Copy of such admission of charge, during the personal hearing, has been filed with he copy of statement of appellant which is in question-answer form.
4. We have heard the learned counsel for the parties and carefully gone through the record of the appeal.
5. The learned counsel for the appellant argued that no formal charge sheet was issued to the appellant and the statement of allegations which was required to be communicated by the inquiry committee was illegally communicated to the appellant the alleged competent authority viz: the Additional A.-G. Which constituted illegalities, vitiating the disciplinary proceedings against the appellant. The learned counsel assailed the inquiry proceedings pointing out that Shah Faisal Rind, A.A.-G. Was the main person involved in the incident, but he was not examined during the inquiry and Faraz, who was another important witness of the incident, was not examined in presence of the appellant and the appellant had no chance to cross-examine Faraz; that the respondents had not submitted the inquiry proceedings before the Tribunal from which it could be found out of Faraz was at all examined in the inquiry or not; that the appellant did not have any interest in tampering the date already fed in the computer and he could not have done so knowing that simultaneously manual record of attendance was also maintained by the A.-G.; that there was no evidence whatsoever from which it could be proved, who out of three persons, name, Shah Faisal Rind, appellant Fareed Alam and Computer Operator Faraz, had tampered the already fed data in the computer; that nothing had been proved against the appellant except his negligence in allowing Shah Faisal Rind to see the printout and not informing the A.-G. Before hand about missing of earlier printout of the fed data. The learned counsel argued that the case against the appellant would, at the most, be that for negligence of which the major penalty of reduction to three lower stages in the time scale was disproportionate and extremely harsh one specially when no action whatsoever had been taken against other persons involved in the scandal, especially, Shah Faisal Rind. Thus, the appellant had been discriminated against; that in the circumstances of the case only a warning would have been sufficient to the appellant for his negligence.
6. The learned Standing Counsel, relying on the written comments filed on behalf of the Respondents, reiterated the facts mentioned therein. Additionally, he stated that the A.-G. Office had, vide letter No, Admn/Conf/1984 dated 28-9-2001, reported the involvement/misconduct of Shah Faisal Rind, Assistant Accountant-General to Controller General Office/Auditor-General of Pakistan, being the competent authority for taking necessary action in the matter, but on the written explanation dated 4-11-2001 of Assistant Accountant General, Shah Faisal Rind, the competent authority, vide letter dated 14-4-2003, ordered ' that the disciplinary case initiated against him be closed. About Computer Operator Faraz Ahmed Siddiqui, the learned Standing Counsel stated that vide order dated 16-2-2002, the competent authority imposed upon him a minor penalty of stoppage of two annual increments under Government Servants (Efficiency and Discipline) Rules 1973, Regarding competent authority in the case of the appellant, the learned Standing Counsel stated that under Rule-6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, as amended vide Establishment Division's Notification No, SRG 276(1) 2000 dated 25-5-2000 read with Finance Division's Notification No, F.5(17) Exp-II/85-423 dated 14-7-1987, the Additional Accountant General (Admn.) was the appointing authority/ competent authority for the officials from BPS-03 to 15; hence, no illegality had been committed by the Additional Accountant-General, as alleged by the learned Counsel for the appellant.
7. We have carefully considered the above arguments of both sides. Two important questions arise in this appeal viz., (1) whether the attendance data fed in the computer about Shah aisal Rind on the date, time and place, was found tampered, if so, (2) who had tampered such data?
8. Reverting to the first question, we find that no official witness was examined on this point.
However, the inquiry committee, on the basis of the record available to it and the statement of the appellant (and perhaps that of Faraz Ahmed Siddiqui) came to the conclusion that the attendance date in the computer on the date, time and place was found tampered. Besides, the inquiry report and inquiry proceedings have also to be looked into by the Tribunal, but in spite of directions given to the respondents, the inquiry proceedings in full' were not placed before the Tribunal and only copy of the question answer statement of the appellant was filed along with the written comments.
Therefore, for determining this point, the Tribunal has to rely on the inquiry report and the statement of the appellant himself.
9. The appellant has not disputed the tampering of the data fed in the computer on the date, at the time and place, as alleged . This point, therefore, stands proved. The findings of this point in the affirmative must adversely reflect on the alleged role of A.A.-G. Shah Faisal Rind, who was the interested party, rather main person responsible of the mischief of tampering, but surprisingly he has gone un-scathed, whereas, small fries like Appellant Fareed Alam and Faraz Ahmed Siddiqui have been penalized. The record of the proceedings against A.A.-G. Shah Faisal Rind is not before us, therefore, we cannot make any comment on it, as why, how and for what reasons the disciplinary case against him was ordered to be closed, but if the point No,1 is proved, the A.A.-G.
Shah Faisal Rind could hardly go scot-free. If no action was taken against him, what could be the basis of taking action against Faraz Ahmed Siddiqui and appellant Fareed Alam. If no action is taken against principal offender how can action be taken against one person, alleged to have collaborated with him. We do not know how, minus action against Shah Faisal Rind, collaboration of the appellant Fareed Alam and Faraz Ahmed, could have been proved in tampering the computer data.
10. Coming to the second point, we find that there is no ocular evidence of tampering the computer data against any one of the three persons, alleged in the incident i,e, Shah Faisal Rind, Fareed Alam and Faraz Ahmed Siddiqui. We do not know, what role had been assigned to Faraz Ahmed Siddiqui and what statement he had made during the inquiry and for what reasons he was penalized.
However, the alleged admission of the appellant Fareed Alam during the personal hearing had been made the basis of penalizing him. The appellant has not disputed his signature on the note of personal hearing what he had said during the personal hearing, but the learned counsel for the appellant had forcefully argued that the words attributed to the appellant in the note of personal hearing, could, by no stretch of imagination, said to be confession or admission of the guilt of tampering, the data by the appellant. He argued that the words attributed to the appellant could, at the most, be an admission of his role i,e, allowing Shah Faisal Rind to see the printout of the attendance and then not reporting the matter of its disappearance to his boss, the A.-G. Sindh, Karachi with whom he was attached. However, it will be advisable to reproduce the alleged admission of the appellant in his own words:-- "In reply to the question, have you anything in your defence', it has been noted. "He admitted that the negligency is small and may be excused."
' The above words, seen in the perspective of persistent denial of the appellant through in his replies that he had not tampered the data, would at the most, prove his negligence in allowing Shah Faisal Rind, to pick up the printout of data in his office and then not have informed the Accoptant-General Sindh about disappearance of such printout. As a matter of fact, the appellant should have smacked foulplay and should have informed the Accountant-General Sindh about it on seeing the difference in printout the next day. To say that the appellant could not have tampered the data knowing that the Accountant-General had been keeping the manual data also, might have some grain of truth in it. Had he only informed the Accountant-General about what had happened, he would have, perhaps, not come to the grief, but having not done so he landed himself into the trouble. In the circumstances mentioned above, what has been proved against the appellant does not amount to anything more than negligence, but for that he been punished disproportionately and harshly too. On the other hand, he has been discriminated against, as the one around whom the entire episode revolved has absolutely gone unscathed, as mentioned above. Call this justice No, no, certainly not. May we quote a hadith of the Holy Prophet (P.B.U.H.): "Those who have been before you only perished for that when a high-born man among them stole they let him go unpunished, and when the weak among them stole, they stood over him to punish him. By God If it were Fatimah, the daughter of Muhammad, who stole, I would surely cut off her hands."
11. In the circumstances, mentioned above, we would not like to add anything more except that a warning by the competent authority to the appellant to be careful in future would satisfy the ends of justice. With this observation/recommendation, we allow this appeal and set aside the impugned order. Consequently, the stage in time scale of the appellant shall be restored with all back-benefits.
12. No order as to costs.
13. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per Rule-21 of the Service Tribunals (Procedure) Rules 1974. A copy shall also be endorsed to the Controller General Office/Auditor General of Pakistan Islamabad for his perusal.