JUDGMENT JUSTICE (RTD.) ABDUL *NI SHAIKH, CHAIRMAN.- Appellant Ghulam Rs ooomro who was serving as Inspector Cooperative S' js, Nawabshah was proceeded with departmental!' account of gross negligence in performance ^ I nment duties and breach of trust. He w?' charge sheet dated 1.10.1992 issued f .Vcgistrar, Cooperative Societies, Sindh// nority, alleging therein that appellant while working as Manager, Nawabshah Cooperative Farm Service Centre Limited, Jam Sahib the Board of Directors of the said organization relied upon him and nominated him as one of the members of the purchase committee in its meeting dated 26.6.1991 in pursuance to Bye-laws (c) of the registered be-laws of the center and for the proper utilization of the funds released under the Annual Development program by the Government, In addition to that the department also relied upon him by sending him on deputation as Manager of the said organization but instead of performing his legitimate duties diligently well, he joined hands with the Assistant Registrar, Cooperative Societies, Nawabshah and with mala fide intention booked Fiat-640 Tractor Model 1991 for Nawabshah Cooperative Farm Service Centre, Jam Sahib from Shafi Sons, Shah Maki Road, Hyderabad and paid full cost of the tractor amounting to Rs .3,04,9000/- (Rupees Three Lac Four thousand nine hundred only) to the said dealer through cheque No. C-31/379993 dated 24.8.1991 for booking of the tractor. By doing so he had not only shacked the reliance of the Board of Directors but of the department also, It was further alleged that on account of appellant's carelessness and negligence in performance of Government duties he had blocked an amount of Rs. 3,04,900/- with the dealer since24.8.1991 and has given a deliberate loss to the Nawabshah Cooperative Farm Service Centre, -Jam Sahib for which he was personally responsible.
2. Appellant in his reply denied the allegation and explained his position. Though no inquiry officer was appointed/nominated as per charge sheet, yet later-on Mr. Nawaz Ali M. Shaikh, Deputy Registrar, Cooperative Societies, Sukkur Division, Sukkur was appointed/nominated as an Inquiry Officer, In his inquiry report dated 23.10.1993,' the inquiry officer held the appellant, the Board of directors and the Assistant Registrar, Cooperative Societies, Nawabshah as guilty of the charge that they are liable to make the loss good proportionately or individually as they are jointly and severally responsible for payment of the said full amount.
3. On the basis of said report appellant by order dated 11.4.1999 was awarded penalty to pay Rs.
3,04,900/- being the loss sustained by Government. Feeling aggrieved, appellate preferred departmental appeal to the respondent No. 1, which was rejected as per letter dated 25.1.2002 received by appellant on 2.3.2002. He then filed revision which.Too was rejected as per letter dated 22.3.2002. It may be stated that during pendency of appellant's departmental appeal he on attaining the age of superannuation retired from service on 5.9.1999 vide order dated 7^9.1999.
4. Appellate appeared in person and has argued that he has falsely been implicated in the present case. He stated he had nothing to do with the purchase of tractor as the entire process of purchase was in the hands of Mr. Nazir Ahmed Pathan, the then Assistant Registrar, Cooperative Societies, Nawabshah, who had placed the order of the tractor.So also handed over the cheque to M/s Shafi Sons but failed to collect the tractor. He submitted that cheque was signed by M/s Haji Muhammad Ibrahim Jamali, the President of the Nawabshah Cooperative Farm Service Centre Limited, Jam Sahib and Mr. Nazir Ahmed Pathan, Assistant Registrar. While referring letter dated :8.3.1994 of Mr. Nazir Ahmed- Pathan, Deputy Registrar, Cooperative Societies, Larkana Division, addressed to the Registrar, Cooperative Societies, Sindh Hyderabad, appellant contended that from the contents of letter it is crystal clear that entire responsibility of purchasing the tractor was upon said Nazir Ahmed Pathan who on failure to get the possession of tractor lodged F.I.R, against M/s Shafi sons and case was proceeded in the criminal Court of law but accused i.e. The owner of M/s Shafi .Sons was acquitted as the matter was of civil nature. Further, appellant stated that the disciplinary proceedings were also conducted against said Nazir Ahmed Pathan but he was exonerated- and^since the appellant has committed no irregularity, illegality pr any kind of misconduct, he may also be exonerated. V
5. In rebuttal, learned Asstt. A.G. Supported the pugned order. She contended that appellant being the manager of the Society was equally responsible for purchase of tractor, the possession of same was never taken. Therefore, appellant cannot be absolved from responsibility and was thus rightly penalized.
6. We have considered the above submissions and perused the material placed on the record. On careful scrutiny of the record it transpires that a four member committee comprising M/s Nazir Ahmed Pathan, Assistant Registrar (Chairman) Muhammad Ibrahim Jamali (President) Zafar Ahmed Bhatti (Director) and appellant Ghulam Rasool Soomro (Manager) of the Nawabashah Cooperative Farm Centre, Jam Shaib, was constituted to purchase Fiat tractor for the Society. The committee approved the quotation of M/s Shafi Sons, Kaimkhani Shopping Centre, Shah Maki Road, Hyderabad of Rs. 3,04,900/- being lowest. Therefore, a cross cheque dated 24.08.1991 drawn at United Bank Limited, Masjid Road, Nawabshah was issued under the joint signature of Mr. Nazir Ahmed Pathan ethd Haji Ibrahim Jamali. The cheque was then delivered by Mr. Nazir Ahmed Pathan to M/s Shafi Sons. The cheque was encashed but the tractor was not delivered to the society though promised that its delivery shall be made within two weeks from the encashment of cheque. Therefore, as is evident from letter dated 8.3.1994 of Mr. Nazir Ahmed Pathan, addressed to the Registrar, Cooperative Societies, Sindh the efforts were made by Mr. Nazir Ahmed Pathan to take delivery of the tractor, but he failed, as such he filed complaint to the D. I.G.P. Hayderabad, on whose direction F.I.R, for. Offences U/Ss 420 & 406 P.P.C, was registered at P.S. Shah Maki against M/s Shafi Sons, who obtained pre-arrest bail. The matter was proceeded in the Court of learned VIth Extra Joint Civil Judge & F.C.M. Hayderabad, but it was disposed of on 3.3.1994 with a conclusion that matter being of civil nature, the parties should seek resort from competent civil Court. Mr. Nazir Ahmed Pathan then through letter dated 8.3.1994 recommehded to' the Registrar, Cooperative Societies, Sindh to institute civil suit for recovery of amount through the Assistant Registrar, Cooperative Societies, Nawabshah. However, as it appears, no step towards that direction was ever taken by the department.
7. It is very much pertinent to mention here that prior to that the Registrar, Cooperative Societies, vide his letter dated 21.12.1992 addressed to Mr. Nazir Ahmed Pathan, Assistant Registrar, Cooperative Societies, Nawabshah, directed him to recover the amount of cheque with upto date profit from M/s Shafi Sons, else disciplinary proceedings would be initiated against him. For the sake of brevity, the contents of letter are reproduced hereunder: "You were instructed by the Deputy Registrar Cooperative Societies, Sukkur, through telegram dated 25.6.1992, and copy in confirmation by post No. DR/Gen/-1105, dated 25.6.1992, to you as well as to this office, in which you were directed that the transaction with regard to purchase of Fiat 940 tractor, through M/s hafi & Sons may be stayed till further orders. The recovery of the amount has not been made, instead of repeated requests from Deputy Register, Cooperative .Societies, Sukkur and this office. Though as per report of Deputy Registrar, Cooperative Societies, Sukkur No. DR/Gen/-1713/92 dated 4.8.1992, you were neither nominated Director of the Board nor got any power to make interference in the day to day working of the society and created mix-up all along.
As per above report of Deputy Registrar, Cooperative Societies, Sukkur you are directly involved in this transaction and is personal responsible, as such you have taken dis-advantage by putting your joint Signature with the authorised Director/member of the society, on the cheque at the time of withdrawal of the amount from the Bank.
Due to the above, you are hereby instructed to recover the amount of the cheque of Rs, 3,04,900/- from M/s Shafi & Sons, Shah Maki Road, Hyderabad on the scheduled date, alongwith entire up4o- date profit for the period at Bank rate and deposit the same in the society Account. Intimate the compliance telegraphically, else disciplinary action will be taken as per Rules please.
On account of failure to recover amount, disciplinary departmental proceedings were initiated against Mr. Nazir Ahmed Pathan. He was served with charge sheet dated 10.5.1994 issued by the Secretary, Government of Sindh, Cooperative Department. Mr. Ahmad Saeed Abbassi, Joint Registrar, Cooperative Societies, Sindh, Hyderabad was nominated/appdinted as Inquiry Officer, who conducted full fledged inquiry and in his inquiry report dated 7.8.1994 it was concluded that; "To sum up the enquiry, I have come to the conclusion that Mr. Nazir Ahmed Pathan, Assistant Registrar, Cooperative Societies, Nawabshah has utterly failed to perform Government duties and has committed gross negligence and breach of trust while placing an order for the purchase of Fiat tractor from ^ Mr. Muhammad Shafi prop. Of Shafi Sons, whose very existence is questionable and with the result that the Cooperative Farm Service Centre, Jam Shaib at Nawabshah suffered an irreparable loss to the tune of Rs. 3,04,900/-._ He has neither been able to procure the delivery of the tractor from the dealer who was personally known to him nor secured/realized the amount in question. As such he has committed an act of gross negligence & breach of trust in the- performance of Government duties and found guilty, thus he has rendered himself liable for. All or - any action under the provisions of the Sindh Civil Servants (E&D) Rules, 1973.
Besides, he should be made accountable to make pecuniary loss good caused to Government be negligence 'in his duties which has ultimately sustained by the Cooperative Farm Service Centre, Jam Shaib, Nawabshah."
As it appears the Secretary, Cooperation Department/Authorised Officer on the basis of findings of the Inquiry officer, recommended major penalty against said Nazir Ahmed Pathan, to the Authority i.e. Minister. However, the competent authority was not satisfied with the findings of the inquiry officer, who constituted a review committee, comprising M/s Mir Lutuf Ali Talpur, Principal, Government Cooperative College, Hyderabad and Ghulam Hussain Bariro, Deputy Secretary, Food and Cooperation, Department, Govt, of Sindh Karachi. The said review committee in its report, exonerated Nazir Ahmed Pathan from the charges. Ultimately, vide order dated 22.3.1995, said Nazir Ahmed Pathan was exonerated by the Secretary, Cooperation Department, Karachi.
8. In both the inquiry reports submitted by Mr. Ahmed Saeed Abbasi, Joint Registrar, Cooperative Societies,' Sindh, Hyderabad and review committee constituted under the orders of competent authority/Minister the name of appellant no where figures. However, parallel and separate inquiry proceedings were initiated against the appellant, in utter disregard and violation of the Sindh Civil Servants (E&D) Rules, 1973.. Appellant was served with a charge sheet dated 1.1.1992 issued by the Registrar, Cooperative Societies, Sindh in the capacity of 'Authority'. Although in the said charge sheet, it is no where mentioned if any inquiry officer was appointed/nominated to conduct an inquiry against appellant, yet Mr. Muhammad Nawaz Shaikh, Deputy Registrar, Cooperative Societies, Sukkur Division, Sukkur was separately appointed as inquiry officer, who conducted inquiry and in his report he concluded that; "The Board of Directors including Assitant Registrar, Cooperative Societies, Nawabshah and Mr. Ghulam Rasool Soomro the accused officer are liable for making the loss good proportionately or individually of the Nawabshah Cqoperative Farm Service Centre Ltd. Jam Sahib as they are jointly and severally responsible for payment of the said full amount under dispute."
It is pertinent to point out here that neither the Directors of the Society nor the President of the Society' namely Haji Muhammad Ibrahim Jarnali, were ever proceeded with.
9. The record made available before us reveals that whole disciplinary proceedings initiated, conducted and concluded against the appellant were in glaring violation and flagrant floatation of the Sindh Civil Servants (E&D) Rules, 1973. Mr. Nazir Ahmed Pathan, Assistant Registrar, Cooperative Societies, Nawabshah, and appellant the Inspector, Cooperative Societies, Nawabshah were ought to have been proceeded with jointly as provided under sub- rule^) of Rule 3 of the Sindh Civil Servants (E&D), Rules 1973, but for some unknown reasons, they were proceeded with separately.
Besides, the inquiry so conducted against appellant was also in violation of the inquiry procedure laid down in Rule 6 of the Sindh Civil Servants (E&D) Rules, 1973. The purpose of conducting inquiry is to record evidence of witnesses from both sides and after putting both the versions in juxtaposition coupled with other documentary evidence, if any; the inquiry officer has to form his opinion about guilt or otherwise of the civil servant concerned. Here in the instant case, neither the charge was framed nor any witness was examined, nor any document was taken into consideration nor even the appellant was associated with the inquiry proceedings. From simple reading of the inquiry report it appears that the inquiry officer based his finding on the statement of allegation and the reply furnished by the appellant, which under the rules cannot be termed as an inquiry, It is once again worth while to mention here that inquiry was conducted by the Deputy Registrar, Cooperative Societies Sukkur Divisions, who as per. Circular dated 8.5.1990 issued by the Registrar, Cooperative Societies, Sindh, Hyderabad was also responsible for any mis-use of funds, In such a situation, the inquiry conducted by the Deputy Registrar, by no stretch of imagination can be termed as f&ir, free and impartial. Last but not the least, neither the copy of inquiry report was ever supplied to the appellant nor the final show cause notice was given to him which too under the E & D rules is a mandatory requirement, It is ^Iso very important to state that inquiry proceedings were concluded in October, 1993, where after the matter was kept pending un-necessarily and appellant was called for personal hearing in September, 1998, his statement was recorded in December, 1998 and the impugned order was passed in May, 1999 when appellant was nearing to attain the age of superannuation. Appellant retired from service on attaining the age of superannuation on 5.9.1999.
10. For the aforesaid reasons, we are of the considered view that on facts as well as on legal grounds, the penalty imposed upon appellant is neither sustainable nor maintainable. Accordingly the appeal is accepted and the impugned orders are set-aside, Parties are left to bear their costs.
11. Announced in open Court.
Given under our hands and seal of the Tribunal, this 14th day of July 2005. .