' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).---This appeal is directed against the original impugned A order, dated 11-5-2000 passed by respondent No,2 awarding major penalty of dismissal from service and recovery of losses to the appellant.
2. Succinctly, the facts of the instant appeal are that appellant while posted as Administrator, Union Council Hatri, on account of certain mis- conducts was firstly placed under suspension vide order, dated 10-11-1999 and was then served with a show-cause notice, dated 7-12-1999 issued by the Additional Secretary (LG), Local Government, Department, /Authority, containing details of mis- conducts committed by appellant; as under:-- "(i) That due to over-sight/mistake of National Bank of Pakistan, Saddar Branch, Karachi on amount of Rs,21,30,254 was transmitted in the account No,000193-5, National Bank of Pakistan, Market Area Branch, Hyderabad of Union Council, Hatri in July, 1999 instead of original instalment of Rs,2,31,212.
Subsequently the Local Council again received amount of Rs,1,40,959 on 18-8-1999 and Rs,2,31,212 on 28-9-1999. Therefore, total amount of Rs,25,02,425 were released to Union Council Hatri, but except for the payment of salaries to the tune of Rs,4,22,971 entire amount of Rs,20,79,434 was mis- appropriated by you.
(ii) According to Income and Expenditure Statement of Union Council Hatri, an amount of Rs,77,585 has been shown as Advertisement charges which is very strange and un-acceptable, because as per Government policy the advertisement of any kind is to be made through Information Department Government of Sindh, but not a single cheque in the name of Director Information
(Adv) Karachi has been issued which shows the amount has been mis-appropriated. This fact is further corroborated that during the enquiry which was conducted by the Deputy Secretary (Admn.
Branch) Local Government and Secretary, Sindh Local Government Board, a Mushirnama of taking the record of Union Council, Hatri by Anti Corruption Establishment Hyderabad was produced before the above mentioned officer stating that his record was taken away by Anti-Corruption party, whereas perusal of Mashirnama reveals that this file was not taken by the Anti-Corruption Establishment.
(iii) According to statement an amount of Rs,23,680 was spent on sanitation articles. Neither records were produced before enquiry team nor the Anti-Corruption Establishment. Thus you have mis-appropriated the amount.
(iv) According to statement an amount of Rs,24,750 was spent on printing charges but during the enquiry no fresh material of printing was shown excepting few old Registers/files and no proper record was available. According to Mashirnama of Anti-Corruption Establishment no such record was taken into custody. Thus, the amount have been mis-appropriated by you.
(v) A huge amount of Rs 16,33,070 was shown as Development Expenditure in the statement but during Enquiry no proof viz. M.B. Tender Documents and its advertisement through Information Department was produced to substantiate lawful expenditure. This clearly indicates that the amount has been misappropriated by you.
(vi) According to the statement an amount of Rs,20,000 was spent on Relief and Aid for Society, but neither there is any application from the Society for the grant in Aid nor there is approval of Controlling Authority. This file has not been taken by Anti-Corruption Establishment in the custody which transpires that amount has been mis-appropriated by you.
(vii) According to statement, an amount of Rs,28,580 was spent on the dress of lower Staff which is exorbitant and beyond the powers. The file was not shown to the enquiry team despite the fact that file was not taken by Anti-Corruption Establishment as evident from the index of Mashirnama."
' In his detailed reply, appellant denied the allegations and explained his position. His reply was not found satisfactory. As such, he was served with a final show-cause notice, dated 24-1-2000 issued by the Secretary, Government of Sindh, Local Government, Development/Authority, which too the appellant replied and reiterated the stand earlier taken by him, which too was not found satisfactory. After affording him chance of personal hearing, appellant was awarded major penalty of dismissal from service vide order, dated 11-11-2000 passed by the Secretary, Government of Sindh, Local Government Department, Karachi/ Authority. Appellant was also ordered to pay Rs,18,07,665 as loss sustained by Government. Feeling aggrieved, he preferred departmental appeal to the Chief Secretary, Sindh, which remained unresponded. Hence this appeal.
3. In support of appeal, learned counsel for the appellant raised number of factual and legal pleas.
He argued that entire amount transmitted in the account of Union Council, Hatri was properly and legally utilized by the appellant in the capacity of Administrator, Union Council, Hatri and that copy of such statement of actual income and expenditure for the year 1999-2000 was produced by the appellant along with reply of the show-cause notice but without verifying the genuineness and authenticity of the statement, the same was totally discarded. He submitted that the entire record of the Union Council, Hatri was taken away by Inspector Sardar Khan of Anti-Corruption Establishment, under mashirnama, dated 4-10-1999 much prior to the issuance of show-cause notice to the appellant, therefore, it was not practically possible for the appellant to show the proper payments made by him. He stated that time and again appellant approached the authorities concerned to call and verify the record in his presence but no timely action was taken and instead appellant was penalized on the basis of fact finding inquiry, the copy of which was not supplied to the appellant. He contended that the said inquiry report produced by respondent No,4 along with written statement clearly reveals that in fact no inquiry was conducted. Further, he stated that the allegation of misappropriation of funds was serious one, which the appellant denied vehemently, yet no regular inquiry was either ordered or conducted, there-fore, the penalty awarded to appellant being opposed to facts, justice and equity is not sustainable.
4. Further, he argued that appellant was serving in B-11 and as per Notification, dated 24-12-1981 issued by the Government of Sindh, Housing, Town Planning, Local Government and Rural Development, the Director Local Government had to act as 'Authorised Officer'. But in the instant case, there was no 'Authorised Officer' at all. The first show-. Cause notice, dated 7-12-1999 was issued by the Additional Secretary (LG) in the capacity of 'Authority' while the final show-cause notice was issued by the Secretary, Government of Sindh Local Government, Department, also in the capacity of 'Authority' and the major penalty was also awarded by the Secretary, Local Government Department in the capacity of Authority, meaning thereby that the Secretary of the Department had acted in dual capacity of 'Authorised officer' and 'Authority'. Thus the very impugned order being coram non judice is liable to be set aside on this score alone. He relied upon 1999-SCMR1311 .
5. Conversally, learned Asstt. A.-G. While referring to the written statement filed by respondent No,4 (which is adopted by remaining respondents) and the inquiry report of Secretary, Sindh Local Government Board, Karachi, argued that inadvertently an amount of Rs,21,30,254 instead of 2,31,212 was transferred by National Bank of Pakistan, Saddar Branch, Karachi in the account of Union Council, Hatri and that appellant being Administrator of the Council failed to account for the same and mis-appropriated an amount of Rs,18,07,665 and further that appellant failed to produce the record to justify the expenditure of such a huge amount. Therefore, the appellant was rightly penalized vide impugned order which calls for no interference.
6. We have considered the above submissions and with the assistance of learned counsel appearing for the parties have gone through the material placed on the record. The charge of mis- appropriation of huge amount of Rs, 18,07,665 was very serious which the appellant denied vehemently. Therefore, the regular inquiry was very much necessary but it was dispensed with and a short cut procedure of show cause followed by a final show-cause notice was adopted, which was neither proper nor justified in the circumstances of the instant case. Admittedly, the appellant was penalized on the basis of fact finding inquiry conducted by the Secretary, Sindh Local Government Board, Karachi, which under the law cannot be made the basis for awarding major penalty, Perusal of the fact finding report, dated 20-10-1999 annexed with written statement filed by respondent No,4, reveals that the Administrator, Union Council Hatri (Appellant) produced the statement of expenditure and further informed that the Anti-Corruption Department had already seized the account. The Secretary Local Government Board in his report observed that as the record was not available, therefore, it was not possible to conduct the inquiry in its true spirit. It is thus clear that even the fact finding inquiry was not conducted but instead appellant on the basis of same was penalized.
7. It is very much pertinent to mention here that there is nothing against appellant in the fact finding inquiry report, which implicates him in the mis-appropriation of huge money. For the sake of convenience, the findings of inquiry officer as per inquiry report are reproduced as under:-- "FINDINGS
(1) The Manager, National Bank of Pakistan, Saddar, Branch is responsible for the excess payment.
(2) The concerned section Officer should have gone through the statement provided by the Bank to the Department immediately. Had he checked the statement timely he could have saved the department from loss.
(3) The Section officer should also be asked as to why the incomplete instalments were released to the Union Council Hatri when the department had already made over payment to the Union Council.
(4) The Section Officer concerned should also be asked as to why the amounts to certain local councils were not released in the current instalment.
(5) The present Administrator had remained as Secretary, Union Council Hatri from 15-2-1993 to 13- 10-1996 and Administrator from 14-10-1996 to 23-4-1998. Subsequently he was given the charged of Administrator, Union Council Hatri by the DLG on the direction of the Secretary, Local Government Department vide his order, dated 5th September, 1998 (Flag `G'). It is recommended that he along with Secretary Union Council Hatri may be placed under suspension and some other officer may be posted, so that true facts come to force."
' From the findings of the Inquiry Officer, it appears that Manager of the Bank and the Section Officer concerned were responsible for release of the excess payment in the account of Union Council Hatri, but there is nothing on the record to indicate if any action was taken against the Bank Manager and the Section Officer concerned. It also transpires that in fact no inquiry was conducted against the appellant as the record was not available. The Inquiry Officer had suggested that appellant may be placed under suspension and some other officer may be posted, so that true facts come to fore. Instead of acting on the advice of the Inquiry Officer, which in the circumstances was fair, proper and reasonable, appellant was awarded major penalty of dismissal from service, although there was nothing incriminating against him in the said fact finding inquiry report.
8. It is very much pertinent to mention here that initially Additional Secretary (LG) issued show- cause notice by posing himself as an 'Authority' while the final show-cause notice was issued by the Secretary, Local Government Department in the capacity of an 'Authority'. Under the law the show cause and final show-cause notice have to be issued by the 'Authorised Officer' and not the 'Authority' The Secretary, Government of Sindh, Local Government Department, again in the capacity of 'Authority' awarded major penalty to the appellant. The 'Authority' as defined by sub- rule (2) of Rule 2 of the Sindh Civil Servants (E&D) Rules, 1973, is a person other than the 'Authorised Officer' as defined by sub-rule (3) of Rule 2 of the said Rules. Besides, Rule 5(3) of the said Rules clearly reveals that issuance of show cause as well as final show cause notices are the functions which are to be performed by the 'Authorised Officer' who on receipt of any explanation or reply from the accused employee shall determine whether the charge has been proved and if he proposes to impose a minor penalty, he is authorised by clause (a) sub-rule (4) of Rule 5 to pass the order himself. But if it is proposed to impose a major penalty, he shall forward the proceedings to the 'Authority' and in that case the 'Authority' shall pass any order which it may deem proper.
Here in the present case the role of 'Authorised Officer" and the 'Authority' was assumed by one and same person i,e, the Secretary Local Government Department. It is settled proposition of law that the 'Authorised officer' as well as 'Authority' cannot be one and same person. One who is designated as 'Authority' has to be higher in rank than the person who is authorised to perform functions of 'Authorised Officer'. Reference is invited to the case of Post Master General v. Ahmed Naeem Bhatti, 1999 SCM R 1311.
9. In the light of the aforesaid discussion and reason, we are of the firm view that the impugned order is not sustainable in law. Accordingly, without touching the merits of the case, the impugned order is set aside and the matter is remanded to the respondent No,2 to proceed afresh against the appellant purely in accordance with law by ordering regular inquiry against the appellant purely in accordance with law and the principles of natural justice. Meanwhile, the appellant is directed to be reinstated in service. The intervening period would follow the outcome of fresh disciplinary proceedings. There shall be no order as to costs.
10. Announced in open Court.