' MUHAMMAD AFZAL (MEMBER-I).---As per facts relevant to this appeal, the appellant who is ex-Lady Health Visitor (LHV) was served with a charge-sheet on 2-1-2001 under Punjab Civil Servants (E&D)
Rules 1999 containing the following allegations:--
(i) Misconduct
(ii) Insubordination
(iii) Embezzlement
(iv) Cheating.
' Main allegations against the appellate was in relation to payment of Rs,10,000 as advance money for purchase of chairs etc. In the students mess of Public Health Nursing School, Lahore, where the appellant was posted. The advance money had been paid to the furniture supplier, but the furniture supplier failed to supply the furniture and disappeared. Appellant was originally placed under suspention and her salary was stopped. Appellant filed a civil suit in the local civil Court and the suit being declared in favour of the appellant, payment of salary to the appellant was released.
Originally a committee consisting of three members was constituted to look into alleged misappropriation of Rs,10,000 out of students mess-fund. The committee came to the conclusion that the appellant was responsible for payment of irregular advance. Thereafter, formal proceedings were started and the appellant was charge-sheeted under E&D Rules 1999.
Apparently, the concerned authority realized its error and issued a substituted charge-sheet after some time, under Punjab Removal from Service (Special Powers) Ordinance 2000 (PRSO). Similarly, the some other orders under E&D Rules 1999 were also substituted and were issued under PRSO, but after A the inquiry report had been submitted. Regular Inquiry was conducted by Provincial Drug Inspector, Zone-II, Lahore, Inquiry Officer found that the basic charge relating to embezzlement of Rs,10,000 (irregular advance payment to shopkeeper) was not proved. However, according to the Inquiry Officer, the remaining allegations i,e, misconduct, insubordination and cheating etc. were proved as it was stated by prosecution-witnesses that the appellant was habitual late-comer, who did not bother about discipline, was rude and had her hand in the strike of students in the school and that there were complaints against the appellant. Inquiry was conducted under E&D Rules 1999 since charge-sheet was originally served upon the appellant under E&D Rules 1999. However, subsequently, when show-cause notice dated 19-7-2001 was served upon the appellant it was served under PRSO. Appellant submitted reply to the show-cause notice pointing out that there was a contradiction in the disciplinary proceedings because charge-sheet was served under E&D Rules 1999, whereas show-cause notice was being served under PRSO. Appellant also pointed out that as the charge of embezzlement was not proved in the inquiry report, she was not guilty and that remaining charges were also baseless. Consequently, through impugned orders dated 27-9- 2001 the appellant was awarded the major penalty of dismissal from service with the observations that the authority did not agree with the recommendations of the Inquiry Officer regarding compulsory retirement. Appellant filed departmental appeal which was rejected through impugned orders dated 20-7-2004 hence present appeal in this Tribunal.
2. Learned counsel for the appellant has argued that case at length maintaining that the appellant had been a victim of highhandedness and personal vendetta of the authority/Principal of the Nursing School/respondent No,1, who wanted to see the appellant ousted from service under all circumstances. It is maintained that wrong law was applied in the case of the appellant when she was charge-sheeted. The application of E&D Rules 1999 in the year 2001 vitiated the whole proceedings. Subsequently, out of mala fide the authority tried to substitute the orders regarding charge-sheet under PRSO 2000. It is stated that the substitution of orders under particular rule/law, after the inquiry was concluded, was a further illegal its showing the mala fide and of the concerned authority. It is also pointed out that main allegations against the appellant was that of embezzlement of Rs,10,000 which was paid as advance money to the shopkeeper, out of students fund, but this allegation was not proved against the appellant and for this reasons finally no recovery was imposed upon the appellant. Rest of the allegations i,e, insubordination and cheating were vague and baseless as those allegations were not substantiated by any material evidence against the appellant. Rather, the authority had launched a campaign of vilification against the appellant in order to malign her whereas the appellant had neither been rude with any one nor indiscipline. It is also maintained that similarly, the charge of insubordination brought against the appellant was baseless because this charge had to be proved through some direct act of the appellant. This charge could not be proved by referring to any incident of strike of the students because the students had called the strike due to misbehavior of the Principal and the appellant had nothing to do with the affairs of the students as well as of the mess. It is next maintained that mala fide of the concerned authority was established from the fact that her salary was stopped out of mala fide and the appellant had to file a civil suit for getting her salary released. It is next stated that in the inquiry report reference is made to statements of some witnesses who complied about the rude behaviour of the appellant, but those witnesses were not reliable and they had their own prejudices and venom against the appellant. It is finally maintained that in view of serious infirmities and deficiencies and irregularities in the disciplinary proceedings initiated and concluded against the appellant, impugned orders were void and could not sustain under the law.
3. Appeal is opposed by the respondents. It is maintained that the appellant was an indisciplined official who had created problems for the school administration throughout. It is also _pointed out that whenever any explanation was called from the appellant she misbehaved. Appellant was directly responsible for the mismanagement of Nursing Hostel affairs and that she had paid advance money of Rs,10,000 to the shopkeeper, who later on disappeared and in this way the amount of Rs,10,000 was indirectly misappropriated by the appellant. It is also pointed out that disciplinary proceedings were started under E&D Rules 1999 through mistake and subsequently this mistake was corrected and substituted orders were issued and proceedings were concluded under PRSO. It is also contended that the authority was competent to disagree with the recommendations of the Inquiry Officer and to dismiss the appellant keeping in view the serious allegations levelled against the appellant. It is finally maintained that no witness was prejudiced against the appellant, the authority had taken fair action against the appellant and that the service record of the appellant was full of bad entries showing her to be an unwilling worker and quite irregular in attendance.
4. I have considered contentions from both sides and also gone through the relevant record as made available. I find that the appellant may be an indisciplined official, she may have committed misconduct by way of misbehaviour, but she should have been proceeded against strictly in accordance with law. The fact is acknowledged by the respondents that proceedings were initiated against the appellant under E&D Rules 1999 in the year 2001 when the PRSO was in force. It is also evident from record that the authority decided to issue substituted orders charge-sheeting the appellant after the conclusion of inquiry report. When the inquiry had been conducted, it was not open to the authority to change the charge-sheet through substituted orders. I, therefore, agree with the learned counsel for the appellant that such illegal acts of the concerned authority vitiated the proceedings initiated against the appellant. I further find that main allegation against the appellant was that of misappropriation/embezzlement of Rs,10,000 Appellant had been absolved of this allegation by the Inquiry Officer who stated that the appellant had not given any advance money to the shopkeeper. The remaining allegations,. Including insubordination etc. Stemmed from the same allegation. The inquiry report, as I have examined, is also not comprehensive and detailed. The Inquiry Officer recommended compulsory retirement of the appellant. These recommendations of the Inquiry Officer were not accepted by the Authority, who decided to dismiss the appellant from service. The Authority, no doubt, had the privilege to disagree with the recommendations of the Inquiry Officer, but when the Authority had not discredited the Inquiry Officer's findings, in normal course, she was supposed to accept the C recommendations of the Inquiry Officer. Therefore, considering the facts of the case, I find that the stance of the appellant that proceedings were started against her out of mala fide had some substance. Respondent No,1 was supposed to act strictly in accordance with law and not to get moved by indignation. She could not switch over to new law of disciplinary action after the conclusion of inquiry report.
5. For the reasons given above, appeal is accepted and case is remanded to the concerned authority for fresh proceedings against the appellant on the same allegations including a detailed inquiry by an independent officer. The authority was at liberty to place the appellant under suspension if she felt that the appellant was likely to influence the proceedings. The fresh proceedings shall be concluded within reasonable span of time. Resultantly, impugned orders shall stand set aside. Appellant shall stand reinstated to face fresh proceedings. The period intervening shall be decided by the concerned Authority depending on the out come of fresh proceedings.