' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).---Appellant Mrs. Najma Saeed, Head Mistress, Government Girls High School, Khadro and Gulzar Ahmed Junior Clerk of the said School, were proceeded with departmentally. They were jointly served with a show-cause notice dated 19-5- 2001 issued by the Secretary, Government of Sindh, Education Department, Karachi/Authorised Officer, alleging therein that: "There is misappropriation of Government money of Rs,16,82,500 by making forgery in the bill of GGHS Khadro from January, 1998 to August, 2000. Hence the criminal offence has been committed by you in collaboration with each other."
' Appellant in her detailed reply denied the allegation and explained her position. Her reply was not found satisfactory and she so also co-accused Gulzar Ahmed were served with final show-cause notice dated 25-7-2001 wherein major penalty of removal from service was proposed to be imposed, which too the appellant replied and reiterated the stand earlier taken by her, which too was not found satisfactory. Ultimately, after affording chance of personal hearing, appellant was awarded major penalty of "Reduction in rank for two years" vide order dated 5-1-2002. Co-accused Gulzar Ahmed was, however, awarded major penalty of "Removal from service recovery of losses" by a separate order dated 5-1-2001. After availing departmental remedy, which remained unresponded, appellant through the instant appeal invoked the jurisdiction of this Tribunal for setting aside the original impugned order with all consequential benefits. It may be pointed out that co-accused Gulzar Ahmed has not filed any appeal before this Tribunal.
2. In support of appeal, learned counsel for the appellant argued that the disciplinary proceedings initiated against the appellant were in utter violation of the mandatory provisions of the Sindh Civil Servants (E&D) Rules, 1973. He submitted that as a matter of fact-co-accused Gulzar Ahmed, Junior Clerk of the Government Girls High School, Khadro with the connivance of staff of Treasury Officer, Sanghar and in collaboration with the staff of National Bank of Pakistan, Sanghar Branch, mis-appropriated the Government amount and as per inquiry conducted against the said clerk he was found guilty and that there was nothing against the appellant, yet in an arbitrary and fanciful manner she was penalized and awarded major penalty of reduction in rank. He contended that entire record maintained by appellant in the school was found clean, correct and accurate according to pay bills and the counter-folios of the cheque books, which she had produced before the Inquiry Committee constituted against co-accused Gulzar Ahmed, but without verifying the genuineness and authenticity of the said record appellant was held guilty of inefficiency, negligence and lack of supervision. While referring the case file, learned counsel stated that on acquiring knowledge of fraud and mis-appropriation committed by said Gulzar Ahmed, the appellant initiated tht correspondence with her higher-ups and after seeking necessary permission lodged F.I.R. Against said culprit who is still facing criminal trial in the Court of learned Special Judge, Anti-Corruption, Hyderabad. He argued further that in the inquiry conducted against Gulzar Ahmed, appellant was not found guilty of fraud, mis-appropriation and embezzlement, yet on the so-called allegation of lack of supervision, appellant was awarded major penalty which in the circumstances of the case is neither warranted nor, sustainable and that the impugned order being opposed to facts, justice and equity may be set aside.
3. In rebuttal, Learned Assistant A.G. While referring the written statement filed on behalf of respondents argued that appellants being the D.D.O. (Drawing and Disbursing Officer) was responsible of preparation of bills and disbursement of amount to the incumbents entitled to receive and also responsible for proper utilization of the amount placed at her disposal, but she failed to fulfil her responsibilities, resultantly her clerk Gulzar Ahmed succeeded in misappropriating the huge Government amount by tampering in the regular and supplementary bills, fraudulent deposit of excess amount and its withdrawal through cheques. Therefore, appellant on account of negligence in performing her duties coupled with lack of supervision was rightly penalized and that the impugned order being proper, legal and justified may be maintained.
4. On careful scrutiny of the material available on the record it appears that charge of mis- appropriation of Government money in collaboration with each other levelled against the appellant was serious one, which the appellant denied vehemently and explained her position and in support of her defence she also produced certain statements duly verified by the Bank, yet in order to arrive at proper and judicious decisions no regular inquiry was either ordered or conducted against the appellant. In a show cause issued to appellant and said Gulzar Ahmed the regular inquiry was dispensed with. However, prior to that the Director, Secondary, Education, Mirpurkhas, constituted a three member inquiry committee comprising Mst. Razia Bano Durrani, District Education Officer (Female) Secondary, Sanghar as its Chairman and M/s. Muhammad Ashraf Leghari, Head Master, Government High School, Daulat Leghari and Nawaz Ali Khaskheli Assistant Accounts Officer, D.E.O. (F) Secondary, Sanghar as its members, to conduct inquiry against Gulzar Ahmed, Junior Clerk alone. In the said inquiry, appellant's role was that of complainant and star witness, wherein as it appears from the perusal of record the statement of appellant was also recorded. In the preliminary enquiry report, submitted by inquiry committee, Gulzar Ahmed, Junior clerk was held guilty of misappropriation of huge Government money, while appellant was held guilty of inefficiency, negligence of duties and lack of supervision. In our humble view, the said inquiry report by no stretch of imagination can be used a piece of evidence against appellant to inflict major penalty upon her. It is settled principle of law that for awarding major penalty to the civil servant concerned, there must be ample, convincing, cogent and reliable evidence, which can be collected only through regular departmental inquiry. In the instant case, admittedly no regular inquiry was either ordered or conducted against the appellant. From the inquiry report against Gulzar Ahmed, Junior clerk, it reveals that he surreptitiously without the knowledge of appellant changed rather manipulated the figures in the passed bills and the cheques presented C before the Bank. It also reveals that some Treasury staff and the Bank employees were in league with said Gulzar Ahmed, Junior Clerk, who has already been dismissed from service and is also facing trial in the concerned Court of law. Said Gulzar Ahmed has not yet approached this Tribunal for setting aside the dismissal order, which impliedly means that he was/is guilty conscious. In any case, the appellant cannot be penalized for the fault and default of his clerk. So far lack of supervision, there is no iota of material available on the record to support the same. Appellant along with her reply produced certain statements showing the complete details of mis-appropriation committed by Gulzar Ahmed, Junior clerk. In the capacity of star witness her statement before the inquiry committee was recorded, the copy of which despite repeated letters has not been produced during the course of hearing of the appeal. Non- production of the statement of appellant said to have been recorded during preliminary inquiry conducted against Gulzar Ahmed leads us to the only inference that it would be of no help to respondents.
5. In the absence of any regular inquiry so also in the absence of any tangible, convincing and concrete evidence of in-efficiency, negligence of duties and lack of supervision, we are of the firm view that major penalty awarded to the appellant in neither maintainable nor sustainable in law.
We could have remanded the matter for conducting regular inquiry, but in view of the fact that appellant is as the verge of retirement, no useful purpose would be served if the matter is remanded for regular inquiry.
6. For the aforesaid reasons, the appeal is accepted and impugned order dated 5-1-2001 is set aside. There shall be no order as to costs.
7. Announced in open Court.