' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).---While serving as Deputy General Manager in Respondent-Pakistan Steel, the appellant was reduced to the post of Manager, vide memorandum, dated 17-10-2001. He preferred appeal against it on 19-10-2001, which was rejected vide memorandum dated 2-11-2001; hence, he filed this appeal under section 4 of the Service Tribunals Act of 1973 on 30-11-2001 for setting aside the impugned order dated 16-10-2001 and restoring him to his original status of Deputy General Manager with all back-benefits.
2. The disciplinary proceedings against the Appellant had been initiated with a statement of allegations and charges dated 16-3-2001. The charges and allegations are as under:-- "No, GM (ESB)/ENQ/2001/047 Dated 16-3-2001.
Mr. Muhammad Farooq, .
Deputy General Manager, P.No,012939, C.M.D., Pakistan Steel. '
STATEMENT OF ALLEGATION AND CHARGES.
' As conveyed by A&P's Letter No,A&P/Enq. Cell/2001/3178 dated 15-3-2001, the competent authority of the under section 2(aa) read with sections 3 and 5 of the Removal from Service (Special Powers)
Ordinance, 2000 as amended, the undersigned has been appointed as the Convenor of Enquiry Committee to enquire into the following allegations and charges levelled against you.
' You have Incharge (Township) besides having an office room in old health building kept another decorated office in opposite block accommodating offices of Estate and Admin Section of Township Department, without any official requirement and without any authority.
' You failed to inform you successor about the additional decorated officer and wilfully concealed it.
2. As the above allegations are prime facie reflective of misconduct under section 3 (1)(b) of the Removal from Service (Special Powers) Ordinance, 2000 as amended, the competent authority has ordered to hold enquiry into the matter and appointed the undersigned as Enquiry Officer to scrutinize your conduct with respect to the above allegations.
3. Now therefore, in exercise of the powers conferred under section 5(1)(a) of the Removal from Service (Special Powers) Ordinance, 2000 as amended, the undersigned hereby calls upon you to put in a written defence i,e, to explain your position in regard to the above allegations and charges in writing within seven days of the receipt of this communication.
4. On receipt of your explanation, you will be informed about the date, time and place of the enquiry. In case your explanation does not reach the undersigned within the period of seven days it will be assumed that you are not interested in putting written defence and the undersigned will proceed with the enquiry, of which date, place and time will be duly intimated to you.
(Sd.)16-3-2001 (RASHEED AHMED ZAFAR) G.M. (ESB)/ENQU IRY OFFICER"
' The appellant replied the statement of allegations and charges on 2-3-2001 denying the allegations against him, but the Respondents did not accept the explanation of the Appellant and ordered inquiry against him. The enquiry was accordingly held by the Inquiry Officer. It is said that the Appellant was exonerated by the Inquiry Officer, but the competent authority did not agree to the findings of the Inquiry Officer, and ordered a de novo inquiry. Consequently, a fresh statement of allegations and charges, repeating the same allegations with addition of the following allegations was issued to the Appellant and second inquiry was held:-- "That your above act is prejudicial to good service discipline and unbecoming of an officer and gentleman."
' The Appellant was found of misconduct and, it was said that a penalty of withholding of increment of the Appellant was recommended, but the competent authority did not agree to that and imposed upon the Appellant the penalty of reduction to a lower post i,e, Manager (PSE-IV); hence that appeal.
3. We have heard the learned counsel for the parties and perused the record carefully.
4. The learned Counsel for the Appellant stated that the show-cause notice was issued to the Appellant of keeping another decorated office without any official requirement and without any authority; that the Appellant replied the show-cause notice; that an inquiry was held against the Appellant in which he was exonerated, resulting in displeasure of the Chairman against the Inquiry Officer; that a second inquiry was held against the Appellant in which the penalty of reduction in rank was imposed upon him without a second show-cause notice, without supplying a copy of inquiry report and without personal hearing. The learned counsel further stated that on the same allegations four other employees were also issued show-cause notices and inquiry was held against them also, as result of which they were also punished by the department; that all of them, however, exonerated in Appeal No,1694(CE)/2001 (Abdullah Ghanghro v. Chairman, Pakistan Steel Mills and 3 others). The learned counsel further stated that the complainant against the Appellant, namely, Umer Farooq (his successor DGM) was also penalized by the Respondent-Department for making a false complaint against the Appellant.
5. In the written comments, filed on behalf of the respondents, initial legal objection was taken that the appeal of the appellant was rejected vide letter dated 2-11-2001, but he preferred another appeal dated 26-3-2001 against the order dated 16-10-2001, which was rejected on 12-4-2002, as such, this appeal is not maintainable for the reasons that there is no provision in law for filing second appeal. The order of the competent authority imposing penalty upon the Appellant of reduction in rank has been justified. It has been stated that proper disciplinary proceedings had been taken against the Appellant by holding departmental inquiry against him strictly in accordance with law and providing the Appellant full chance to cross-examine the witnesses and putting up his defence; that copy of inquiry report along with inquiry proceedings had been supplied to the appellant and the appellant was heard in person by the competent authority; that the appellant had admittedly set up an additional office unauthorizedly, and he had concealed the same fact from his successor; the charges against the Appellant had been legal and he was rightly punished by the competent authority. The learned counsel for the respondents urged that the appeal having no merit be dismissed with costs.
6. We have carefully considered the above arguments of both parties and perused the judgment cited buy the learned counsel for the appellant.
7. Dealing first with the question of maintainability of the appeal is argued by the learned counsel for the respondents, we find no substance in it, as the record shows that against the impugned order of penalty dated 16-10-2001, the Appellant had filed departmental appeal on 19-10-2001, which was rejected by the respondent on 2-11-2001. Therefore the appellant filed the appeal on 30- 11-2001 within a period of limitation. Secondly, that there is nothing on record to show that the appellant had filed another appeal, as alleged by the respondents, after filing of this appeal, as such, the objection for the learned counsel for the respondents is overruled.
8. Reverting to the objection raised by the learned counsel for the appellant about not issuing the second show-cause notice, not supplying the copy of inquiry report and condemning the appellant unheard, we find that these objections are not valid. As per para-8 of the memo. Of appeal, it has been admitted that appellant had received the final show cause notice dated 19-9- 2001 calling upon him to show cause why major penalty may not be inflicted upon him. About the inquiry report, the learned counsel for the respondents had categorically stated the same had been supplied to the appellant, which was evident from the fact that without admitting the receipt of the inquiry report the appellant had in the memo. Of appeal referred to the findings of the Inquiry Officer to the effect that he had only recommended the stoppage of one increment of the Appellant in the inquiry report. It has been stated that he had learnt this from the summary of Incharge (A&P), the Respondent No,3. The question is When the Appellant could look into the summary which is a sort of confidential document, why he could not lay hand on the inquiry report.
Secondly, if he had not received the copy of inquiry report, he should have pointed it out in his reply to the show-cause notice, but we find along with the memo. Of appeal, he has not filed copy of such reply from the perusal of which it could be found out whether he had raised such objection in his reply or not. As such, we do not attach any importance to the objection of the Appellant and his Advocate about the non-supply of the copy of inquiry report.
9. So far as the objection of the learned counsel for the appellant for not providing the appellant any opportunity to the appellant or personal hearing, it has been admitting by the appellant in para-8 of his memo. Of appeal that he was personally heard by the respondents No,1 the relevant words of such admission are reproduced as under:-- ' The respondent No,1 had called the appellant as a formality of personal hearing and verbally had accepted the defence taken by the appellant."
10. About the case of other employees, whose appeal against the penalty of reduction in rank on the basis of identical allegations, said to have been allowed, our finding is that there was a difference between the charges levelled against Abdullah Ghanghro and others and the present appellant. Abdullah Ghanghro and others were charged to have concealed the factum of retaining an additional office by the appellant in Block-S of the Steel Mills. The charge against the appellant is not only that, but he was held responsible for setting up as additional decorated office unauthorizedly. As such, the said judgment has no material bearing on the case of present appellant.
11. Referring to the merits of the case of appellant, it has transpired that Umer Farooq, the successor Deputy General Manager of the appellant, had pleaded his ignorance about his knowledge of the existence of additional office set up by the appellant, disciplinary proceedings were drawn against subsequently for concealing the factum and existence of such office and not informing the competent authority about that at the time of his visit to that office or earlier. In consequence of the disciplinary proceedings Umer Farooq was served with a warning only. His case is on a different footings than that of the present appellant against whom the charge is of setting up an additional office unauthorizedly and wilfully concealing the same. It may be pointed out here that in the first charge dated 16-3-2001, the second charge was "your have failed to inform your successor about the additional decorated office and wilfully concealed it", but in the subsequent charge of de novo trial improvement was made in this, which is as under:-- "That your above act is prejudicial to good service discipline and unbecoming of an officer and gentleman "
' It appears that the above change in the second charge was made as the information of complainant successor Deputy General Manager was found to be false and he was prosecuted for that. This charge, therefore, does not hold water. The main allegation against the appellant, in the statement of allegations and charges, is of setting up a decorated office without any official requirement and without any authority. In this connection, an inquiry was held against the appellants providing an opportunity to him to defend himself and he was found guilty of the charge. It was said to be prejudicial to good service discipline and unbecoming of an officer and amounted to misconduct under section 3(1)(b) of the Removal from Service (Special Powers)
Ordinance, 2000 as amended. In this connection, we refer to the reply of the appellant dated 21-3- 2001 to the first statement of allegations and charges. In this reply, the appellant had clearly admitted the factum of establishing the office in dispute in the following words:-- "When I was transferred vide letter dated 26th Feb, 1996, from transport Main to Township, the then General Manager (Township) accepted my joining on 29th Feb, 1996, and was pleased to assign me work of Township Maintenance, Horticulture and Estates sections vide memo. Dated 3rd March 1996 (Flat "A"). As such the Township Department was newly established and I was posted as DGM (Township) therefore, on the instructions of Mr. Muhammad Iqbal GM (Township), I established my office in Block "S" close to other offices of Township "
12. As against the above admissions, in his appeal against the impugned order dated 16-10-2001, The appellant had taken a contradictory stand in the following words:-- "In this regard it is to submit that I had admitted that there was an office as per position given above but this office was maintained prior to my assumption as incharge (Township).
13. In view of the shift in stand by the appellant, his subsequent stand has to be discarded. It has been proved on record that the appellant has established and kept a separate and additional office without any authority and without requirement sanctioned by the competent authority. The appellant had though explained and justified the setting up for the office in question, nevertheless, his doing so without any authority must fall within the ambit of misconduct, though petty one. The action of the appellant, in all probability, may have been justified the bona fide, but it was warranted without any proper permission or requirement sanctioned by the competent authority.
The appellant was, therefore, rightly found guilty of misconduct, a conduct unbecoming of an officer and gentleman as defined under section 2(b) of the Removal from Service (Special Powers)
Ordinance, 2000,but so far as the penalty of reduction in rank imposed on him is concerned, it appears to us to be too harsh to be sustained, for the reasons that the action of the appellant though lacked care and caution, it cannot be termed to be positively mala fide. The disputed office was not used by the appellant as his Otaq (parlour), bedroom, consultation room, waiting room or visiting room. It was, for all practical purposes, used for official purposes as conference room, as is evident from the record. By setting up of an additional office, the appellant had not gained materially or otherwise and he had also not caused any loss, wrongful or otherwise, to be Respondent-Organization. The learned counsel for the respondents has not informed us if the said office has been got vacated or has been put to any other use. Anyhow, mitigating circumstances do exist impelling us to take a lenient view so far as the penalty of reduction of rank imposed upon the appellant is concerned, which is not commensurate with the petty misconduct proved against.
We, accordingly, taking a lenient view, modify the penalty of reduction to a lower post i.e Manager, convert the same to withholding of his two increments for a period of two years. Consequently, the Respondents are directed to restore the appellant to his original position of Deputy General Manager from the date of the impugned order dated 16-10-2001. He shall be entitled to the back- benefits of the post of Deputy General Manager as on 16-10-2001 subject to withholding of two increments, as mentioned above. Appeal stands partly allowed.
14. Parties are left their own costs.
15. Copies of Judgments be sent to parties under registered cover and to be the relevant quarters under rule 21 of Service Tribunal (Procedure) Rules, 1974.