' RASHID ALI MIRZA (MEMBER).---Through the instant appeal under Section 4 of the Service Tribunals Act, 1973, the appellant has challenged the impugned order dated 21-7-2001 of his removal from service under Removal from Service (Special Powers) Ordinance, 2000 praying therein to allow the appeal, set aside the impugned order and direct the respondents to reinstate him in service with all back-benefits including continuity of employment, seniority and all fringe benefits under the law.
2. Briefly the facts, leading to this appeal as mentioned in the Memo. Of Appeal are that while the appellant was posted as Commercial Supervisor Booking he was suspended on 21-3-2001 under verbal orders of Respondent No,1 without service of Charge-sheet and without assigning any reasons. The charge was taken over by Commercial Inspector Sukkur, Mr. Sikandar Ali Lashari. It is stated that three Railway Officers M/s Agha Muhammad Ali, A.W. Khan and Mr. Anwar Iqbal accompanied by staff of Deputy Director Vigilance visited Rohri Booking Office and collected the detailed information from him about misappropriation committed by the Counter Booking Clerks by way of not properly remitting the cash as per DTC Book on the sale of the tickets and not having counted Misc. Receipts issued and amount remitted accordingly. The appellant submitted information report to the above said team on 2-4-2001 vide photo copy of Annexure-D produced along with Memo. Of Appeal. It is further stated that Respondent No,4 Mr. Khalid Saleem got the criminal case registered with the Railway Police Rohri on 6-6-2001 against Durrani Khan, Bashir Ahmed, Noor Muhammad Lashari, Mushtaque Hussain Booking Clerks and also included the appellant in the F.I.R. For alleged sale of tickets for committing fraud and misappropriation.
' The appellant was served with Show-cause Notice along with Statement of Allegations which are produced as under:-- "No, 170E/12274/P/I. Date: 7-5-2001.
' SHOW-CAUSE NOTICE ' Whereas, you Mr. Muhammad Rafique C.S. (B) ROH BPS-11 have committed the following irregularities: ' CHARGES ' Charges are attached herewith in two pages.
' WHEREAS, by reason of above, you are guilty of Government Servants (Efficiency and Discipline)
Rules, 1973/Delegation of Power under Removal from Service (Special Powers) Ordinance, 2000.
' AND WHEREAS, in the light of the facts and circumstances of the case, it has been decided by the undersigned that it is not necessary to have an enquiry conducted in this case in terms of Rule 5(3) of the Government Serants (Efficiency and Discipline) Rules, 1973.
' NOW, THEREFORE, you are hereby required to show-cause in writing within 7 days of the receipt of this notice why the major penalty of 'dismissal from service' as defined in sub-rule 4 (1)(b)(4) of the Rules ibid should not be imposed on you, failing which it shall be presumed that you do not want to offer any written defence and that you accept the charges.
' You may also state whether you desire to be heard in person by the competent authority.
(Competent Authority) Dy. S.D. Sukkur"
"STATEMENT OF ALLEGATIONS AGAINST MR. MUHAMMAD RAFIQUE, C.S. (B) ROHRI.
' You Mr. Muhammad Rafique, C.S. (B) Rohri have been charged for serious misconduct, commission of fraud and defalcation of Government revenue , as evident:--
1. For ulterior motives, the MR Public book in vogue was sidelined and MRs of other series were used, while receiving Government money, during transaction at.Rohri Booking Office.
' The amount so collected was defalcated and as a result thereof short remittances were detected in booking office functioning under your administrative control:--
(i) Nov.2000
(ii) Dec. 2000
(iii) Jan. 2001
(iv) Feb. 2001
(v) Mar. 2001 Rs,1246960 Rs,0572528 Rs .0296848 Rs,1332067 Rs,0990793
2. The balance sheet from Jan/2001 and Feb/2001 was not duly prepared nor worthy commercial returns from Dec. 2000 to Feb, 2001 prepared with mala fide intentions to conceal and cover the fraudulent activity with the intentions of misleading and deceiving the administration.
3. That you made frequent cuttings, over-writings, tampering and pasting slips over figures of the cash in summary DTC book of Dec. 2000, Jan, 2001, Feb, 2001 and Mar.
2001.
4. That on 5-2-2001, you deputed Mr. Durrani Khan, JCA (B) to collect the instalments of vending contractors out of way. He collected Rs,9,34,204 from the vending contractors but did not show its deposit in the DTC book. You confirmed the receipt of cash in question, but failed to deposit the same in Government accounts.
' For the purpose of avoiding detection of the fraud of Rs,934204 to figures of 18-2-2001 of DTC book were tampered and another serial arranged in CR note and bank receipt was committed by you, thus altering the figures of Rs,263000 to Rs,1263000.
6. That during the course of working as Incharge CS/B. Rohri you utilized the Government cash for private affairs and gave as loan to irrelevant person through unlawful means.
7. That you being Incharge of Booking Office introduced 24 Hrs. Duty roaster in the booking office unlawfully against the provisions of section 71-D Railways Act, 1890.
8. That M/s. Noor Muhammad Lashari and Bashir Ahmad, SCA (B) short remitted an amount of Rs,4,10,000 in the MRs for STEs during the month of Sept.
2000. The employees were placed under suspension but continued duty under your protection and blessings of unfair means and you provided cover to the unfair means committed by the Booking Clerks, thus receiving share in the amount so defalcated.
9. On 5-3-2001, you refrained to issue MR Public to vending contractors in presence of CMIs deputed to check the deposit work. At 19 hrs, after the departure of both Inspectors, you issued MR Public worth Rs,2,11000 and pocketed the amount instead of depositing the same in Govt. Cash. For covering up the shortage, you tampered the accounts of 5-3-2001 and shown shortage of Rs,1,97,070 against Mr. Noor Muhammad Lashari which was not admitted by him due to tampering in the figures of DTC book, which reveals that entire amount was pocketed by you.
10. That you misappropriated an amount of Rs,21,77,248 but deposited Rs,9,34,204 and Rs,4,20,000 collected from the parties. Rs, 8,23044 are still in outstanding against you, not yet deposited in the Government treasury.
11. That you failed to maintain proper record of short remittance, but when enquired about shortage you verbally named Noor Muhammad Lashari, Mushtaque Ahmed, Bashir Ahmad and Durrani Khan as culprits.
12. MR book containing pages 1335775 to 834800 was unauthorizedly and against rules kept under your personal custody, through which you issued six receipts in the month of Jan, 2001. Few blank pages left were subsequently utilized by Mr. Durrani Khan JCA/B during Feb.
2001. These were properly accounted for through involved amount of Rs,154160 and Rs,270050 respectively.
' The use of out of serial MR book stated above moreover confirms your ulterior designs, commission of fraud, deceiving the Inspectorate staff working under you in accordance to the prescribed procedure and policy in vogue. This making financial loss to the tune of lacks of rupees.
' Explain as to why major penalty of dismissal from service may not be imposed in addition to the recovery of defalcated amount of Rs,8,23,044 still not made good by you.
(Sd.)
(Competent Authority) Dy. D.S. Sukkur."
5. The appellant submitted an application dated 9-5-2001 to the Respondent No,1 requesting to furnish the material documents to enable him to submit his defence reply but the respondents neither held enquiry into the serious allegations nor provided the required documents and thereby deprived the appellant from reasonable opportunity of defence. The appellant has stated in the Memo. Of appeal that he was involved in the criminal case and F.I.R. No,14 of 2001 was registered against him and others. The appellant surrendered himself before the Court and remained in jail for sufficient period and obtained the bail on 14-6-2002 and thereafter he reported for duty to the respondent through application dated 20-6-2002. He had produced the photo copy of the application as Annexure-I. It is further stated that the respondents submitted special report to the Pakistan Railways Police authority under endorsement No,976-5 dated 29-7-2001 showing no balance, shortage or debit against the appellant with regard to the misappropriation committed in the Rohri Booking Office. He has produced photo copy of report as Annexure-J on record. The appellant further stated that the respondent No,2 has removed him from service by ex parte order which was communicated to him 27-6-2002. The appellant being aggrieved with the said impugned order preferred departmental appeal to respondent No,3 on 10-7-2002 but the sane was not responded by the Department, hence he filed the appeal.
6. The Written Comments have been filed on behalf of the respondent wherein it has been stated that the appellant was placed under suspension on 24-3-2001 followed by Show-cause Notice which was served upon the appellant on 8-5-2001 on the charges of defalcation of Government money to the tune of Rs,21,77,248, that enquiry dated 24-4-2001 was conducted by Assistant Accounts Officer, Assistant Commercial Officer-I and Assistant Personnel Officer of Enquiry Committee, on the strength of which show-cause notice was served upon the appellant and F.I.R.
Was lodged for such defalcation of Government money. It is further stated that appellant was afforded full opportunity to consult the record and was given opportunity of personal hearing. It is further stated that appeal merits no consideration, hence be dismissed accordingly.
7. We have heard the learned Counsel for the parties and perused the record.
8. The learned counsel for the appellant argued that the factual and legal aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice as various serious questions are involved. The learned counsel contended that the allegation levelled against the appellant that the figures given by the appellant were less than the calculated amount for the month of November 2000 but no regular enquiry was conducted nor there is any evidence or Statement of any witness to connect the appellant in giving the figures of less calculated amount but the Enquiry Report suggests that the appellant failed to give reasons and also failed to satisfy the Enquiry Committee. The learned counsel further argued that it was the function of the Booking Clerks to deposit the amount of the earning of auction and not the appellant. The Enquiry Report reveals that on the basis of record Special Superintendent/Inspector Coaching and Goods started his checking and on 23-12-2000 DCO Sukkur also conducted annual inspection of Booking Office where he got some doubt regarding working of Booking Office. The report further reveals that the Balance Sheet of the Station was checked where there was outstanding amount of short remittance from the side of Booking Staff.
The learned counsel further argued that from Enquiry Report it is clear that the irregularities were committed by the Booking Clerks and not the appellant as it is clearly mentioned in the report that irregularity which has been noticed by Enquiry Committee is that while handing over the charge from one Booking Clerk to another the closed amount was not recorded in the diary but they prepared the detail of the amount and put that in the Safe without practically accounting to their relievers which was objectionable. He has further contended that all the irregularities have been committed by the checking clerks and not the appellant because it is observed in the Enquiry Report that scoring out of figures and over-writing was made frequently which also tentamounts to defraud. He further pointed out the observation of the Enquiry Report that on Checking Staff acts upon the instructions on other checking authority from time to time resulting in these irregularities which were committed by the Checking Staff. The learned Counsel further pointed out the report which clearly speaks that even the transfer and posting of staff ordered by the then DCO was not effected in time which was not the function of the appellant. The learned counsel further argued that on the contrary the appellant has assisted the Enquiry Committee that Mr. Noor Muhammad Lashari had played fraud. The learned Counsel further contended that the balance of short remittance of Rs,8,23,044 shown against the appellant is totally incorrect as it was not the function of the appellant but it was the function of the Booking Clerks to deposit the sale amount of the tickets. The learned counsel further argued that the allegation against the appellant of short remittance of Government money or imposing responsibility upon him for the alleged defalcation was without bringing on record any evidence or without holding any enquiry against him. The learned Counsel argued that in view of the denial of serious allegations of fact by the appellant regular enquiry was absolutely necessary but no regular enquiry was held and without giving an opportunity of personal hearing to him, he was removed from service. He has further contended that the fact-finding enquiry was conducted prior to issuance of show-cause notice and he has been awarded major punishment on the basis of that report which is not tenable in the light of the ruling cited in 2001 SCMR 256. He contended that F.I.R. No,14 of 2001 had been filed by the respondents and after investigation, the Police Department had arrived at a conclusion that the excess amount of Rs,1,11,617 was remitted by the appellant. He further argued that regular mandatory enquiry was also not held in this case. He placed reliance on 2004 SCJ 455. He has further contended that no personal hearing was afforded which was necessary. He placed reliance on 1986 PLC (C.S.) 419, 2003 PLC (C.S.) 365 and PLD 2004 (S.C.) 441. He further argued that identical cases have been remanded in view of the findings of this Tribunal and as such this appeal may also be remanded to the respondents for de novo proceedings. He contended that the show- cause notice was issued to the appellant by D.D.S. Sukkur whereas appellant being (BPS-11) employee the same was to be issued by Divisional Superintendent Railway who was the appointing authority under the Ordinance as well as under Railways Notification dated 13-6-2001. He placed reliance on 2003 PLC (C.S.) 1304 = 2003 SCMR 1718 and photocopy of Railways Notification dated 13-6-2001. He stated that all the proceedings were initiated behind his back when he was in jail, but neither any notice was got served upon him through Jail Superintendent nor any notice was given to him when he was at Karachi and had applied for leave. The learned Counsel contended that delay in filing appeal was due to the fact that the appellant remained in Jail with effect from 28-2- 2002 to 14-6-2002 and such period is condonable for filing appeal in the Tribunal and has filed Condonation Application. He placed reliance on 1986 SCMR 74 and 1993 PLC (C.S.) 419. The learned Counsel further contended that inquiry was dispensed with in the show-cause notice without assigning any reason, hence the impugned order is not speaking order.
9. The learned Counsel for the respondents has failed to rebut the contention of the learned Counsel for the appellant but supported the impugned order passed against the appellant and prayed for dismissal of the appeal.
10. The learned Counsel argued that the proceedings against the appellant had been initiated by a show-cause notice issued under Government Servants (E&D) Rules, 1973 and Removal from Service (Special Powers) Ordinance, 2000 and he was also punished under the same Ordinance. Broadly speaking the procedure prescribed for action under Removal from Service (Special Powers)
Ordinance 2000 is that the competent authority issues charge-sheet, appoints Enquiry Officer who holds enquiry giving the accused official full chance to defend himself and if the charges are proved a Second show-cause notice is issued to the accused along with a copy of the Enquiry Report and then the accused official is given a chance of personal hearing whereafter punishment if any is imposed upon the accused official on the charges proved against him. However in case where the competent authority finds that regular enquiry is not needed for any reason including the availability of documentary evidence on which the matter can be decided or for any other reason for not holding regular enquiry such as confession or admission of an accused official then the competent authority is required to state in the show-cause notice that for such and such reason, the enquiry is dispensed with, but in the instant case we find that no such reason has been assigned in the show-cause notice for dispensing with the regular enquiry. Secondly, in spite of denial of serious allegations of fact by the appellant no regular enquiry has been held against him.
We find that there are grave and serious infirmities in the disciplinary proceedings against the appellant which have vitiated the same. Reliance is placed on 1984 PLC (C.S.) 641, 1986 PLC (C.S.)
894, PLD 1994 SC 222, 1985 PLC (C.S.) 245, 2004 SCMR 1662 and 1993 SCMR 603.
11. From the perusal of the record and from the arguments advanced by the learned Counsel for the respondents it has transpired that a show-cause notice was issued to the appellant as a result of an enquiry conducted by the Committee. Even otherwise, object of a preliminary enquiry is to collect evidence and material and to determine the trustfulness of the allegations levelled against an employee. That employee can be declared guilty only through a regular enquiry which is held after charge sheet is issued to him. It is strange that the respondent did not feel the necessity of holding a regular enquiry against the appellant and for imposing penalty on him banked merely on the report of preliminary enquiry. As such, the proceedings conducted by the respondents which resulted into the dismissal of the appellant from service cannot be protected. Our this view gets full support from the law laid down in PLJ 2000 Supreme Court 255. It was held in this authority that the fact finging enquiry can never be a substitute for a regular enquiry and it could not be used against an accused employee for awarding major penalty of dismissal from service.
12. For the reasons above, we accept the appeal, set aside the impugned order dated 21-7-2001.
The appeal is therefore, remanded with direction to the respondent to reinstate the appellant and hold de novo disciplinary proceedings against the appellant on the same allegations/charges within a period of four months. The period of four months shall be counted from the date of receipt of a copy of this judgment by the respondent. The question of back-benefits shall depend upon the result of the enquiry. No order as to costs.