1. [Federal Service Tribunal, Islamabad]Present: QAZI MUHAMMAD HUSSAIN SIDDIQUI ANDRASHID ALI MIRZA, MEMBERS.Syed Khursheed Anwar0VersusFederation of Pakistan through Secretary EstablishmentGovernment of Pakistan, Islamabad and othersAppeal No. 130 (K) CS/2002, decided on 10th April, 2006.
2. Service Tribunals Act (1974)- -S.4-Government Servants (Efficiency & Discipline) Rules, 1973, S.5 (1) (iv)-Allegation of fraud and misappropriation of Government money-To modify the punishment of dismissal of appellant from service to compulsory retirement-Prayer of-Case of extreme dishonesty and fag-end of service- Question of-Held: Appellant played pivotal role in fraud and mis-appropriation of Government money as he had misused his delegated power of sanctioning payment by communicating fictitious sanction on bogus; bills-Apex Court had not approved leniency in case of dishonesty-As a matter of fact, the refunding pf huge embezzled money alone was sufficient of prove the charge of combined collusion of fraud and corruption against appellant-. Appeal dismissed (Para 10,13)
3. For the Petitioner: Abdui Sattar Mughal, Advocate.For the Respondent: Asif Mangi and alongwith departmental representative Javed Qamar Najmi.Had'come on record against other two officers, but absolving them of such charge would amount to sheer discrimination-Supreme Court dismissed petition filed by petitioners and refused to grant them leave to appeal with directions to other two officers to show- cause as to why judgments of Sejrvice Tribunal passed in their "favour, (not appearing to b in consonance with evidence as collected against them during inquiry on the basis of which such penaIty had been imposed upon petitioners) be not set aside and major penaIty imposed upon them by Department be kept intact."12. M.H. Abbasi had been awarded comparatively lesser penaIty of compuisory retirement from service. Far be it from us to have condoned his dishonesty, but for awarding him lesser penaIty of compulsory retirement from service by the authority, there did exist some justification, as he was helpful in unearthing the entire fraud, but on that account penaIty of dismissal of Appellant Khursheed Anwar cannot be converted to his compulsory retirement, as that would amount to paying premium for the fraud which, but for him, could not have taken place.13. For all the reasons mentioned above, we find ourselves not able to accede to the request of the Learned Counsel for the Appellant to modify Appellant's penaIty of dismissal and convert it to his compulsory retirement. As a matter of fact, the refunding of the huge embezzled money alone was sufficient to prove the charge of combined collusion of fraud and corruption against the Appellant, deceased Muhammad Shamim and M.H. Abbasi. The appeal is devoid of any merit, It is dismissed accordingly with no order as to costs. The Appellant shall, however, be at liberty to approach the Government, under section-19 (3) of the Civil Servants Act of 1973 for sanction of compassionate allowance to him.The appeal on merit, it was upto the Tribunal to consider the request of the counsel for the Appellant for modification of the punishment of dismissal of the Appellant to his compulsory retirement from service.8. Since the Learned Counsel for the Appellant has not pressed the appeal on merit, the precise question before us is, whether on the grounds urged by the Learned Counsel for the Appellant the penaIty of dismissal of the Appellant can be converted into his compulsory retirement. After thoughtful consideration of this question, our plain answer is in the negative for the following reasons.9. A perusal of record shows that the Appellant, deceased Muhammad Shamim and M.H. Abbasi had been involved in extreme acts of misconduct, corruption and fraud. On detection of fraud, they refunded the embezzled money voluntarily without any coercion, which conclusively proved their guiIt making any further inquiry'into the matter redundant, It has transpired from the perusal of the inquiry report and the inquiry proceedings in which the Appellant had been associated that the Appellant played role in the fraud and misappropriation of the Government money, as he had misused his delegated power of sanctioning payment by communicating fictitious Sanction on bogus bills prepared by DDO Muhammad Shamim for the payment whereof M.H. Abbasi was responsible. The Government money fraudulently obtained by the said three persons was distributed by them among themselves, but on the fraud having been detected, they deposited back the criminally misappropriated money into the Government account as per' their share (Mohammad Shamim 40% , Appellant Khursheed Anwar 30% and M.H. Abbasi 30%).10. This being a case of extreme dishonesty, all the three delinquents deserved the punishment of dismissal from service, Mohammad Shamim and Appellant Khursheed Anwar had been dismissed from service but M.H.
4. Abbasi was compulsorily retired, perhaps, for the reason that he had made clean breast by divulging the collusive fraud by all thethree of them. M.H. Abbasi was awarded lesser punishment of compulsory retirement from service for role analogous to that of an approver. Lesser punishment on making clear breast was not enhanced in the case of (Water and Power Development Authority, WAPDA House, Lahore) and 2 others, v. Muhammad Yousaf, Test inspector, reported in 1997 PLC (CS) 424. M.H. Abbasi's case, therefore, cannot help the Appellant Khursheed Anwar for modification of his punishment of dismissal from service. So far as the case of Muhammad Shamim (deceased) was concerned, the Tribunal had made no observation about the merits of his dismissal. After his death,, in the order of abatement of his appeal dated 23.07.2003 the Tribunal did make recommendation as under:-considering the fact that the appellant has expired during the pendency of the appeal, his case be also considered on compassionate grounds by the department on the same lines as that of Mr. Khursheed Anwar so that his LRs be given .Certain benefits if it is legally admissible................................................................... ...."*The above recommendation can, in no way, be treated as conversion of penaIty of dismissal of Mohammad Shamim (deceased) to compulsory retirement. As such, this cannot serve as a ground of conversion of the penaIty of dismissal of Appellant Khursheed Anwar. As a matter of fact, the Apex Court had not approved leniency in case of dishonesty, In the case of Abdul Wahid v. The General Manager and others reported in 2004 PLC (CS) 90, concerned authority was directed to dismiss the accused, who had been awarded lesser punishment. Relevant placate are reproduced as under: -"(a) Punjab Civil Servants (Efficiency and Discipline Rules, 1985--Rr.4,6 & 7-Punjab Service Tribunals Act (IX of 1974), S.4-Constitution of Pakistan (1973), Art. 212(3)-Recovery of amount of stolen medicines-JUDGMENTQAZI MUHAMMAD HUSSAIN SIDDIQI,MEMBER.-By this appeal under Rule-3 of the Civil Service Appeal Rules, 1977 (mistakenly mentioned-it should be under Section-4 of the Service Tribunal Act 1973) filed by her on05.8.2000, the Appellant, above-named, has challenged the order, passed by the competent authority vide Notification dated 08.3.2000, modifying the penaIty of her compulsory retirement and imposing a minor penaIty of 'withholding of one annual increment for a period of one year'. She has also assailed the order dated 13.7.2000 of the CBR (Revision Division) whereby her departmental appeal was not entertained alleging that she had already availed, the appellate stage / opportunity of appeal which had resuIted in her favour.2. In the memo of appeal, the Appellant has prayed as under:--(a) Notification No. 78-ITE / 2000 dated 8.3.2000 be declared as null and void.#tbs(b)(c)>.#tbeThe order imposing the penaIty may please be declared as illegal.The appellant may pleased be declared asexonerated / acquitted of all the charges.*The appellant may please be granted all the benefits which have been derived to her since the initiation of these un-merited disciplinary proceedings."3. Briefly, the facts of the case are that, after passing the C.S.S. Examination, the Appellant was inducted into service as Assistant Commissioner Income Tax (BS-17) (for short ACIT). She was promoted to the post of Deputy Commissioner of Income Tax (BS-18) (for short DCIT) on 22.10.1995. She claimed to have unblemished service record, but on 09.4.1997, she was suspended along with many other colleagues of hef's. Then one after the other,charges, embodied in the show cause notice, was issued to the Appellant alongwith statement of allegations.4. In his reply dated 24.5.1999 to the charge sheet, the Appellant stated that the disciplinary proceedings against him stood finalized and there was no need to continue the same with the issuance of the charge sheet, In para-4 of the reply, he prayed to stay further proceedings in the matter. However, proceedings were not stayed and after holding a departmental inquiry, issuing show cause notice and affording chance of personal hearing to him, the Appellant was dismissed from service, as already mentioned above.5. We have heard the learned counsel for the parties. We have also perused the record of the case carefully.6. The Learned Counsel for the Appellant did not press the- appeal on merit, but he urged the Tribunal to modify the punishment of dismissal of the Appellant from service to his compulsory retirement; so that the Appellant might be able to get pensionary benefits, fn that connection, the learned counsel stated that two other persons namelyM.H. Abbasi, Cashier, and Muhammad Shamim, Assistant Director were also involved with the Appellant on charges of corruption and misappropriation etc., but Muhammad Shamim expired during the pendency of his appeal, whereas, M.H. Abbasi had been compulsorily retired by the Respondents, leaving the Appellant alone having been awarded harsher punishment that one awarded to M.H. Abbasi. He stated that the case against Muhammad Shamim abated due to his death, but pensionary benefits had been recommended by the Tribunal to his heirs, as such, to keep all the three persons at par and, in the interest of justice, punishment of the Appellant of dismissal be converted to that of his compulsory retirement.7. The learned standing counsel contended that the Learned Counsel for the Appellant had since not pressed14. Copies of this Judgment be sent 1o the parties under registered cover and to the relevant quarters as per Rule-21 of the Service Tribunal (Procedure)
5. Rules 1974..