' JUSTICE (RTD.) ABDUL GHANI SHAIKH (CHAIRMAN).---Appellant serving as Food Grain Inspector was proceeded against departmentally under the provisions of the Sindh Civil Servants (E&D) Rules, 1973. He was served with a show-cause notice dated 3-12-1996 issued by the Assistant Director, Food, Larkana Region/Authorized Officer, alleging that during crop season 1992-93 when appellant was Incharge of Kashmore Centre, 1165 bags of wheat valuing Rs,527,162.50 were found short and that such. F.I.R. Was also registered by Sub-Circle Officer, Anti-Corruption Establishment, Kandhkot.
In his reply, appellant denied the allegation and explained his position. His reply was not found satisfactory and he was served with a final show-cause notice dated 1-11-1999, which too the appellant replied and reiterated the stand earlier taken by him. Ultimately, by order dated 26-11- 1999 passed by the Deputy Director, Food, Larkana Region/Authority, appellant was awarded major penalty of "Reduction to a lower post of Food Supervisor to a lower stage in the time scale for the period of two years" and "recovery of losses amounting to Rs,760,162.50". The recovery of losses was ordered to be effected as under:-
(1) First installment of Rs,1,00,000 (Rs,one lac) within 15 days of the issuance of the order.
(2) Rs,3,000 (Rs three thousand) to be recovered from monthly salary of the official.
' Being aggrieved of such punitive order, appellant preferred departmental appeal to the Director, Food, Sindh Karachi. During pendency of appellant's departmental appeal, he was served with a letter, dated 18-1-2000 issued by the respondent No,2, whereby appellant was directed to pay Rs,1,00,000 i,e, the 1st instalment within 7 days.
' Appellant replied the said letter with a request that till the decision of his departmental appeal, the recovery may not be made from him.
2. However, during pendency of appellant's departmental appeal, he was served with an order/show-cause notice, dated 30-11-2001 issued by the Deputy Director, Food, Larkana Region/Authority, requiring appellant to show cause why the penalty of 'dismissal from service' should not be imposed upon him, because of his failure to deposit the amount of Rs,7,60,162.50 i,e, the loss sustained by the Government. Appellant replied the said show-cause notice, which was not found satisfactory and by order, dated 28-1-2002, appellant was awarded major penalty of 'dismissal from service' by respondent No,2 in the capacity of 'Authority'. Feeling aggrieved by the said order. Appellant preferred departmental appeal to the respondent No,1, which remained, unresponded. Hence, this appeal.
3. In support of appeal, appellant who appeared in person argued the matter at length. He contended that in fact the matter pertains to 1994-95 crop and not 1993-94 crop as has been mentioned in the show-cause notice, dated 3-12-1996. In that season more than 57000 wheat bags were procured by him while the capacity of storage at P.R. Centre Kashmore was hardly of 15000 bags and that he through telegrams time and again requested the District Food Controller, Jacobabad for early shifting of wheat stocks from Kashmore, but the pace of shifting was very slow, resultantly 1165 bags were badly damaged due to heavy rains. According to appellant he sent 13 telegrams from 16-5-1995 to 13-8-1995 to the District Food Controller, Jacobabad. Further, he submitted that against 1st punitive order, dated 26-11-1999 passed by respondent No,2, departmental appeal was preferred before the respondent No,1, well within time but the respondent No,2 without waiting for the outcome of the said departmental appeal, initiated other proceedings for recovery of amount of loss, which proceedings being illegal ab initio null and void, carries no legal value. He added that in the second proceedings, the respondent No,2 acted in dual capacity of `Authorised Officer' and the 'Authority', thus, the 2nd punitive order being coram non judice may be set aside.
4. In rebuttal, learned counsel appearing for Assistant Advocate-General for respondents, supported the impugned orders. He argued that appellant wilfully failed to disobey the order, dated 26-11-1999 and despite repeated letters/notices he failed to deposit the 1st instalment of Rs,1,00,000, therefore, the 2nd departmental disciplinary proceedings were initiated against him. He submitted that mere filing of department appeal against the first punitive order in no way absolve the department from effecting recovery as there was no stay order passed on appellant's departmental appeal.
5. We have considered the above submissions and have perused the case papers. Initially, vide order, dated 26-11-1999 appellant was awarded major penalty of reduction to a lower post for a period of two years plus recovery of Rs,7,60,162.50 by the respondent No,2. Against which appellant preferred departmental appeal on 18-12-1999 however, the same remained unresponded. In such eventuality, appellant was supposed to file appeal before this Tribunal after expiry of 90 days, but as it appears, appellant chose to remain silent and not filed any appeal before this Tribunal against the first punitive order. Under proviso to section 4 of the Sindh Service Tribunals Act, 1973, when a civil servant has filed a departmental appeal/representation against an order relating to terms and conditions of his service, he has two choices before him; firstly, he can challenge the original order within a period of 30 days after the passage of 90 days or secondly, he can wait till the passing of final order by the appellate authority on his appeal, no matter how long it takes. As regards first choice, now the time became over and appellant cannot avail the same. So far second choice is concerned, the appellant may file appeal after rejection of his departmental appeal, if as claimed by him, the appellate authority has not yet passed any order on his departmental appeal.
6. In the instant appeal, appellant has challenged the 2nd punitive order, dated 28-1-2002, whereby on account of non-payment of amount of loss sustained by Government, appellant has been awarded major penalty of dismissal from service. In the 1st punitive order, dated 26-11-1999, appellant was directed to pay Rs,one lac within 15 days while remaining amount was ordered to be recovered at Rs,3,000 per month from appellant's salary. If for any reason, appellant failed to pay the 1st instalment of Rs,one lac within stipulated period of 15 days, the same should have been recovered as arrears of land revenue and there was no legal justification for initiating fresh disciplinary proceedings. As regards remaining amount, the same was being deducted from appellant's monthly salary, likewise the amount of Rs,one lac could have been recovered from appellant's monthly salary, but instead of doing so, the respondent No,2 initiated another disciplinary proceedings, which in our considered opinion were neither legal nor proper nor justified. Besides, in the second disciplinary proceedings, respondent No,2 had acted in dual capacity of 'Authorised Officer' and 'Authority', therefore, on this score also, the second punitive order dated 28-1-2002 is not sustainable.
7. Accordingly, the impugned order, dated 28-1-2002 is set aside and appeal is allowed. Appellant is directed to be reinstated in service, with all back and consequential benefits. There shall be no order as to costs.
8. Announced in open Court.