Javed Iqbal, J.--The above captioned petitions with leave to appeals are, directed against the judgment dated 16.12.2003 whereby the appeal preferred on behalf of Ghulam Shabbir (respondent) has been accepted and major penalty of compulsory retirement from service by means of order dated 6.11.2001 converted to that of reduction to lower pay scale for a period of three years with effect from the date of his compulsory retirement with all back benefits of the reduced pay scale for the intervening period of compulsory retirement to his reinstatement.
2. Leave to appeal was granted by this 'Court vide order dated 16.2.2005, which is reproduced herein below for ready reference:-- "After hearing at length learned counsel for the parties, we are inclined to grant leave to consider the following:--
(i) Whether the .Federal Service Tribunal has reduced the penalty in violation of Section 5 of the Service Tribunal-Act, 1973; (ii)Whether the regular enquiry was essential in the matters of financial irregularities before imposing the major penalty of reduction in rank; And (iii)Whether the terms & conditions of service at the time of appointment could be varied subsequently by the respondents to the disadvantage of the petitioner Ghulam Shabbir.
Appeals be listed within three months. C.M.A. No. 1416 of 2004 is rejected as no case for stay is made out."
3. Precisely stated facts of the case are that pursuant to disciplinary action the respondent was compulsory refired from service w.e.f 7.11.2001. The respondent preferred a departmental appeal which was rejected vide order dated 20.2.2002. The respondent approached the learned Federal Service Tribunal by way of appeal which has been accepted, hence this appeal.
4. Ghulam Shabbir being dissatisfied with the judgment impugned has also preferred a petition for leave to appeal which has been accepted and leave was granted as mentioned herein above. We intend to dispose of above captioned appeals by this common order as similar questions of law and facts are involved.
5. Charge sheet, findings and opinion of the Court of inquiry is reproduced herein below to appreciate the legal and factual aspects of the controversy:-- Charge Sheet "That the Appellant was appointed in B-17 in the Respondent-Organization as Assistant Manager on 25.5.1978 on contract basis for a period "from 11.4.1977 to 26.5.1978. He was promoted as Works Manager (B-18) with effect from 22.10.1986 on officiating basis and on 22.10.1988 on regular basis. He was allowed move over to B-19 with effect from 1.12.1990 and was posted as Works Manager/Admnin Officer, Wah Cantt with effect from 23.3.1995. The appellant was transferred and posted in CAO's Organization and relieved on 18.8.1996 to join new assignment. He was issued a charge sheet on 8.7.1999 containing the following allegations:--
(i) Misappropriated and embezzlement the huge amount out of Bank account of Magna Road Mess, which you were independently operating under your own signatures.
(ii)Embezzlement the Govt. Rental charges amounting to Rs. 25,110/- received from Mr. Saqib Rahim and failed to deposit the same in Govt. Treasury through A.MN/Finance.
(iii)Took various items of Govt. stores at your residence for your personal use, unauthorizedly by violating departmental procedure, rules and regulations.
'Mr. Aftab Mr. Muhammad Iqbal Khan, Member, General Manager was appointed as inquiry Officer.
Detailed inquiry was conducted and findings and opinion of the Court of Inquiry are detailed as under:-- <i><u>Findings</i></u> 'The accused officer accept the issuance of 03 Woolen Carpets, each size of 220 Sq.ft.
'The issuance of the Woolen Carpets, normally non-issuable item to officers for use at official' resident, was managed by the accused officer using his official influence.
'The accused officer is not paying rent in case of 03 x 220 Sq.ft. woolen carpets as these were never included in Letter No.Wah/1112/53/5/ Estate, dated 18.7.98 (Ref. Part IV, page 181)
The prosecution has failed to prove the exact number of flower ports issued to the accused officer.
However, he got certain number of flowerpots issued without any. formal documentary procedure.
Opinion of the Court.
Mr. Ghulam Shabbir the accused officer, using his official capacity as Admin Officer got issued normally non-issuable items i.e. 03 Woolen Carpets, each of size 220 Sq.ft. for use at his official residence for which no recovery of rent is being made from him and his statement to this effect is false (Ref. Part IV, page 181). The accused officer managed to get undue benefit by misusing his official capacity. The officer has Still not returned the items.
The accused officer got issued curtain number of flower pots, by using his official influence without leaving any formal documentary evidence."
The disciplinary proceedings culminated into imposition of major penalty of compulsory retirement, which was converted to that of reduction to lower pay scale for a period of three years from the date of compulsory retirement. Mr. Nasir Saeed Sheikh, learned Deputy Attorney General appeared on behalf of Federation of Pakistan (appellant) and urged with vehemence that proper opportunity of defence was afforded to the appellant and personal hearing was given pursuant to the provisions as contained in Rule 6(2) of Government Servants (Efficiency & Discipline) Rules, 1973 hence the question of miscarriage of justice as concluded by the Tribunal does not arise. It is next contended that infliction of penalty falls within the jurisdictional domain of the competent authority and the appellant was compulsorily retired as his retention in service was not considered desirable in view of the nature of accusation duly substantiated by producing cogent and concrete evidence which escaped the notice of learned Service Tribunal causing serious prejudice against the appellant. It is also argued that the departmental authority cannot afford to ignore the charges of misappropriation and embezzlement irrespective of the quantum of. amount embezzled or misappropriated to maintain discipline and crush the elements of corruption. It is next argued that undue indulgence and leniency has been shown by the learned Service Tribunal by ignoring the findings of facts recorded by the Court of inquiry and determination whereof has been upheld by the competent authority and there was a little scope to get it reversed that too without any lawful justification.
6. Mr. Tariq Bilal, learned ASC entered appearance for Ghulam Shabbir (appellant in C.A. 132/05) and strenuously controverted the view point as canvassed at bar on behalf of Federation of Pakistan and supported the judgment impugned for the reasons enumerated therein and with the further submission that the allegations could not,be proved against the respondent and no evidence worth the name could be led inferring that any misappropriation or embezzlement was made. It is also contended that the respondent was not responsible for the financial management and in case of any irregularity entire blame cannot be attributed to the petitioner.
7. We have carefully examined the respective contentions as agitated on behalf of the parties, thrashed the entire evidence and perused the judgment impugned with care and caution. A carefully scrutiny of the charge sheet would reveal that the main accusation against the appellant was embezzlement and misappropriation. No doubt that basic audit requirements could not be fulfilled but the question would be as to whether the appellant alone can be held responsible for such lapses who was admittedly not all in all in financial affairs and exclusive authority in this regard was never conferred upon him qua financial management and being an "administrative office' he was answerable to CAO and it was for him to implement any audit policy and besides that nothing has come on record inferring that any account was being operated single handedly by the appellant. The learned Deputy Attorney General was pointedly asked as to whether any such account was in existence being operated by Ghulam Shabbir but no satisfactory answer could be given.
8. We have also adverted to Allegation No. 2 i.e. that the amount of Rs. 25110/- received from Mr. Saqib Rahim, Marketing Manager was required to be deposited in Government treasury through A.M. Finance but it was deposited in Account No. 17835-1 in U.B.L.
9. A careful scrutiny of the record would reveal that an amount of Rs. 25110/- was got recovered from Mr. Saqib Rahim pursuant to letters of even number dated 23.11.1995 and 14.1.1996. The amount was admittedly not misappropriated or embezzled as it was deposited in Megna Mess Account.
The deviation from procedure appears to have been established but it must not be lost sight of that no definite procedure could be pointed out which was violated. At this juncture the learned Deputy Attorney General duly assisted by the representative of the Department was asked to point out the procedure allegedly violated by Ghulam Shabbir but no answer could be given. The learned Deputy Attorney General could not point out any evidence on the basis whereof it could be inferred that the amount of Rs. 25110/- was drawn from the Megna Mess Account and misappropriated by the appellant. No evidence worth the name could be led in this regard.
10.We have also examined the Allegation No. 3 qua use of two electric fans, heater two T.V. trollies at his residence. The use of the said items is not disputed but the gravity of charge was diminished as the said items were being used after having the sanction of COA and payment of monthly rent at the rate of Rs. 69/- per month which could not be controverted.
11.We have also examined the Allegation No. 4 i.e. use of three woolen carpets in his official residence for which no plausible justification could be furnished by the appellant. It is to be noted that two woolen carpets were got issued and the allegation is that it was so done by exercising pressure and using influence. The learned Deputy Attorney General was asked that as to whether any disciplinary action was initiated against the sanctioning authority which yielded to the pressure of the appellant but no answer could be given except that the woolen carpets should have not been used in the official residence.
12. After having gone through the entire record we are of the view that the accusation could not be substantiated by leading cogent and concrete evidence qua embezzlement of Rs. 25110/- which was the most serious allegation. The deviation from procedure and depositing of the particular amount in the "wrong head", the procedural deviation and minor irregularities cannot be equated to that of misappropriation/ embezzlement which have its own peculiar characteristics and ingredients. The burden of proof to get it proved was on the Department, which could not be discharged.
13. It has been observed with curiosity that disciplinary proceedings against appellant were initiated on 8.7.1999 after a lapse of three years after joining his new assignments at Sanjwal on 31.7.1996 also smacks of mala fides . In the same wake of events it has been observed that serious allegations were leveled against a few senior officers by the appellant and it was decided by the Ministry of Defence by means of letter dated 17.7.1997 that proper inquiry should be got conducted which could not be done for the reasons best known to the concerned authorities which speaks a volume about the internal affairs of POF. The above letter is reproduced herein below for ready reference:- "MINISTRY OF DEFENCE DEFENCE PRODUCTION DIVISION 'Subject:--DISCIPLINARY ACTION AGAINST MR. GHULAM SHABBIR. ADMN OFFICER Reference POF Board's D.O. No.4162/792/OF-1(B) dated 25th June, 1997, on the subject noted above.
2. Secretary (DP) has been pleased to approve the following:-- (i)Mr. Ghulam Shabbir be asked to proceed to new place of posting forthwith.
(ii) POF Board to hold a departmental inquiry to investigate into the charges leveled by Mr. Ghulam Shabbir against Col. Abdul Kabir SFA & others &. submit a report in this regard to this Division without any further delay (Emphasis provided)
(iii)The proposal for initiation of disciplinary proceedings against Mr. Ghulam Shabbir should be considered after a proper legal scrutiny is carried out by the POFs DP Division.
3. Please take further action accordingly.
Sd.- (ALTAF HUSSAIN AGRAL) Joint Secretary 1"
The learned Deputy Attorney General was asked that in spite of categoric instructions of Ministry of Defence why no disciplinary proceedings could be initiated against Colonel Abdul Kabir but no answer could be given. In our considered view nothing could have happened without the facilitation and connivance of Colonel Abdul Kabir who was holding a very important portfolio. It has also been observed that proper opportunity of hearing was mot afforded to the appellant who was personally heard by (Director Admn) POF Board and not by the Chairman. The learned Deputy Attorney General could net inform as to whether any authority was delegated by the Chairman to the Director Admin POF Board or otherwise for having such hearing on his behalf. We are of the firmed opinion that personal hearing should have been afforded by the authority competent to impose major penalty and admittedly (Director Admin) POF Board was not the competent authority to award the penalty of dismissal. As mentioned herein above the charges of corruption and misappropriation could not be substantiated by producing worthy of credence evidence. In our considered view, the penalty of compulsory retirement does not commensurate with the gravity of alleged charges and appears to be harsh. The learned Service Tribunal has rightly converted ;he compulsory retirement into reduction to lower pay scale for a period of three years w.e.f. date of compulsory retirement of the appellant will back benefits of the reduced pay scale for the intervening period of compulsory retirement and that of his reinstatement. No question of law of public importance is involved in the matter and accordingly the appeal is dismissed being devoid of merit.
14. In so far as civil appeal preferred on behalf of Ghulam Shabbir is 'concerned it has got no merits for the simple reason that a lenient view has already been taken by Federal Service Tribunal and major penalty of compulsory retirement has been reduced to that of reduction to lower pay scale for the period of three years w.e.f. the date of compulsory retirement and with all back benefits. No further indulgence is called for as misuse of authority and certain irregularities have been proved as is indicative from the findings of the Court of enquiry determination whereof has been upheld by the learned Service Tribunal except the charges of misappropriation and embezzlement. The appeals being devoid of merit are dismissed and leave refused.