' MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).---This is an appeal under section 4 of the Service Tribunals Act, 1973 against the impugned order No,149-Estt-1/204-2003 dated 17-7-2004, whereby the major penalty of compulsory retirement from service under Removal from Service (Special Powers) Ordinance, 2000 has been A imposed. Upon the appellant. The appellant filed a departmental appeal dated 25-8-2004. Claiming that the decision of compulsory retirement came to his knowledge on 9-8-2004. The departmental appeal as remained unresponded and thereafter the respondent has filed appeal dated 4-12-2004 before this Tribunal.
2. The brief facts of the case are that, the appellant was appointed as Auditor (BPS-7) in the office of the Auditor General of Pakistan. He was posted in the office of the Director Audit, Federal Government Sub-Office, Karachi. The appellant after qualifying the departmental S.A.S. Examination was promoted as S.A.S. Accountant (BPS-16) vide order, dated 23-12-1987. In the year 1991 the qualified for Selection Grade (BPS-17) and was regularly promoted as Audit Officer in the same grade on 19-9-1997. The appellant was served a show-cause notice vide No,20/Estt.1/204- 2003, dated 12-7-2003 containing 9 charges. The show-cause notice is as follows:-- Confidential/Registered A.D.
Office of the Auditor-General of Pakistan constitution Avenue, Islamabad.
' No,20/Estt-1/204/2003 Dated 12-7-2003 Show-cause Notice ' Whereas, you Syed Anwar Alam, Audit Officer (B-17), while serving in the office of Director Audit Federal Government Karachi are accused of having committed the following acts of omission and commission which constitute misconduct and corruption under .Sections 2(b) and 3(1) of the Removal from Service (Special Powers) Ordinance, 2000:--
(i) You drew house building advance of Rs,.1,11,060 (Rupees one hundred eleven thousand and sixty only) in the month of August, 1992. M. Per Rules 253-A(2)(iii) of G.F.R. Vol.I, the 'repayment of house- building advance is required to be commenced froth the month immediately after the grant of said advance i,e, September, 1992. Being the self-drawing officer it was your first .And foremost duty to get the recovery started from the month immediately after the grant of said advance. You did not make any deduction of H.B.A. From your pay and allowances up Jo March 1996. You violated the spirit of aforesaid rules and did not perform your duties as self-drawing officer for your own benefits.
(ii) When the first house building advance was not 'liquidated, you managed to obtain a fund availability certificate of 2nd H.B.A. By concealing the facts from A.G.P.R., Karachi regarding your 1st house building advance. While submitting your application to A.G.P.R., Karachi you did not observe the proper channel and submitted your application over your own signature. During the process of obtaining Fund Availability Certificate of 2nd house building advance, you gave a false statement regarding the liquidation of 1st advance in the pro forma for the grant of H.B.A. When the F.A.C. Of 2nd H.B.A. Was received, a sum of Rs, 1,37,289 was outstanding against the 1st H.B.A.
(iii) The Chairman, Council for Works and Housing Research, Karachi (C.W.H.R.) complained that during the course of audit, you used. Your official position unauthorizedly and ordered the auditee to fulfil your unnecessary demands. He also reported that while conducting audit, you asked for the repair of your private car from Government funds and when your demand was not fulfilled, you became furious and used inappropriate language against the Chairman in the Executive Summary of your Audit Inspection Report of C.W for the years 1999-2000 to 2000-2001.
(iv) During the course of audit, the Chairman, C.W.H.R., Karachi brought into your notice some cases of hiring which contained serious financial irregularities and requested you to guide the C.W.H.R., Karachi but you refused to examine the same. Being an Audit Officer, you were required either to give guidelines for the settlement of hiring cases or to include those issues in your audit report but you did not do so. The Chairman also brought this issue into the notice of your Director who verbally directed you to improve your behaviour during the course of audit but you did not give any attention to those directives. Resultantly, your explanation was called for and your reply was found unsatisfactory. Your rude behaviour towards auditee and noncompliance of the directive of your seniors constitute misconduct.
(v) You were directed verbally and in writing time and again not to issue the audit and Inspection reports without showing them to your superiors but you kept on issuing reports without seeking clearance from your seniors.
(vi) You were assigned the audit of K.P.T. For the quarter ending April, 2002 to June, 2002. But you refused to undertake the work by stating that you had no knowledge of K.P.T. Audit and you were not in a position to bear any responsibility of the afore-said audit. But official record shows that you remained posted in K.P.T. As Accountant with effect from 1-1-1991 to 31-12-1992 as is evident from an office order, issued by A.G.P.R., Sub-office, Karachi vide letter No,KPT/93-94/175, dated 9-2-1994 and thus, have the knowledge of working of K.P.T. Therefore, the fact shows that your misstatement was mala fide and evasive to avoid legitimate official duty.
(vii) On 14-4-2003, you entered the office of Director Audit and threatened her using derogatory tone, which was witnessed by Messrs Muhammad Khalid, Deputy Director and Muhammad Shakir, Audit Officer.
(viii) While presenting your case to your seniors vide your letter No,OAD-II/A.0./2002-2003/25, dated 15-4-2003 X copy enclosed) you used intemperate and inappropriate language, which amount to misconduct.
(ix) You were relieved from Sub-office of D.G.A. (F.G.), Karachi as a result of your transfer to Head Office, D.G.A. (F.G.) Islamabad vide D.G.A. (F.G.)'s letter No,Admn.-1/DGA/PF81/Actt/Vol.II/555, dated 23-5-2003 and at the same time your explanation was called for. The transfer order as well as explanation notes were forwarded to you through T.C.S. But you refused to receive the same.
Thereafter, Mr. Muhammad Shahid Siddique, Junior Auditor of office of the Sub-office, Karachi was detailed to deliver the afore-said official documents by hand. Your family members refused to receive the letters. You are not reporting for duty at your new place of posting or at the previous place and have absented yourself from duty wilfully without any intimation to any concerned office. Your behaviour amounts to disobedience and misconduct.
(2) By reasons of the above, you appear to be guilty of gross misconduct and corruption within the meaning of section 3(1) of the Removal from Service (Special Powers) Ordinance, 2000.
(3) And whereas, I, Muhammad Yunis Khan, Auditor-General of Pakistan as the competent authority under section 2(aa) of the Removal from Service (Special Powers) Ordinance, 2000 have decided in terms of section 5(4)of the aforesaid Ordinance that it is not necessary to hold an inquiry into the above charges through an Inquiry Officer of Inquiry Committee. ,(4) Now, therefore, you are hereby called upon to show cause as to why one or more of the penalties including major penalty of dismissal from service as prescribed in section 3 of the Removal from Service (Special Powers) Ordinance, 2000, may not be imposed upon you on the above grounds.
(5) Your written reply to this show-cause notice should reach the undersigned within seven (7) days of its receipt by you, failing which it would be presumed that you have no defence to offer, and ex parte decision would be taken.
(Sd.) (Muhammad Younis Khan)
Audit-General Competent Authority."
3. The appellant submitted reply to the show-cause notice vide his letter, dated 19-7-2003 refuting the charges.
4. Thereafter, formal inquiry was ordered by the competent authority under the provisions of the Removal from Service (Special Powers) Ordinance, 2000. The allegations in the order of inquiry were by the large identical with the charges as in the earlier show-cause notice and were as follows:-- "(2) that while posted as Audit Officer Office of the Director Audit (Federal Government) Karachi, you committed following acts of inefficiency, misconduct and corruption:--
(i) You drew house building advance of Rs,1,11,060 (Rupees one hundred eleven thousand and sixty only) in the month of August, 1992. As per Rules 253-A(2)(iii) of F.G.R. Vol.I. The repayment of the said amount advance was required to commence from the month immediately after the grant of the said advance i,e, September, 1992 but despite being self-drawing officer, you did not make any deduction of H.B.A. From your pay and allowances up to March, 1996, in violatior of the afore-said rules and failed to discharge your duty as D.D.O. Which amounts to corruption, inefficiency and misconduct.
(ii) Although the 1st house building advance was not liquidated, you obtained a Fund Availability Certificate of 2nd house building advance, by concealing the facts from A.G.P.R., Karachi regarding your 1st house building advance and in submitting your application to A.G.P.R., Karachi you did not observe the proper channel and submitted your application under your own signature. You gave a false statement regarding the liquidation of 1st advance in the pro forma for the grant of H.B.A. At the time of obtaining the F.A.C. For 2nd H.B.A. Which is against the official discipline and conduct.
(iii) As per complaint of the Chairman, Council for Works and Housing Research (C.W.H.R), Karachi you misused your official position and ordered the auditee to fulfill your unnecessary demands and while conducting audit, you asked for the repair of your private car from Government funds and used inappropriate language against the Chairman in the Executive Summary of your Audit Inspection Report of C.W.H.R. For the years 1999-2000 to 2000-2001, which amounts to corruption and misconduct.
(iv) You were directed verbally and in Writing time and again not to issue the audit and inspection reports without showing them to your superiors but you kept on issuing reports without seeking clearance from your seniors, which speak of your indiscipline and constitute a serious nature of misconduct.
(v) You were assigned the audit of K.P.T. For the quarter April, 2002 to June, 2002 but you refused to undertake the work on the grounds that you had no knowledge of K.P.T. Audit and was not in a position to take the responsibility, whereas the official record shows that you remained posted in K.P.T. As Accountant from 1-1-1991 to 31-12-1992 as is evident from an office order issued by A.G.P.R., Sub-Office, Karachi vide No,KPT/93/94/175, dated 9th February, 1994 and despite having the knowledge of working of K.P.T. You misled the seniors and avoided taking the assignment.
(vi) On 14th April, 2003, you entered the office of Director Audit and threatened her by using derogatory tone, which was witnessed by Messrs Muhammad Khalid Deputy Director and Muhammad Shakir Audit Officer, which also indicates your undisciplined behaviour.
(vii) While presenting your case to your seniors vide your letter No,OAD-II/A.0./2002-2003/25, dated 15th April, 2003 (copy enclosed) you used intemperate and inappropriate language, which is against the official discipline and conduct.
(viii) You were relieved from Sub-office of D.G.A. (F.G.), Karachi as a result of your transfer to Head Office, D.G.A. (F.G.) Islamabad vide D.G.A. (F.G.)'s letter No,Adnm.-1/DGA/PF81/Acctt/Vol.II/555, dated 23rd May; 2003 and at the same time your explanation was called for. The transfer order as well as explanation note were forwarded to you through T.C.S. But you refused to receive the same.
Thereafter, Mr. Muhammad Shahid Siddique, Junior Auditor of the Sub-office, Karachi was detailed to deliver the afore-said official documents by hand. But your family members refused to receive the same . You absented yourself from duty wilfully without any intimation to any concerned office and later submitted a belated medical certificate from a private doctor showing an advice for complete bed rest in addition to the fact that the M.C. Was not from an authorized Government Medical Officer, you have been busy in filing a civil suit against the department in a Civil Court during complete bed rest, which indicates your behaviour towards official norms and discipline.
You have not reported on your new place of posting in obedience to the order, dated 23rd May, 2003 till date.
(3) Whereas by reasons of the above, you S. Anwar Alam appear to be guilty of "misconduct" and "corruption" within the meaning of section 3(1)(a) and (c) of Removal from Service (Special Powers) Ordinance, 2000 for the said omissions and commissions on your part and are liable to disciplinary action which may involve imposition of one or more of the penalties including the penalty of "dismissal from service" as prescribed in section 3 of the said Ordinance.
(4) You are, therefore, directed to submit your written defence to the ab6ve-mentioned charges within seven (7) days of receipt of this letter.
(Sd.) (Shaikh Muhammad Ashraf)
Director District Audit (H.Q.) Sindh Inquiry Officer."
5. The Inquiry Officer (Director District Audit (HQ), Sindh) had required the appellant to submit his written defence to the charges/ allegations as contained in his letter dated 29th October, 2003. The appellant submitted his written defence vide his letter No,A-O/2003- 04/08, dated 6-11-2003.
6. The Inquiry Officer vide his letter No,DGDA/Admn.-1/2003- 2004/315, dated January 14, 2004 directed accused officer (appellant in the present case) to appear before him on 20th January, 2004 at 11-00 a.m. In his office for personal hearing. The appellant instead of appearing for personal hearing as required by the inquiry officer, submitted letter No,A-O/2003-04/12-13, dated 17-1-2004 addressed to the Auditor-General of Pakistan stating therein that the Inquiry Officer had not completed the inquiry proceedings Within the prescribed period of 25 days and further that the Inquiry Officer was not competent to extend personal hearing. He further stated that personal hearing was to be afforded by the competent authority. He thereafter contended that the letter from the Inquiry Officer was liable to be dropped on this point alone.
7. The Inquiry Officer submitted his inquiry report dated 24-1-2004 with his findings as follows:-- "(i) The accused officer was required to effect recovery of H.B.A. From September, 1992, but he failed to do so. Thus, the charge is proved.
(ii) The accused officer was required to mention particulars of 1st H.B.A. In his application for 2nd H.B.A., but he did not do so he was also required to deposit principal amount and amount of interest in full before drawing 2nd H.B.A., but he failed to deposit the required amount. Thus, the charge of concealment of facts and on liquidation of 1st H.B.A. Proved.
(iii) The accused officer was required to be objective and impersonal in conveying his views in the Executive Summary, but the accused officer was subjective and used inappropriate language while writing Executive Summary. Thus, the charge of using inappropriate language in Executive summary is proved.
(iv) The officer was required to issue AIRs with the approval of his superiors, but he issued AIRs directly in disregard to the orders of his superiors. Thus, the charge of defying the orders of superiors is proved.
(v) The accused officer was asked to take up audit of K.P.T. For the period from April, 2002 of June, 2002, but despite working in K.P.T. For about three years, he showed his inability to take up the assignment. Thus, the charge of refusing audit of K.P.T. Is proved.
(vi) The accused officer was required to be submissive in talking to his superiors, but he was disrespectful to and used derogatory language against his Director. Thus, the charge is proved.
(vii) The accused officer was required to use moderate and proper language while presenting his case to his superiors. But he, used intemperate and inappropriate language; his letter No,OADII/A.0/2002-2003/25, dated 15th April, 2003 is a proof beyond doubt. Thus the charge is established.
(viii) (i) The accused officer was bound to receive official letter, but he refused to receive the same and stamp of T.C.S. Is sufficient proof of his refusal. Thus, the charge is established.
(ii) Since the period of absence has already been regularized by the competent authority by treating the period from 25-5-2003 to 3-11-2003 as extraordinary leave without pay, therefore, this charge is treated as dropped.
(iii) The accused officer's confession in para.(ix) a of his reply to show-cause notice that he received transfer orders in the Court through his lawyer proves that he was busy in filing suit against the department while on bed rest. Thus, the charge is established.
(iv) The accused officer was required to comply with the orders regarding his transfer from Federal Audit, Sub-Office, Karachi to Federal Audit, Islamabad, but he refused to do so on the ground that seniority of Departmental Cadre Officers was local and that his. Transfer to D.G. Federal Audit Office, Islamabad was irregular. Thus, the charge of non-compliance of transfer orders is proved.
8. The Inquiry Officer concluded in his findings that all allegations against the accused officer were proved and that the accused officer appeared to be in the habit of being rude, harsh and disrespectful to his superiors and colleagues. He further concluded that the conduct of the accused officer was found to be prejudicial to good order of service discipline and contrary to Government Service (Conduct) Rules, 1964 and therefore, was liable to disciplinary action.
9. On the basis of the findings of the Inquiry Officer, the competent authority i,e, Auditor-General of Pakistan, issued a show-cause ,notice vide No,100/Estt.-1/204-2003, dated 26th March, 2004 to the accused officer calling upon him. To show-cause within 7 days of the receipt of the notice as to why one or more penalties including the major penalty of dismissal from service as prescribed under section 3 of Removal from Service (Special Powers) Ordinance, 2000 should not be imposed upon hire.
10. The accused officer submitted his reply to the show-cause notice vide No,A-0/2003-04/18, dated 9-4-2004. The competent authority not finding the reply satisfactory imposed the major penalty of compulsory retirement from service, upon the accused officer (appellant in the present case) vide Notification No,149-Estt.-1/204-2003, dated 17th July, 2004.
11. The learned counsel for the appellant argued that the impugned order is bad in law and' on facts and is liable to be set aside. He argued that disciplinary proceedings initiated by the respondent No,2 are without jurisdiction. He further urged that the charges contained in the show-cause notice are vague, unspeaking, concocted, malicious and discriminatory. The learned counsel for the appellant also contended that the inquiry findings and consequent impugned order of compulsory retirement were not based on any tangible evidence but only on surmises and conjectures. The learned counsel for the appellant averred that the disciplinary proceedings were initiated against the appellant on account of certain grouse and prejudice held by respondent No,3 against the appellant.
12. The learned counsel concluded his arguments standing that while passing impugned order of compulsory retirement against the appellant the competent authority i,e, respondent No,2 had not taken into consideration the version of the defence and had depended entirely on the story of the prosecution.
13. The learned counsel for the respondents basing his arguments on written comments stated at the outset that the appeal was time-barred in that it was required to be filed within 90 days of the impugned order, dated 17-7-2004 while the appellant had submitted his appeal on 4-12-2004 i,e, after 139 days. The learned-counsel for the respondents further argued that the competent authority passed the impugned order by strictly observing the relevant rules and regulations and only then the penalty of compulsory retirement from service was imposed upon the appellant and, therefore, deserves to be maintained. He further argued that the Inquiry Officer had conclusively established the charges and on the basis of the findings and recommendations of the Inquiry Officer, a show-cause notice was issued to the appellant and finding his reply to the show-cause notice unsatisfactory the major penalty of compulsory retirement from service under Removal from Service (Special Powers) Ordinance, 2000 was imposed upon the appellant. The learned counsel for the respondents further argued that the charges were proved against the appellant on the basis of record and there was no element of any prejudice or personal rancour against the appellant as alleged by him. The learned counsel for the respondents further stated that the appellant had not attended the inquiry proceedings deliberately and his written defence had attempted to take shelter on technical grounds which are liable to be rejected.
15.(sic) Heard the learned counsel for the appellant as well as the learned standing counsel for the respondents and carefully perused the record. 'We shall first address the issue of non- maintainability of the appeal on account of its being time-barred as argued by the learned counsel for the respondents. The fact is that the impugned order of compulsory retirement from service against the appellant was dated 17-7-2004 and the appellant filed his departmental appeal on 25-8-2004. The appellant has claimed that he received or more properly the impugned order came to his knowledge on 9-8-2004 and as such he filed the departmental appeal dated 25-8-2004 within 16 days of the impugned order having come to his knowledge. The departmental appeal having remained unresponded, the appellant submitted his appeal before this Tribunal on 4-12-2004. The appellant thus, contended that the impugned order having come to his notice on 9-8-2004, the appeal dated 4-12-2004 before this Tribunal was well within the statutory period of 120 days. The appellant however, in his condonation application has claimed that the respondent No,2 issued office order communicating the impugned order on 4-9-2004 and as such taking this date into consideration, the appeal would be within 90 days of the issuance of the office order dated 4-9-2004. Taking into account these submissions of the appellant, we are of the view that the appeal has been filed within the statutory period and is not hit by limitation.
16. Turning to the merits of the case, we observe that perusal of the order of inquiry and the findings as in the inquiry report reveal that the main charges/allegations against the appellant are that he failed to initiate the repayment of his house building advance within the mandatory period and that he obtained his second house building advance without having completely liquidated the first house building advance. The Inquiry Officer has held that the accused officer i,e, the appellant was paid his first house building advance of Rs,1,11,060 on 9th August, 1992 and as per Rule 253-A-2(iii) of G.F.R. Vol.I repayment of the said advance was required to commence from the month immediately after the grant of the said advance i,e, from September, 1992 but in violation of the said rule, the appellant/accused officer did not initiate any deduction of the instalments of house building advance from his pay and allowances till March, 1996. The Inquiry Officer has stated that the accused officer claimed the second house building advance by giving the false statement that he had liquidated the first advance. As regards the complaint of the Chairman, Council for Works and House Research (C.W.H.R.), Karachi that the accused official misused his official position and ordered the auditee to fulfil his illegal demands, while conducting audit, which included the repairs of the appellant's private car, the Inquiry Officer has stated that it was difficult to ascertain the factual position after going through the statement of both the prosecution as well as the defence.
As regards the allegation of using inappropriate language, the record does not substantiate that the accused officer has used any such language.
17. The other charges/allegations pertain to the audit and inspection reports prepared by the accused officer without showing them to his superiors, refusing to carry out audit of K.P.T. For the quarter April, 2002 to June, 2002 on the ground that he had insufficient knowledge to K.P.T., using intemperate, inappropriate language and not complying in time with his transfer order from sub- office of D.G.A. (F.G.), Karachi, to head Office, D.G.A. (F.G.), Islamabad.
18. A close perusal of the statement of allegations, statement in defence and the fading's of the Inquiry Officer reveal that the accused officer was in the habit of being rude, harsh and disrespectful to his superiors and colleagues. The appellant seems to have defaulted in initiating deduction from his salary of the instalments of the first house building advance and of having received the second house building advance without completely liquidating the total amount of the first house building advance. Of all the charges, the charge that the appellant failed to initiate the deduction of instalments of the first house building advance in time and receiving the second advance without completely liquidating the first advance seems to be convincingly proved. It is nevertheless observed that in effect no financial loss has been caused to the Government. The other charges have not been conclusively established by the Inquiry Officer and any way these charges are not of any serious nature justifying severe action against the appellant.
19. The imposition of major penalty of compulsory retirement in view of the above we feel is not commensurate with the guilt of the accused officer/appellant. We have no hesitation in concluding that the penalty too harsh and liable to be reduced. We, therefore, order that the major penalty of compulsory retirement to reduce to withholding of increments for a period of two years. The appellant be reinstated from the date of the compulsory retirement and the appellant is required to reimburse the pensionary benefits that he may have drawn consequent to his compulsory retirement from service. The intervening period shall be treated as leave due to the appellant.