The appellant was dismissed from service vide order dated 30th August 2004 against which he preferred a departmental appeal/representation on 10th Sept 2004 which remained un- responded.
2. While employed as National Saving Officer in BS-16, the appellant was charge sheeted on five counts. The charges leveled against the appellant were as under:--
(i) He with the collaboration of his 2nd Officer/Cashier Mrs. Asma Qadir Shaikh, ANSO and UDCs made the less payment of profit to the tune of Rs, 609,180.00 to Dr. Amanullah Khan (Investor) at the time of encashment of his Defence Savings Certificates Reg: No, 9276, 12484, 14731, & 15210 valuing Rs, 2,178,000.00 on 16.04.2003. The actual amount of Rs, 4,141,840/- as shown in the payment journal whereas a sum of Its. 3532660/- was paid to the above named investor thereby pocketing the difference of Rs, 609180/- and thus defrauded the investor.
(ii) He on 09.05.2003 and 10.05.2003 alongwith Officer/Cashier and UDCs visited the residence of Dr. Amanullah Khan (Investor for settlement of the issue and made the payment of less paid amount of Rs, 609,180.00 and obtained in lieu thereof a receipt showing payment of full amount on 16.04.2003 at the time of encashment, which shakened the confidence investor on government schemes besides bringing bad name to the Organization.
(iii)He on 12.06.2002 with malafide intention and ulterior motives pilfered the Special Savings Certificates Registration No, 24868 worth Rs, 50,000.00 from the bunch of Certificates presented by Mr. Yasin Ahmed (one of the purchasers) alongwith other certificates for receiving profit.
(iv)He on 31.07.2002 fraudulently encashed the said Special Savings Certificate Registration No, 24868 worth Rs, 50,000.00 by making fictitious signature of Mr. Yasin Ahmed on the back of Certificate and thus, he de-frauded Mr. Yasin Ahmed for Rs, 50,000.00.
(v)He on 31.07.2002 failed to observe the procedural requirement with regards to punching and affixing the paid stamp on the profit coupons and thus violated sub-para No, (v)(II) of para 1-6, at Page No, 11 of the National Savings Hand Book Volume-II."
This charge sheet was communicated to the appellant by the authority itself. The charges were denied by the appellant whereupon an inquiry was conducted by a two-Member Enquiry Committee. The appellant participated in the inquiry proceedings. The Enquiry Committee proposed to produce as many as 13 witnesses. After recording the evidence of the witnesses the Enquiry Committee gave the following findings:- "The Committee has observed that Charges No (i) (ii) (iv) have been completely proved whereas Charge No, (iii) & (v) have been partially proved against the accused officer Mr. Abdur Rasheed Memon".
The Enquiry Committee proceeded to record the following recommendation:-"RECOMMENDATION The members of Inquiry Committee duly appointed by the Authority pursuance of Rule-5 of the Removal from Service (Special Powers) Ordinance 2000 giving consideration to the length of service of the accused officer recommended that .a major penalty of compulsory retirement from service may be imposed upon him in terms of the provision of the law."
3. Thereafter a Show-Cause Notice dated 20.05.2004 was is sued by the Authority wherein major penalty of dismissal from service was proposed. As the reply to the Show-Cause Notice was not considered satisfactory by the competent authority, vide Office Order dated 30.08.2004 the appellant was dismissed from Government. Service with immediate effect.
4. The appellant was heard by a learned Bench of this Tribunal comprising Mr. Rashid Ali Mirza and Mr. Muhammad Javed Ashraf Hussain, Members. The learned Member, Mr. Rashid Ali Mirza came to the conclusion that Charge No, (i) was upheld against the appellant Without any direct evidence on the record as Dr. Amanullah Khan, the main complainant or his representative Tariq Mahmood failed to appear before the Enquiry Committee, and as such the said charges could not be proved through insufficient and indirect circumstantial evidence. It was further held as no witness came forward who deposed against the appellant in the inquiry proceedings it was not possible to uphold the charges against the appellant. It was however, held that the appellant being incharge should have exercised greater vigilance and alacrity to discharge the official duties and in such situation the appellant at the most should be awarded minor penalty of "censure". In the proposed judgment dated 18.12.2006, the said learned Member modified the major penalty of dismissal from service to minor penalty of "Censure".
5. The other learned Member, Muhammad Javed Ashraf Hussain did not agree with this finding.
According to him, Dr. Amanullah Khan had made a specific complaint that he was paid Rs, 35,32,660/- instead of the amount of Rs, 41,41,840/- thus causing a loss of Rs, 6,09,180/- to him.
According to joint statement of Dr. Amanullah Khan and his Bank Manager, UDC Arif Kazmi deposited in the Muslim Commercial Bank Account of Dr. Amanullah Khan a sum of Rs, 35,32,660/- on 16.04.2003 and subsequently an amount of Rs, 6,09,180/- in the same account on 10.05.2003. The bank deposit receipts were duly produced before the Enquiry Officer and have also been produced on the record of the instant appeal. It was held by the learned Member that the Enquiry Committee had correctly found that "keeping in ew all the aspects of the case, and the charge investigation report, statements of prosecution witnesses, concerned record and all these things pointing to the accused being guilty". The learned Member further found that Charges No (iii) & (iv) were also established against the appellant as Special Saving Certificates Register No, 24868 of the value of Rs, 50,000/- belonging to one Mr. Yasin Ahmed was fraudulently encashed by obtaining fictitious signatures of the said Yasin Ahmed on the back of the Certificate, after the said Certificate was pilfered from the bunch of Certificates produced by the said Yasin Ahmed on 05.07.2002. It was further held that the charges were proved during the inquiry proceedings and the Enquiry Committed had recommended for imposition Of major penalty of compulsory retirement from service. The learned Member however, decided to uphold the penalty of dismissal from service as imposed vide the impugned office order dated 30.08.2004.
6. I have given anxious consideration to the submissions made by the learned Counsel for the parties at the bar. There is no merit in the submissions of the learned Counsel for the appellant that the disciplinary proceedings that commenced with the issuance of the charge sheet dated 29.12.2003 were vitiated on account of the fact that the charge sheet and statement of allegations communicated to the appellant by the authority itself was illegal. There is no force in the submissions made by the appellant that as the charge sheet and statement of allegations were not communicated to the appellant by the Enquiry Committee itself the same were violative of the principals of natural justice and thus void. The appellant has not been able to show how if at all the case of the appellant was prejudiced by adoption of the said procedure. It is not denied that the charge sheet as well as the statement of allegations were in fact framed by the competent authority.
7. It is next submitted by the learned Counsel for the appellant that in fact this was a case of no evidence as there was no material before the Enquiry Committee to substantiate the charges against the appellant. It was contended in this behalf that neither the complainant Dr. Amanullah Khan nor his representative Tariq Mahmood recorded their statements before the Enquiry Committee and in the absence of direct evidence charges at S.No, (i) and (ii) could not be proved despite the recording of indirect circumstantial evidence against the appellant. It is further stated that in the same way, the principal witness Mr. Muhammad Yasin who alleged that his Special Saving Certificate was pilfered and fraudulently encashed did not appear before the Enquiry Committee to substantiate the allegation. It is strenuously urged by the learned Counsel for the appellant that in such a situation there is no substance before the Enquiry. Committee which can justify the upholding of the charges. It is further contended that the Enquiry Committee had recommended the compulsory retirement from service of the appellant while the competent authority enhanced the said punishment to that of dismissal from service without stating reasons for such enhancement and without giving the appellant an opportunity of showing cause against such enhancement.
8. On the other hand the learned Counsel for the respondents has referred to the evidence recorded before the Enquiry Committee to contend that there was sufficient material brought on the record before the Enquiry Committee to uphold the charges against the appellant. Reference was particularly invited to the pay-in-slips to shown that on - 16.04.2003 a sum of Rs, 35,32,660/- was deposited in the account of Dr. Amanullah Khan while another sum of Rs, 6,09,188/- was deposited in the account of Dr. Amanullah Khan on 10.05.2003. It is stated that this was done in the wake of the complaint filed by Dr. Amanullah Khan that the appellant had not paid a sum of Rs, 6,09,188/- and only deposited the same to save his skin upon complaint filed by Dr. Amanullah Khan.
9. I have examined both the judgments renderedty the learned Members of the Bench in detail. It is true that the principal complainant namely Dr. Amanullah Khan and Mr. Muhammad Yasin did not record their statements before the Enquiry Committee but the evidence that was brought on the record before the Enquiry Committee was adequate and sufficient for the Committee to uphold the charges against the appellant. The charges against the appellant were indeed grave and serious and had the effect of shaking public confidence in the Scheme of the National Saving Department.
The Enquiry Committee which was actually seized of the inquiry proceedings and had the occasion to watching the demeanour of the parties as well as the witness, had recommended the penalty of compulsory retirement from service. This punishment would meet the requirement of law and equity and good conscience. The enhancement of this penalty however, is violative of principles of natural justice. Consequently the recommendation made by the Enquiry Committee is upheld with the result that the penalty of dismissal from service as imposed through impugned order dated 30.08.2004 is modified to compulsory retirement alongwith any admissible benefits, if permissible in law. This shall be order of the Tribunal within the meaning of Section 3-A(2)(b) of the Service Tribunals Act, 1973.
10.No order as to costs.
11.Parties be informed accordingly.
DECISION OF THE TRIBUNAL By virtue of provision (b) to sub-section (2) of Section 3A of the Service Tribunals Act, 1973, the decision of the Tribunal is that the impugned order of dismissal from service is modified to compulsory retirement from service alongwith any admissible benefits, if permissible in law as per opinion of the Chairman.