' RASHID ALI MIRZA (MEMBER).--- The appellant while serving with the respondents was removed under Removal from Service (Special .Powers) Ordinance, 2000, vide order, dated 30th August, 2004 against which he preferred a departmental appeal to the Secretary, of Finance in the capacity of his appellate authority vide eprVlinistryesentation dated 10th September, 2004 which was within time, but no reply was communicated to him, hence he filed the present appeal with the prayer to set side the impugned order, dated 30th August, 2004 and reinstate him in service with all consequential back-benefits.
2. The facts leading to this appeal are that disciplinary proceedings against the appellant were initiated upon anonymous complaint, dated 13-5-2003. A formal inquiry into the allegations in the complaint was made vide inquiry report, dated 30-4-2004 which was followed by a charge-sheet, dated 10-3-2001. The appellant replied the charge-sheet vide his reply, dated 10-1-2004 wherein he denied the allegations levelled against him. Consequently, a departmental inquiry was held against him by an Inquiry Committee comprising of Rehmat-un-Nisa, Assistant Director (Schemes)
R.D.N.S., Karachi and Abdul Hayee Abro, R.A.O.N.S., Sukkur. As per inquiry report, charges levelled against the appellant were partially proved; hence, a show - cause notice, dated 20-5-2004 was issued to him. He 'replied such notice vide reply, dated 21-6-2004, but it appears that it did not find favour with the concerned authorities, with the result that vide impugned order, dated 30-8-2004 he was removed from service.
3. In the written comments filed on behalf of the respondents, the penalty of removal from service imposed upon the appellant was supported, stating that the appellant had been punished in accordance with law, observing all necessary legal formalities.
4. We have heard both the learned counsel for the parties and have also perused the record.
5. The learned counsel for the appellant contended that the appellant was inducted in the organization of National Savings, Hyderabad on 2-10-1973 as upper division clerk (UDC) and later on was selected as Assistant National Saving Officer (BPS-11) and thereafter on completion of codal formalities and on the basis of good service record and performance as well as on fulfilment of conditions for promotion he was promoted step by step as Deputy National Saving Officer (BPS-14) and National Saving Officer (BPS-16). In the year 1995 he was granted selection grade in BPS-17 on the basis of his good service record plus seniority with effect from 13th June, 1995 and in the year 1998 he was confirmed as National Savings Officer in BPS-16 with effect from 6th August, 1998. He contended that the appellant served the organization for about 31 years and uptill his removal from service there was nothing against him and he had an unblemished record of service for which he really worked hard and further that he left no stone unturned in bringing the respondent No,2 organization in a reputable institution so that the people may pose confidence in such institution.
Appellant was issued a charge-sheet along with statement of allegations on 29-12-2003 by the Director-General (Authority) whereby 5 charges were levelled against him, whereas under section 5 of Removal from Service (Special Powers) Ordinance, 2000, the mandatory requirement is that Inquiry Officer or Inquiry Committee shall communicate to the accused the charges and statement of allegations specified in the order of inquiry passed by the Competent Authority which has not been done in this case. However, for the sake of brevity, it would be appropriate to reproduce hereunder the aforesaid charges in question which read as follows:---
(i) He on 16-4-2003 with the collaboration of his staff i,e, Mrs. Asma Qadir Shaikh, ANSO 2nd Officer/Cashier and UDCs Messrs Muhammad Arif Kazmi and Muhammad Ali Zaidi made less payment of profit to the tune of Rs,609,180 to Dr. Amanullah Khan (Investor) at the time of encashment of his Defence Saving Certificates Reg. No,9276, 12484,14731 and 15210 total worth Rs,2,178,000 and thus defrauded Dr. Amanullah Khan.
' The actual amount of principal and profit came to Rs,4,141,840. Whereas only Rs,3,532,660 were paid to Dr. Amanullah Khan (Investor) and remaining amount of Rs,609,180 was defrauded by showing the payment of full amount i,e, Rs,4,11,840 in the books of centre.
(ii) He on 9-5-2003 and next day along with other staff i,e, Mrs. Asma Qadir Shaikh, ANSO 2nd Officer/Cashier and UDCs Messrs Muhammad Arif Kazmi and Muhammad Ali Zaidi 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 conditionally to obtain a receipt of payment showing payment of full amount of Rs,16,04,2003 at the time of encashment, which shakened the confidence of investor on Government schemes besides bad name to the organization.
(iii) He on 12-6-2002 while posted as Officer Incharge NSC Market Road, Hyderabad with mala fide intention and ulterior motives -stole/pilfered the Special Savings Certificate Registration No,24868.
Worth Rs,50,000 from the bunch of Certificates presented by Mr. Yasin Ahmed (one of the purchasers) along with other certificates of various registrations for receiving profit.
(iv). He on 31-7-2002 fraudulently encashed the said stolen certificate Registration No,24868 worth Rs,50,000 by making fictitious signature of the purchaser on the back of certificate and thus, he defrauded Mr. Yasin Ahmed for Rs,40,000.
(v) He on 31-7-2002 failed to observe the procedural requirement with regard to punching and affixing the paid stamp on the profit coupons and thus, he violated sub-para. No,(v)(II) of para.1-6 at page No,11 of the National Savings Hand Book Volume-II.
' He contended that appellant had submitted its reply to the Inquiry Committee which was constituted by the Director-General being authority vide letter, dated 29-12-2003 in exercise of his powers vested in him under section 5 of the Removal from Service (Special Powers) Ordinance, 2000 to scrutinize the conduct of the appellant through formal inquiry proceedings into the said charges whereby appellant denied all the five charges levelled against him and further elaborately explained situation and the circumstances of the case before the Inquiry Committee, particularly charge No,1 was fully explained, as Defence Saving Certificates mentioned in the said charge No,1 were passed on to the appellant along with the voucher (S.C.-1) from the counter having entry of principal plus profit amount which comes to Rs,4,141,840 at the relevant column of S.C.-1. The appellant personally calculated the profit amount and found it correct and as per office routine passed the voucher along with the folder to the cashier for payment as usual. Dr. Amanullah Khan had also acknowledged the amount at the back of the certificates. He contended that on the close of the business, the discharge journal was prepared which the appellant had personally checked as per his routine and found it correct as per record (Journal Entry Nos.41 to 44) was also mentioned in the reply to the said charge No,1 and therefore, the amount was correctly paid with principal plus profit which comes to the tune of Rs,4,141,840 as such- the Charge No,1, being incorrect and baseless requires to be dropped. He further contended that duties and the responsibilities of the appellant as per National Savings Hand Book Volume-II clause 10.2(i)(v) for sanction of the amount passed on to him by way of folder, were regarding calculation of the principal amount and as the profit accrued thereon was in accordance with the certificates and was accurately calculated, he passed on to the cashier for payment as usual and since there was no complaint regarding any error in calculation or making any deficiency in clearing Defence.
Saving Certificates and also absolutely there was no fraud recorded in disbursing the profit amount, as such, the appellant discharged his duties diligently, honestly, efficiently as such there cannot be an iota of doubt of defrauding the customer by the appellant and further there was no proof of paying less amount than the amount calculated by the appellant. He also contended that absolutely there is no evidence in the finding of the Inquiry Officer to show that the appellant had paid the amount to Dr. Amanullah or that the amount given to him was less than the amount calculated by the officer and in any case it is- not the responsibility of the appellant to pay cash to the customer. Regarding Charge No,2, he contended that on 9-52003, the appellant was available at the Centre upto 10-30 and later on he proceeded to Nawabshah for conducting investigation into a matter at NSC-1, Nawabshah as assigned to him by RDNS, Hyderabad. On his return in the evening he was apprised of the situation when was informed by the staff of the Centre that Mr. Muhammad Saleem Shaikh, Assistant Director RDNS, Hyderabad contacted on telephone and informed that one Dr. Amanullah Khan has telephonically complained about less payment on 16- 4-2003 on encashment of his Defence Savings Certificates. Immediately the appellant contacted customer Dr. Amanullah Khan at his residence on 10-5-2003 and inquired from him about the said complaint, to which Dr. Amanullah told that he neither complain in writing nor telephonically against NSC to the RDNS and further confirmed that the amount worth Rs,4,141,840 was correctly paid to him on 16-4-2003, i,e, the day on which he submitted the Defence Savings Certificates. On this confirmation, the appellant requested him to give a receipt with regard to correct payment for satisfaction of Officers of the RDNS which receipt was prepared by Dr. Amanullah in his own handwriting and signatures, copy of which is at page 47 of the appeal file. He contended that the Inquiry Committee made Dr. Amanullah Khan as prosecution witness and issued him a notice for his appearance before the Inquiry Committee but he did not appear before the said Inquiry Committee despite ample opportunities provided to him by the Inquiry Committee, but the appellant on the basis of Charge No,1 was found guilty by the Inquiry Officer, without any evidence on record and without giving him a chance of cross-examination as there was no any circumstantial evidence regarding short payment to the said Dr. Amanullah Khan. If there was any action Of short payment of Rs,609,180 the complainant would have turned up, as such, the story cooked up by the prosecution seems to be incorrect and baseless. Regarding Charge No,3, he contended that the charge against the appellant for pilfering the Special Certificate bearing Registration No,24868 worth Rs,50,000 from the bunch of the certificates presented by one of the purchasers namely Mr. Yasin along with other certificates of various registration for receiving profits was refuted by the appellant being bogus and baseless, as the same was paid to him and was entered in the journal vide Entry No,349, the relevant coupon was detected and other Special Savings Certificates were returned by the Cashier as per routine. He contended that customer Muhammad Yasin had visited the centre only for receiving the profit for his SSC(R) 24868 and he did not submit any other certificates hence the question of pilfering certificate from bunch of the certificates does not arise. Regarding pilferage, the learned counsel for the appellant contended that Inquiry Committee had itself recorded that said certificate was presented to the counter clerk Mr. Ismail Soomro UDC for making entry who stated that he had done so and then passed on to the Officers, despite recording of such fact as at no where the name of the appellant Abdul Rasheed Memon was indicated but still the charge has been concluded to have been established against the appellant when neither there is any evidence against the appellant with regard to pilferage of the said SSC nor there is any entry to show that pilfered certificate has been found from possession of the appellant nor there is anything which could show that the amount of alleged pilferage certificate has been received by the appellant as such finding of the Inquiry Committee for holding the appellant responsible for alleged pilferage is devoid of real facts and it cannot be relied upon.
Regarding Charge No,4, the learned counsel contended that this charge seems to be in continuation of charge No,3 which goes in favour of the appellant as the prosecution side failed to bring on record any evidence. He contended that there was neither a complaint to prove the defraud of the amount nor any complainant. He contended that there must be a direct evidence and in absence of such evidence there cannot be a finding against the accused. He contended that the finding of the Inquiry Committee reveals that investor Muhammad Yasin vide letter, dated 15-10-2003 addressed to the Joint Director Hyderabad copy endorsed to the Director-General Central Directorate, Islamabad, had withdrawn his complaint by specifically mentioning that due to his ill health ad high blood pressure he was misguided about his encashment, even then the Inquiry Committee concluded that the charge against the appellant has been established.
Regarding Charge No,5, the learned counsel contended that the appellant in his reply to the charge-sheet had submitted that the Certificates mentioned in the said charge. Were already punched and affixed, moreover, the record of NSC Market Road, Hyderabad was also audited upto 31-8-2002 and no such observation regarding non-punching and affixing of paid stamp on SSC (R)
24868 was ever pointed out, as such, charge No,5 being misconceived and baseless, was vehemently denied by the appellant, but the Inquiry Committee without any basis held that Charge No,5 is partially proved against the appellant. He has placed reliance on an identical judgment of this Tribunal passed in Appeal No,337(K)(C.S.) of 2002 Muhammad Azam Jan Pervaiz v.
Ministry of Finance, through its Secretary, Government of Pakistan and 2 others, wherein major penalty of compulsory retirement was awarded to the appellant which order of compulsory retirement relying on 1984 SCMR 451, PLD 1981 SC 176, PLJ 2003 Tr.C. (Service) 66, 1996 SCMR 841, 2003 SCMR 1126, 2001 SCMR 934, 2001 PLC (C.S.) 270, 2005 SCMR 678, 2004 PLC (C.S.) 598 and PLD
(sic) SC 187 was set aside and the appellant was reinstated in service with all back-benefits.
6. The learned counsel for the respondents contended that the appellant was found involved in two different cases of corruption, dishonesty and misconduct. The said incidents were initially got investigated and later on enquired through the Enquiry Committee consisting of the senior officers of the Department. The said incidents of corruption were proved against the appellant without any shadow of doubt. Accordingly, in accordance with the provisions of the Removal from Service (Special Powers) Ordinance, 2000 he was awarded major penalty of dismissal from service which fully commensurate with the nature of misconduct.
7. We have considered the arguments of both sides and perused the record:
8. We are fully convinced with the arguments advanced by the learned counsel for the appellant. It is an admitted fact that no witness had come forward to depose against the appellant in the inquiry proceedings, nor there was any direct evidence to prove the charge against him. The nature of allegations was such that until and unless the witnesses of such incidents appear before the Inquiry Committee and the accused availed the opportunity to cross-examine such witnesses it is not admitted practice in the judicial proceedings or quasi judicial proceedings that the accused against whom the charges are levelled ought to be punished without establishing the charge beyond any shadow of doubt. Even otherwise there is nothing on record to substantiate the charges levelled against the appellant. From the perusal of National Savings Hand Book Volume II, it appears that the responsibilities of the appellant were to check the certificates and calculate the profits and then to pass on to the cashier for its payment which the appellant had done very well.
There is also nothing on record to show that the appellant had made any pilferage in respect of any certificate but the Inquiry Committee in its findings has reached to the conclusion that the appellant being incharge should have exercised greater vigilance to discharge his duties. The conclusion of the Inquiry Committed is reproduced hereunder:-- "CONCLUSION ' The Inquiry Committee having considered all aspects of the case and its above observations and findings having a profound study of theentire case with the help of reply, of the accused, relevant documentary evidences, statements of witnesses and oral clarifications, have reached to the conclusion that there have been certain lapses on the part of the accused. He was working as Incharge on 5-7-2002, 31-7-2002, 16-4-2003 and 10-5-2003 in that capacity he should have exercised greater vigilance and alacrity to discharge the official duties honestly and faithfully with sincere devotion as expected from him."
9. In view of the facts and circumstances and for the reasons mentioned above, it cannot be said that the respondents have been successful in bringing home the charge to the appellant but being the Incharge, the appellant should have exercised greater vigilance and alacrity to discharge the official duties honestly and faithfully with sincere devotion as expected from him.
10. Besides respondent No,2 himself issued charge-sheet and thus, violated the provision of section 5(1)(a) and (c) of the Removal from Service (Special Powers) Ordinance, 2000, therefore, the impugned order is not sustainable in law.
' In any case, according to the finding of Inquiry Committee appellant should have been vigilant, meaning thereby that the charges of misconduct levelled against the appellant were not proved against him and in that eventuality the appellant at the most should have been awarded minor penalty of "Censure". Accordingly, the major penalty ,of removal from service awarded to the appellant vide impugned order is modified to that of minor penalty of "Censure". Resultantly, the appellant is directed to be reinstated in service from the date of passing of impugned order with all back and consequential benefits. With the above modification in the penalty, the appeal stands disposed of, with no order as to costs.
10-A. Copies of the judgment be sent to the parties and to the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974.
(Sd.)
Rashid Ali Mirza, Member ' MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).--- I have minutely read the judgment written by my learned colleague in the above appeal whereby the penalty of dismissal from service has been reduced to minor penalty of censure with direction to reinstate the appellant in service with payment of all back and consequential benefits. I disagree with the judgment for the reasons as discussed below.
2. The appellant was charge-sheeted on five counts. The two member Inquiry Committee established all the charges against the appellant. The findings of the Inquiry Committee on the various charges are summarized as under:-- Charges Nos.(i) and (ii)
(i) He with the collaboration of his 2nd Officer/Cashier Mrs. Asma Qadir Shaikh, ANSO and UDCs made less payment of profit to the tune of Rs,609,180 to Dr. Amanullah Khan (Investor) at the time of encashment of his Defence Savings Certificates Reg. No,9276, 12484, 14731 and 15210 valuing Rs,2,178,000 on 16-4-2003. The actual amount of principal/profit payable to the above named investor came to Rs,4,141,840 as shown in the payment journal whereas a sum of Rs,35,32,660 was paid to the above named investor thereby pocketing the difference of Rs,609,180 and thus, defrauded the investor.
(ii) He on 9-5-2003 and 10-5-2003 along with 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 And obtained in lieu thereof a receipt showing payment of full amount on 16-4-2003 at the time of encashment, which shakened the confidence of investor on Government schemes besides bringing bad name to the organization.
' On 14-4-2003 Dr. Amanullah Khan had approached the National Savings Centre of which accused officer was incharge for submission of prior advance notice of encashment of his Defence Saving Certificates (DSC's). A notice amounting to Rs,3,500,000 was made in advance notice register although the actual amount payable to the investor on his investments was Rs,4,141,840. The Inquiry Committee is of the view that this was a preplanned game played by officer Incharge i,e, the appellant in collaboration with his subordinates to make less payment to investor Dr. Amanullah Khan. The investor along with Mr. Tariq Mehmood his bank representative visited the NSC on 16-4- 2003 to claim encashment of his aforementioned DSCs. The investor was paid Rs,3,532,660 instead of the amount of Rs,4,141,840 thus, causing a short fall of Rs,609,180. Mrs. Asma Qadir Sheikh, ANSO was performing the duties of Cashier on this date and in the instant case testified before the Inquiry Committee that she tried to make payment in routine to the investor at the counter but the Officer Incharge (appellant in the present case) took the whole amount from her table saying that as the amount was heavy, paymerit will be made under his supervision and in the presence of Mr. Arif Kazmi, the then UDC and she was asked to deal with the other work at the counter.
' As per joint statement of the Investor Dr. Amanullah Khan and his Bank Manager, Mr. Arif Kazmi the then UDC deposited in the Muslim Commercial Bank account of the Investor on 16-4-2003 an amount of Rs,3,532,660 and subsequently on 10-5-2003 an amount of Rs,6,09,180. The bank deposit receipts bear out the fact of deposit of the two amounts on different dates. Earlier, on coming to know that only an amount of Rs,3,532,660 was remitted to him in his bank account, the investor agitated the matter with the concerned authorities. As per the inquiry report, the departmental representative stated that on 9-5-2003 the Assistant Director (HQ) Hyderabad received a telephonic complaint from an investor of NSC, Market Road, .Hyderabad to the effect that he had encashed his defence savings certificates bearing Registration Nos.9276, 12484, 14731 and 15210 from the NSC, Market Road, Hyderabad on 16-4-2007 when he received an amount Rs,3,532,660 instead of Rs,4,141,840 thus, receiving less amount of Rs,6,09,180. The Assistant Director (HQ) contacted the centre staff of Market Road, Hyderabad asking them to re-check the payment to the investor Dr. Amanullah Khan. Subsequently, on 12-5-2003 the investor contacted the AD (HQ) saying that he had now received the amount of Rs:6,091,80 which was earlier less paid to him on 16-4-2003. It transpires from the inquiry report as per the joint statement of the investor and his banker, the accused officer (appellant) along with Mr. Arif Kazmi the then UDC on coming to know that the matter of short payment was being agitated, went to the residence of the investor on 10- 5-2003 at about 10-30 a.m. According to the statement, the accused officer demanded from the investor a receipt showing full payment of Rs,4,141,840 otherwise he threatened that the investor will continue to be deprived of the amount of Rs,6,091,80 less paid to him. As per statement of the investor and his banker on account of this pressurizing the investor gave him the "so-called" receipt. It is, therefore, clear that on receiving the telephonic complaint of the investor through the A.D. (HQ) , Hyderabad, the appellant and his accomplice i,e, Mr. Arif Kazmi, ex-UDC saw that the game was up and therefore, rushed to the residence of the investor to make amends. The bank deposit shows that the defrauded amount of Rs,6,091,80 as having been deposited in the investors' account on 10-5-2003 while the other amount of Rs,3,132,660 was deposited on 16-9-2003.
According to the departmental representative, on 9-5-2003 a lady officer and two clerks had also approached the investor Dr. Amanullah Khan and admitted that less amount was paid to him and they were ready to remit the remaining amount. The mala fides of the appellant were established by the Committee which observed that "keeping in view all the aspects of the case, of the charge investigation report, statements of prosecution witnesses concerned record and all these things pointing to the accused being guilty".
Charges Nos.(iii) and (iv)
(iii) He on 12-6-2002 with mala fide intention and ulterior motives pilfered the Special Savings Certificate Registration No,24868 worth Rs,50,000 from the bunch of Certificates presented by Mr. Yasin Ahmed (one of the purchasers) along with other certificates for receiving profit.
(iv) He on 31-7-2002 fraudulently encashed the said special savings certificate Registration No,24868 worth Rs,50,000 by making fictitious signature of Mr. Yasin Ahmed on the back of certificate and thus, he defrauded Mr. Yasin Ahmed for Rs,50,000.
' The Inquiry Committee held that complainant Mr. Yasin Ahmed presented a single SCR No,24868 worth Rs,50,000 on 12-6-2002 and that again on 5-7-2002 he visited the Centre for claiming the amount accruing on his different certificates bearing Registration Nos.SSCs 25082, 27626, 27661, 25156, 25186, 25187, 25217 and 27711. Mr. Yasin Ahmed being an uneducated person stated that he brought all the certificates together to ask the NSC which were due for profit and which were not due. The complainant Mr. Yasin Ahmed also mentioned that he never encashed any certificate, rather he got reinvested the whole amount including the profit and obtained new certificates in exchange for the old ones. The inquiry committee has established that certificate No,24868 worth Rs,50,000 was pilfered from the bunch of the certificates on 5-7-2002 with mala fide intention. The inquiry committee has confirmed that the SSC No, 24868 worth Rs,50,000 was fraudulently encashed by obtaining fictitious signatures of the investor Yasin Ahmed on the back of the certificate. The inquiry committee has also referred to the statement of the complainant that signatures were obtained from him by accused officer (appellant in present case) on his visit to National Savings Centre on 18-3-2002. According to the statement of the complainant the accused officer had stated that the signatures were obtained for the settlement of some audit objections.
The inquiry committee has concluded that the 'certificate No,24868 was pilfered with mala fide intention. The committee has also established that the certificate was encashed by obtaining fictitious signatures of the investor Mr. Yasin Ahmed and that this charge stands proved against the appellant Mr. Abdul Rashid Memon NSO.
Charge No,(v)
(v) He on 31-7-2002 failed to observe the procedural requirement with regard 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.
' The inquiry committee has concluded that " the accused officer had violated sub-para No,1-6 (vi)
Reg. No,10 NS Hand Book Vol.II as unpaid coupons attached with SSC (R) Reg. No,24868 were unpunched/un-cancelled". The inquiry committee also concluded that "the figure on the reverse of the DSCs as mentioned above and SSC (R) 24868 were got filled by the Centre staff instead of the investor thus violating the rules and procedure which has been proved".
3. The inquiry committee has conclusively established and proved the charges against the appellant. The committee has established that the appellant visited the residence of the investor Dr. Amanullah Khan on 10-5-2003 to pressurize him to submit a receipt for the defrauded amount of Rs,6,091,80. The earlier visit of the staff members to the residence of the investor on 9-5-2003 constitutes a link in the transaction which was completed by the appellant by his visit on 10-5- 2003. The issue of defrauding the investor Dr. Amanullah Khan to the extent of Rs,609,180 is also conclusively established by the fact that the defrauded amount was deposited in the bank account of the investor on 10-5-2003 consequent to the visits of the appellant and his staff to the residence of the investor. The fact of defrauding is also established in that the first amount of Rs,3,532,660 was deposited in the bank account of the investor on 16-4-2003 a clear three weeks before the visit of the appellant to the residence of Dr. Amanullah on 10-5-2003. It may be observed here that if the appellant was not actively involved in the commission of the fraud, he would have no reason to visit the residence of the investor and might have dealt with the matter from his desk.
If he had been innocent he would have immediately lodged a complaint/F.I.R. With the relevant police station which from the record does not appear to have been done. The fact that the investor Dr. Amanullah Khan subsequently did not initiate/pursue any criminal proceedings appears to be motivated by not having to be involved in protracted proceedings especially as he had duly received back the defrauded amount. The statement of the Cashier, Mrs. Asima Qadir Sheikh that the appellant himself took the amnount from her to make payment to the investor also points to the mala fide and the involvement of the appellant in the grave offence of depriving the investor of his legitimate earning. The inquiry committee has also proved Charges Nos.(iv) and (v).
4. From the incidents that have taken place and which have been discussed in some detail in the foregoing, it is established beyond a shadow of doubt that National Savings Centre of which the appellant was Incharge was actively involved in the offence of grave commission and omission.
The Centre would not hesitate to resort to swindling the investors as proved in the case of Dr. Amanullah Khan. This investor narrowly escaped being deprived of his legitimate earning by timely agitating the matter before the concerned higher authorities. Even pilfering certificates and misappropriating the profits as in the case of Mr. Yasin Ahmed were also resorted to in the Centre.
5. The observations of the inquiry committee that "there have been certain lapses on the part of the accused, (appellant in the present case) and that " he should have exercised greater vigilance and alacrity to discharge his official duties honestly and faithfully with sincere devotion as expected from him" do not tally with their earlier conclusion that all the charges have been established against the accused (appellant). The recommendation that a major penalty may be imposed on the accused (appellant) is rather in conformity with the findings of the inquiry committee.
5-A. In view of the above, I see no reason to take a lenient view against the appellant against whom the commission of the offences as included in the charge-sheet/statement of allegations has been established/proved by the inquiry committee. Grave charges of attempted swindling of investors of their legitimate investments and earnings are established and if the accused is allowed to go scot-free, it would establish a bad example for the upright and honest officers/officials of the various National Centres. I therefore have no hesitation in upholding the major penalty imposed upon the appellant and thus dismiss the appeal as having no merit.
(Sd.)
Muhammad Javed Ashraf Hussain, Member ' Khalid Imran for Appellant.
' M. Aslam Uns for Respondents along with Saghir Ahsan Farooq, NSO, as D.R.
' JUSTICE (R) TANVIR BASHIR ANSARI (CHAIRMAN).- The appellant was dismissed from service vide order dated 30th August 2004 against which he preferred a departmental appeal/representation on 10th September 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 levelled against the appellant were as under:--
(i) He with the collaboration of his 2nd Officer/Cashier Mrs. Asma Qadir Shaikh, ANSO and UDCs made less payment of profit to the tune of Rs,609,180 to Dr. Amanullah Khan (Investor) at the time of encashment of his Defence Savings Certificates Reg. No,9276, 12484, 14731 and 15210. Valuing Rs,2,178,000 on 16-4-2003. The actual amount of Rs,4,141,840 as shown in the payment journal whereas a sum of Rs,35,32,660 was paid to the above named investor thereby pocketing the difference of Rs,609,180 and thus, defrauded the investor.
(ii) He on 9-5-2003 and 10-5-2003 along with 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 and obtained in lieu thereof a receipt showing payment of full amount on 16-4-2003 at the time of encashment, which shakened the confidence of investor on Government schemes besides bringing bad name to the organization.
(iii) He on 12-6-2002 with mala fide intention and ulterior motives pilfered the Special Savings Certificate Registration No,24868 worth Rs,50,000 from the bunch of Certificates presented by Mr. Yasin Ahmed (one of the purchasers) along with other certificates for receiving profit.
(iv) He on 31-7-2002 fraudulently encashed the said special savings certificate Registration No,24868 worth Rs,50,000 by making fictitious signature of Mr. Yasin Ahmed on thhe back of certificate and thus, he defrauded Mr. Yasin Ahmed for Rs,50,000.
(v) He on 31-7-2002 failed to observe the procedural requirement with regard 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 Nos.(i), (ii), (iv) have been completely proved whereas charges Nos.(iii) and (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 in 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 20-5-2004 was issued 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 30-8-2004 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 Muhammad Javed Ashraf Hussain Member. 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 inchargeshould 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 16-4-2003 and subsequently an amount of Rs,6,09,180 in the same account on 10-5-2003. 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 view 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 Nos. (iii) and (iv) were also established against the appellant as Special Savings 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 5-7-2002. It was further held that the charges were proved during the inquiry proceedings and the Enquiry Committee 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 30-8-2004.
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 principles 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.Nos.(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 Savings 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 show that on 16-4-2003 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 10-5-2003. 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 rendered by 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 30-8-2004 is modified to compulsory retirement along with 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 the provision (b) to subsection (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 along with any admissible benefits, if permissible in law as per opinion of the Chairman.