' RASHID ALI MIRZA (MEMBER).--- We dispose of all the above there appeals with common judgment as the facts of all the appeals are identical. Brief facts of Appeal No,1581(K)(C.E.) of 2001 are that the appellant was appointed as clerk in Pakistan Steel in the year 1977 and was promoted at different intervals and lastly as Assistant Manager. Disciplinary action had been initiated against the appellant by issuing him a letter dated 11-4-2000 for appearing before the Enquiry Officer.
Statement of allegations and charges dated 17-7-2001 regarding his involvement in the fictitious/irregular procurement of stationery items amounting to Rs,83,075 through imprest account of medical department during the period January to June, 1999 was served upon the appellant. The appellant submitted his written defence on 23-7-2002 and denied the charges and submitted that the appellant neither remained involved in any purchase nor receipt or issue of stationery items. Due to the involvement of appellant in disciplinary proceedings, he opted for VRF scheme and submitted his option form under VRF on 27-1-2001 to the respondents. The appellant was issued show-cause notice on 7-9-2001 mentioning therein that the Enquiry Officer has found him guilty of the charges as such he may show cause within 7 days as to why major penalty under the Removal from Service (Special Powers) Ordinance, 2000 may not be imposed upon the appellant, the appellant submitted reply to the said show-cause notice and again denied the charges. Ultimately major penalty of dismissal from service vide order, dated 19-9-2001 was imposed upon the appellant, against which he filed departmental appeal on 1-10-2001 and the same was rejected through letter dated 9-10-2001.
2. Facts of Appeal No,1613(K)(C.E.) of 2001 are that the appellant was appointed as store man on 19- 4-1979 and he was also promoted on different times and lastly as junior officer in 1988-89. The appellant while posted in Medical Department was placed under suspension vide order dated 17-1- 2000 and charge-sheet dated 19-1-2000 containing the allegations that the appellant being Incharge Imprest Account failed to exercise control on the emergent procurement of life saving drugs and repair of medical equipment/machinery, out of total expenditure of Rs,480,000 meant for procurement of life saving drugs and other repairs, the appellant expended Rs,314,420 on the procurement of stationery items from the non-existent parties etc was served upon the appellant.
The appellant submitted reply on 26-1-2000 and denied the charges. The appellant was thereafter directed through letter dated 20-3-2000 to appear before the Enquiry Officer and before the result of enquiry is declared, vide memorandum dated 19-9-2000 the appellant was reinstated in service.
On 24-1-2001 a memorandum was issued by the respondent No,3, whereby the appellant was informed that the competent authority after careful examination of facts of the disciplinary case initiated against him vide charge-sheet dated 19-1-2000, has decided to drop the charges levelled in the said charge-sheet. Again on 17-7-2001 a statement of allegations containing the same charges as mentioned in charge-sheet dated 19-1-2000 was served upon the appellant, the appellant submitted reply on 23-7-2001 and denied the charges. He further submitted that he was issued charge-sheet on similar ground but the charges were not proved as such the disciplinary action against him was dropped. The respondent did not consider the reply of appellant to be satisfactory and started enquiry against him and show-cause notice dated 7-9-2001 under Removal from Service (Special Powers) Ordinance, 2000 was issued to the appellant mentioning therein that the Enquiry Officer has found him guilty of the charges, the appellant submitted reply to the said show-cause notice but vide order dated 19-9-2001 the appellant was dismissed from service against which he preferred departmental appeal but the same was rejected vide letter date 23-10-2001.
3. The facts of Appeal No,1615(K)(C.E.) of 2001 are that the appellant Manzoor Hussain Mahar was appointed as Senior Assistant on 4-2-1976. He was also promoted at different times and lastly as Assistant Manager. On 17-7-2001 the appellant was issued statement of allegations and charges under the Removal from Service (Special Powers) Ordinance, 2000 mentioning therein that the appellant being Incharge (Admn.) Medical Department during the period January, 1999 to March, 2001 failed to safeguard the interest of Pakistan Steel and remained involved in fictitious/ irregular procurement of stationery items through Imprest account in violation of laid down procedure. It was further alleged that the appellant purchased stationery items amounting to Rs,95,012 from various parties who were not existent and others denied the purchase. The appellant submitted written defence on 23-7-2001 and denied the charges but enquiry proceedings were started against the appellant. The appellant in his application dated 20-8-2001 requested for change of Enquiry Officer on the ground that the Enquiry Officer was also Investigating Officer regarding theft of material from polyclinic but the respondent No,3 vide memorandum dated 28-8-2001 rejected the request of appellant. The appellant in the meanwhile submitted and application on 21-8-2001 mentioning therein that the Enquiry Officer is threatening him for his dismissal from service but the same fact was not considered. The appellant was issued show-cause notice dated 26-9-2001 mentioning therein that the Enquiry Officer has found him guilty of the charges, the appellant submitted reply on 1-10-2001 but the same was not considered and vide order dated 8-10-2001 the appellant was removed from service, against which he preferred departmental appeal on 23-10- 2001 and the same was rejected on 31-10-2001.
4. We have heard the learned counsel for the parties and perused the record as well as the written comments as also the authorities cited at the bar.
5. The learned counsel for the appellants argued that appellant Ali Muhammad Samoo, his chief and Dr. Abdul Qadir Soomro were proceeded against but the chief of appellant and Dr. Abdul Qadir Soomro were let off with a letter of warning only and the appellant was dismissed from service. The learned counsel submitted that show-cause notices and orders of dismissal of the appellants were not signed by the competent authority. It was further argued that no witness had been examined to support the Audit report regarding purchase of stationery items. It was argued that the appellant Manzoor Hussain Mahar never remained involved in any purchase, receipt or issue of stationery items as has been alleged in the statement of allegations. Due to false implication of appellant Ali Muhammad Samoo in the disciplinary proceedings, he had no alternate but to opt for VRF Scheme and he submitted his option under the VRF on 27-1-2001 but the same was also not acceded to.
6. The learned counsel argued that appellant Pahlwan Khan was issued charge-sheet on 19-1-2000 alleging therein that the incharge failed to exercise control on the emergent procurement of life saving drugs and repair of medical equipment/machinery and out of total expenditure of Rs,4,80,000 meant for procurement of life saving drugs and other repairs, the appellant spent an amount of Rs,3,14,420 on the procurement of stationery items from the non-existent parties but after the submission of reply to the said charge-sheet, the said charges were dropped by the competent authority but again on 17-7-2001 a statement of allegations containing the same charges was issued to the appellant Pahlwan Khan. The learned counsel argued that once the competent authority after careful consideration of the defence submitted by the civil servant and relevant record decided to drop the charges, could not subsequently issue charge-sheet for the same charges. He further submitted that when the appellant was exonerated by the competent authority, on what grounds the Enquiry Officer found the appellant guilty of the same charges. The learned counsel stated that the subsequent action of the respondents against the appellant is illegal, unlawful, without jurisdiction and void ab initio, which is not sustainable under the law and liable to be set aside.
7. The learned counsel for appellants submitted the , appellant Manzoor Hussain Mahar was issued statement of allegations and charges on 17-7-2001 containing the same allegations, which were given to appellant Pahlwan Khan, the appellant submitted reply and denied the charges but the same was not considered by the respondents and enquiry proceedings were started against him.
The appellant through application dated 20-8-2001 raised no confidence against the Enquiry Officer and requested for change of Enquiry Officer on the ground that the Enquiry Officer was also Investigating Officer regarding theft of material from polyclinic but the said ,request of appellant was rejected by the respondent vide memorandum dated 28-8-2001. He further submitted that in the meanwhile the appellant submitted an application on 21-8-2001 that the Enquiry Officer is threatening him for his dismissal from service. The learned counsel argued that the departmental enquiries in all the appeals were not conducted in accordance with law, mostly these were in questionnaire form, which procedure has already been disapproved by the Honourable Supreme Court of Pakistan, opportunity of proper cross-examination was not provided to the appellants. He further submitted that though the appellants were asked for the personal hearing but they were not properly heard and the alleged personal hearing was only just to show on the record. The learned counsel for the appellant contended that it is an admitted position that the bills and vouchers had been signed by the appellant, but he contended that it was done so by the appellant in presence of the Chief Medical Officer, but the said Chief Medical Officer has not been examined.
He contended that the chief of the appellants were let off with a warning only whereas, the appellants were dismissed from service and the order of recovery of certain amount was made.
The learned counsel in support of his contentions relied upon the judgments reported in Syed Yaqoob Shah v. XEN PESCO (WAPDA) Peshawar and another PLD 2002 SC 667, Muhammad Ayoob Khan v. Abdul Mateen Khan, District and Sessions Judge Mardan/Competent Authority 2003 PLC (C.S.) 395, Bashir Ahmed v. Director of Fisheries and another 1985 PLC (C.S.) 518, Secretary to Government of N.-W.F.P. And 2 others v. Saifur Rehman 1997 SCMR 1073, Muhammad Jamil Khan v.
General Manager Pakistan Railway, Lahore and another 1987 PLC (C.S.) 395, The Director Food Punjab and 2 others v. Rashid Ahmed Food Grains Supervisor 1990 SCMR 1446, Alamgir v. Divisional Forest Officer Multan and others 1993 SCMR 603, Shamimuddin v. Superintendent of Post Offices Mirpurkhas Circle and others PLD 1994 SC 725, Wali Muhammad Sahto v. Secretary Establishment Division Islamabad and 2 others 2001 TD (Service) 361, Khalid Naveed v. Member Administration and The Chairman Pakistan Atomic Energy Commission, Islamabad 2000 PLC (C.S.) 857, The Secretary Government of Punjab through Secretary Health Department Lahore and others v. Riaz'ul Haq 1997 SCMR 1552, Muhammad Nawaz Khan v. Multan Development Authority, Multan through Director- General and 2 others 2001 PLC (C.S.) 296, Maqsood Ahmed Sheikh v. The Islamic Republic of Pakistan through Secretary Government of Pakistan, Rawalpindi 1987 SCMR 1562, Malik Muhammad Afzal. v. Deputy Director Food Lahore Region, Lahore and another 1987 PLC (C.S.) 875, Basharat Ali v.
Director Excise and Taxation, Lahore 1997 SCMR 1543, Deputy Director Foods and 2 others v. Akhtar Ali Food Grain Inspector 1997 PSC 539, Pakistan International Airlines Corporation through Chairman and others v. Koural Channa and others 1999 PLC (C.S.) 1539, Unreported judgment in Muhammad Irfan v. Pakistan Steel and another Appeal No,379(K)(C.E.) of 2002, Ghulam Fareed v. The Chairman Pakistan Steel and another Appeal No,515(K)(C.E.) of 2000, Aftab Ahmed Soomro v. Secretary to Government of Pakistan Ministry of Production and Industries and others Appeal No,973(K) CE) of 2002 and Sardar Ahmed Shaikh v. Chairman Federal Secretary Ministry of Communication and Railways and others Appeal No,211(K)(C.S.) of 2001.
8. The learned counsel for the respondents argued that appellant Ali Muhammad Samoo signed the cash memos and other documents knowingly that these were false and fabricated, he was not bound to obey the illegal orders of his superiors. He stated that Chief of appellant Ali Muhammad Samoo was serving Colonel as such a report was made against him for disciplinary proceedings by the GHQ, whereas during the enquiry the appellant did not mention any thing about Dr. Abdul Qadir Soomro. He further stated that the show-cause notices and orders of dismissal were issued under the order of the competent authority. The learned counsel submitted that in the case of appellant Pahlwan Khan, he was proceeded with due to his involvement in embezzlement in procurement of life saving drugs and repair of medical equipment/ machinery. He submitted that the competent authority at one stage dropped the proceedings but subsequently on the basis of material collected against the appellant, he was issued with show-cause notice and under the law there is no bar for the subsequent proceeding against any civil servant. The learned counsel argued that as far as appellant Manzoor Hussain Mahar is concerned, he was issued statement of allegations and charges on 17-7-2001 pursuant to the report submitted by the Audit Department that the appellant failed to safeguard the interest of Pakistan Steel and remained involved in the fictitious/irregular procurement of stationery items through imprest Account of medical department. He further stated that the allegations of appellant regarding impartiality of Enquiry Officer are an afterthought. The learned counsel stated that the enquiry against all the three appellants was conducted in accordance with law, they were provided an opportunity of cross- examination, they were issued final show-cause notices and so also opportunity of personal hearing was provided to the appellants and major penalty was rightly awarded to them as they were involved in the fictitious/irregular procurements in violation of standing rules. The learned counsel in support of his arguments relied upon the case-laws reported in Qamar-uz-Zaman v.
Director-General (Education) Government of Pakistan and others 1995 SCMR 1754, Zahid Akhtar v.
The Government of Punjab PLD 1995 SC 530, The Province of Punjab through Secretary Communication and Works Department and others v. Ibrar Younis Butt 2003 PLC (C.S.) 1357, Commissioner Punjab Employees Social Security Institution v. Dr. Jamal Butt 2004 PLC (C.S.) 177, Sardar Khan v. Managing Director (Power) WAPDA and another 2002 PLC (C.S.) 869 and Water and Power Development Authority v. Khawaja Abdul Waheed 2002 SCMR 753.
10(sic). We have heard -the arguments of the learned counsel for the parties and perused the record. .11. All the three appellants were Proceeded against by issuing statement of allegations and charges mentioning therein that they during their posting in medical department were involved in the fictitious/ irregular procurement of stationery items/failed to exercise control on emergent procurement of life saving drugs and repair of medical equipment/machinery. The appellants submitted reply but the respondents did not consider the said replies as satisfactory as such separate departmental enquiries were ordered to be conducted but in the case of appellant Pahlwan Khan, the competent authority after careful consideration of the record decided to drop the proceedings but again on 17-7-2001 on the same charges Statement of allegations was served upon him. During the enquiry proceedings appellant Manzoor Hussain Mahar raised no confidence in the Enquiry Officer and requested the respondents vide application dated 20-8-2001 for the change of Enquiry Officer but the said request was not acceded to as informed to him by the respondents through memorandum dated 28-8-2001. However, the respondent after completing the departmental enquires served show-cause notices upon the appellants separately and they were informed that the Enquiry Officers have found them guilty of the charges as such they explain their position within 7 days as to why major penalty under the Removal from Service (Special Powers) Ordinance, 2000 may not be imposed upon them. The appellants submitted their explanations, which were found unsatisfactory by the respondents and appellants Ali Muhammad Samoo and Pahlwan Khan were dismissed from service on 19-9-2001, whereas appellant Manzoor Hussain Mahar was removed from service on 8-10-2001, the appellants filed departmental appeals, which were rejected, thereafter they filed present appeals. Notices were issued to the respondents and they filed comments/written statement.
12. After going through the enquiry proceedings, it appears that the enquiry against all the three appellants have not been conducted as provided under the Removal from Service (Special Powers) Ordinance, 2000, the enquiry was conducted in questionnaire form, which procedure has been disapproved by the Honourable Supreme Court of Pakistan. Record shows that the respondents did not examine the material witnesses to prove the allegations. Further, proceedings against appellant Pahlwan Khan were dropped vide memorandum dated 24-1-2001 and there was no reason to re-initiate the proceedings against the appellant after a period of six months for the same allegations/charges. Appellant Manzoor Hussain Mahar submitted application for change of Enquiry Officer as the said Enquiry Officer remained as Investigating Officer regarding theft of material from polyclinic but in spite of that Enquiry Officer was not changed. It is further pointed out that proper opportunity of personal hearing was not afforded to the appellants. Superior Courts have held that personal hearing is not mere a formality but the civil servant should be provided full opportunity to explain his position with regard to the charges levelled/proved against him during the enquiry proceedings. It is also pointed out that in the case of appellant Ali Muhammad Samoo, two other officers who were also proceeded along with the appellant were subsequently let off by issuing a warning letter but the appellant was awarded major penalty as such it is a case of discrimination. However, the objection of the learned counsel of the appellants that the charge- sheet and impugned orders were not signed by the competent authority but after going through the record it appears that the charge-sheet, show-cause notice and impugned orders were issued with the approval of competent authority. We have gone through the record and we are in agreement with the learned counsel for the appellant, that the Chief Medical Officer, being important witness, has not been examined in the inquiry and Chief of the present appellants was let off with a warning only, whereas, the appellants had been dismissed. We are also of the considered opinion that no witness had been examined to support the audit report regarding' purchase of stationery items.
13. In view of above discussion, perusal of record, we are of the considered view that the respondents have failed to establish their cases against the appellants, as such the impugned orders dated 19-9-2001 of appellants Ali Muhammad Samoo and Pahlwah Khan and order dated 8-10-2001 of Manzoor Hussain Mahar are not sustainable and liable to be set aside. Accordingly we set aside the impugned orders, allow the appeals and direct the respondents to reinstate the appellants in service along with all back benefits for which they will submit an affidavit before the competent authority to the effect that they, were not gainfully employed elsewhere.
14. No order as to costs.
15. Copies of the judgment be sent to the parties and to the relevant quarters as per Rule 21 of Service Tribunals (Procedure) Rules, 1974.