' MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).---This is an appeal under section 4 read with section 2 of Service Tribunals Act, 1973, against the impugned order 31-12-2002 whereby the major penalty of dismissal from service has been imposed upon the appellant. The appellant preferred a departmental representation dated 24-1-2003 which was rejected vide Deputy Postmaster General, Post Region, Sukkur Letter No,S.R.O./S-A-14/2002-03 dated 2-12-2003 whereafter this appeal dated 26-12-2003 has been filed.
2. Briefly, the facts of the case are that the appellant joined the Pakistan Post Office as Mail Peon w,e,f, 6-7-1983 and was promoted as Clerk in year 1989 and since then he was working as Clark/postmaster under the control of Divisional Superintendent, Postal Service, Pakistan Post, Sukkur. The appellant was last posted as postmaster, Nawab Khan Wasan, District Khairpur while serving as Postmaster, Nawab Khan Wasan the appellant was served with a show - cause notice dated 5-10-2002 under Removal from Service (Special Powers) Ordinance, 2000 (as amended from time to time) by respondent No,2 alleging therein that while working as postmaster, Nawab Khan Wasan, the appellant issued bogus money order worth Rs,3,29,635 during the period January, 2002 to July 2002, the details of which are as under:-- {{TABLE}} S.No, Names of Payees M,O. Receipt Serial Number Office of Drawn Total Amount of M.Os.
Issued.
Muhammad 06 to 10 Moro Rs,50,000 Ibrahim Muhammad 11 to 12 N. Feroze Rs,17,500 Kamal Ghulam 13 to 27 Halani Rs,1,50,000 Muhammad Muhammad 28 to 32 N. Feroze Rs,50,000 Kamil Ghulam 33 to 38 Halani Rs,60,000 Muhammad Total Rs,3,27,500 commission Rs,2,135 Rs,3,29,635 {{TABLE}} It was also alleged in the show-cause notice that the appellant had renewed 35 Arms Licenses, the renewal fee of which amounting to Rs,2,700 was not accounted for allegedly misappropriated by the appellant. The show-cause notice dated 5-10-2002 included the allegations as under:-- "(1) Issuance of bogus money orders.
(2) Corruption.
(3) Misconduct.
(4) Misappropriation of government money."
3. The appellant submitted his reply dated 10-11-2002 stating therein that he issued the money order at his own expense in order to show enhanced business of the Post Office which was otherwise running at a loss being located in a remote village having very poor business potential.
He further stated in his reply that his father was seriously ill and he had to borrow large amount of money for the treatment of his ailing father. The money so borrowed was remitted back by him to the lenders through the money orders issued by him. He further stated in his reply that as there was no arrangement of an iron safe in the post office, he kept the cash (proceeds of the money orders etc.) in his house in the interest of its security. He also stated that the cash was credited back to the G.P.O. By him voluntarily and that there was no forced recovery from him. He contended that the government cash was not misappropriated but was accounted for correctly and that the money orders were not bogus but were genuine and correctly issued.
4. The learned counsel for the appellant argued that the appellant had denied the charges as in the show-cause notice in his reply dated 10-11-2002 and in the face of such denial, no punishment minor or major was warranted without conducting a regular inquiry. He further argued that controversial facts were involved which could not have been proved without a regular inquiry. He maintained that in absence of a regular inquiry, the order of dismissal from service dated 31-12- 2002 passed by the respondent No,2 is not sustainable as also the rejection order dated 2-12-2003 of the departmental representation dated 24-1-2003. He placed reliance on the rulings 1997 PLC (C.S.) 817 and 2000 PLC (C.S.) 1252. The learned counsel further argued that major punishment awarded in a summary manner on the basis of a show-cause notice only is not permitted under the law and placed reliance on the rulings 1994 PLC (C.S.) 999, 1997 PLC (C.S.) 348, 1999 PLC (C.S.)
665, 2002 SCMR 57 and 2003 PLC (C.S.) 395.
5. The learned counsel maintained that the cash against the proceeds of money orders etc. Was kept in safe custody in his house by the appellant in the interest of safety of the cash as no iron safe was provided in the Post Office and claimed that the amount was deposited in the G.P.O. By the appellant on the direction of the respondent No,2 on the assurance of the latter that in the event of the cash being deposited, a lenient view would be taken and no action would be initiated against the appellant. He further stated that after depositing the amount, a lenient view was required to be taken by the respondent No,2. Reliance was placed on the rulings as in PLD 1980 SC 310, 1992 PLC (C.S.) 775 and 2003 PLC (C.S.) 497/1647.
6. The learned counsel for the appellant further argued that in the show-cause notice no mention regarding dispensing with inquiry has been made. He stated that when charges involved corruption and misappropriation of government money the fact of dispensing with regular inquiry and reasons thereof were required to be mentioned in the show-cause notice. He placed reliance on the rulings as in 1985 PLC (C.S.) 636, 1997 SCMR 1543=1997 PLC (C.S.) 817, 2002 PLC (C.S.) 1324 and 2003 PLC (C.S.) 353.
7. The learned counsel for the appellant stated that the punishment of dismissal from service was inflicted on the appellant on the basis of some fact finding inquiry/preliminary inquiry in which allegedly the appellant was neither called nor associated with and therefore, the result of such fact finding inquiry/preliminary inquiry cannot be substituted for regular inquiry. He stated that major punishment cannot be awarded on the basis of a fact finding inquiry and placed reliance on the ruling as in 1982 PLC (C.S.) 770, 1984 PLC (C.S.) 500, 1995 PLC (C.S.) 1123, 1997 PLC (C.S.) 348 and 2003 PLC (C.S.) 353.
8. The learned counsel for the appellant further contended that the punishment was inflicted on the appellant without affording him a chance of personal hearing. He stated that punishment cannot be awarded without personal hearing and therefore, the order of dismissal from service was void. He placed reliance on the rulings as in 2001 SCMR 934, 1986 PLC (C.S.) 419, 2001 PLC (C.S.)
270, 2002 SCMR 1034=2002 PLC (C.S.) 1083, 2003 PLC (C.S.) 365 and 589, 1997 SCMR 1543 and 1994 SCMR 2232.
9. The learned counsel for the appellant further argued that the impugned order of dismissal from service dated 31-12-2002 as well as the rejection order dated 2-12-2003 of the departmental appeal are nonspeaking orders. He stated that non-speaking orders are not tenable in law and are required to the set aside as such orders are in violation of section 24A of the General Clause Act and placed reliance on the ruling as in 1998 SCMR 2268; 2001 PLC (C.S.) 857 and 2003 PLC (C.S.)
433.
10. The learned counsel for the appellant further argued that the order of dismissal from service dated 31-12-2002 has been passed by the Divisional Superintendent, Postal Services, Sukkur who was not the competent authority and that only respondent No,1 i,e, the Deputy Postmaster General was competent to pass such order. He, therefore, contended that the order of dismissal from service dated 23-12-2002 having been passed by an incompetent authority is not sustainable under the law and liable to bet set aside. He placed reliance on the rulings as in 1983 PLC (C.S.) 171 and 356; NLR 1985 TD 391; 1987 PLC (C.S.) 73 and 2003 PLC (C.S.) 1252; 2003 SCMR 1718=2003 PLC (C.S.) 1304.
11. The learned counsel for the appellant concluded his arguments by stating that the impugned order 4 dismissal from service dated 31-12-2002 passed by the respondent No,2 as well as the rejection order dated 2-12-2003 of the departmental representation were liable to be set aside and that the appellant was required to be reinstated in service with all consequential back benefits and any other relief as deemed fit by this tribunal .
12. The learned Standing Counsel for the respondents argued that as the Federation of Pakistan and Ministry of Communication have not been made party in the appeal the same is liable to be dismissed in limine. The learned Standing Counsel stated that the appellant while posted as Postmaster, Nawab Khan Wasan, issued bogus money orders to payees at different post office from January 2002 to July 2002 and himself collected the amount through the payees thus, committing fraud. The amount remitted by him through Post Office Nawab Khan Wasan was not deposited by him with the G.P.O. At the appropriate time but was credited late and that also over a period of 20 days from 2-7-2002 to 22-7-2002. The leaned Standing Counsel argued that even if the plea of keeping the cash in his house in the interest of its safe custody in the absence of an iron safe in the Post Office by the .Appellant is accepted, the appellant should have deposit the Government cash in a single day when he was directed to do so, while he took 20 days to deposited the same which proves that he had misutilized the cash for his own benefit and remitted it to the government only when he was mad to do so.
13. The learned Standing Counsel further argued that opportunity of personal hearing was duly offered to the appellant but the appellant did not avail himself of the opportunity. The learned standing counsel stated that the disciplinary proceedings were initiated on 5-10-2002 and completed on 31-12-2002 i,e, over a period of two months and therefore, cannot be termed as summary proceedings.
14. The learned Standing Counsel stated that the appellant in his question-answer statement recorded by the Assistant Superintendent, Post Office, Sukkur admitted to the issuance of bogus money order and the fact of his crediting the amount to the G.P.O. At later dates is sufficient poor of the commission of fraud and therefore, there was no need to hold further inquiry. The learned standing counsel further contended that keeping the cash for safe custody in his house as claimed by the appellant is not accepted as suitable arrangement for such purposes is available in the post office and even if such arrangement was not available he should have brought the matter to the notice of the concerned authorities well in time which he failed to do.
15. The learned Standing Counsel maintained that the dismissal order is a speaking order and not a stereotyped order as contended by the learned counsel for the appellant. The learned standing counsel further argued that the order of dismissal from service dated 31-12-2002 and the rejection order dated 2-12-2003 of the departmental representation dated 24-11-2003 have been passed by the competent authorities. He stated that under the D.G., P.P.O., Islamabad Circular .No,S(H)21- 1/2002-II dated 19-8-2002, the Head of the Division has been declared as competent authority in respect of officials in BPS-1 to 7 under the Removal from Service (Special Power) Ordinance, 2000.
16. The learned Standing Counsel concluded his arguments by stating that the appeal is not maintainable and liable to be dismissed and that the reinstatement of the appellant will be against natural justice.
17. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the respondents.
18. At the outset, we shall deal with the contention of the learned Standing Counsel that the appeal is liable to be dismissed in limine on account of the Federal Government and Ministry of Communication not being made parties. We are of the opinion that the appeal is not vitiated on this account as the cause of grievance arose from orders passed by respondents Nos.1 and 2 who were competent to pass the relevant orders under the provisions of DG, P.P.O., Islamabad Circular No,S(H)21-1/2000-II, dated 19-8-2002.
19. From the record of the case, it emerges that the appellant while posted as postmaster issued money orders amounting to Rs,3,29,635 from the Post Office, Nawab Khan Wasan District Khairpur over the period January 2002 to July 2002. In reply to the show-cause notice he has admitted that the amount was remitted by him to different people from whom he had borrowed money for the purpose of medical treatment of his ailing father. He has also admitted in his departmental appeal dated 24-1-2003 that the amount was accounted for and credited by him with the G.P.O. To quote his own words "but a bit late".
20. The money orders were issued by the appellant from January 2002 to July 2002 but from the record as duly admitted by the appellant it is revealed that the amount was deposited and credited to G.P.O. By the appellant over a period of 20 days from 2-7-2002 to 23-7-2002. It appears that the Vigilance Team which visited the Nawab Khan Wasan Post Office along with the Divisional Superintendent, Postal Services, Pakistan Post, Sukkur on 30-8-2002 detected the lapse on the part of the appellant in crediting/remitting the amount of money orders to G.P.O. At later dates i,e, from 2-7-2002 to 23-7-2002 while the money orders were sent from January 2002 to July 2002. On the basis of such detection of the serious lapse on the part of the appellant, a show-cause notice dated 5-10-2002 was issued to the appellant. A question-answer statement, a poor substitute for a fact finding inquiry, was recorded in which the appellant admitted to issuing money orders and took the plea that the amount was remitted to his debtor from whom he had borrowed money E to meet the expenses of medical treatment of his father. It is however, noted that even if the question- answer statement is taken as a fact finding inquiry, it is no substitute for a regular inquiry specially as major punishment of dismissal from service has been imposed upon the appellant. The show- cause notice also does not mention that a regular inquiry was being dispensed with and the reasons for such dispensation.
21. It has been argued on behalf of the appellant that charges of corruption, inefficiency and misconduct cannot be proved against an accused official on the basis of preliminary inquiry or the report of the Vigilance/Monitoring Team alone where such charges are outrightly denied by the accused office/official and therefore, major penalty of dismissal from service cannot be imposed on the basis of such reports of preliminary inquiry/vigilance team however, in the present case the appellant has, in his reply to the show-cause notice as well as in his departmental representation, admitted the fact of issuing money order over a period of about six months from January 2002 to July 2002 and depositing the amounts in the G.P.O. On later dates spread over 20 days from 2-7- 2002 to 22-07-2002. This lapse duly admitted by the appellant was detected by the Vigilance Team head by the Divisional Superintendent, Postal Service, Pakistan Post, Sukkur during their visit to Nawab Khan Wasan Post Office on 30-8-2002 on the basis of which detection, disciplinary proceedings were initiated against the appellant. The allegation contained in the report of the Vigilance Team stood confirmed by the appellant. In the face of the admission on the part of the appellant as clearly made out in his reply to the show-cause notice, his departmental appeal and also the statement recorded by him before the Assistant Superintendent, Postal Service, Sukkur, it is clear that there was very little justification left for holding a regular formal/inquiry.
22. As regards personal hearing, the appellant has admitted that he was called by the respondent No,2 through letter dated 12-11-2002 for personal hearing on 18-11-2002, but he could not appear for the personal hearing. No plausible reason has been given by the appellant for not availing the opportunity of personal hearing.
23. The contention of the appellant that he was not associated with the fact findings/preliminary inquiry is not supported by the facts on recorded as the appellant has recorded his statement in a question-answer format before the concerned officer.
24. In view of the admission by the appellant regarding issuance of money orders by himself to different persons and on different adder in order to meet the pressure of his debtors and also the admission that he deposited the government cash (proceeds of the money orders etc.) in the G.P.O. At later dates and which admissions were noted by the Vigilance Team on their visit to the Nawab Khan Wasan Post Office on 30-8-2002, there is no room left to doubt the fact of commission of the offences as made out in the show-cause notice against the appellant. In the whole episode it is, however, clear that ultimately no financial loss was caused to the government and the offence on the part of the appellant was one of late remittance of government money to the G.P.O., the consequence being that he misutilized the cash for a specific period of time i,e, for about six month from January, 2002 to July 2002. This lapse on the part of the appellant in our view though an offence is nonetheless not so grave as to justify the extreme punishment of dismissal from service. In the matter we are reinforced in our opinion by the judgment of the Honourable Supreme Court cited as 2006 SCMR 60, the relevant portion of which reads as under:- " . ,In service matters, the extreme penalty for minor acts depriving a person from right of earning would definitely defeat the reformatory concept of punishment in administration of justice."
25. There is nothing on record to lend credence to the claim that the admission of the lapse on his part duly recorded in his reply to the show-cause notice, in his departmental appeal and the question-answer statement recorded by him were obtained under any coercion. The Honourable Supreme Court in its judgment cited as 2003 PLC (C.S.) 497 has held that where there was admission of guilty by refund, total exoneration was uncalled for but extreme punishment of dismissal from service was also not warranted. The relevant portion of the judgment reads as under:-- "(6) Since it is proved through record that the respondent refunded the amount very late and he has violated the Rules of the Bank, as such, keeping in view the above provisions, we are of the considered opinion that total exoneration of the respondent from charge was uncalled for.
However, the dismissal from service in our opinion is also not warranted."
26. The Federal Service Tribunal vide its judgment cited as 2006 PLC (C.S.) 1559 has also held that in the face of admission of guilt accused cannot be completely absolved. The relevant portion of judgment reads follows:--- " ..However, as per inquiry report and his own admission, he made cuttings/over-writing and alterations in the entries and thus being not cautious in the discharge of his duty, he cannot be completely absolved of his responsibilities. We may also seek guidance from the principles laid down in 2001 TD (Service) 361, 1994 SCMR 1440 (SC) and 2002 SCMR 857 (C.S.)."
27. In view of the above discussion, we have no hesitation in holding that in the face of the admission of the appellant at different stages regarding the offences of issuing bogus money orders and late crediting of amounts in the G.P.O., there was no compelling need to hold a formal inquiry. Further, the opportunity of personal hearing was offered to the appellant although he did not avail himself of the opportunity and has given no plausible reason for not availing the opportunity. The impugned orders ordering dismissal from government service against the appellant does not appear to be a summary order or stereotyped order and therefore, we are constrained not to agree with the contention of the learned counsel for the appellant that the order is not comprehensive. Nonetheless, as no monetary loss has been caused to the Government Treasury and as the only offence on the part of Lhe appellant was late deposit of the amount, we are of the view that the extreme punishment of dismissal from service was uncalled for. At the same time, the appellant cannot be exonerated in the face of his voluntary admissions with regard to the commission of offence as recorded by him in the reply in the show-cause notice, the departmental representation and the question-answer statement.
28. In view of the above, the penalty of dismissal from service is converted into the penalty of compulsory retirement with effect from the date of his dismissal. The appellant shall be entitled to receive the retirement/pensionary benefits accordingly.
29. No order as to costs.
30. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per rule 21 of the Service Tribunals (Procedure) Rules, 1974. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.