MUHAMMED JAVED ASHRAF HUSSAIN, MEMBER -- This is an appeal under Section 4 read with Section 2 of the Service Tribunal Act, 1973, against the impugned order dated 31.12.2002 whereby the major penalty of dismissal from service ha$ been imposed upon the appellant. The appellant preferred a departmental representation dated 24.01.2003 which was rejected vide Deputy Postmaster General, Postal Region, Sukkur letter No. SRO/S-A-,14/2002-03, dated 02.12.2003 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. 06.07.1983 and was promoted as Clerk in the year 1989 and since then he was working as Clerk/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 05.10.2002 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 orders worth Rs.3,29,635/- during the period January 2002 to July 2002, the details of which are as under:- S. No. Name of Payee M.O. Receipt Serial Number Office of Drawn Total Amount of M.Os. Issued 1 Muhammad Ibrahim 06 to 10 More Rs 50,0001- 2 Muhammad Kamal 11 to 12 N. Feroze Rs. 17,5001- 3 Ghulam Muhammad 13 to 27 Halani Rs. 1,50,000/- 4 , Muhammad Kamil 28 to 32 N. Feroze Rs.50,000/- 5 Ghulam Muhammad 33 to 38 w.
Halani Rs.60.000/-.
Total Commission Rs.3,27,500/- Rs.2,135/- Rs.3,29,6351- It was also alleged in the show cause notice that the appellant had renewed 35 Arm's Licenses, the renewal fee f which amounting to Rs.2,700/- was not accounted for and allegedly misappropriated by the appellant. The show cause notice dated 05.10.2002 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 orders 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 amounts 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 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 the 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 02.12.2003 of the departmental representation dated 24.01.2003. He placed reliance on the rulings 1997 PLC (CS) 817 and PLJ 1998 TRC (Services) 238. 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 (CS) 999, 1997 PLC (CS) 348 and' 1999 PLC -(CS) 665, 2002 SCMR 57 and 2003 PLC (CS) 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 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 respondent No. 2. Reliance was placed on the rulings as in PLD 1980 SC 310, 1992 PLC (CS)
775 and 2003 PLC (CS) 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 (CS) 636], [1997 TD (Service) 346], [2003 TD (Service) 319] and [2003 PLC (CS) 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 appellantwas 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 rulings as in [1982 PLC (CS) 770], [1984 PLC (CS) 500], [1995 TD (Service) 220], [1997 PLC (CS) 348] and [2003 PLC (CS) 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 (CS) 419]. [2001 PLC
(CS) 270], [PLJ 2002 SC-.1059], [2003 PLC (CS) 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 02.12.2003 of the departmental appeal are non-speaking orders. He stated that non-speaking orders are not tenable in law and are required to be set-aside as such orders are in violation of Section 24-A of the General Claused-Act and placed reliance on the rulings as in 1998 SCMR 2268, 1999 PLJ TRC (Service) 374 and 2003 PLC
(CS) 433.
10. The learned counsel for the appellant further argued that the orders 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 form service dated 31.12.2002 having been passed by an incompetent authority is not sustainable under the law and liable to be set-aside. He placed reliance on the rulings as in 1983 PLC (CS) 171 and 356, NLR 1985 TD 391, 1987 PLC (CS) 73 and PLJ 2003 TRC(Services) 170/PLJ 2003 SC 511.
11. The learned counsel for the appellant concluded his arguments by stating that the impugned order of dismissal from service dated 31.12.2002 passed by the respondent No. 2 as well as the rejection order dated 02.12.2003 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 which posted as Postmaster, Nawab Khan Wasan, issued bogus money orders to payees at different post offices 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 02.07.2002 to 22.07.2002. The learned 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 deposited the government cash in a single day when he was directed to do so, while he took 20 days to deposit The same which proves that he had mis- utilized the cash for his own benefit and remitted it to the government only when he was made 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 05.10.2002 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 Offices, Sukkur admitted to the issuance of bogus money orders and the fact of his crediting the amount to the G.P.O. At later dates is sufficient proof of the commission of fraud and, therefore, there was no need to hold farther inquiry. The learned Standing Counsel further contended that keeping in cash for safe custody in his house as claimed by the appellant is not acceptable 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 a 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 02.12.2003 of the departmental representation dated 24.11.2003. Have been passed by the competent authorities. He stated that under the DG, P.P.O. Islamabad circular No. S(H).21 -1/2000-11, dated 19.08.2002, 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 Powers) Ordinance, 2000.
16. The learned Standing Counsel contended 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 No. 1 & 2 who were competent to pass the relevant orders under the provisions of DG, P.P.O. Islamabad circular No. S(II).21-1/2000-11, dated 19.08.2002.
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 24,01.2003 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 02.07.2002 to 23.07.2002. It appears that the Vigilance Team which visited the Nawab Khan Wasan Post Office alongwith the Divisional Superintendent, Postal Services, Pakistan Post, Sukkur on 30.08.2002 detected the lapse on the part of the appellant in crediting/remitting the amount of money orders to GPO at later dates i.e, from 02.07.2002 to 23.07.2002 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 05.10.2002 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 debtors from whom he had borrowed money 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 out rightly denied by the accused officer/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 show cause notice as well as in his departmental representation, admitted the fact of issuing money orders over a period of about six months from January 2002 to July 2002 and depositing the amount in G.P.O. on later dates spread over 20 days from 02.07.2002 to 22.07.2002. This lapse duly admitted by the appellant was detected by Vigilance Team headed by the Divisional Superintendent, Post Services, Pakistan Post, Sukkur during their visit to Nawab Khan Wasan Post Office on 30.08.2002 on the basis of which detection, disciplinary proceedings were initiated against the appellant. The allegation contained in the report of Vigilance Team stood confirmed by 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, Post Services, Sukkur, it is clear that there was a very little jurisdiction 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 finding/preliminary inquiry is not supported by the facts on record 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 addresses 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 GPO at later dates and which admissions were noted by the Vigilance Team on their visit to the Nawab Khan Wasan Post Office on 30.08.2002, there is no room let 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 GPO, the consequence being that he mis-utilized the cash for a specific period of time i.e. For about six months 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 Hon'ble 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 Hon'ble Supreme Court in its judgment cited as 2003 PLC (CS) 497 has held that where there was admission of guilt 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 o respondent refunded the amount very late and he has violated the Rule 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 on our opinion is also not warranted."
26 The Federal Service Tribunal vide its. Judgment cited as 2006 TD (Service) 121 has also held that in the face of admission of guilt accused cannot be completely absolved. The relevant portion of judgment reads as follows:- ".......... However, as per inquiry report and his own admission, he made cutting/over-writings 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 principle laid down in 2001 TD (Service) 361, 19934 SCMR 1440 (SC) and 2002 SCMR 857 (SC)."
27. In view of the above discussion, we have no hesitation in holding that in the face of the admissions 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 order 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 the appellant was late deposition 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 to 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/pensionery benefits accordingly.
29. No order as to costs.