' JUSTICE (RETD.) MANSUR ALAMGIR QAZI (MEMBER).---The appellant, Dr. Azam Sarfraz, BPS.18, while working as Deputy Director, Population Welfare. Department was served with a charge-sheet on 5th July, 2000 along with a statement of allegations as follows:--- "(1) You, Dr. Muhammad Azam Sarfraz, Deputy Director (CS-II) requisitioned the supply of following contraceptives from CW&S, Karachi:-
(i) Condoms 15000 pieces
(ii) ,Oral Pills 15000 pieces
(iii) IUD-Cu-T 15000 pieces
(iv) Syringes 15000 pieces guilty on all counts and Inquiry Committee made the following recommendations:--- "35. All the allegations levelled against Dr. Azam Sarfraz, (the accused) stand proved and the charge that Dr. Azam Sarfraz, (the accused) is guilty of misconduct and corruption under section 3 of "Removal from Service (Special Powers) Ordinance, 2000" is established. The Inquiry Committee is of the view that as per provisions of the aforesaid Ordinance, under section 3, the following penalties may be imposed:---
(i) Dr. Azam Sarfraz Deputy Director (Technical) PWD, Punjab, may be dismissed from the service.
(ii) He be directed to deposit 1/3 of the total loss incurred to the Government of Pakistan in the misappropriation of contraceptives worth Rs,46,32,200.
36. Since, Mr. Abdul Rehman, the Store-keeper, Warehouse, PWD, Punjab and Mr. Nasir Ali Shah the contractor have also confessed their involvement in the misappropriation of the contraceptives, as such to make the loss good, it is further recommended that:---
(i) In order to complete legal formalities formal inquiry under "Removal from Service (Special Powers) Ordinance, 2000" may also be initiated against Mr. Abdul Rehman to facilitate recovery to the tune of 1/3rd of the total loss.
(ii) An F.I.R. May be registered against Mr. Nasir Ali Shah, (the Contractor) for proceedings against him, under the Court of law with a view to recover at least 1/3rd of the total loss incurred to the Government of Pakistan in the misappropriation of contraceptives worth Rs,46,32,200."
3. In wake of the above recommendations, a final show-cause notice was served on the appellant on 7-12-2000. The appellant submitted his reply to the said show-cause notice but the same did not find favour with the competent authority. A personal hearing was given to the appellant and thereafter the impugned Notification dated, 17-5-2001 was issued whereby the appellant was dismissed from service of the respondents with immediate effect as he had been found guilty of A misconduct by the competent authority and not for corruption. The appellant preferred an appeal to the Departmental Appellate Authority on 26-5-2001 but the same remains undecided till date.
4. Feeling aggrieved with the order of dismissal from service dated 17-5-2001 he had challenged the same vide the instant appeal filed before this Tribunal on 24-8-2001. This, appeal came up for hearing before a Bench of this Tribunal on 20-9-2002 and was disposed of as withdrawn with the following order:--- "Learned counsel for the appellant states that this Court has no jurisdiction as per Ordinance No,XXXII of 2001, dated 25th July, 2001 and Establishment Division I.O. No,4/6/95-R-4, dated 4-2- 2002. The relevant portion of the said U.O. Is reproduced hereunder:-- "All the employees of Provincial Population Welfare Department have become Provincial Civil Servants w,e,f, 25-7-2001 (including 123 Officers who were recruited through Provincial Public Service Commission."
' Since the appellant has become an employee of the Provincial Government, the learned counsel for the appellant requests for withdrawal of the appeal, Request is allowed and the appeal is disposed of as withdrawn. Consigned to record."
' The appellant, thereafter approached the Punjab Service Tribunal, Lahore vide Appeal No,1890/2002, which on 24-11-2003 'came up for hearing before a Bench compromising Mr. Justice'
(Retd.) Chairman and Mr. Muhammad Afzal, Member, I, who were pleased to dismiss the appeal.
Para. No,6 of the said 'judgment is reproduced as - "6. The point raised by the learned counsel that the appellant was appointed against a post in the Provincial Population Welfare Department and that in his appointment letter, it was specifically stipulated that he would, be governed, by the Punjab Population , Welfare Programme Recruitment Rules, 1988 becomes redundant by the subsequent developments which as observed from the very inception, appellant continuously and without any break, worked as an employee of the Federal Government and being treated as a civil servant of the Federation. Section 8(1)(d) specifically deals. With the situation when an employee recruited against a post in a Province, but works with the Federal Government, his transfer to the Province of his domicile would not convert his status from civil servant of the Federation to the civil servant of the Province. No doubt the amendment brought about in section 8 subsection (2) and addition of a. New subsection (5) in Ordinance XIX of 683 on 25-7-2001 the civil servant of the Federal Government, who is transferred to the Provincial Government shall be deemed to become the civil servant of the respective Provincial Government on such commencement and shall be governed by the rules and regulations made under the provincial laws relating to civil servants, but very important-aspect which cannot be lost sight of strictly applicable to the facts of the present case is that the appellant was dismissed from service on 17-5-2001 by his competent authority, i,e, the Secretary, Ministry of Population Welfare, Government of Pakistan, Islamabad Much before the amendment XXXII of 2001 dated 25-7-2001 in the. Ordinance XIX of 1983 saw the light of the day, therefore, on the date of the said amendment, appellant was not in employment and the order of his dismissal dated 17-5-2001 continued to hold the field unless set aside by the appropriate forum. The amendment in law quoted above would therefore not apply to the appeal of the appellant. Another facer of the proposition is that the order dated 17-5-2001 was passed by the Secretary, Ministry of Population Welfare, Government of Pakistan, Islamabad. The Punjab Service Tribunal can only adjudicate upon those appeals which are directed against any final order, whether original or appellate made by a departmental authority of the Provincial Government in respect of any of the terms and conditions of service of the appellant. The order assailed in the instant appeal is passed by Secretary, Ministry of Population Welfare, Government of Pakistan and as such is outside the ambit of jurisdiction of the Punjab Service Tribunal. This Tribunal therefore lacks jurisdiction to hear the appeal and accordingly the same is dismissed without any order as to costs."
5. The appellant flabbergasted with the above said two views of the Tribunals- approached the Honourable Supreme Court of Pakistan vide Civil Appeal No,922/2004 and their Lordship were pleased vide judgment, dated 1-11-2005 to hold and set aside the order of the Federal Service Tribunal; Lahore Bench while the judgment of all formal proceedings, the appeal has now come up for last and final hearing. Before us on 21-11-2006.
6. We would at this juncture like to record, the relevant background essential for evaluating the contentions raised .By the learned counsel for the parties:- "In pursuance of the recommendations of IEC workshop held in Islamabad in December, 1995, it was decided to prepare 12,000 demonstration kits, each containing a Condom, an Oral Pills Strip, an IUD and a Syringe. The Directorate of P&P of the Programme Wing, was entrusted with the responsibility for preparing these kits. The contraceptives viz. Condoms, Oral Pills and IUDs were to be procured by PWD Punjab and the fourth item i,e, syringes were to be purchased by P&P Directorate, Lahore, by itself.
(2) Dr. Azam Sarfraz, DD CS-II proposed the preparation of 15000 kits instead of 12000, the balance, he suggested, would be distributed to the selected FWCs, VBFPWs, and other outlets. He, on the pretext that sufficient stock of the three contraceptives was not available at Punjab Warehouse, suggested their procurement from Central Warehouse Karachi and obtained the Secretary's (Punjab) approval to this effect. However, after having obtained the Secretary's approval for three items, Dr. Azam Sarfraz reportedly tampered with the note portion by adding an additional requirement of 15,000- Syringes (which as per decision were to be procured by P&P Lahore) and sent a requisition under his signature to CW&S Karachi for the {{TABLE}} following four items:- Condoms 15000 pieces Oral Pills 15000 pieces IUD-Cu-T 15000 pieces Syringes 15000 pieces {{TABLE}} ' Prior to Dr. Azam's requisition (May, 1996), the DD (WH) Punjab, had also requisitioned (March, 1996) supplies of contraceptives from CW&S Karachi to meet the recurrent demand of the Districts of Punjab. The CW&S in response to DD (WH)'s requisition dispatched the following contraceptives vide way Bill Nos.6288 and 6289:--- {{TABLE}} Condoms 1,08,000 Vial Oral Pills 16,000 Cycles Inj. Norigest 15,000 Pieces Inj. Depo provera 88,000 Pieces 'Syringes 15,000 Pieces Syringes 8,000 Pieces {{TABLE}]
(4) Dr. Azam Sarfraz, after having come to know that supplies of contraceptives have reached at Messrs Azad. Muslim Goods Transport Co. Lahore, authorized Mr. Nisar Ali Shah (the Contractor, engaged by P&P Lahore for preparation of demonstration kits) to directly collect the supplies dispatched by CW&S Karachi vide way Bill Nos.6288 and 6289, instead of having it cleared, and handing it over to P&P Lahore, as per decision of the Secretary (Punjab). Consequently these supplies were taken over by Mr. Nasir Ali Shah, the Contractor. The consignments were not in response to DD CS requisition rather in response to DD Warehouse (Punjab) supply the contractor.
The consignments were not in response to DD CS requisition rather in response to DD Warehouse (Punjab) supply order; as such the quantity of the contraceptives was much beyond the requirement for Demonstration Kits. Resultantly the following supplies, over and above the requirement for Demonstration Kits, were misappropriated. {{TABLE}} S.No, Description of Contraceptives Quantity Received Quantity Used Contractor for
(Kits) Quantity-mis- appropriated Condoms 100,800 pieces 7,900 pieces 92,900 pieces Oral Pills 16,800 cycles 7,900 cycles 8,900 cycles Injection Norigest 30,000 vials 30,000 vials Syringes 38,800 pies-,s 7,900 pieces 30,900 vials Depo-Provera -Inj. 8,800 vials 8,800 vials Cut-T.(*) 15,000 pieces 7,900 pieces 71,00 pieces (*) Note: the Cu-T was issued from the Provincial Warehouse, Punjab, Lahore. {{TABLE}}
7. We have heard arguments advanced by the learned counsel for the parties and with their assistance and to their entire satisfaction perused the record.
8. The learned counsel for the appellant has raised the following contentions:--
(i) That the inquiry was not held in a proper and legal manner in that the appellant was not given a chance to cross-examine the witnesses and produce defence evidence.
(ii) That in spite of repeated requests appellant was never provided with the relevant documents requested by him through his applications,
(iii) That the competent authority has penalized him only for charges of 'misconduct' and `corruption' after ,he had been afforded a chance of personal hearing.
(iv) Lastly contends that the appellant's entire service career is unblemished and submits that his client has made a 'mistake' no doubt for which he had been dealt with by inflicting maximum penalty, which is harsh, severe and would be a 'stigma' to his name and reputation. A lesser major penalty would serve the ends of justice.
' He has placed reliance on the following judgments of the Honourable Supreme Court of Pakistan, in support of his contentions:---
(i) 1993 SCMR 603, (ii) 2001 SCMR 1566, (iii) 2002 SCMR 433, and (iv) 2000 PLC (C.S) 136.
9. The learned counsel for the respondents has contested the appeal and in support and on behalf of the respondents, he states that the respondents have passed the dismissal order against the appellant in a lawful manner, who was found guilty on all counts in the departmental disciplinary enquiry as he was found involved in misappropriation of governmental property worth Rs,46,32,200 and was thus held guilty of misconduct. The learned counsel has drawn our attention to the admission made by the appellant in his own reply dated 21-7-2000 to the Charge-Sheet dated 5- 7-2000 which is reproduced as under:- " ..The undersigned issued the authority letter to the contractor to collect the following quantity of contraceptives from Messrs Azad Muslim Goods Transport Company, Lahore. {{TABLE}} Condoms 15000 pieces Oral Pills 15000 pieces IUD/Copper-T 15000 pieces Syringes 15000 pieces {{TABLE}} ' The authority letter to collect the above mentioned contraceptives directly from the Goods Company instead of bringing these into the Warehouse was issued extremely in good faith to avoid further delay in preparation of the kits and after confirming that the dispatched quantities in response to the undersigned's request submitted vide No,467, dated 3-6-1996.... "
10. He further submits that after the above admission by the appellant, it was not incumbent upon the respondents to hold a regular inquiry, but in spite of that and as a measure of extra precaution the respondents have at first held a fact-finding-inquiry, a copy of which was provided to the appellant on his request and thereafter a regular disciplinary inquiry was also held in which the Store-keeper, Contractor and Manager Messrs Azad Muslim Goods Badami Bagh, Lahore have all been examined by the Inquiry Committee and the appellant was well aware of the same as all the proceedings were conducted in his presence. He even opted to call in his defence Dr. Fayyaz A.
Tanvir, Director, Lahore Division and Dr. Nasrullah Khan, Ex-Director (P&P), who have been examined. All documents requested by the appellant were provided to facilitate his defence. The Store-keeper, Contractor and Manager Azad Muslim Goods, Badami Bagh, Lahore have fortified what the appellant has admitted in his regular inquiry. The learned counsel for the respondents has read out the relevant excerpts from the evidence of Store-keeper:---
(i) Statement of the Store-keeper (P 350) {{URDU TEXT}}
(ii) Statement of the Store-keeper (P 352). {{URDU TEXT}}
(iii) Statement of the Contractor (P 357). {{URDU TEXT}}
(iv) Report of the Inquiry Committee (P 263)
' The Inquiry Committee quoted Dr. Sarfraz saying that "Storekeeper destroyed the original file and other relevant documents" (P 263)."
' And thus concluded that the Store-keeper, contractor and the appellant had collaborated and acted in collusion with each other to wilfully cause loss to the Government exchequer. The appellant is not at all innocent nor has he been framed in this act, but he is involved upto his neck and has thus dug his own pit. Had he acted in sincerity, he should have seen to it that either the raw material stood returned to the Government Warehouse or at least the kits, after preparation must have reached the respondent's custody, neither object was achieved. Rather, it has come to light that in order to bury his nefarious act, the appellant has deliberately destroyed the record and that too in presence of witnesses to save his own skin. It is also evident that he has been deliberately creating hurdles in the way of the respondents by making demand of the record through applications to delay the culmination of the proceedings against him. All the documents statements of witnesses and his own admission are enough proof of misconduct on his part.
11. The learned counsel for the respondents further submitted that the law cited by the learned counsel for the appellants does, in no way, advance the case of the appellant as the circumstances of the instant case are entirely different from the facts and law in the precedents pressed into service by his learned counsel. Further, the appellant by his own admission has accepted the main allegations in the charge and the rest of them stand established on record.
Same is the case in relation to the evidence of the storekeeper, Manager Azad Muslim Goods, Badami Bagh, Lahore and the contractor. Further, governmental property having not reached the appropriate quarters till date also talks a lot regarding the part played by the appellant himself in the case, record whereof was deliberately destroyed by him to save his own skin as also those of his collaborators.
12. He further states that the defence witnesses examined by the appellant have also not been of much help to him. Dr. Maroo Humayun was not available in Lahore when these proceedings were conducted and the appellant had deliberately asked for her attendance in the matter as a witness to obstruct and delay the inquiry proceedings. Lastly, it is contended that if the appellant did not avail of the opportunities to controvert the make of the case against himself, he cannot blame others for the same. He was afforded personal hearing as well, before the impugned order was passed by the Competent Authority. Concluding his arguments the learned counsel for the respondents has prayed that the appeal may kindly be dismissed and the impugned order be graciously upheld and has placed reliance on the judgment of the Honourable Supreme Court of Pakistan in appeal titled Jehain Dad Ahmed v. Central Board of Revenue reported as 2000 SCMR 433 the relevant head note is reproduced as under:- "----R. 4---Constitution of Pakistan (1973), Art.212---Dismissal from service after show-cause notice and inquiry of civil servant---Validity---Chairman of Service Tribunal had rightly maintained that charges of misconduct having been admitted by appellant, any infirmity in hearing of inquiry would not help case of appellant---Appellant did not deny factual stand taken by him in his reply to charge-sheet---Appellant's contention that he had been treated very harshly had no merit---Punishment of removal from service could competently be awarded to appellant, which punishment had been maintained by Service Tribunal---Service Tribunal was not shown to have acted perversely or arbitrarily in confirming punishment of dismissal---Charges of misconduct were admitted by appellant in his written reply whereupon penalty was imposed which could lawfully be awarded---Petitioner's case was, thus, not a case involving any substantial question of law of public importance--- ' Appeal even otherwise, being without merit was dismissed in circumstances and also places reliance on 1987 SCMR 1823; Aftab Alam v. Inspector-General of Police 1977 SCMR 103, Shahzar Khan v. Sindh Labour Court No,4, Karachi and 2 others."
13. It was just by chance that when we inquired from the learned counsel for the appellant about hitter's presence in Court he himself stood up and on an inquiry from him by us regarding the way he acted in the manner of reposing confidence in a contractor and as to why he did not ensure that the Contractor returned the prepared kits or the balance of raw material to the Government Warehouse, he was totally evasive and his reply was unsatisfactory and at this juncture his learned counsel intervened and submitted that his client had committed mistake and, for the only mistake in his entire service career, he does not deserve infliction of any harsh penalty.
14. We have given our anxious thought to all that has been argued before us and have also minutely gone through the record referred to by both the learned counsel and even on our own. No doubt that the appellant has admitted giving authority to collect Government property to the Contractor. He also admits tampering with the demand for 15,000 syringes although it was not there in the letter signed by the Secretary. Lastly he admits that in his presence and, that of the Contractor, the Store-keeper had destroyed the record while the Store-keeper states that the appellant had destroyed the record in his and Contractor's presence. Be that as it may, the fact is that some important documents had been deliberately destroyed and the only inference which can safely be drawn therefrom is that the appellant stands involved in this situation upto his neck and the Store-keeper and Contractor were in collusion with him to cause loss of Rs,46,32,200 to the Government exchequer. The wilfull acts, amounting to misconduct as also bad intentions, can be gathered/collected and, while doing so, we find that the appellant has not behaved in a decent, responsible and sincere manner which is the hallmark of all the Civil servants. By his own words and those of the witnesses recorded during the course of inquiry proceedings, a web has been woven around the appellant and he has none other but himself to blame. We have no hesitation in recording here that we do not feel convinced to lean in favour of the appellant nor even to "tilt" the scales of justice, even with mercy, as the appellant has knowingly and wilfully chosen this path and committed himself to such a predicament unlike a Civil Servant of The Islamic Republic of Pakistan.
15. For the above reasons we find no force/weight in the contentions of the learned counsel for the appellant, following the dictum laid down in 2000 SCMR 435 by their Lordships of the Honourable Supreme Court of Pakistan we hold that there is no merit in the appeal and thus, the same is hereby dismissed.
16. There shall be no order as to costs.
17. Parties be informed.