' JUSTICE (RTD.) ABDUL GHANI SHAIKH (CHAIRMAN).---This appeal is directed against the original impugned order, dated 17-11-2000 passed by respondent No,2 awarding major penalty of dismissal from service to the appellant and appellate order, dated 12-2-2005 passed by respondent No,2 rejecting appellant's departmental appeal.
2. Briefly, the facts of appellant's case are that he being an Office Superintendent, Government Comprehensive High Secondary. School, Mirpurkhas was served with charge-sheet, dated 13-12- 1999 along with Sukhramdas, the Principal of said school, issued by the respondent No,2/Authorized Officer, under the provisions of the Sindh Civil Servants (E&D) Rules, 1973, containing following charges/allegations: --
(i) That you Mr. Sukhramdas, Principal, Government Comprehensive Higher Secondary School, Mirpurkhas and Mr. Faqir Muhammad, the then Superintendent of Government Comprehensive Higher Secondary School, Mirpurkhas are involved in embezzlement of Rs,164,500 (Rupees one lac sixty-four thousand five hundred) fraudulently drawing G.P. Fund advance of Messrs Abdul Jabbar Arain and Naseeruddin, HST Government Comprehensive Higher Secondary School, Mirpurkhas.
(ii) You have misappropriated/misused Government money and tampered office record.
(iii) You had mislaid number of Service Books."
' Mr. Ghulam Nabi Memon, Additional Director (Secondary) Directorate of School Education, Hyderabad was appointed as Inquiry Officer. Appellant was directed to submit his written defence, if any, to the Inquiry Officer, which the appellant submitted and denied the allegations. The Inquiry Officer after conducting inquiry found appellant and his co-accused Sukhramdas guilty of the charges and submitted his report to the respondent No,2/Authorized Officer, recommending major penalties to both of them. On the basis of inquiry report, appellant was served with a final show- cause notice, dated 21-6-2000, which too the appellant replied and refuted the allegations.
Ultimately, vide impugned order, dated 17-11-2000 appellant and his co-accused were awarded major penalty of dismissal from service with the approval of respondent No,1/Authority. Feeling dissatisfied appellant preferred departmental appeal, which was rejected and such rejection order was communicated to appellant through letter, dated 12-2-2005.
3. In rebuttal, respondents Nos.2 and 3 filed their respective written statements, while respondent No,1 adopted the written statement filed by respondent No,2.
4. In support of appeal learned counsel for appellant has submitted that as a matter of fact supported by record appellant remained posted as Superintendent of the School for only five days.
He was posted in Government Comprehensive Higher Secondary School, Mirpurkhas as per Notification, dated 29-5-1999 and joined his assignment on 31-5-1999 but no charge in writing was handed over to him, as such, on 2-6-1999 appellant filed an application requesting the Principal for handing over the charge of the post but by another Notification, dated 5-6-1999 the order of appellant's posting as superintendent was kept in abeyance and thereafter he was repatriated back to the office of the District Education Officer (M) Primary, Mirpurkhas. Therefore, appellant has nothing to do either with the Service Book of any of the teacher or other employee of the said school nor with the withdrawal of G.P. Fund of any of the teacher. The learned counsel argued that no regular inquiry was conducted as the witnesses were neither examined in presence of appellant nor any chance to cross-examine them was provided to appellant nor even appellant was allowed to produce evidence in defence. Lastly, learned counsel contended that appellant was unnecessarily proceeded against departmentally and was penalized for no fault on his part and that appeal may be accepted and appellant may be reinstated in service with all back and consequential benefits.
5. In rebuttal, Assistant Advocate-General while referring the written statements and the inquiry report, argued the appellant in collusion with the Principal of the School fraudulently withdrew G.P.
Fund amount of two teachers on false and fabricated orders and misappropriated the same and the inquiry was conducted purely in accordance with law. She stated that Appeal No,84 of 2001 earlier filed by co-accused Sukhramdas the Principal of the School has already been dismissed by this Tribunal vide judgment, dated 2-4-2003 which has been maintained in C.P.L.A.\ No,406-K of 2003 by the Honourable Supreme Court vide judgment, dated 6-5-2004, therefore, the present appellant whose case is identical to that of co-accused Sukhramdas, is also not entitled to any relief.
6. We have carefully considered the above submissions, perused the case papers and have also gone through the earlier judgment of this Tribunal duly maintained by Honourable apex Court.
There is no denial to the fact that appellant remained posted as Office Superintendent, Government Comprehensive Higher Secondary School, Mirpurkhas for only 5 days w,e,f, 31-5-2006 to 5-6-2006 and that during said period the charge of the post was also not handed over to the appellant. Although appellant was proceeded against departmentally with principal accused Sukhramdas the Principal of the School, yet appellant's case is very much distinguishable.
Sukhramdas was penalized because he had signed the two cheques of G.P. Fund advance and his signature was also verified as genuine by the concerned Bank Manager. However, appellant's involvement in the withdrawal of G.P. Fund advance of two H.S.Ts. Is not proved from the record made available before us. In our earlier judgment, dated 2-4-1993 in Appeal No,54 of 2001 (Sukhramdas v. Chief Secretary, Sindh and others), this Tribunal had clearly observed that the inquiry was not conducted in accordance with settled principles of law as no opportunity to cross- examine the witnesses was provided to the appellant. Here in the instant case also, the present appellant was not provided any chance to cross-examine the two witnesses. Besides, there is nothing on the record to indicate if the said two witnesses were examined in presence of appellant.
Moreso, from the perusals of inquiry report, appellant's involvement in the withdrawal of G.P. Fund of two !-I.S.Ts. Is not proved. Mere fact that two H.S.Ts. In their statements before the Inquiry Officer stated that present appellant and the co-accused Principal Sukhramdas were involved in the fraud of misappropriation, misused Government money and tampering office record, in the absence of any positive proof, by no stretch of imagination can be used as a piece of evidence against the present appellant. In fact neither there is any direct evidence nor circumstantial evidence against the present appellant regarding his involvement in withdrawal of G.P. Fund of two H.S.Ts. Thus, the charge of misappropriation in our considered view is not proved against appellant.
7. For the aforesaid reasons, the appellant being not guilty of the charges levelled against him, the appeal is accepted and appellant is directed to be reinstated in service. The intervening period shall, however, be treated as "leave of kind due". Parties are left to bear their own costs.
8. Announced in open Court.