' JUSTICE (RETD) ABDUL GHANI SHAIKH (CHAIRMAN).---These two appeals involve common question of facts and law are being disposed of through this consolidated judgment.
2. Relevant facts for the purpose of disposal of these appeals are that appellants while posted as Assistant in the office of D.E.O. (Male) and Head Clerk in the office of S.D.E.O. (Male), Mirpurkhas, respectively, were proceeded against departmentally along with Taj Muhammad Leghari Ex- District Education Officer (Male) Primary, Mirpurkhas. They were served jointly with charge-sheet, dated 30-12-1998 issued by the Secretary, Government of Sindh, Education Department/Authorised Officer, alleging therein: "(1) That during your incumbency as D.E.O. (M/P) Mirpurkhas, Head Clerk, S.D.E.O. Office, Mirpurkhas and Assistant D.E.O. Office Mirpurkhas, yeo have made the following illegal appointments in collusion with each other;
(i) Appointments made by S.D.E.O.(M) Digri 71
(ii) Appointments made by S.D.E.O.(M) MPK 240 Total 311 ' Mr. Zamir Hussain Kazi, Director, School Education, (P) Hyderabad was appointed as Inquiry Officer to conduct inquiry. The appellants were directed to submit their replies to the Inquiry Officer, which they submitted and denied the allegations. The Inquiry Officer conducted the inquiry and submitted his report, wherein he declared all the three incumbents guilty of the charge. On the basis of inquiry report, all the three were served with a final show-cause notice, dated 23-8-2001, which the appellants replied and explained their respective positions. Their replies were not found satisfactory and vide order, dated 9-12-2002 both the appellants were awarded major penalty of removal from service and recovery of losses. The appellants in their separate departmental appeals challenged the punitive order. Departmental appeal of appellant Kirshanlal Oad remained unresponded and after expiry of statutory period of 90 days he filed Appeal No,71 of 2003 while appellant Muhammad Khan Leghari waited for final decision on his departmental appeal, which was rejected and such rejection order was communicated to appellant through E.D.O. (Education), Mirpurkhas, as per letter, dated 12-9-2005 and he filed Appeal No,428 of 2005. It may be stated that Mr. Taj Muhammad Leghari was an employee of Federal Government and was on deputation with Sindh Government. His deputation was cancelled and he was repatriated to Federal Government, where he was awarded major penalty of dismissal from service.
3. In support of appeal, learned counsel for the appellant argued that whole disciplinary proceedings initiated, conducted and culminated were in utter disregard of mandatory provisions of law. He submitted that not a single witness was examined in presence of appellants nor they were allowed to cross-examine them nor they were allowed to lead evidence in defence inasmuch as the record was not thrashed and verified in their presence. He stated that statements of appellants were also not recorded in accordance with settled procedure but their statements were recorded in questionnaire form, which procedure has been disapproved by the Honourable Supreme Court being not consistent with the requirements of E&D Rules of 1973. He added that in fact not a single witness was examined during the inquiry proceedings but only the record produced by Mr. Zahid Ali Qureshi, D.E.O., (M) Primary, Mirpurkhas, was checked without giving any chance to the appellants to explain their view point. In support of his contentions he relied upon (i)
1985 PLC (C.S.) 478, (ii) 1993 SCMR 1449, (iii) 1994 SCMR 2232 and (iv) 2000 PLC (C.S.) 857.
4. In rebuttal, learned Assistant Advocate-General while referring the documents placed on record argued that full, fair and proper opportunity was provided to appellants to defend them but they failed to prove their innocence. She submitted that documents placed on the record are sufficient to prove the guilt of the appellants that they in collusion with Mr. Taj Muhammad Leghari, the then D.E.O. (M) Primary, Mirpurkhas, made 311 illegal appointments. She stated that appellants all along present during the whole inquiry proceedings, the record was thrashed and verified in their presence, their defence pleas were properly and cautiously considered. They were however, failed to substantiate their defence pleas and were thus, rightly penalized. In the end she stated that Government sustained huge losses on account of illegal appointments made in collusion and connivance with the appellants, therefore, they are not entitled to any relief and the appeals may be dismissed.
5. While exercising right of reply, learned counsel for appellants submitted that it has come on record that Government sustained no loss at all as is evident from the letter, dated 23-4-2005 of Executive District Officer (Education) Mirpurkhas addressed to the Section Officer (S-I), Education and Literacy Department, Karachi, for the reason that none of the alleged appointees received any salary.
6. We have considered the above submissions, perused the case papers and have gone through the case-law referred to by learned counsel for appellants. Perusal of the record made it crystal clear that whole departmental disciplinary proceedings were conducted purely in accordance with Sindh Civil Servants (E&D) Rules, 1973 barring few technical lapses. The entire record of appointments was thrashed by the Inquiry Officer in presence of appellants and they were given full, fair and proper opportunity to prove their innocence. After careful scrutiny at length and thorough investigation of the record and statements of accused persons, the Inquiry Officer summarized the acts of omissions and commissions which spelt out misconduct and corruption of the officers/ officials as under:--
(1) Non-preparation of the merit lists after interview by the D. E. 0(M) Mirpurkhas.
(2) Issuance of offer letters beyond the number of existing vacancies.
(3) Unsystematic issuance of offer letters in a haphazard manner.
(4) Use of two way numbers on the offer letters i,e, through offer book and outward register.
(5) Maintenance of fresh offer book in lieu of the original one by the D.E.O. Office (M) Primary Mirpurkhas.
(6) Non-maintenance of the appointment record.
' After careful study of the evidence on the record and the documents, the Inquiry Officer reached at the conclusion that Taj Muhammad Leghari the then District Education Officer (M) Primary Mirpurkhas along with his subordinate staff namely the present appellants with the active part of one Rasool Bux Khoso the then S.D.E.O. Mirpurkhas (now retied) contrived a very brilliant modus operandi in the appointments made in the year 1995. The Inquiry Officer in his inquiry report also explained in detail each and every aspect of the case. He had examined the record of each and every candidate who applied for the post, interviewed, selected through offer letters and appointed as per appointment orders. The whole case based upon the documentary evidence, therefore, the documents which were produced by Mr. Zahid Ali Qureshi, D.E.O. (M) Primary, Mirpurkhas, during the course of inquiry proceedings were scrutinized in presence of appellants, which fact has not been denied by any of the present appellants. Since statement of none of the witness was recorded on oath, hence question of giving opportunity to cross-examine to the appellants does not arise.
Contention that statements of appellants were recorded by way of questionnaire form and the same have no legal value has no force. Perusal of the inquiry report reveals that the appellants in their defence statements denied the allegations of their collusion with principal accused Taj Muhammad Leghari, D.E.O. (M) Primary, Mirpurkhas and explained their position. In order to clarify their position and to ascertain the truth for appropriate and judicious decision of the inquiry, certain questions were put to them by the Inquiry Officer, which by no means can be termed that their statements were recorded by way of questionnaire form.
7. The allegation against these two appellants was that they in collusion with principal accused Taj Muhammad Leghari made various illegal appointments. Admittedly, they were serving as Office Assistant and Head Clerk in the offices of D.E.O. (M) Primary Mirpurkhas and S.D.E.O. (M) Mirpurkhas.
They were admittedly not the appointing authorities. As per record and the inquiry 71 appointments were made by S.D.E.O. (M) Digri and 240 appointments were made by S.D.E.O.(M), Mirpurkhas.
Surprisingly both the S.D.E.Os. Of Digri and Mirpurkhas were not proceeded against departmentally for the reason that both of them namely Messrs Rasool Bux Khoso and Muhammad Khan Chandio A were retired from service on attaining the age of superannuation much before the initiation of these departmental proceedings. Had the proceedings were initiated well in time the real culprits viz. The principal accused persons could have been given deterrent punishments. In any case, these two appellants were neither the appointing authorities nor they appointed anyone. The only allegation against them which has been established during inquiry proceedings was that they at the instance of their immediate and superior bosses viz. S.D.E.Os. And the D.E.O. Prepared and maintained the offer book and outward register in respect of the appointments made by their superiors. They being subordinates were supposed to obey the orders of their superiors in order to avoid any disciplinary proceedings. It appears that they were threatened to obey the orders of their superiors which fact find support from the inquiry report itself as when appellant Muhammad Khan Leghari refused to do so and submitted a note to Mr. Rasool Bux Khoso, S.D.E.O. Mirpurkhas with regard to vacancy position but in consequence thereof he was relieved from the office of S.D.E.O.
On 1-10-1995. There is nothing on the record to indicate that these appellants had taken any monetary benefits from said appointments made by their superiors. Besides, as reported by the Education Department the Government had not sustained any loss, as all such appointees were not allowed to resume their duties. In these circumstances, the appellants are entitled to some leniency. The Inquiry Officer at the end of the enquiry report stated that the circumstances under which they (appellants) had undergone and compelled to do so may be considered sympathetically.
8. Keeping in view the facts and the circumstances, which compelled these appellants to obey the orders of their superiors, the penalty of removal from service awarded to them appears to be bit too harsh. In our considered opinion the penalty of reduction in rank would be appropriate and would meet the ends of justice.
9. Accordingly, while maintaining the impugned orders the penalty of removal from service awarded to appellants is converted to that of "reduction in rank for a period of five years". With the above modification in the impugned orders the appeals stand dismissed. Parties are left to bear their own costs.
10. Announced in open Court.