Saeed Ahmed Zaidi, Member.--Brief facts are that the appellant was serving as Head Clerk in Railway Police at Karachi Port. On 14/12/2001 he was issued a Show Cause Notice. The charges against the appellant were as follows:-- "You Mr. Muhammad Saghir s/o Muhammad Zamir, Head Clerk Accounts, Dry Port/KBX are charged for serious misconduct, negligence and financial irregularities as under: -
(1) You took-over charge of the post of Head Clerk Accounts on 24.10.1989. You were directly responsible for maintaining Dry Ports Imprest Accounts indication below:
(i) Account No, 11403-22 of amount Rs, 20,00,000/-.
(ii) Account No, 12121-99 of amount Rs, 5,00,000/-
(iii) Account No, 12874-59 of amount Rs, 2,75,000/-
(2) While taking-over charge of the post of Head Clerk/Accounts on 24.10.1989 from Mr. Mukhtar Ahmed Sheikh ex-Head Clerk/Accounts, you failed to point out the shortage of amount in different imprest accounts despite the fact that there was shortage of Rs, 6,47,647/- in A/c No, 11493-22.
(3) Due to your negligence, the Railway loss of R$. 6,47,647/- could not he recovered from Mr. Mukhtar Ahmed Sheikh who later on proceeded on retirement.
(4) The following amounts from Imprest Account No, 11403-22 fell short during your tenure as Head Clerk/Accounts:
(a) Rs, 2,055/- Record/Cases from 1992 to 1996 are not traceable.
(b) Rs, 6,750/- As stated by you this amount was recovered by ATM/LDP vide Note No, 0947912 dated 27.4.96 but you failed to get this amount recouped from the Accounts Office.
(c) Rs, 6,022/- This amount was debited to the above said Account in 1998 which actually pertain to DCOS/Shipping. You failed to get this amount recouped from DCOS/Shipping.
(d) Rs, 78,547/-This amount was irregularly and wrongly debited by the KPT authorities from A/c No, 11403-22 instead of A/c No, 12121-79 over a period ranging from 1992-1999. You failed to detect this irregular debit by the KPT authorities.
(e) Rs, 5,373/- You have failed to submit the details of the shortage of this amount.
(f)The total shortage in Account No, 11403-22 during your period comes to Rs, 1,18,747/-.
(5) You failed to keep strict supervision over the working of the two UDCs namely Mr. Shaukat Ali and Mr. Anwar-ul-Haq who were responsible for maintaining Imprest Account No, 12121-99 and Account No, 12874-59 respectively. Due to your slack supervision a shortage of Rs, 2,20,753/-caused in Account No, 12121-99 and Rs, 76,777/- in Account No, 12874-59."
3. A formal inquiry was dispensed with by the aforementioned Show Cause Notice. After considering the appellant's reply, the respondent department imposed major penalty of dismissal from service under Removal from Service (Special Powers) Ordinance, 2000 vide impugned order dated 24.07.2002 on account of serious misconduct and financial irregularities.
4. The learned Counsel for the appellant argued that as far as the first charge is concerned, the fact is that appellant was assigned to only "look after" the charge of Mr. Mukhtar Ahmed Sheikh, ex- head clerk. Further, the matter of shortage related to the period 1983 to 87 and did not arise after the Appellant was assigned this duty and that this matter was fully within the knowledge of the department. In any case, the shortages were ultimately determined at Rs, 6,47,647/- in Account No, 11403-22 but the responsibility was not fixed upon the said Mr. Mukhtar Ahmed Sheikh as he had retired from service and later expired. It was argued that Appellant had nothing to do with the said shortage and, therefore, he could not be held responsible for the same. It was further asserted that the said amount already stands written off by the department.
5. It was then argued that as far as the charges of financial irregularities mentioned in sub- paragraphs (a) to (d) of Paragraph 4 the statement of charges are concerned, none of the transactions listed in the said paragraph, involved any cash and all required reconciliation and book adjustments. Insofar as the charge mentioned in sub-paragraph (e) of Paragraph 4 that the Appellant had failed to provide details of Rs, 5,373/- concerned,-the same was incorrect as all the amounts were duly explained inasmuch as that they were in the pipe line and their vouchers were in transit and, therefore, no shortage was involved.
6. It was further asserted that the charge of lack of supervision given in paragraph 5 was also not proved because the relevant amount was duly recovered from the concerned clerks.
7. The learned Counsel for the appellant has also contended that this case involved determination of factual controversies and, therefore, a regular inquiry was mandatory but the same was dispensed with without assigning any reason. Consequently, the impugned order was void ab initio.
8. The learned Counsel for the respondents has opposed the 'appeal on the ground that the appellant was guilty of embezzlement and misappropriation.
9. We have considered the arguments of both sides. We find force in the appellant's argument that he was assigned only to look-after the charge of Mr. Mukhtar Ahmed Sheikh and that the department has written off the said amount. Besides, the Appellant was never accused of any shortages out of the said amount but has been charged only with not communicating the shortage to his superiors. There is also force in Appellant's contention that the department's senior officers were already aware of these shortages. The Appellant cannot, therefore, be held responsible for any shortages which did not arise due to his acts or omissions and which stand written off.
10.We have perused the charges contained in para 4 of the statement of charges and find that all these transactions related to book adjustments and the department could always rectify any errors and recover the amounts from the concerned agency i,e, Karachi Port Trust with which it is maintaining running accounts. We also find force in Appellant's argument that the amounts totalling Rs, 5,373/- were appearing short in the Respondent's book due to the time lag between actual transactions and their posting. We also asked Mr. Muhammad Zakir Athar District Controller of Stores (General), who was present on the date of hearing as Departmental Representative, whether any of the aforementioned shortages were in cash or were merely due to absence of appropriate adjustments in the account books. Mr. Akhtar informed us that these were all book adjustments and no cash was involved and that no cash had been misappropriated by the appellant.
11.As far as the charge mentioned in Paragraph 5 is concerned, we find that the respondent department has already recovered the amount of Rs, 2,20,000P from Shoukat Ali UDC who has since been compulsorily retired.
12.We also find that no regular inquiry was conducted by the department into charges leveled against the Appellant which was necessary to determine the factual controversies in this case.
Besides, no reasons have been given for dispensing with the inquiry. An inquiry, in our view, was necessary because major penalty of dismissal has been imposed. The Appellant has, thus, not been afforded a fair opportunity to defend himself.
13.For the reasons mentioned in Paragraphs 9 to 12, we find that no charge of misappropriation or embezzlement or of any financial irregularities or misconduct has been proved against the appellant and the impugned order was not sustainable at law. In)fact, as conceded by the Departmental Representative, the Appellant did not misappropriate any cash. The impugned order of appellant's dismissal is, therefore, set aside with the direction that the appellant be reinstated in service with effect from the date of his dismissal with all back benefits.
14.No order as to costs. Parties be informed.