N. A. CHOUDHURY (MEMBER).-The appellant entered in service in 1964 as Enquiry Clerk in Pakistan P. W. D., and in the year 1967, he was assigned the work of Accounts Clerks which he continued up to 1973. Lastly on the creation of a new Circle, comprising, of three Divisions, the appellant was posted as Accounts Clerk in one oaf the Divisions. As there was great paucity of trained staff, the Superintending Engineer, vide his orders dated 18th June, 1975 directed the appellant to work for all the three Divisions which the appellant complied with. Due to the heavy pressure of work, the appellant applied for 15 days leave which was essential for restoration of his health, but the leave was refused.
2. On 8th August, 1975, some tenders for contractual work were opened and the appellant was required by the concerned Executive Engi--neer to make necessary entries in the Tender Register in the presence of the Executive Engineer. According to the procedure, M/s. Dogar Co., being the lowest bidder, was to deposit an earnest money of Rs. 20,000 Inadvertently, a call deposit cheque for Rs. 20 only was deposited by them, which due to rush of work, could not be verified and the appellant made the entries accordingly. This was later on detected and the omission got rectified.
3. The Executive Engineer who was mainly responsible for all the maintenance of record and tender processing, and also the mishap, managed to shift the burden on the appellant, by issuing a show- cause notice dated 13th January, 1976, after five months of the incident.
4. The appellant submitted his reply on 3rd February, 1976. The Executive Engineer asked the appellant to give his explanation which was practically dictated by him.
5. On 17th February, 1976, the appellant was charged on account of fraud and was suspended from duty by the Executive Engineer. He was further served with a charge-sheet on 19th March, 1976, along with a state--ment of allegations, to which the appellant submitted his reply the next day.
6. The enquiry was conducted by the Assistant Engineer, Mr. N. A. Farooqi, who, after completing his recommendations, forwarded the case to the Superintending Engineer for further action. The Superintending Engineer recommended that the appellant should be re-designated simply as a Correspondence Clerk.
7. By an order dated 21st July, 1976 of the Additional-Chief Engi--neer, the appellant was dismissed from service under rule 4 (b) (iv) of the Government Servants (Efficiency and Discipline) Rules, 1973.
8. The appellant preferred a departmental appeal to the Chief Engineer, Pakistan P. W. D., and on the basis of the comments of the Additional Chief Engineer, the appeal was rejected by the appellate authority on 30th April 1977, received by tine appellant on 5th May, 1977. Hence his appeal dated 2nd June, 1977 to the Service Tribunal for redress.
9. The learned counsel for the appellant argued that the appellant being simply an Accounts Clerk, was hardly concerned with the entries in the Tender Register, because according to the prescribed procedure and practice, the requisite entries were to be made by the Executive Engineer himself in his own handwriting. Therefore, the responsibility fixed on the appellant by the Executive Engineer for this mishap was just to save himself. Moreover, it was the appellant who, on checking of the record, pointed out the omission, which was rectified by getting another call deposit cheque foe Rs.
20,000 from the Contractor. In any way, there was no loss to the Government. The Executive Engineer cannot be absolved of his responsibility as all the burden lies on him.
10. He further pointed out that the enquiry procedure adopted against the appellant under rule 6 of the E. & D. Rules, 1973 is ab initio void : in that the Enquiry Officer did not apply his mind to the documentary evidence produced by the appellant. Moreover, the material evidence, i.e. The Executive Engineer concerned and the Contractor, were not summoned with mala fide intentions just to deprive the appellant to cross-examine them. Therefore, the whole proceedings stand vitiated.
11. The learned counsel further argued that it was mandatory provision of rules 5 (1) of E. & D. Rules, 1973 that the suspension period, after every three months, shall be extended with the approval of the authority, which in this case, has not been done, and therefore, shows a clear violation of the Rules.
12. He also stressed that had the appellant been charged for fraud, which is a penal offence the matter should have been reported to the Police for further stringent action against the accused.
Since the Authority was not convinced about the allegations, they rather resorted to departmental proceedings to save their skin. The learned counsel, therefore, prayed that since there is a clear violation of the Rules, the whole proceedings against the appellant stand vitiated, and the appellant be re-instated into service.
13. The learned counsel for State argued that the Clerk did not point out the omission, even after it had been detected, for quite some tinge, which was his duty. The risk of the loss to Government was, there--fore, involved in this case. However, when he was confronted with the fact that no action has been taken against the Contractor who tried to deceive the Government twice by depositing a cheque of much lesser amount, under the rules available on the subject, he could not reply satisfactorily. It was deposed by the departmental Representative that the Contractor was still continuing in business with the Government in that Region, and action to black-list him has not been taken by the Department.
14. After hearing both the parties, we come to the conclusion that both on the basis of procedure and merits, the punishment awarded to the appellant, was not justified. We, therefore, set aside the order of dismissal, and direct that the appellant should be reinstated into service with effect from the date he was dismissed, with all the consequential benefits.
15. Parties be informed accordingly.
16. SHAH ABDUUR RASHID (CHAIRMAN).--It is a cardinal principle of criminal justice which will equally apply to proceedings resulting in some sort of penalty that no person shall be guilty unless he is found to have the guilty intention. In this case, no doubt, the appellant honoured the cheque for Rs. 20 and made the wrong entry in the register, there is nothing to establish that he had guilty conscience and had intentions to deprive the Government of the revenues. It is pertinent to note that it was the appellant himself who pointed out the omission whereon the Contractor was made to make the payment of Rs. 20,000. The Contras for was not examined in this case, nor was the Executive Engineer who had the supervisory responsibilities. The appellant was thus denied a fair trial at the stage of proceedings. The Contractor if put in the witness box would have been able to explain how the cheque for Rs. 20 only was issued by him and not of Rs. 20,000 which he was required to do.
17. In the above circumstances, I am in full agreement with the learned Member that this appeal should be accepted and order of penalty set aside.