Justice (R) Tanvir Bashir Ansari, Chairman.--The appeal is directed against the original order dated 24.10.2001 whereby the appellant has been removed from service. The departmental appeal/representation filed on 14.11.2001 was rejected vide order dated 18.03.2002. The present appeal was filed in the Tribunal on 23.04.2002.
2. Briefly, the facts are that the appellant a BS-20 officer of the District Management Group, while serving as Director-General, Social Action Programme, Balochistan was served with a charge sheet/statement of allegations dated 11.12.2000. The charge sheet/statement of allegations is reproduced as under: "GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION No, 1/5/2000-D.I Islamabad the 11th December 2000 CHARGE SHEET/STATEMENT OF ALLEGATIONS WHEREAS the Chief Executive in his capacity as the competent authority, under Section 2(a) of Removal from Service (Special Power) Ordinance, 2000, on considering case' material furnished by Balochistan Government is of the considered opinion that you, Mr. Nehad Pervaiz (BS-20/DMG) while serving as Director General SAP Balochistan during the years 1997-1998 have committed following acts of omission and commission constituting gross misconduct, corruption and inefficiency: CHARGE NO. 1 That an amount of Rs, 12.710 million was embezzled during your tenure as Director General, Social Action Program Balochistan as per following details:-
(i) An amount of Rs, 1.47 million was embezzled in connection with purchase of misc. computers during 199798. The amount in question was drawn by Cheque No, 089044 dated 11.5.1998 in favor of M/s. Computer Link, Quetta. The payment in question had been held as highly doubtful for reasons that payee receipt was missing and the receipt of these articles could not be substantiated from the record.
(ii) An amount of Rs, 1.09 million was embezzled by showing distribution of personal computers during 1997-98. The fifty-one (51) personal computers valuing Rs, 2.499 million were purchased from M/s. Resource Computers, Quetta during above period and the same were shown distributed amongst various departments. The said distribution was fictitious because the signatures of the recipients were dubious as neither the names of recipients were given in the receipt, nor any personal identifications were obtained. On confirmation from the concerned departments, a shortage of twenty-four (24) personal computers was established.
(iii)An amount of Rs, 0.481 million was embezzled for repair and up-gradation of computers. The above expenditure was doubtful as rates were extra-ordinarily exorbitant and items/accessories were not accounted for in the stock register.
(iv)An amount of Rs, 1.430 million was embezzled by SAP authorities during 1997-98. The cash book of the Government of Balochist,an share, compared with the lists of cheques obtained from the Accountant General Balochistan showed less/non-account of Rs, 1.430 million.
(v)An amount of Rs, 1.211 million was embezzled during 1997-98. According to the Bank Statement and counterfoil of cheques, an amount of Rs, 29,816,850 was drawn from Special Bank Account.
Against the said drawl, vouchers amounting to Rs, 28,605,200 were available for audit, whereas vouchers for remaining amount of Rs, 1.211 million were not substantiated from record.
(vi)An amount of Rs, 550,000/- was embezzled during 199798. A total of Twenty-nine (29) general air conditioners (1.5 ton) amounting to Rs, 725,000/- were purchased by the D.G. SAP from a firm and the same were shown as distributed amongst various departments. The said distribution was fictitious because the signatures of the recipients were dubious, without any name or personal identification. On confirmation from concerned departments, a shortage/ misappropriation of twenty-two (22) air-conditioners, was established.
(vii) A total of 21 Cannon NP-21-20 photocopiers amounting to Rs, 3.102 million were purchased from M/s. Unique Office Equipment, Quetta which were shown as distributed amongst various Departments. But signatures of recipients were dubious, without any names and personal identification. On confirmation from concerned Departments, a shortage of 2 photocopiers was established valuing Rs, 295,500/- on account of fake distribution.
(viii) An amount of Rs, 2.120 million was embezzled during 1997-98. A total of 1260 toners and 1470 reams Photostat papers valuing Rs, 2.120 million were purchased from M/s. Unique Office Equipment Quetta and shown to have been distributed amongst line departments. In fact only 20 toners and 9 reams Photostat papers were distributed while remaining were misappropriated. To cover the aforesaid forgery, a modus operandi was adopted. Receipt and acknowledgements of photocopiers delivered to concerned line departments were tampered. After obtaining receipt of photocopiers toner and Photostat paper were added in the receipts.
(ix)An amount of Rs, 1.344 million was embezzled during 1997-98. A total of 51. UPS dry batteries and 51 laser printers valuing Rs, 2.856 million were purchased from M/s. Resource Computers Quetta during June,. 1998. The procurements were issued to line departments. The said distribution was fictitious without signatures/name/ personal identification of recipients of concerned departments. No competitive rates were invited through open bid while purchasing above items.
The receipt and further issue of accessories could not be substantiated . from the record and a shortage of 24 laser printers and 24 UPS dry batteries was established.
(x)An expenditure of Rs, 2,779,500 was shown incurred on account of purchase of accessories of computers during 1997-98 and shown to various departments. The factual position established that the entire deal was bogus and amount in question was embezzled.
CHARGE NO. 2 That an amount of Rs, 7.7234 million was misappropriated during your tenure as Director General SAP as per following details:--
(i) an amount of Rs, 245,000/- was shown from special account and showed as paid to M/s. Friends & Company, Quetta for procurement of furniture & fixture. Above expenditure was found highly doubtful and the amount in question was seemed to be misappropriated.
(ii) An amount of Rs, 166,230/- was misappropriated during 1997-98. The amount was shown incurred on repair of non-vehicles, setting aside relevant rules and procedures. On query from the audit, the D.G. SAP in his reply presumed that the expenditure in question might have been incurred on vehicles borrowed from other department for visit of delegations and showed intention to complete formalities at the instant. The reply itself was an ample proof of inefficiency and ignorance of rules and procedures.
(iii)An amount of Rs, 867,800/- was incurred for furnishing various rooms in P&DD. The money was drawn on self made bogus bills of the firm, prepared on computer in favour of M/s. Qamer & Company without their address and telephone. No stock of account was maintained nor any physical execution of work was certified.
(iv)An amount of Rs 1.114 million was incurred on account of purchase of furniture from M/s. Friends & Company. The above expenditure was highly fictitious due to reasons that no subsidiary record showing receipts and further distributions was maintained.
(v) An amount of Rs, 344,294/- was misappropriated during July 1997 on account of wages of daily contingent paid staff, even when appointment orders were issued as late as Feb. 1998. No master Rule under rules was maintained for payment of such wages, which could not be substantiated from record besides various other reasons.
(vi)An amount of lbs. 2.040 million, on account of purchase of equipment (51 Ups 600 Watt) was misappropriated during 1996-97. The expenditure in question was held doubtful due to very exorbitant rates, defective stock etc.
(vii) An amount of Rs, 95,600/- was misappropriated during 1996-97, which was incurred on purchase of toners for laser printers during August 1997 to May 1998. The expenditure in question was doubtful.
(viii) An amount of Rs, 66,200/- was misappropriated during 1997-98 shown to have been paid to a Karachi based Firm, which was, unauthorized Firm. It did not belong to project activities and rather was charged for personal activities. No detail of stuff sent through the courier, was available in record without destination and payee receipt of the firm.
(ix)An amount of Rs, 100,000/- was misappropriated during 1997-98 drawn from special Account No, 6588-8A for purchase of furniture for P&DD without the specification of furniture purchased and without authentic record. The amount was drawn fictitiously with the collaboration of the contractor.
(x) An amount of Rs, 29,790/- was misappropriated during 1997-98. Quotation was called for repair of vehicle QAG976 from M/s. Hameed Autos and Wahab Autos for Rs, 15,100/- 14,690 and respectively which were rejected by the SAP Authorities. Later on these rejected quotations were converted into bills for purpose of drawl of the said amount.
CHARGE NO. 3 That an irregular payment of Rs, 8,515 million was made by you to contractor through open cheques during 1997-98 which was, in contravention of Federal Treasury rules volume (1), under which the amount should not be paid through open cheques rather it should be paid through cross cheques. This led to an apprehension that the amount was drawn in favor of fake firms.
CHARGE NO. 4 That a fraudulent/doubtful drawal of Rs, 0.364 million was made by you as under:--
(i) An amount of Rs, 14,845/- was drawn on account of purchase of spare parts for a vehicle on Voucher No, 117 dated 6th April, 1998 of a firm. Later on, the same amount was again charged through Bill No, 1357 of the same firm for the same vehicle as cost of spare parts. This was irregular and doubtful.
(ii) An amount of Rs, 348,561/- was spent on repair of government vehicles during 1997-98, which seemed to have been misappropriated by submission of fictitious vouchers.
CHARGE NO. 5 That Rs, 1.613 million was not recovered during your tenure as per following details:--
(i) An amount of Rs, 1,260,000/- on account of "Mobilization advance was not recovered from consultant during 1997- 98. An advance payment of Rs, 1,400,000/- was paid to the consultants M/s. Hesmag. According to terms and conditions, the same was to be set off in equal installments from the first interim period. Contrary to above an amount of Rs, 1,260,000/- still remain un- recovered/outstanding.
(ii) Income Tax Rs, 353,000/- was not deducted at source as required under Section 50-4 A of Income Tax Ordinance 1980, taxable payments were made to consultant M/s. Hesmag without deduction of income tax which caused a loss of Rs, 353,000/- to government exchequer.
CHARGE NO. 6 That the transaction of an amount of Rs, 9,501 million made during your tenure as D.G. SAP remained unaccounted for in the relevant record as per following details:--
(i) An amount of Rs, 1.364 million was drawn in excess of the actual budget grant during 1997-98.
An amount of Rs, 3.000 million was released by the Finance Department under Head 9-0000 General Administration 9-03000-Economic Regulation 9-03200-Planning & placed at the disposal of Director General Social Action Programme Balochistan. Later on, out of the above release an amount of Rs, 1.000 million was withdrawn. Against the available funds of Rs, 2.000 million, the Director General SAP draw an amount of Rs, 3,364,387/- resulting excess drawl of Rs, 1,364,387/- To cover excess drawal, contingent bills drawn from the Accountant General Balochistan were not accounted for in cash book.
(ii) Vouchers amounting to Rs, 1.077 million were found missing from the SAP AU. A list of cheques received from the Accountant General was compared with cash books as well as vouchers which showed missing of the, vouchers amounting to Rs, 1.077 million.
(iii) A contract agreement was made with a firm on account of rendering consultancy services in connection with Conduction of training courses development training material, and arrangement of training workshops. Above payment was irregular and doubtful.
2. WHEREAS by reasons of above you appear to be guilty of gross misconduct, corruption and inefficiency within the meaning of Sections 2(b), 3(1)(a) and 3(1)(c) of the Removal from Service (Special Powers) Ordinance, 2000 for the said omissions and commissions on your part and you are liable to disciplinary action which may involve imposition of one or more of the penalties prescribed in Section 3 of the said Ordinance.
3. AND WHEREAS the Chief Executive in exercise of powers conferred under Section 5 of the Removal from Service (Special Powers) Ordinance, 2000 have decided to constitute an Inquiry Committee comprising Mr. Ghiasuddin Ahmed (DMG/BS-21) Director. NIPA Quetta and Mr. Amir Ali Burq (Sectt: Group/BS-20) Chairman, Balochistan Development Authority, Quetta to conduct formal inquiry into the above charges.
4. NOW THEREFORE you are hereby advised to submit your reply to the Inquiry Committee, within seven (7) days of the receipt of this charge sheet and to appear before it on the date, time and place fixed by the Committee and explain why disciplinary action, as aforesaid, may not be taken against you.
5. Please take notice that in case of your failure, it shall be presumed that you have no defence to offer or you have declined to offer the same and accept the charges and in that case disciplinary proceedings shall be conducted against you ex-parte.
6. This supersedes charge sheet along with statement of allegations dated 14.10.2000 served by Mr. Ghiasuddin Ahmed, the then Secretary Education Department, Balochistan as the Authorized Officer under Balochistan Civil Servants (E&D) Rules, 1992.
By order of the Chief Executive of Pakistan Sd/- Tariq Saeed Haroon Establishment Secretary Mr. Nehad Pervaiz, (DMG/BS-20)
Census Commissioner, Balochistan, Quetta."
The appellant submitted a detailed reply to the said charge sheet wherein he denied all the charges.
3. The reply of the appellant was not found satisfactory. An Enquiry Committee comprising of Mr. Ghiasuddin Ahmed (BS- 21/DMG), Director, NIPA, Quetta and Mr. Ammer Ali Burq, (BS20/Secretariat Group), Chairman, Balochistan Development Authority, Quetta was constituted. The said Enquiry Committee conducted the inquiry proceedings. After conclusion of the proceedings, a detailed inquiry report -Rated 26.04.2001 was submitted. After holding that the charges against the appellant were establishment, the Enquiry Committee made the following recommendations: The Committee recommends in terms of Section 5 of the Removal from Service (Special Powers)
Ordinance 2000, that Mr. Nehad Pervez (BPS-20/DMG), formerly Director General SAP and presently posted as Census Commissioner Balochistan who has been found inefficient and guilty of misconduct as defined in the said Ordinance, may be awarded major penalty of removal from service under the provisions of Section 3 of the said Ordinance."
4. The Show Cause Notice, dated 27.06.2001 alongwith the said enquiry report was served upon the appellant wherein the appellant was required to show-cause as to why the major penalty of removal from service be not imposed upon him. The appellant submitted a reply to the said show- cause notice wherein the charges were once again denied and objections were raised to the inquiry proceedings/inquiry report which were challenged on merits as well as on the ground of malafides.
5. Not finding the reply to the show-cause notice to be satisfactory the competent authority passed the original impugned order dated 24.10.2001 whereby the major penalty of removal from service with immediate effect was passed against the appellant.
The departmental representation against the imposition of major penalty was filed by the appellant on 14.11.2001 which was rejected vide final order dated 18.03.2002.
6. Syed Shahid Hussain, Advocate for the appellant has challenged the impugned original as well as the final order of removal from service on the ground that in the wake of the serious allegations of misconduct as made against the appellant, the inquiry proceedings fell far short of the required standard of impartiality which rendered the proceedings void. It is urged that there was no sufficient material on the record by virtue of which the charges against the appellant could have been established. It is contended that no evidence was produced before the Enquiry Committee which could prove the involvement of the appellant in the alleged embezzlement which involved astronomical figures. It is submitted that the graver the charges the more stringent proof is required to establish the same. Referring to the inquiry report it is submitted that against Charge No, 1(i) there was no direct finding of the Enquiry Committee against the appellant. Same is the case in respect of all other charges upon which the Enquiry Committee opined obliquely and indirectly against the appellant without in any manner directly implicating the appellant in the allegations. It is contended that each charge has been found against the appellant upon mere conjectures and surmises. The learned Counsel for the appellant contends that in none of the charges any criminality was brought home to the appellant.
7. On the other hand Mr. M. Aslam Uns, learned Federal Counsel has controverted the stand of the appellant. It is submitted that the charges which are self explanatory were duly communicated to the appellant. A high powered Enquiry Committee was constituted to investigate into the matter.
The appellant was given full opportunity of participating in the same which opportunity was availed of by the appellant. Reference was made to the detailed inquiry report wherein the charges to the extent established have been clearly mentioned. It is contended that the inquiry fulfilled all the requirements of law and principles of natural justice and is based upon the material produced before the Enquiry Committee.
8. The learned Federal Counsel further submitted the Reference No, 8/2002 titled State Vs. Nehad (Nahed) Pervez & another culminated in the judgment dated 08.06.2002 passed by a learned Judge, Accountability Court-II, Balochistan Quetta. The said Reference was filed against the appellant as the Director-General, Social Action Progamme (SAP), Balochistan, Quetta as well as against Irshrat Ali Khan, Director, Finance, SAP, Balochistan Quetta. The learned Judge, Accountability Court, found the charges established against the appellant and the said Ishrat Ali Khan according to the respective involvement of both. The appellant was convicted under. Section 10 read with Sections 11 & 12 of National Accountability Bureau Ordinance 1999 and was sentenced to 2 years RI with a fine of Rs, 50 lacs. The assets/properties of the appellant was forfeited as set off against the amount of fine. The appellant was directed to undergo further term of one year RI in case of non-payment of the fine imposed.
9. It is submitted by the learned Federal Counsel that the said judgment was challenged by the appellant before the High Court as well as the Hon'ble Supreme Court but the judgment of the Accountability Court was maintained. It is stated that the findings, pith and substance of the proceedings of the Enquiry Committee are in line with the conclusions arrived at by the learned Judge, Accountability Court which was upheld upto the Hon'ble Supreme Court. The learned Counsel has referred to Section 3-A of the Removal from Service (Special Powers) Ordinance 2000 to contend that where a person in Government service or in corporation service is sentenced to imprisonment or fine, and the competent authority finds that the order of imprisonment or fine is based on established charges of corruption or moral turpitude it shall pass order of dismissal from service of the delinquent person. He further placed reliance upon the said provision to submit that such a delinquent employee cannot be reinstated in service.
10. We have heard the learned Counsel for the parties and perused the record.
11. The domestic disciplinary action against the appellant commenced with the issuance of the charge sheet/statement of allegations dated 11.12.2000. A perusal of the allegations contained therein would make it manifest that the bulk of the charges related to embezzlement or misappropriation of a huge amount which had occurred during the tenure of the appellant as Director-General, Social Action Programme. The enquiry committee which comprised of senior officers appears to have conducted the inquiry in a reasonable manner wherein sufficient opportunity of being heard and producing his explanation/defence had been provided to the appellant at all relevant stages. It was after a detailed inquiry that the Enquiry Committee recommended the imposition of major penalty of removal from service which was actuated by the impugned Notification dated 24.10.2001.
12.Reference No, 8/2002 was filed against the appellant and his co-accused Ishrat Ali Khan, Director, Finance, SAP before the Judge, Accountability Court-II, Balochistan Quetta.. We have perused the judgment dated 08.06.2002 passed in the said reference where the appellant was convicted and sentenced as hereinbefore specified.
13.The learned Counsel for the appellant has also acknowledged that the appellant had challenged the said judgment of the Accountability Court in appeal before a Division Bench of the High Court and then before the Hon'ble Supreme Court but without any success with the result that the conviction and sentence of the appellant was sustained.
14. After examination of the record we are satisfied that the charges against the appellant both before the domestic forum of the departmental Enquiry Committee and the Judge, Accountability Court were based upon the same allegations of embezzlement/ misappropriation during the tenure of the appellant as Director-General, SAP. In both the proceedings the involvement of the appellant was established although to a varying degree. Although Section 3-A of the Removal from Service (Special Powers) Ordinance 2000 speaks of the disciplinary action which can be taken consequent upon the conviction and sentence of a delinquent employee passed under the said Ordinance, the present case which though converse in nature is likely to be treated in the same vein. In the present case the departmental order of removal from service has preceded the judgment of conviction and sentence passed by the Accountability Court. Notwithstanding this as the charges before both the fora are identical in nature and the judgment from the Accountability Court was pronounced during the pendency of the instant appeal, we are unable to subscribe to the contention of the appellant that any disciplinary action should have been taken after the conviction of the appellant and not before it. Agreeing to the submission of the appellant would lead to travesty of justice.
15.We are also conscious of the fact that the conviction and sentence of the appellant was upheld even upto the level of the Supreme Court. It is idle for the appellant to urge that this Tribunal may reverse the earlier conclusions of the criminal Court by setting aside the order of removal from service.
16.Resultantly, we find no merit in this appeal, which is dismissed.
17.No order as to costs.
18.Parties be informed.