' MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).---This is an appeal under section 4 of the Service Tribunals Act, 1973 against the impugned order, dated 25-9-2004 whereby the major penalty of removal from service has been imposed upon the appellant. The appellant filed departmental appeal dated nil which was rejected vide departmental letter, dated 11-4-2005 whereafter this appeal dated 6-5-2005 has been filed before this Tribunal.
2. Briefly the facts of the case are that the appellant joined the respondent Postal Department in the year 1985. While posted as Post Master Kandiaro the appellant was served with a show-cause notice dated 17-3-2004 alleging that he was responsible for issuing fake PT-24 receipts for renewal of arms licences and the amount so collected was misappropriated by him. The amount involved was Rs,54,815 against 62 PT-24 receipts.
3. Arguing the case, the learned counsel for the appellant on the basis of record assailed the show- cause notice and the impugned order. He stated that the show-cause notice does not specify who had found the appellant responsible for issuing the alleged fake PT-24 receipts. He also stated that Annexure to the show-cause notice which gives details of the PT-24 receipts including the licence number, post office number, name of the licence owner, book number, receipt number and amount credited etc., does not show who had prepared this annexure and thereby he challenged the authenticity of the Annexure. The learned counsel for the appellant further argued that the major penalty of dismissal from service has been imposed upon the appellant without conducting a regular/formal inquiry or even a preliminary fact finding inquiry as required in such situation. He stated that a full-fledged inquiry was required. To be held to ascertain the truth of the matter and placed reliance on PLD 1985 SC 134, PLD 1994 SC 222, 1993 SCMR 603 and 1440, 1997 PLC (C.S.) 817 and 873. He stated that even if any fact finding inquiry was held, the appellant was not aware of it and he was not associated with any such proceedings. He further stated that the alleged misappropriation and shortage of amount was not reported to any criminal agency including the FIA nor was it investigated officially by Pakistan Postal Authorities. The learned counsel for the appellant stated that the appellant had not been confronted with any licencee for establishing the charge against him. He stated that on the contrary, the appellant in his defence had filed affidavits from two licencees namely Muhammad Jurial and Bashir Ahmed, whose names figure in the annexure to the show-cause notice and who had deposed that their licences were not renewed by the appellant. The learned counsel for the appellant also disputed the competence of Division Superintendent Postal Services, Nawabshah to issue the show-cause notice and further stated that under the Establishment Division's S.R.O. No,411, dated 13-6-2000 designated officers have been invested with jurisdiction to act as competent authority under the Removal from Service (Special Powers) Ordinance, 2000, and that the Divisional Superintendent Post Offices is not designated as competent authority with respect to Postmasters. The learned counsel argued that on this ground alone, the disciplinary proceedings having been initiated by an incompetent authority would stand vitiated.
4. The learned counsel for the appellant also stated that the appellant was not afforded opportunity of personal hearing and alleged that the personal hearing provided to the appellant on 8-4-2004 was not a proper personal hearing. The learned counsel for the appellant further argued that the appellate authority i,e, the Deputy Post Master General during the so-called personal hearing did not confront the appellant with any recorded material that could establish the guilt of the appellant and which if it had been presented could have been challenged by the appellant.
5. The learned counsel for the appellant also stated that no licencee whose renewal fee was allegedly misappropriated by the appellant was examined by the respondent-department for the purpose of establishing the charges against the appellant. The learned counsel for the appellant further stated that the Deputy Postmaster General had been authorized and vested with the power to act as authority under the Civil Servants (E&D) Rules, 1973 vide Ministry of Communication, Government of Pakistan S.R.O. No,(I)83, dated 27-9-1983 but this power is not available to him under Removal from Service (Special Powers) Ordinance, 2000. He, therefore, stated that even the appellate order has not been passed by the competent authority. He thus, argued that as neither respondent No,1 nor respondent No,2 were vested with the powers of competent authority/appellate authority in the case of appellant, all proceedings conducted by them would be illegal and void ab initio and placed reliance on PLC 1971 SC 1241 and PLD 1972 SC 271.
6. The learned counsel for the appellant summed up his arguments by stating that in view of his above submissions, the impugned order is liable to be set aside and the appellant reinstated in service with all back-benefits.
7. The learned Standing Counsel stated that the disciplinary action was initiated against the appellant on the basis of the report submitted by Vigilance Team of the department. The report of the Vigilance Team was further verified by a committee comprising of two officials namely Assistant Superintendent, Postal Services, Mehrabpur Sub-Division and Assistant Superintendent Post Office (Headquarters), Nawabshah. The learned Standing Counsel stated that the show-cause notice was issued to the appellant on the basis of the verification report of the above committee.
Prior to that, the appellant was placed under suspension vide DSPS, Nawabshah Memo. No,F- 9/Misc.-1/01, dated 25-9-2004. The learned Standing Counsel also stated that the matter was duly reported to the FIA Sukkur, but it seems no progress in investigation has been made so far by the FIA Authorities.
8. The learned Standing Counsel further stated that annexure to the show-caused notice showing the details of the fake PT-24 receipts was prepared by the two member Verification Committee and therefore, the source preparing the details in the annexure is not unknown as alleged by the appellant. The learned Standing Counsel also stated that under Removal from Service (Special Powers) Ordinance, 2000, it is discretion of the competent authority to dispense with inquiry if sufficient grounds exist. He averred that sufficient material was available on the basis of the report of the two member Verification Committee and therefore, the competent authority did not deem it necessary to hold regular/formal inquiry and this fact has been duly recorded in the show-caused notice.
9. The learned Standing Counsel concluded his arguments by stating that the disciplinary action was initiated and the impugned order issued after following with all the laid down procedures under the Removal from Service (Special Powers) Ordinance, 2000 and as such the appeal is liable to be rejected.
10. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the respondents and also perused the record.
11. The charge against the appellant is that he misappropriated the renewal fee realized by issuing fake PT-24 receipts and the amount so involved is Rs,54,815. The respondents have stated that the show-cause notice was issued on the basis of the report of the Vigilance Team and the verification report submitted by a two member Committee. The appellant however, stated that he was not associated with proceedings of the verification carried Out by the two member Committee. On the record also there is nothing available to show that the appellant was associated with the proceedings of the two member Committee which as asserted by the respondents 'carried out the verification. Also it is an admitted fact that no formal/regular inquiry was held and that the proceedings of the two member Committee cannot be a substitute for regular inquiry proceedings.
We have also noted that the charges involved misappropriation of renewal fee against the alleged issuance of fake PT-24 receipts. The appellant has contended that he had submitted the deposition/statements of two licences namely Muhammad Jurial and Bashir Ahmad who had testified that their licences were not renewed by the appellant thereby implying that the appellant was not responsible for the alleged offence of misappropriating the renewal fee at least in their cases. Besides, the record does not show that any of the licence holders was examined by the two member Committee carrying out the verification. We are of the view that as the matter involves alleged misappropriation of renewal fee from licence holders, it should have been only appropriate that at least some of the licence holders were examined and their statements recorded by the two member Committee. Such examination of the witnesses that include the licence holders should have in fact been carried out through a regular/formal inquiry wherein the appellant would be required to be afforded the opportunity of cross examining such witnesses. We are, therefore, of the considered opinion that full opportunity was not provided to the appellant to put up his own defence especially when he has flatly denied the charges. When charges are contested by an acctised official the holding of regular inquiry is mandated as held by the superior Courts.
12. In view of the above we have no hesitation in setting aside the impugned order and direct that the appellant be reinstated in service from the date of his dismissal. However, it would be open for the respondents to hold a regular/formal inquiry affording the appellant full opportunity to defend himself and to cross-examine the prosecution witnesses if any. The inquiry should be completed within four months of the receipt of a copy of this judgment. The payment of back-benefits to the appellant shall depend on the outcome of the inquiry. No order as to costs.
13. Parties be informed accordingly