MUHAMMAD JAVED ASHRAF HUSSAIN, MEMBER, J-- This is an appeal under Section 4 of the Service Tribunal Act, 1973 against the impugned order 149- Estt-1/204-2003 dated 17.07.2004, whereby the major penalty of compulsory retirement from service under Removal from Service (Special Powers)
Ordinance, 2000 has been imposed upon the appellant. The appellant filed a departmental appeal dated 25.08.2004 claiming that the decision of compulsory retirement came to his knowledge on 09.08.2004. The departmental appeal has remained un responded- and thereafter the respondent has filed appeal, dated 04.12.2004 before this Tribunal.
2. The brief facts of the case are that the appellant was appointed as Auditor (BPS-07).In the office of the Auditor General of Pakistan. He was posted in the office of the Director Audit, Federal Government Sub-office, Karachi. The appellant after qualifying the departmental SAS examination was promoted as SAS Accountant (BPS-16) vide order dated 23.12.1987, In the year 1991 the qualified for Selection Grade (BPS-17) and was regularly promoted as Audit Officer in the same' grade on 1.9.09.1997. The' appellant was served a Show-Cause Notice vide No. 20/E. Stt-1/204-2003, dated 12.07.2003 containing 9 charges. The Show-Cause Notice is as follows:- 1 "Confidential/Registered A.D.
Office of The AUDITOR GENERAL OF PAKISTAN Constitution Avenue. Islamabad.
No. 20/Est-I/204-2003 Dated 12.07.2003 SHOW CAUSE NOTICE WHEREAS, you Syed Anwar Alam, Audit Officer (B-17, while serving in the office of Director Audit, Federal Government Karachi are accused of having committed the following acts of omission and commission which constitute misconduct and corruption under Section 2(b) and 3(1) of the Removal from Service (Special Powers) Ordinance, 2000.
(i) You drew House Building Advance 6f. Rs. 111,060,000 (Rupees one hundred eleven thousand and sixty only) in the month of August, 1992. As per Rule 253-A(2)(iii) of G.F.R. Vol-I . The repayment of House Building Advance is required to be commenced from the 'month immediately after the grant of said advance i.e. September, 1992. Being the self-drawing officer it was your first and foremost duty to get the recovery started from the month immediately after the grant of said advance. You did not make any deduction of HBA from your pay and allowances up to March, 1996. You violated the spirit of afore-said rules .And did not perform your duties as self-drawing officer for your own benefits.
(ii) When the first house Building Advance was not liquidated, you managed to obtain a Fund Availability Certificate of 2nd HBA by concealing The facts from AG PR, Karachi regarding your 1st House Building Advance. . While submitting your application to AG PR, Karachi you did not observe the proper channel and submitted your application over your own signature. During the Process of obtaining Fund Availability certificate of 2nd House Building Advance, you gave a false statement regarding the liquidation of 1st advance in the proforma Tor the grant of HBA. When the FAC of 2nd HBA was received, a sum of Rs. .137,289/- Was outstanding against the 1st HBA:
(iii) The Chairman, Council for Works and Housing Research, Karachi (CWHR) complained that during the course of audit, you used your official position unauthorizedly and ordered the auditee to fulfill your unnecessary demands. He also reported that while conducting audit, you asked for the repair of your private car from government funds and when your demand was not fulfilled, you became furious and used inappropriate language against the Chairman in the Executive Summary of your. Audit' Inspection Report of CWHR for the year 1999-2000 to 2000-2001.
(iv) During the course of Audit, the Chairman, CWHR, Karachi brought into your notice some cases of hiring which contained serious financial irregularities and requested you to guide the CWHR, Karachi but you refused to examine the same. Being an Audit Officer, you were required either to give guidelines for the settlement of hiring cases or to include those issues in your audit report but you -did not da so. The Chairman also brought this issue into the notice of your Director Who verbally directed you to improve your behaviour during the course of audit but you did not give any attention to those directives. Resultantly, your explanation Was called for and your reply was..
Found unsatisfactory Your rude behaviour towards auditee and non-compliance of the directive of your seniors constitute misconduct.
(v) You were directed verbally and in writing time and again not to issue the Audit and Inspection Reports without showing them to your superiors but you kept on issuing Reports without seeking clearance from your seniors.
(Vi) You were assigned the audit of KPT for the quarter ending April, 2002 to June 2002. But you refused to undertake the work by stating that you had no knowledge of KPT audit and you were not in a position to bear any 'responsibility of the afore-said audit. But official record shows that you remained posted in KPT as Accountant with effect from 01 01 1991 to 31.12.1992 as is evident from an office order issued by AG PR, Sub-office, Karachi Vide letter No. KPT/93-94/175 dated 09.02.1994 and thus have the knowledge of working of KPT. Therefore, the fact shows that your misstatement was mala fide and evasive to avoid legitimate official duty.
(vii) On 14.04.2003. You entered the office of Director Audit and threatened .Her using derogatory tone, which was witnessed by M/s. Muhammad. Khalid, Deputy Director and Muhammad Shakir, Audit Officer.
(viii) While presenting- your case of your seniors Vide your letter No. OAD- II/A.O/2002-2003/25.
Dated 15.04.2003 (copy enclosed).You used intemperate and inappropriate Language, which amount to misconduct.
(ix) You were relieved from Sub-Officer of DGA (FG) Karachi os a result of your transfer to Head Office. - DGA (FG) Islamabad Vide DGA (FG) s. Letter No. Admn- I/DGA?PF-81/ActtA/ol. 11/555, dated 23.05.2003 and at the same time your explanation was. Called for. The transfer order was well as explanation note were forwarded to you through TCS but you refused to receive the ' sable.
Thereafter Mr. Muhammad Shahid Siddique. Junior Auditor of office 'of the Sub-Office. Karachi was detailed to deliver the afore-said official documents by hand. Your family members refused to receive the letters. You are not repotting for duty at your, new place of posting or at the previous place and have absented yourself from duty willfully without any intimation to V any concerned office. Your behaviour amounts to disobedience and misconduct.
(2) By reasons of the above, you appear to he guilty of gross misconduct and corruption within the meaning of Section 3(1} of the Removal from Service (Special Powers) Ordinance. 2000.
(3) AND WHEREAS, I. Muhammad Yunis Khan. Auditor General of Pakistan as the Competent Authority, under Section 2(aa) of the Removal from Service (Special Powers) Ordinance. 2000 have decided in terms of Section - 5(4.) of the afore-said Ordinance that it is not necessary to. Hotel an inquiry into the above charges through an Inquiry Officer of Inquiry Committee.
(4) NOW. THEREFORE you are hereby 'called upon to Show-Cause as to why one or more of the penalties including major penalty of Dismissal from Service as prescribed in Section 3 of the Removal from Service (Special Powers) Ordinance, 2000, may not be imposed upon you on the above grounds.
(5) You written reply to this SHOW-CAUSE NCITICE should reach the undersigned within seven (7) days of its receipt by you, fatting which it would be 'presumed, that you have no defence to offer, and ex parte decision would be taken.
Sd/- (Muhammad Younis Khan)
Audit General Competent Authority) ".
3 The appellant submitted reply to the Show- Cause Notice vide his letter dated 19.07.2003 refuting the charges
4. Thereafter, formal inquiry was ordered by the competent authority under the provisions of the Removal from Service (Special Powers) Ordinance 2000. The allegations in the order of inquiry were by the large identical with the charges as in the earlier Show-Cause' Notice and were as follows:--- "2. That while posted as Audit Officer Office of the Director Audit (Federal Government) Karachi, you committed following acts of inefficiency, misconduct and corruption:-
(i) You drew House Building Advance of Rs. 111,060.00 (Rupees One Hundred Eleven Thousand and Sixty only) in the month of August 1992. As per Rule 253- A(2)(iii) of FGR. Vol-I. The repayment of the said amount advance was required to Commence from the month immediately after the grant' oft the said advance i.e. September 1992 but. despite being self-drawing officer, you did not make any deduction of HBA from your pay and allowances up to March, 1996, in violation of the afore-said rules and failed to discharge your duty as DDO, which amounts Lo corruption, inefficiency and misconduct.
(ii) Although the 1st House Building Advance was not liquidated, you obtained a Fund A vailabilityLCertificate of 2nd House Building Advance by coneeding the facts _ from AG PR, Karachi 'regarding your 1st House Building Advance and in submitting your application to AGPR, Karachi you did not observe the proper channel and submitted your application under your own' signature. You gave a false statement regarding the liquidation of 1st advance in the Proforma for the grant of HBA at the time of obtaining the. FAQ for 2nd HBA, which is against the official discipline and conduct.
(iii) As per complaint of the: Chairman, Council 'Tor Works and. Housing Research (CWHR), Karachi you . Misused your' official position and ordered the commitee to fulfill your unnecessary dekiands and while conducting audit, you asked j for the repair of "your private car From government / funds and used inappropriate language against the Chairman in the Executive Summary of your Audit Inspection Report of CWHR 'for the-years 1999-2000 to 2000-2001, which amounts to corruption and . Misconduct.
(iv) You were directed verbally and in writing time and again not to issue the Audit and Inspection Reports without showing them to your superiors but you kept on issuing Reports without seeking clearance from your seniors, which speak of your indiscipline and constitute a serious nature of misconduct.
(v) You were assigned the audit of KPT for the quarter of April 2002 to June, 2002 but you refuse I undertake the work on the ground that you had Do knowledge o f KPT audit and was not in a position to take the- responsibility, whereas the official record shows that you remained posted in KPT as Accountant from 01.01.1991 to 31.12.1992 as is evident from an Office Order issued by AG PR, Sub-Office, Karachi vide No. KPT/93- 94/175. Dated 9th February 1994 and despite having the knowledge of working of KPT you misled the seniors and avoided taking the assignment.
(vi) On 14th April 2003, you entered the office of Director Audit and threatened her by using derogatory tone, which was witnessed by M/S. Muhammad Khalid, Deputy Director and Muhammad Shakir, Audit Officer, which also indicates your undisciplined behaviour.
(vii) While presenting your case to your seniors vide letter No. OAD- II/A O /2002-2003/25, dated 15th April 2003. You used intemperate and inappropriate language, which is against the official discpline and conduct.
(viii) You were relieved form Sub-Office of DGA (FG), Karachi as%a result of your transfer to Head Office,, DGA (FG)) Islamabad vide DGA (GF)'s letter No. Admn- 1/DGA/PF-81/Acct A/vol-II/555, dated 23rd May, 2003 and at the same time your explanation was called for The transfer order as well as explanation note were forwarded to you through TCS BUT YOU REFUSED TO RECEIVE THE SAME'
Theerafter Mr. Muhammad Shahid SiddiqUe, Junior Auditor of the Sub-Office, Karachi was detailed to deliver the afore-said official documents by hand but your family members refused to receive the same. You absented yourself from duty willfully without any intimation to any concerned office and later submitted a belated Medical Certificate from a Private Doctor showing on advice for complete bed rest. In addition to the fact that the MC. Was not from an authorized Government Medical Officer you have been busy in filing a Civil Suit against the department in a Civil Court during complete- bed rest, which indicates our behaviour towards official norms and discipline.
You have not reported on your new place of posting in obedience to tile order dated 23rd May 2003 till date.
(3) WHERAS by reasons of the above, you Anwar Alam appear to be quality of Misconduct" and Corruption" within the meaning of Section 3(1)(a) and
(c) of Removal from Service (Special Powers) Ordinance 2000 for the said omissions and commissions on your part and are liable to disciplinary action which may involve imposition of one or more of the penalties including the penalty of "Dismissal from Service" as prescribed in Section 3 of the said Ordinance.
(4) You are, therefore, directed to submit your written defence to the above-mentioned charges within seven (7) days of receipt of this letter.
Sd/- (Shaikh Muhammad Ashraf) Director District Audit (HQ) Sindh inquiry Office.
5. The inquiry Officer (Director District Audit (HQ) Sindh) had required the appellant to submit his written defence to the charges/allegations as contained in his letter, dated 29th October 2003. The appellant submitted his written defence vide his letter No: A-O/2003-04/08, dated 06.11.2003.
6. The inquiry officer vide his letter No. DGDA/Admn-I/2003-2004/315, dated January 14, 2004 directed accused officer (appellant in the present case) to appear before him on 20th January 2004 at 11:00 A.M. In his office for personal hearing. The appellant instead of appearing for personal hearing as required by. The inquiry officer, submitted letter No. A-O/2003-04/12-13, dated 17.01.2004 addressed to the Auditor General of Pakistan stating therein that the inquiry officer had not completed the inquiry proceedings within the prescribed period of 25 days and further that the inquiry officer was not competent to extend personal hearing. He. Further stated that personal hearing was to be afforded by the competent authority.- He thereafter contended that the letter from the inquiry officer was liable to be dropped on this point alone,
7. The inquiry officer submitted his inquiry report dated 24.01.2004 with his findings as follows:-
(7) The accused officer was required to effect recovery of NBA from September 1992, but he failed to do so. Thus the charge is proved.
(ii) The accused officer was required to mention particulars of 1st HBA in his application for 2nd HBA, but he did not do so he was also required to deposit principal amount and amount of interest in full before drawing 2nd HBA, but he failed to deposit the deposit the required amount. Thus the charge of concealment of facts and on-liquidation of 1st HBA proved.
(iii) The accused officer was required to be objective and impersonal in conveying his. Views in the Executive Summary, but the accused officer was. Subjective and used . Inappropriate language while writing Executives Summary. Thus the charge of using' inappropriate language in Executive Summary is proved:
(iv) The officer was required to issue AIRs with the approval of his superiors, but he issued AIRs directly in disregard b the orders of his superiors. Thus the charge' of defying the orders of superiors in proved.
(v) The accused officer was asked to take up audit of KPT for the period from April, 2002 of June 2002, but despite working in KPT for about, three years, he showed his liability to take up the assignment. Thus the charge of refusing audit of KPT is proved.
(vi) The accused officer was required -to be submissive in talking to his superiors, but he was disrespectful Jo' and used derogatory language against hip Director. Thus the charge is proved.
(Vii) The accused officer was required to use moderate and proper language while presenting his case to his superiors. But he use intemperate and inappropriate language; his letter No. Oad- ii/a.o/2002-2003/25, dated 15th April. 2003 is a proof beyond doubt. Thus the charge is established.
(Viii) (i) The accused officer was bound to receive official letter, but he refused to receive the same and stamp of TCS, is sufficient proof of his refusal. Thus the charge is established.
(ii) Since the period of absence has already been regularized by the competent authority by treating the period from 25.05.2003 to 03.11.2003 as Extra Ordinary Leave without pay/ therefore, this charge is treated as dropped.
(iii) The accused officer's confession in para (ix) a of his reply to Show-Cause Notice that he received transfer orders in the Court through his lawyer proves that he was busy in filing suit against the department while on bed rest. Thus the charge is established.
(iv) The accused officer was required to comply with the orders regarding his transfer from Federal Audit, Sub-Office, Karachi to Federal Audit, Islamabad, but the refused to do so on the ground that seniority of Departmental Cadre officers was local and that his transfer to DG Federal Audit Office, Islamabad was irregular, Thus the charge of non- compliance of transfer orders is proved.
8. The inquiry officer concluded in his findings that all allegations against the accused officer were proved and that the accused officer appeared to be in the habit of being rude, harsh and disrespectful to his superior and colleagues. He further concluded that the conduct of the accused officer was found to be prejudicial to good order of service discipline and contrary to Government Service (Conduct) Rules, 1964 and therefore was liable to disciplinary action.
9. On the basis of the findings of the inquiry officer, the competent authority i.e. Auditor General of Pakistan, issued a Show-Cause Notice vide No, 100/Estt-- 1/204-2003, dated 26th March, 2004 to the accused officer calling upon him to Show-Cause within 07 days of the receipt of the notice as to why one or more penalties including the major penalty of dismissal from service -as prescribed under Section 3 of Removal from Service (Special Powers) Ordinance, 2000 should not be imposed upon him.
10. The accused officer submitted his reply to the Show-Cause Notice vide No. A-O/2003-04/18.
Dated 09.04.2004. The competent authority not finding the reply satisfactory 'imposed the major penalty of compulsory retirement from service upon the accused officer (appellant in the present case) Vide Notification No. 149-Estt-1/204- 2003, dated 17th July, 2004.
11 The learned counsel for the appellant argued that the impugned order is bad in law and on facts and is liable to be set aside. He argued that disciplinary proceedings initiated by the respondent No. 2 are without jurisdiction. He further urged that the charges contained in the Show-Cause Notice are vague, unspeaking, concocted, malicious and discriminatory. The learned counsel for the appellant also contended that the inquiry findings and consequent impugned order of compulsory retirement were not based on any tangible evidence but only on surmises and conjectures. The learned counsel for the appellant averred that the disciplinary proceedings were initiated against the appellant on account of certain grouse and prejudice held by respondent No. 3 against the appellant.
12. The learned counsel concluded his arguments standing that while passing impugned order of compulsory' retirement against the appellant the competent authority i.e. Respondent No. 2 had not taken into consideration the version of the defence and had depended entirely on the story of the prosecution.
13, The learned counsel for the respondents basing his arguments on written comments stated at the outset that the appeal was time barred in that it was required to be filed within '90 days of the impugned order dated 17.07.2004 while the appellant and submitted his appeal on 04.12.2004 i.e. After 139 days. The learned counsel for the respondents further argued that the competent authority passed the impugned order by strictly observing the relevant rules and regulations and only then the penalty of compulsory retirement from service was imposed upon the appellant and therefore deserves to be maintained.. He further argued that the inquiry officer had conclusively established the charges and on-the basis of the findings and recommendations of the inquiry officer, a Show Cause Notice was issued to the appellant and finding bis reply to the Show-Cause Notice unsatisfactory the major penalty of compulsory retirement from service under Removal from Service (Special Powers). Ordinance, 2000 was imposed upon the appellant. "The learned counsel for the respondents further argued that the charges were proved against the appellant on the basis of record and there was o element of any prejudice or personal rancour against the appellant as alleged by him. The learned counsel for the respondents further stated that the appellant had not attended the inquiry proceedings deliberately and his written defence had attempted to take shelter on technical grounds which is liable to be rejected.
15. Heard the learned counsels for the appellant as well as the learned standing counsel for the respondents and carefully perused the record. We shall first address the issue of non- maintainability of the appeal on account of its being time-barred as argued by the learned counsel for the respondents. The fact is that the impugned order of compulsory retirement from service against the appellant was dated 17.07.2004 and the appellant filed his departmental appeal on 25.08.2004. The appellant has claimed that he received or more properly the impugned order came to his knowledge on 09.08.2004 and as such he filed the departmental appeal dated 25.08.2004 within 16 days of the impugned order having came to his knowledge. The departmental, appeal having remained un-responded, the appellant submitted his appeal before this Tribunal on 04.12 2004. The appellant ' thus contended that the impugned order having came to his notice on 09.08.2004, the appeal dated 04.12.2004 before this Tribunal was well within the statutory period of 120 days. The appellant however in his con-donation application has claimed that the respondent No. 2 issued office order communicating the impugned order on 04.09.2004 and as such taking this date into consideration, the appeal would be within 90 days of the issuance of the office order dated 04.09.2004. Taking into account these submissions of the appellant, we are of the view that the appeal has been filed with the statutory period and is not hit by limitation.
16. Turning to the merits of the case, we observe that perusal of the order of inquiry and the findings as in the inquiry report reveal that the main charges/allegations against the appellant are that he failed to initiate the repayment of his house building advance within the mandatory period and that he obtained his second house building advance without having completely liquidated the first house building advance. The. Inquiry officer has held that the accused officer i.e. The appellant was paid his first House Building Advance of Rs, 111,060,0001- on 9th August 1992 and as per Rule 253-A- 2(iii) of GFR Vol-I repayment of the said advance was required to commence from the month immediately after the grant of the said advance i.e from September 1992 but in violation , of the said rule, the appellant/accused officer did not initiate any deduction of the instalments of house.
Building advice from his pay and allowances till March 1996. The inquiry officer has stated that the accused officer claimed the second house building advance by giving, the false statement that he had liquidated me first advance. As regards the complaint of the Chairman Council for Works and House Research (CWHR), Karachi that the accused official misused his official position and ordered the audice to fulfill his illegal demands, while conducting audit, which included the repairs of the appellant s private car, the inquiry officer has stated that it was difficult to ascertain the factual position after going through the statement of both the prosecution as well as the defence. As regards the allegation of using inappropriate language, the record does not substantiate that the accused officer has used any such language.
17 The other charges/allegations pertain to the audit and inspection reports prepared by the accused officer without showing them to his superiors, refusing to carry out audit of KPT for the quarter April, 2002 to June 2002 on the ground that he had insufficient knowledge to KPT, using intemperate inappropriate language and not complying in time with his transfer order from sub office of DGA (FG), Karachi to Head Office DGA (FG), Islamabad.
18. A close perusal of the statement of allegations, statement in defence and the findings pf the inquiry officer reveal that. The accused officer was in the habit of being rude, harsh ana disrespectful to his superiors and colleagues. The appellant seems to have defaulted in initiating deduction from his salary of the installments of the first house building advance una of having received the second house building advance without completely liquidating the total amount of the first house building advance. Of all the charges, the charge that the appellant failed to Initiate the deduction of installments of the first house building advance in time and receiving the second advance without completely liquidating, the first advance seems to be convincingly proved. It is nevertheless observed that in effect no financial loss has been caused to the government. The other charges have not been conclusively established by the inquiry officer and any way these charges are not of any serious nature justifying severe action against the appellant.
19. The imposition of major penalty of compulsory retirement in view of the above, we feel is not comnnensurate with the guilt of the accused officer/appellant. We have to hesitation in Concluding that the penalty too harsh and liable to be reduced. We therefore order that the major penalty of compulsory retirement to reduce (sic) increments for a' period of two years. The appellant be instated from the date of the compulsory retirement and the appellant is required to reimburse the pensionary benefits that he may have drawn consequent to his compulsory retirement from service. The. Intervening period, shall be treated as leave due to the appellant.