Salim Gul Shaikh, Member.--This case has been remanded back to the Tribunal by the Honourable Supreme Court vide their Judgment dated 01.09.2005 with the direction to decide the case "afresh on merit strictly according to law". The honourable Supreme Court held that the decision of Tribunal dated 21.04.2005 to remand the petitioner's case for denovo inquiry was "completely unjustified" and directed that "it was incumbent on the Tribunal to decide questions raised before it on merits, rather than to order remand of the proceedings which would only add to the agony of the parties and protract the proceedings which have been pending for the last about 4 years."
2. Briefly, the facts of the case are that the appellant, who was serving as Accounts Officer (BS 17) in the Office, of Accountant General, Sindh, was served with Show-Cause Notice dated 03.10.2000 alongwith Statement of Allegations containing the following allegations:-
(i) Attempted fraudulent transfer of GP Fund balance amounting to Rs, 6,21,962 to District Accounts Officer, Larkana in favour of Mst. Zarina Shaikh daughter of Hassan Ali Shaikh with rnalafide intentions.
(ii) Deliberately signed GP Fund balance transfer authority of Rs, 6,21,962 in the name of Mst. Zarina Shaikh bearing GP Fund Number SED 14916 agai2st outward 4411 which was returned by DAO Larkana on the ground that the GP Fund balance of the said GP Fund subscriber had already been transferred from P.F. V Section.
(iii)The same outward number was also issued for the transfer of GP Fund balance amounting to Rs, 18,370 in respect of Mst. Surriya Begum daughter of Hameedullah against GP Fund Account No, SED 139562 to conceal the attempt of fraud in respect of Mst. Zarina Shaikh.
3. The competent authority ordered formal inquiry into the allegations by constituting an Inquiry Committee comprising of two officers. In his reply, the appellant denied. the allegations and also pointed out certain infirmities in the charges which were levelled against him. In their report dated 28.10.2000 the Inquiry Committee held that the charge at S. No, (i) and S. No, (ii) conveyed through the Statement of Allegations mentioned hereinabove could not be established against the appellant. But the report held him responsible on charge at S. No, (iii). The Auditor General however disagreed with the findings of the Inquiry Committee and issued a Charge Sheet to the appellant dated 8.10.2000 basing the allegations partly on the report of the Inquiry Committee and partly on the findings of the "preliminary report." Finding appellant's reply to the Charge Sheet unsatisfactory, the competent authority passed the impugned order dated 15.03.2001 (which was conveyed to the appellant on 21.03.2001) whereby he was dismissed from service. After vainly exercising the mandatory requirement of departmental appeal, the appellant preferred an appeal before the Tribunal which through its Judgment dated 16.6.2004 remanded the case to the department for denovo Inquiry on the ground that disciplinary proceedings contained serious legal infirmities. The appellant however decided to assail this decision of the Tribunal before the Supreme Court where it was heard and remanded to us with the direction stated hereinabove.
4. During the hearing, the learned Counsel for the appellant vehemently assailed the impugned order and called for its recall on the ground that the disciplinary proceedings contained serious legal infirmities. One of the objections raised by him questioned the legality of holding preliminary inquiry before the Show-Cause Notice was issued under the Removal from Service (Special Powers) Ordinance 2000. According to him there was no provision in the said law for holding "preliminary inquiry." He placed reliance on case reported in 2002 PLC 1468 wherein it has been held that when law requires a thing to be done in a particular manner, it should be done in that manner only or not at all. His contention was that any action which finds basis on an illegality was not sustainable in the eyes of law.
5. The learned Counsel for the appellant next contended that under the rules the charge- sheet/statement of allegations is required to be signed by the Authority and conveyed to the accused officer by the Inquiry Officer or the Inquiry Committee, as the case may be. In the instant case, the Counsel stated that the Charge. Sheet was signed and conveyed by the Authority himself which was in clear violation of the provisions of Removal from Service (Special Powers) Ordinance 2000. In this context, he drew strength from clause 5(a) of Removal from Service (Special Powers)
Ordinance 2000; 2005 PLC (CS) 1489; and SBLR 2006 TR 341. It was further contended that the appellant was not provided an opportunity to see the, preliminary inquiry report before he was asked to submit his defense reply which was against the principles of natural justice and therefore any punishment based on this report amounted to condemning the accused unheard. It was also contended that the punishment was based partly on the inquiry report and partly on the preliminary report as stated in para 3 of Show-Cause Notice dated 28.10.2000 which was illegal being outside the provisions of Removal from Service (Special Powers) Ordinance, 2000. The appellant's Counsel also stated that the appellant was not provided an opportunity of personal hearing by the Authority before passing the impugned Order.
6. The learned Counsel for the appellant raised the objection that the Inquiry Committee did not allow the appellant an opportunity to cross examine the main witness (DAO Larkana) who had kept the sealed authority in his possession for about six months before referring it to his superior officer at Karachi with the observation that it was forged. He further stated that other important witnesses who were not examined by the Inquiry Committee included: Junior Auditor Jehanzaib, who was incharge of the, outward register, Mrs. Surriya Begum and Mrs. Zarina Shaikh, DEO, Larkana. He argued that these were serious omissions which surely would have impacted the outcome of the investigations if the inquiry had been conducted properly. In support of his argument, he placed reliance on cases reported in 2007 PLC (CS) 118; KLR 2005 L & Service Cases 59.
7. The learned counsel for the appellant further submitted that the appellant had been dealt with harshly because he was accused by the respondents of committing an "Irregularity" which is clearly distinguishable from misconduct and therefore does not warrant imposition of major penalty. In support of his argument, he placed reliance on: 2005 SCMR 1617; 2005 PLC (CS) 364; 2006 CLJ 385 & 2006 PLC (CS) 1053.
8. The learned Counsel summed up his arguments by, raising some pertinent issues which included:
(a) Senior Auditor Aftab Mangi, who was involved in processing the case, was not imposed any penalty although the Inquiry Committee had also held him responsible; b) the Inquiry Committee did not get the forged documents examined by. hand writing expert; and c) Army Monitoring Team has no locus standi and punishments awarded under their direction were illegal.
9. The learned Standing Counsel assailed the arguments of the appellant's counsel by stating that the preliminary inquiry was concluded to ascertain the facts before commencing regular/formal inquiry proceedings against the official. It was argued that preliminary inquiry was conducted after the fraud was unearthed by the Army Monitoring Team (AMT) and the charges were framed on the basis of the preliminary inquiry. It was stated in order to meet legal requirements, the competent authority however appointed a two Member Committee under rule 5(1) of the Removal from Service (Special Powers) Ordinance, 2000 to conduct the formal Inquiry. Therefore it was argued that the citation relied, upon by the appellant (2002 PLC 1468) did not apply in this case since all statutory requirements had been met by the respondents. He was of the view that the punishment awarded to the appellant was commensurate with the gravity of the crime committed by him and therefore the appeal was liable to be dismissed. He also dispelled the contention that the appellant was condemned unheard.
10.We have heard the arguments from both sides and have also carefully perused the record placed before us.
11.The defence counsel has raised a number of legal questions during his arguments which need consideration. We shall try to arrive at a decision in the light of case laws cited by him. The first issue raised by the learned counsel for the appellant is that preliminary inquiry was unnecessary and therefore it should not have been ordered as it vitiates the law. In this he has placed reliance on judgement of the Sindh Service Tribunal in the case of. Shah Muhammad Abbasi v/s Chancellor Shah Abdul Latif University reported in 2002 PLC (CS) 1468. In the cited case the learned Tribunal had held that promotions recommended by the incomplete Board were void despite the fact the University Syndicate had subsequently confirmed the promotions as per the rules. We have perused the cited judgment carefully, and we do not find this case in any way lending strength to the case of the appellant. In our view fact finding inquiries are held to ascertain facts that are brought to the notice of the authorities. Holding of fact finding inquiry before the issuance of Show- cause Notice does not in any manner vitiate the law. We are very clear in our mind however that fact finding inquiries are not and cannot be considered as a substitute for holding regular inquiry.
The superior judiciary has discussed this subject in numerous judgments. In the instant appeal, it has been admitted that regular inquiry was conducted. Therefore we do not find force in the appellant's argument on this score.
12. The next question raised, by the learned counsel for the appellant was that proper inquiry was not conducted under the Removal from Service (Special Powers) Ordinance, 2000 and therefore the imposition of major penalty on the appellant was not sustainable. Perusal of the record shows that the Inquiry Committee called the appellant to appear before it on 24.10.2000 and recorded his statement. Thereafter the record does not indicate whether the appellant was called or other witnesses were examined in his presence. Even material witnesses i,e, Jahazaib, who was incharge of the outward register, and the District Accounts Officer, Larkana, the officer who kept the evidence in his custody for six months before reporting it to his superior officer, were not allowed to be cross examined by the appellant. We find these omissions as sufficient grounds to vitiate the conduct of disciplinary proceedings., The case against the appellant revolves around the forged sealed authority and the Officer Incharge at Larkana was a material witness who was in possession of this vital document for almost six months after it had been signed by the appellant. Cross examination of this witness would surely have unveled facts that have so far remained unanswered. Since this did not happen, the benefit of doubt ought to be given to the accused official. In this case we find that major penalty has been imposed on the basis of an inquiry which is feeble in the eyes of law and therefore against the spirit of decision reported in 1984 PLC (CS) 641; 1985 PLC (CS) 245; and 1986 PLC (CS) 894; It has been hold in these judgments that imposition of a major penalty against a civil servant cannot be sustained in the face of grave and serious infirmities in the disciplinary proceedings. Another serious flaw that has been C pointed out relates to the denial of personal hearing to the appellant.
This also lends strong support to the appellant's case because this omission amounts to condemning the accused unheard as held in case law reported in 1985 PLC (CS) 478; PLD 1959 SC 45 and PLD 1964 SC 410.
13.Besides, we are unable to dispel from the available record, the assertion of the appellant that he was not shown a copy of the preliminary inquiry report wherein major penalty was contemplated against him. This admittedly is a serious infirmity since it amounts to denying the appellant a fair opportunity for defence. We are supported in this view by the dictum laid down by the Supreme Court in the case of Zonal Head, NBP v/s Punjab Labour Appellate Tribunal (PLD 1996 SC 200).
14.The most critical law point around which this case revolves relates to the findings of the Inquiry Committee. The appellant states that the Inquiry Committee has absolved him on two out of the three charges leveled against him. And since the third charge flows from the first two charges in which he has been absolved, therefore the third charge cannot be considered as having been established.
15.In order to understand the nuances involved in this matter, we consider it relevant to briefly examine the operative portions of the Inquiry Committee's report regarding to the three allegations. About allegation at Serial No,(i), the Inquiry Report says: In personal hearing on 24.10.2000 Mr. S. Hamid Ali, A.O. Mr. Jamil Ahmad, A.A.O. and Mr. Aftab Ali Mangi, Senior Auditor, admitted that authority had been tampered but who tampered it nobody accepted that by who it had been tampered. It is clear forgery and needs investigation and re- written authority may be examined by hand writing experts. For this purpose Committee on 23rd October, has written a letter to Accountant General Sindh, for Investigation of the tampered authority."
"In this allegation it can not be proved that authority has been used for Rs, 621,962 by Syed Hamid Ali because only the text of the authority was tempered with by somebody. The signature remained intact."
16.Referring to the allegation at Serial No, (ii), the Committee observes: The file in which this case was dealt with in respect of Mrs. Zarina Shaikh was examined by Committee in the office of Army Monitoring Team in whose custody the file is lying now. The file relates to PF-V Section where her G.P. Fund Account No, SED14918 was maintained from where an authority for Rs, 450,695/- was issued and GPF A/c No, Edu/LRK/14007 on 5/7/1997 vide Issue No, 2427. However, on receipt of another authority of Rs, 621,962/- issued on 5/10/1999 vide Issue No, 4411 from PF-III Section the DAO Larkana compared this authority with previous authority for' Rs, 450,962/- and suspected foul play. The later authority for Rs, 621,962/- was therefore returned to A.G. Sindh, Karachi, which is in the custody of confidential branch of A.G. Sindh, Karachi. Earlier the DAO Larkana made some correspondence with PF-III Section of A.G. Sindh, Karachi vide No,DAOL/Fund/574 dated 13.04.2000 (copy enclosed). The Committee cannot clear this confusion because related file for the authority for Rs, 621,962/-was not available in the A.G. Office. S. Hamid Ali, A.O. Jamil Ahmed AAO and Aftab Ali Mangi, Senior Auditor, also showed their inability to produce this file. Mr. Shahid Aqil Assistant Supervisor PF-III was called by Committee and he stated that this file had been called time and again by senior officers as well as by Army Monitoring Team but the file could not be traced out in the branch. In the absence of this main file, the allegation against S. Hamid Ali, A.O. that he deliberately signed the authority for Rs, 621,962/- in favour of Mst. Zarina Shaikh is not proved." In this allegation it can not be proved that authority has been used for Rs, 621,962/- by Syed Hamid Ali because only the text of the authority was tampered with by somebody. The signatures remained intact."
17. About the allegation at Serial No, (iii), the Committee states: "The case of Mrs. Zarina Shaikh and Mrs. Surriya Begum became clear before the Committee. It became clear that PF-III branch processed the case of Mrs. Surriya Begum GPF A/c No, SED- 139562/- for Rs, 18,370/-. The entries in this respect are appearing on page 164 in Ledger No, L-20 (in possession of Army Monitoring Team) issue register (4411) and seal register (1050). Further, it was noticed by the Committee that these entries in the name of Mst. Surriya Begum cannot be treated as authority because FC-1 (Fund coordination) did not confirm her name and GPF A/c No, They stated that A/c No, SED-139562 was allotted to Mr. Ghulam Muatafa s/o M. Ismail (PST) SEO Sehwan Distt: Dadu on 23/11/1988. It is crystallized that bogus GPF Account was opened on PF-III Section in the name of Mst. Surriya Begum. It Is preconceived malafide intention by AO, AAO and Sr. Auditor.
They processed the case from initial stage to finalization stage in the name of Mst. Surriya Begum which was entered in the Diary No,4411 and sent to RD Section for dispatch. RD Dispatched it through UMS No, 795 dated 06/10/1999 to DAO Larkana. It is amazing that despite UMS Service the authority was marked on 11/12/1999 by DAO Larkana. After correspondence it was returned back to A.G. Sindh. Thus at initial stage bogus GPF account was opened, and processed properly from Sr.
Auditor to A.O. and finally authority was issued in the name of Mrs. Surriya Begum for Rs, 18,370/- which is a sufficient proof that Mr. S. Hamid Ali, A.O. was involved in this malpractice. It is suspected that file had been deliberately misplaced to create confusion in the case. Allegation stands."
18.Perusal of the Inquiry Report in tandem with the material available on record indicates that many questions have remained unanswered. The Inquiry Report holds the appellant culpable on allegation at Serial No, (iii) i,e, opening of bogus GP Fund account under No, 139562 in collaboration with the Senior Auditor, Aftab Ali Mangi, and the A.A.O. which was already allotted in the name of one Ghulam Mustafa of Dadu. But when this averment is cross checked with the available material, its accuracy becomes suspect. The appellant claims that this account was opened on a reference received from DAO Larkana for processing the account of Ms. Surriya Begum. This case was processed by Senior Auditor Shabbar Abbas and Assistant Accounts Officer Razi Haider belonging to a different section (FC-1 section). This authority was also counter-signed by independent A.O.
Rafi Qureshi. These facts have not been addressed by the Committee members in their report.
More importantly, although the Committee members are amazed hat the said GP Fund authority which was dispatched through UMS on 6.10.1999, has been marked on 11.12.1999 by the DAO, Larkana which almost 60 days after it was dispatched, they appear to have glossed over his important piece of information while finalizing the report.
19.Finally, as regards the contention that the Authority had is regarded the findings of the Inquiry Committee by partly including he recommendation of the preliminary Inquiry Committee in the Final how-Cause Notice, suffice to say that it is a settled principle of law that he preliminary inquiry report has no legal value. We fortify our view by lacing reliance in the dictum laid down in the case of Fatima Bibi Vs eputy District Education Officer, Sadiqabad reported in PLJ 2005 SC 189 in which the honourable Supreme Court has held that the department is required to conduct a regular inquiry instead of removing Government official from service on the basis of fact finding inquiry Report. In this context, we also draw strength from the case Alamgir v: divisional Forest Officer, Multan, (1993 SCMR 603) wherein the honourable Supreme Court has held that for resolving controversial questions of fact where evidence has to be recorded and opportunity of cross- examination has to be given, the proper course would be to hold a 11-fledged inquiry, otherwise findings recorded would be based more' on conjectures than on evidence/material available on record properly produced and accepted.
20.Keeping in view the fore-going discussion, we accept the appeal and set aside the impugned order and direct that the appellant shall be reinstated into service from the date he was dismissed from service. The period of absence from duty shall be considered as leave due to the appellant.
21.There are no orders towards cost.