' SABIHUDDIN AHMED, J.--- This appeal by leave of the Court arises out from a judgment of the Federal Service Tribunal, Islamabad dated 3-7-2003 in Service Appeal No,7(K)(C.S.) of 2001 whereby the order of the respondent No,3 imposing the major penalty of removal from service inflicted upon the appellant was upheld.
2. Briefly, the facts appear to be that the disciplinary action against the appellant, who is a Member of the Pakistan Audits and Accounts Service, was initiated upon the allegations of certain financial irregularities alleged to have been committed by him during the period of his posting from 1994 to 1997 as Deputy Controller Accounts, Air Force. A charge-sheet along with the statements of allegations were served upon him by the Authorized Officer (Auditor-General of Pakistan) through letter dated 4-2-2000. The appellant submitted an elaborate reply, which was not found satisfactory, and a regular inquiry was ordered to be conducted. Out of the nine allegations contained in the charge-sheet, the Inquiry Officer found six to be established and forwarded his report to the Authorized Officer. The latter after giving the appellant an opportunity of hearing recommended imposition of major penalty of reduction of pay by two stages in the time scale for a period of two years to the authority as is evident from para.1(b) of the parawise comments filed on behalf of the Authorized Officer. The authority however, chose to impose the penalty of removal from service vide Notification dated 18-8-2000. The appellant after filing a departmental appeal and waiting for the statutory period invoked the jurisdiction of the Federal Service Tribunal to assail the order of the penalty but without success.
3. Leave to appeal was granted by this Court, inter alia, to the following questions:---
(i) whether the allegations against the appellant, even if correct, amounted to misconduct within the meaning of the terms of the relevant rules or could be merely considered as irregularities which stood cured by depositing the amounts inadvertently long before the issuance of the charge- sheet;
(ii) whether the authority was justified in imposing a penalty severer than the one proposed by the Authorized Officer without recording any reasons; and
(iii) whether the infliction of the penalty of removal from service in any event was too harsh and disproportionate to the acts attributed to the appellant.
4. We have heard Mr. M.M. Aqil Awan, learned counsel for the appellant and Mr. Rizwan Ahmed Siddiqui, learned Deputy Attorney-General on behalf of the respondents. However, before adverting to the contentions raised it may be appropriate to reproduce the contents of the charge-sheet which read as follows:---
(i) You drew house rent allowance from 12/1995 to 1/1997 while residing in Government hired accommodation. You also did not pay 5% revenue charges for the same period;
(ii) you unauthorizedly drew 11,649 as Secretariat Allowance in 11/1996 whereas the aforesaid allowance was not shown in the L.P.C. Issued by your previous office;
(iii) you drew excess amounts of T.A. Advances of Rs,6,810 and 5,724 over and above the admissible amounts;
(iv) a sum of Rs,1,75,564 plus interest on account of H.B.A. Were shown on your revised L.P.C. Issued by the office of A.G.P.R., Karachi and was required to be recovered @ Rs,1,455 p.m. From your pay but no recovery was made till January, 1997;
(v) an amount of ,Rs,38,338 on account of motor car advance was shown outstanding in the L.P.C.
The recovery was started from April, 1994 and continued to February, 1995, afterwards you got the recovery stopped and irregularly withdrew the recovered amount;
(vi) a demand of Rs,12,810 (T.A. Advance) was shown in your L.P.C. For recovery but you stopped that recovery only after payment of Rs,2,500 and later on the deducted amount was also withdrawn by you;
(vii) you also drew welfare grant of Rs,16,000 unauthorizedly;
(viii) you had been making payment of T.A. Advance without budget allocation. You were directed by C.A.A.F. Through Signals Messages not to make payment of T.A. Advance in violation of rules and regulations but you did not obey the order and continued +- _iiake such payments without budget allocation;
(ix) you misused your official position and pressurized your subordinates for making abovementioned irregular and illegal payments to you; and
(x) you were asked to explain your position with reference to abovementioned irregularities but you failed to provide any justification for withholding the recoveries and irregular payments.
5. The Inquiry Officer in his inquiry report dated 18-6-2000 found allegations Nos.1, 3 and 9 not proved and such findings has not been questioned by the respondent either. However, it might be appropriate to briefly comment on the remaining findings of the Inquiry Officer. Allegation No,2 relates to irregular drawing of secretariat allowance of Rs,11,649 on 18-11-1996 despite his entitlement to receive such allowance not having been shown in the L.P.C. (Last Pay Certificate) issued by his previous office, the appellant claimed that he considered himself entitled to receive such allowance on the basis of an office letter, dated 3-11-1994 and could not be penalized for failure of the concerned officials in not recording his entitlement in the L.P.C. Moreover, the revised L.P.C. Dated 30-8-1997 issued by the A.G.P.R. Showing his entitlement to receive the aforesaid allowance w,e,f, 31-3-1994 also vindicated his position. The mere fact that he had drawn the allowance (to which he was entitled) a short while before a correct L.P.C. Was issued could hardly be treated as misconduct on his part. Moreover, upon being informed that he was not entitled to such allowance he deposited the amount drawn in Government Treasury on 29-5-1997 i,e, long before the issuance of the charge-sheet completely excluded the possibility of any menserea on his part. Accordingly, we found great force in the contention that a mere technical irregularity could by no stretch of imagination treated as misconduct. Therefore, we are of the view that ex facie no misconduct could be established on the basis of this allegation as well.
6. Allegation No,4 relates to recovery of installment in respect of the house building advance from the appellant. Admittedly, a sum of Rs,1,74,564 was recoverable from the appellant @ Rs,1,455 per month w,e,f, July, 1996 but actual recovery was not allowed to commence till January, 1997. We tend to agree with the Inquiry Officer that the explanation for the late recovery furnished was not convincing but the fact that the appellant had informed despite his liability to pay and started making payments after six months also needs to be considered in determining the gravity of the alleged misconduct and quantum of punishment required to be imposed.
7. Allegations Nos.5 and 6 however, appear to be somewhat more serious. Certain recoveries were to be made from the appellant on account of outstanding motor car advance to the extent of Rs,38,338 and T.A. Advance of Rs,12,810 @ Rs,833 and Rs,500 per month respectively. After having made some payments, the appellant not only got the recovery stopped but also even withdrew the amount already disbursed fraudulently. The Inquiry Officer did-not find his explanation satisfactory and accordingly held him guilty of the charges.
8. Allegation No,7 relates to making payments on account of T.A. Advance to members of the staff.
The appellant apparently stated that he was authorized to make such payments through letter dated 19-3-1995 but such admitted authorization was withdrawn on 19-11-1996 through letter dated 13-5-1997 and on 20-5-1997 he was asked not to make any, further payments without authorization/budget allocation. He continued to draw such advance in May, 1997 disobeying the orders of superior officer. He attempted to explain that he was allowed to do so after telephonic discussion with C.A.A.F. But in the absence of concrete evidence, the Inquiry Officer rightly found the allegation to be established.
9. Similarly, allegation No,8 pertains to unauthorized drawing an amount of Rs,16,000 from welfare grant. As is evident from the inquiry report itself that appellant explained that the amount was drawn for staff on the basis of decision of the Controller Accounts (appellant's superior officer), was distributed amongst those entitled and signatures of each recipient was obtained. Accounting for all payments was made not a single penny was appropriated by the appellant himself However, appellant was subsequently informed that the amount be first deposited by challan at Peshawar and thereafter a fresh cheque be obtained from the office of C.A.A.F. Which was done. The Inquiry Officer himself observed that "it appears to be a procedural irregularity". Nevertheless, surprisingly he went on to observe that "however, technically the accused officer drew Rs,16,000 from welfare grant unauthorizedly". Learned counsel appears to be right in contending that such an observation was entirely unwarranted in inquiring into allegation of misconduct against the appellant.
10. Allegation No,10 is general in nature and has a bearing upon all specific allegations. It is stated that appellant when being called upon to explain his position with respect to withholding the recoveries and irregularities. He stated that the amounts irregularly drawn by him or not recovered have been duly deposited in the Government Treasury. Indeed, there is no controversy as to the amounts have been deposited prior to the issuance of the charge-sheet. Nevertheless this fact was treated as acceptance of commission of irregularities.
11. The findings of the Inquiry Officer were duly communicated to the Authorized Officer i,e, Auditor- General of Pakistan through the Authorized Officer considering the strict requirements of financial discipline in an organization dealing with public account apparently rightly held the irregularities committed amounted to misconduct which by very definition includes "conduct to prejudicial to good order of service discipline". Nevertheless he also apparently took into consideration the fact that a number of irregularities were of technical nature as well as the fact that money involved had already been deposited in the Government Treasury by the appellant. Exercising the discretion available to him under the Rules he, therefore, proposed penalty of reduction of pay by two stages in the time scale for a period of two years. Nevertheless, since such penalty amounted to a major penalty under Rule 4(1)(b) of the Government Servants (Efficiency and Discipline) Rules, 1973, he could not impose the same himself and consequently forwarded his recommendation to the authority as required by Rule 5(1)(iv) of the Rules.
12. Nevertheless, the "authority" without taking into consideration the recommendations of the Authorized Officer of the status of the Auditor-General of Pakistan completely overlooked his recommendations and went on to impose an extremely harsh penalty of removal from service. Mr. M.M. Aqil Awan, learned counsel for the appellant relied upon the judgment of this Court in the case of Chief Director Central Directorate of National Savings v. Rahat Ali reported in 1996 SCM R 248 wherein it was held that if the authority was not inclined to agree with the findings of the Authorized Officer it was required to record proper reason for doing so after notice to the affected civil servant.
It was further observed that public power could not be exercised arbitrarily or capriciously. No reasons have been recorded by the "authority".
13. We are also conscious of the well-recognized principle that when a decision is rendered by an administrative authority it is essential that an appropriate balance must be struck between the adverse effects which the decision may have on the rights or interests of the person concerned and the purpose which the authority is seeking to pursue, proportionately by now is a well- recognized concept of administrative law and this Court in the case of Independent Newspaper Corporation (Pvt.) Ltd. And another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others reported in 1993 SCM R 1533 held as follows:--- "The principle is well-settled that when express statutory power is conferred on a public functionary, it should not be pushed too far, for such conferment implies a restraint in operating that power, so as to exercise it justly and reasonably. In the words of Scarman L.J. "excessive use of lawful power is itself unlawful. "
14. For the foregoing reasons we would partly allow this appeal to the extent that the penalty of removal from service being unwarranted is set aside. Nevertheless, since certain allegations against the appellant stood established they could not be allowed to go unnoticed altogether.
Accordingly, we would remand the case to the "authority" to decide whether the penalty proposed by the Authorized Officer or such lighter penalty as it considers fit ought to be imposed in the interest of justice after hearing the appellant and in the light of the observations made in this judgment. The penalty imposed; however, shall have effect from 18-8-2000. The appellant be reinstated forthwith and consequential benefits will follow the order of the "authority" which may be passed within two months from today.