JUDGMENT SAYED MEHAR HUSSAIN SHAH, MEMBER - The appellant through this appeal has challenged the appellate rejection order dated 12.1.2007, whereby departmental appeal dated 13.9.2006, preferred by the appellant against the order of his dismissal from service dated 30.8.2006, was accepted and punishment was modified to that of reduction in pay scale for two years without future effect; hence, this appeal.
2. This is the second round of litigation, In the earlier round of litigation, appellant had filed Appeal No. 245(K)/CS/03 before this Tribunal against the, order of his dismissal dated 28.3.2003 and after hearing the parties, appeal was remanded by this Tribunal vide judgment dated 17.12.2005 for holding de novo proceedings to be initiated and completed within a period of four months. The appellant was also ordered to be reinstated in service. Appellant, in pursuance of the said judgment, was reinstated by the respondents vide order dated 3.1.2006 and an order of inquiry dated 18.1.2006 was also issued to him alongwith statement of allegations. He was also conveyed letter dated 24.1.2006 for the same set of charges and he was directed to submit reply, which was complied with by the appellant by submitting his reply dated 7.2.2006 again rebutting the same. An inquiry was conducted by the inquiry committee, who submitted his report, proving the appellant as not guilty and he was absolved from the charges. On receipt of the said report, a show-cause notice dated 11.8.2006 was issued to the appellant by the Divisional Superintendent, Postal Service, Larkana-respondent No. 2, alleging that after examining the case record and file, charges of using fake P.T-24(AL) receipt were issued by the appellant in his on handwriting, as such, respondent No. 2 dis-agreed with the report of the inquiry committee and issued show-cause notice to the appellant alongwith a copy of inquiry report. The said show-cause notice was replied by the appellant vide reply dated 22.8.2006, again denied the charges levelled against him. The appellant was, thereafter, provided opportunity of personal hearing and on 30.8.2006, he was dismissed from service, received by the appellant on 4.9.2006. He preferred a departmental appeal on 13.9.2006 against the said punishment, whereafter, he was called for personal hearing on 30.12.2006 and on 12.1.2007, departmental appeal of the appellant was accepted and penalty of dismissal was converted to that of reduction of minimum of his pay scale from one year without future effect by reinstating the appellant in service, but the intervening period from 4.9.2006 to 24.1.2007 was treated as leave of, the kind due; hence, this appeal.
3. Learned counsel for the appellant argued that Book No. 60 PT-24 was correctly received from Jacobabad, H.O. Under Invoice No. 28, dated J19.2.2001 and had been correctly accounted for in each concerned Post Officer where the appellant was posted. None of the paper of said Book No. 60 PT-24 was fake and forged, as alleged in the statement of allegations and such fake and forged PT-24 was never confronted to the appellant during the inquiry. He argued that the said receipt book had neither been checked by the H.O., Jacobabad at the time of his supply to the Post Office Thull where the appellant was posted nor the concerned Post Master ever checked the same before its use. None of the outsider ever lodged complaint about use of fake book. During the inquiry, members of the Vigilance Team were never called for and examined by the inquiry committee and Army Vigilance Team report having no significance. He relied on PLD 2002 SC 667.
That appellant, during the inquiry, had demanded relevant papers which were never supplied to him. He argued that the finding of the inquiry committee is speaking and had discussed all the aspects of the case because the relevant material was sent to FIA which were not available before the inquiry committee, as such, charges levelled against the appellant could not be proved. The said findings of the inquiry committee, learned counsel argued, was required to have been considered by the authority, which he failed and passed adverse order of dismissal from service without any justification and appellate authority modified the penalty in defiance of documentary record as well as finding of the inquiry committee.
4. Learned counsel for the respondents adopted the comments/objections filed on behalf of the respondents, as his arguments, It was contended in the comments that the appellant had used very tricky modus operandi for using fake PT-24(AL) receipts for renewal of Arms Licences. He got and used the same number i.e. 60 of fake PT-24(AL) book as was issued from Head Office (office copies of book No. 60 issued by HO and fake (AL) receipts of same book number are available on record). The amount of PT-24(AL) book issued by HO was correctly accounted 'for but the fake PT- 24(AL) book was used for renewal of other licenses and mis-appropriated the Government money.
5. We have heard the arguments of both sides and have also carefully perused the material placed on record, including the comments/objections filed on behalf of the respondents. We have also perused the report of the inquiry committee and like to reproduce finding of the committee hereunder:- "FINDINGS From the perusal of the case of prosecution, defence reply of the alleged official, inquiry proceedings and available material on the record, it appears that the authority has relied upon the report of vigilance team dated 9.1.2003, wherein the alleged official reportedly has confessed his guilt before the vigilance team. However, the prescribed procedure is available in Chapter 3 of Post Office Manual Volume-V (see rule 167/1(1) and (2) of the said Volume), In this case, the verification of past work of the alleged official was ordered by the authority. The verification officer in his report has not mentioned the irregularities arising out on the part of alleged official being incumbency as clerk, Thull P.O. The other aspect of the case was the investigation/inquiry of the loss. The investigation team did not succeed to recover amount of the loss of the five licenses from the alleged official and allowed the things as routine and suggested to report the case to some other agency to find out real culprits. Thus the matter was reported to the Dy. Director F.I.A., Crime Circle, Sukkur for appropriate action. The F.I.A, authorities disposed of case property of three of the five original licenses, which were the sole evidence in this case. While the authority did not bother to preserve remaining two licenses and returned to their holders. Hence strong evidence of the case was spoiled and prosecution has nothing to produce before the inquiry committee for discussion and cross-examination of the alleged official for which he has insisted from very beginning.
Needless to say that in every disciplinary case, the prosecution is always burdened to prove its case beyond any shadow of doubt. For this purpose, the prosecute has only relied upon the reports submitted by:
(a) Vigilance Team on 9.1.2003.
(b) Investigation Team on 20.1.2003.
(c) Verification report of past work of the alleged official dated 18.3.2003.
The authority on directions of Honourable Tribunal has issued order of inquiry dated 18.1.2006 duly supported with statement of allegations contending the charge.
(i) Use of fake P.T.24(AL) receipts.
(ii) Causing loss to the Government Exchequer.
But the authority did not collect any concrete evidence for proceeding in support of the charges and in this case the authority is of the view that alleged official while working as clerk; Thull P.O. Is involved in using Fake PT-24(AL) receipts and caused loss to Government Exchequer but did not mention particulars of such fake P.T. Receipts or amount of actual loss in statement of allegations issued vide order of inquiry to the alleged official. The Authority also did not produce any documentary evidence in support of allegations which can be weighed and scaled with other evidence to prove the allegations. For the above reason the Inquiry Committee has been left with no option except to answer the above allegations as "NOT PROVED"."
As against the report of the inquiry committee, which do not have basis of holding the appellant guilty and rightly so, when there was nothing against the appellant in the inquiry, the authority, without giving any reasons, was of the view that the official/appellant is guilty of the charges levelled against him and imposed major penalty of dismissal upon the appellant. On appeal against the said un-called for punishment of dismissal, the appellate authority modified/converted the said punishment to that of reduction to minimum of his pay scale for one year without future effect as also intervening period was traced as leave of the kind due. No show-cause notice was issued to the appellant either before imposing the major penalty of dismissal or before converting the said punishment by the appellate authority which is the requirement of law. In or view, both the orders, i.e. The Original order as well as appellate order are not based on any concrete evidence, which have been passed, totally ignoring the repart of the inquiry committee, holding the appellant not guilty of the charges, levelling against him in the show-cause notice.
6. The upshot of the above discussion is that the impugned appellate order dated 12.1.2007 is set aside and the intervening period from 4.9.2006 to 24.1.2007 be treated as spent on duty under FR- 54, as during the said period, appellant did not remain in gainful employment.
7. Parties be informed accordingly.