' SAYED MEHAR HUSSAIN SHAH (MEMBER).--- The appellant through this appeal has challenged the impugned order of his dismissal from service dated 18-2-2006 awarded by respondent No,2 and as well as against the appellate rejection order of respondent No,1 dated 21-4-2006.
2. Brief facts of the case are that the appellant joined Postal Department as Clerk on 25-7-1985. The appellant while had been holding the charge of Treasury Clerk at Khairpur, G.P.O., a robbery took place and thereafter , the appellant was served with order of inquiry by the respondent No,2 through letter dated 17-11-2005. The appellant as per direction submitted his reply on 26-11-2005 to the respondent No,2 and rebutted the charges which were levelled against him. The Inquiry Officer conducted the inquiry and submitted his report recommending that carelessness/negligence and inefficiency was established. On receipt of inquiry report submitted by the Inquiry Officer on 21-1- 2006 the appellant was served with show-cause notice on 21-1-2006 by the respondent No,2 on the following charges.
"The senior Postmaster Khairpur Mirs G.P.O. Informed over telephone on 19-7-2005 that he had deputed Mr. Khaliq-ur-Rehman, Treasury Clerk Khairpur Mirs G.P.O. With accompany of Security Guard Abdul Samad Soomro, Mail Peon and Mr. Sobhan Ali Overseer, Khairpur Sub-Division with the directions to get the D.D. Rs,5,00.000 five lac and bring remaining cash of Rs,10,00,000 ten lac in the G.P.O. From National Bank of Pakistan Khairpur Mirs.
' At about 13:00 hours Mr. Khaliq-ur-Rehman, Treasury Clerk reached in the office and reported that in the way an incident of robbery took place and four unknown persons snatched the) Government cash amounting to Rs,10,00,000 ten lac from him and ran away.
' The matter was reported to police help line as well as S.H.O. "A" Section and higher authorities by the Senior Postmaster Khairpur Mirs G.P.O. And lodged the F.I.R. No,120 of 2005 dated 21-7-2005 at Police Station "A" Section Khairpur Mirs.
' The order of inquiry under R.S.O., 2000 was issued vide /this office memo. No . F-1/Robbery/KHP/05 dated 17-11-2005, and Mr. Muhammad Imam Assistant Superintendent of Post Offices, Sukkur Sub- Division appointed Inquiry Officer, who conducted inquiry and submitted his inquiry report to this office vide his letter No,AS/INQU IRY/LOOTING of cash dated 21-1-2006.
' Whereas you Mr. Khaliq-ur-Rehman Treasury Clerk Khairpur Mirs G.P.O. (under suspension) had been deputed with accompany of Mr. Abdul Samad Soomro Mail peon Khairpur Mirs G.P.O. And Mr. Sobhan Ali Overseer Khairpur Sub-Division for obtaining Government cash from National Bank of Pakistan Khairpur Mirs but in spite of clear instructions of Senior Postmaster Khairpur Mirs G.P.O. You neither taken Security Guard with you nor taken the services of Police escort. Resulting the Govt.
Cash amounting Rs,10,00,000 ten lac looted by the unknown robbers in the way to G.P.O. On 19-7- 2005.
' Whereas you Mr. Khaliq-ur-Rehman Treasury Clerk Khairpur Mirs G.P.O. (under suspension) appear to be guilt of, inefficiency, and misconduct, under the Removal from Service (Special Powers)
Ordinance, 2000 as amended from time to time for the said omission/commission on our part and you are hereby served with show-cause notice on account of the following charges.
(1) Failure to perform legitimate duties on 19-7-2005 for safe conveyance of cash as per orders of the Senior Postmaster Khairpur Mirs G.P.O.
(2) Not resisting the culprits at the time of looting of Government cash Rs,10,00,000 ten lac on 19-7- 2005.
(3) Causing loss of Rs,10,00,000 ten lac to the department by displaying carelessness.
(4) Not insisting upon the Senior Postmaster Khairpur Mirs G.P.O. To give Police Escort/Armed Chowkidar on 19-7-2005 for safe conveyance of cash.
(5) Displaying gross negligence.
(6) Disobedience of the orders of Senior Postmaster Khairpur Mirs G.P.O.
' Whereas you Mr. Khaliq-ur-Rehman Treasury Clerk Khairpur Mirs G.P.O. (under suspension) should submit your written defence to the undersigned within seven days of the receipt of this memo showing cause as to why you may not be "dismissed from Government service" if the charges levelled against you are established.
' The inquiry report of the Inquiry Officer is enclosed.
' In case your defence to show-cause notice is not received in this office within the stipulated period it should be presumed that you have nothing to say in your defence and the decision would be announced on merits as ex parte.
' If you desire to be heard in person or call any witness please mention the same in your defence statement.
(Sd.) 21-1-2006 Divisional Superintendent, Postal Service, Sukkur"
3. The appellant submitted his reply to the said show-cause notice on 31-1.2006 and again rebutted the charges which were levelled against him. After submitting reply, the appellant was called for personal hearing by the respondent No,2 on 16-2-2006 and after affording the personal hearing to the appellant, finally the respondent No,2 dismissed him from service against which the appellant sent his appeal to the respondent No,3 on 4-3-2006 which was considered and rejected by the appellate authority on 21-4-2006 and thereafter, the appellant was obliged to file the instant appeal before this Tribunal on 9-5-2006.
4. The learned counsel for the appellant argued that the major penalty was imposed by the respondent No,2 without any proper departmental inquiry or any fact finding inquiry against the appellant and placed reliance on the ruling as reported in PLD 1982 Pesh.
165. The learned counsel argued that two other officials were also taken up by the department, but on appeal the penalty imposed on them by the competent authority was set aside by the appellate authority and the major penalty was converted/reduced to that of minor penalty of censure particularly of Messrs Abdul Samad Soomro and Mr. Sobhan Ali. Show-cause notices of both the employees are not placed by the appellant with his memo. Of appeal so that background of their case is not manifest from the appellate order. However the learned counsel for the appellant drew our attention to para.6 of the ground, wherein it is stated both the said employees were charge-sheeted on the same allegations and they were also dismissed along with the appellant, but, as stated above, the penalty of dismissal imposed upon the said employees was set aside on appeal, both were reinstated and penalty converted into censure; hence, it is a clear case of discrimination.
5. The learned Federal Counsel, on the other hand, defended the respondent in a forceful manner and stated that the appellant was rightly punished as the entire case against the appellant had been depending upon the documentary evidence and there is ample evidence against him that while the appellant had been working as Treasury Clerk Khairpur Mirs G.P.O. Had failed to perform legitimate duty on 19-5-2005 for safe conveyance of Government Cash as per order of Senior Postmaster and due to gross negligence of the appellant, the department sustained heavy loss of ten lac rupees. The order against the appellant was passed by the competent authority and appeal of the appellant was dismissed on merit by the appellate authority. The learned Federal Counsel stated at bar that appeal filed by the appellant is not maintainable on merit and may be dismissed with costs. Finally, the learned Federal Counsel stated that he would like to reply upon the parawise comments filed on behalf of the respondents.
6. We have heard the arguments of both sides and have also carefully perused the material, placed on record. Admittedly regular departmental inquiry was conducted against the appellant and the appellant had joined the said proceedings, which is visible from the findings of the Inquiry Officer. The charge against the appellant is that of contributory negligence and not wilful negligence. The Inquiry Officer in his findings has stated that the appellant was found careless/ negligent and inefficient in discharge of his official function. Negligence is always visited with the minor penalty. In the identical case, this Tribunal had allowed the, appeal of one appellant and had converted the punishment into stoppage of two increments of the employee against, which the department had appealed before the apex Court, which judgment of this Tribunal was upheld by the honourable Supreme Court and reported in 2002 SCM R 857. There is no negligence on the part of appellant and negligence actually is the failure to exercise the degree of care demanded by the circumstances and the want of care which the law prescribed under particular circumstances existing at the time of the act or omission which is involved and negligence is an omission to do something with a reasonable man guided by those consideration which a prudent and reasonable man would not do, whereas, wilful negligence is a negligence act which is done intentionally and deliberately with some motive and is deliberate, but a wilful act may not necessarily have an evil purpose behind it in the incident. F.I.R. Has already been lodged by the Senior Postmaster G.P.O.
Khairpur, vide F.I.R. No,120 of -2005 dated 21-7-2005 under sections 392/34, P.P.C. And 13-D, Arms Ordinance and as per contents of F.I.R. There had been resistance on the part of appellant and due to such resistance N.I.C. Of one culprit had fallen on the spot and on the basis of identification based upon N.I.C., F.I.R. Was lodged by the "A" Section Police Station, Khairpur against the actual culprit.
7. For the reasons discussed hereinabove, we allow the appeal, set aside the impugned order of dismissal dated 18-2-2006 and as well as appellate rejection order dated 21-4-2006 and the penalty of dismissal of the appellant from service is converted into stoppage of two increments for three years, relying upon the dictum laid down by the apex Court in a judgment reported as 2002 SCM R 857 and the period the appellant remained out of service may be treated as leave of the kind due. The appellant is directed to be reinstated in service by the department.
8. Parties be informed accordingly.
Order-accordingly.