Justice (R) Abdul Ghani Shaikh, Chairman.--The appellant is aggrieved by the impugned Order dated 31.10.2009 whereby he was awarded "major" punishment of removal from service" against which he preferred departmental appeal on 12.11.2009, which having remained unresponded, hence the present appeal before this Tribunal.
2. Brief facts of the case, as stated in the memo of appeal, are that the appellant joined Post Office Department as Stamp Vendor (B-3) on 27.03.2003 and was last posted as TD Clerk Express Post Karachi and served there with an unblemished service record. On 01.4.2009, the appellant while posted as Clerk Mail Delivery Branch EPDO/I was placed under suspension by Respondent No. 2. On 16.04.2009, order of enquiry alongwith statement of allegation on the following charges was issued to the appellant:- "1. Committed severe irregularities and malpractices during the course of delivery of the UMS articles, with collaboration of unknown person, which lead to cause Govt. loss and bad name to the department.
2. You Mr. Haseeb Khan was responsible for tampering sales tax articles.
3. You Mr. Haseeb Khan, also responsible for making fabricated FMO PC for removing the original letter of Sales Tax articles.
4. You Mr. Muhammad Haseeb Clerk (B-7) working in Town Delivery EP Karachi, responsible to delivery articles other than the actual addressee on the addresses as given on envelopes, but by you instead of normal course of delivery.
The appellant sent his reply through hiss advocate as he was in Jail wherein the allegations levelled against the appellant were totally denied. It was stated that the appellant while serving as Mail Clerk was not in a position to manage the delivery of any cheque Without permission and direction of his superiors as he was not on the official post and had only to obey the instructions of high officials, as such there was no fault on his part. It was replied that besides him all other officials had signed the same and that the said Certificates had been encashed to a person who produced the same alongwith NOC of Hon'ble Court therefore, just to save from any contempt proceedings, he as well as other officials duly signed the same and discharged the said Saving Certificates. It was further replied by the advocate of the appellant that Police had arrested the appellant only on the basis of doubt and it is not confirmed that such allegations have been proved against the appellant as the matter is pending adjudication before the Court of law.
3. We have heard both the learned counsel for the parties.
4. The learned counsel for the appellant contended that order of major punishment has been passed by Respondent No. 2' without holding regular inquiry. No evidence has been advanced to prove the allegation that the appellant may reasonably be considered as corrupt". The inquiry officer had not issued statement of charges to the appellant before start of enquiry duly signed by the authority as required under section 2(aa) read with Sections 3/5 of Removal from Service (Special Powers) Ordinance, 2000. That Respondent No. 2 was not competent authority, and as such, the impugned order is ab-initio void and not sustainable in law. He placed rulings reported in PLJ 2006 PRC (Service 234 & 1994 SCMR 852. He argued that appellant had rebutted the charges in the show-cause notice and in such situation regular inquiry was imperative but it was conducted in question and answer form. Confession extorted from the appellant was by way of pressure, coercion and undue influence, which has no value in the eyes of law. He argued that under the extant rules, authority was bound to exercise its discretion in fair and transparent manner and such action is not within the parameters of rules. In support of his contention he relied on rulings reported in 1983 PLC (CS) 383 and PLD 2002 SC 667. He contended that entire action of Respondent No. 2 suffers from legal infirmities, which is not sustainable in law, as the appellant was not called for personal hearing. He relied on 2005 TD (Service) 328 and PLJ 2005 TRC (Services) 210. He argued that imposition of sucn harsh punishment without holding regular inquiry is not sustainable under the law and placed reliance on the rulings reported in 2003 PLC (CS) 353, SBLR 2003 TR 164, 2001 SCMR 256, 2001 PLC (CS) 296, 2004 SCJ 455 and PLJ 1997 SC 1393. The major punishment has also been assailed on the ground that it is not commensurate with the extent of alleged omission on the part of the appellant. He has further argued that the impugned Order is non-speaking and is therefore, liable to be set aside in the interest of justice.
5. On the other hand, learned counsel for the respondents has vehemently opposed the above contentions placing reliance on the Comments filed by the respondent department. He argued that appellant has committed fraud and serious misconduct and inefficiency by withdrawing huge amount of different companies through 67 cheques from different Banks by UMS, proper receipt thereof was obtained but said cheques were not delivered to genuine persons/companies. An F.I.R.
No. 03/2009 was registered at FIA Crime Circle Karachi. While the investigation in respect of the above F.I.R. was pending another F.I.R. Bearing No. 15/2009 was registered at FIA Crime Circle Karachi in respect of fraudulent withdrawal of Sales Tax Refund Rebate cheques by opening fake Bank Account in HBL Orangi Town Branch. Since the aforesaid act of the appellant had brought bad name to the respondents therefore, a committee was constituted to initiate a fact-finding inquiry into the misconduct committed by the appellant. Inquiry Officer was appointed by the competent authority under Section 2(aa) and section 5 of Removal From Service (Special Powers) Ordinance, 2000 who conducted inquiry in which appellant was provided fair and full opportunity to defend himself, so also personal hearing but he miserably failed to furnish any documentary evidence in his support. Subsequently, the inquiry officer submitted his report wherein the appellant was found guilty of all charges. Resultantly the competent authority vide order dated 31.10.2009 imposed major penalty of removal from service.
6. We have given anxious consideration to the arguments advanced by both the learned counsel for the parties.
7. Two main arguments of the learned counsel for appellant are that major punishment has been imposed without conducting regular inquiry and the punishment of removal from service is not proportionate to alleged omission. However, the learned counsel for the respondents holds the view that it is a case of fraudulent withdrawal of Sales Tax Refund Rebate Cheques which is serious misconduct and he has rightly been punished. Admittedly regular inquiry has not been conducted in the instant case before awarding major punishment of removal from service. We find force in the arguments of the learned counsel for the appellant that award of such punishment without holding regular inquiry is not sustainable until the appellant has been given a reasonable opportunity of showing cause against the action proposed to be taken against him". Reliance is placed on 2001 PLC (C.S.) 296 wherein it was held that 'Where the employee denied all the allegations, it was not the case of having recourse to the shortest procedure of show-cause notice as controversial questions of fact were involved which could not be resolved without recording of evidence and opportunity of cross-examination to civil servant. Reliance is also placed on 2001 SCMR 256 wherein it was held that "Inquiry having not been conducted in accordance with law the entire subsequent actions based on that inquiry report had no legal sanctity".
8. For the above reasons, we allow the appeal, set aside the impugned order dated 31.10.2009 and remand the case with direction to the respondents to reinstate the appellant in service and hold denovo enquiry proceedings according-to law within a period of four months. The period of four months shall be counted from the date of receipt of a copy of this judgment by the respondents.
The question of back benefits shall depend upon the result of the enquiry. No order as to costs.
9. Parties be informed accordingly.