Syed Hamid Ali Bukhari, Member.--The appellants are aggrieved by orders of different dates passed in individual cases where against they filed departmental appeals which were rejected by the appellate authority on different dates: The most important facts are that a stereotype charge sheet containing the same charges in all appeals was issued to them and the inquiry board was also the same which held de novo inquiry in their cases. However penalties awarded to the appellants are different i,e,. in some cases only minor penalty of censure and in others withholding of increment for a specific period and recovery of different amounts on the same set of evidence.
Anyhow, the important questions of fact and law involved in all these appeals are identical rather same, therefore, we intend to decide the appeals by this common/single judgment.
2. The brief facts leading to imposition of penalties upon the appellants by Respondent No, 2 under Government Servants (E & D) Rules, 1973 are that the appellants were performing their duties as Sub-Engineers Grade-II, Buildings & Roads during the years 1992 to 1998 (the period of posting of each appellant 'varies) under the Garrison Engineer Army West/East Rawalpindi in the Department of Military Engineering Service (MES) headed by Respondent No,
1. During the period of their posting in said offices the higher authorities made purchases of millions of rupees which were objected to by the audit team in Special Audit Report-8 (SAR-8) and on receipt of said report an Inquiry Board headed by Col. Nauman Siddiqui was constituted and after conducting the inquiry in the matter, the Board brought very serious illegalities and irregularities committee's by very high officials of QMG's Branch, Engineer-in-Chiefs Branch, HQs. Logistic Area. Station Headquarters, Additional Chief Engineer North Zone, Commander MES (A) and Garrison Engineers (Army) West / East on record and specific recommendations .were made in the report for taking action against all the officers and staff involved in the case but strangely on the completion of disciplinary proceedings in the case, only junior officers and staff were penalized and all the big fishes were let off by the competent authority or the appellate authority, as the ,case may be and the officers and staff penalized by the respondents approached the Tribunal by filing appeals which were allowed by the. Tribunal vide judgment dated 25.05.2010 with the direction to hold de novo proceedings and pass fresh orders after, holding regular inquiry against them within prescribed period of four months. In compliance of judgment of the. Tribunal a new Inquiry Board headed by Lt. Col. Muhammad Tariq was appointed to hold de nova proceedings in the case and charge sheets were issued to the appellants wherein almost the same charges were levelled against all of them except- the amount of loss caused to the government exchequer and the appellant in their replies to charge sheets denied the allegations against them and clarified that the lapses attributed to them by the competent authority were not correct as their duties and responsibilities as laid clown in Para-106 of the Defence Services Regulations for MES were limited to assist their respective Sub Divisional Officers and that to - maintain record of stores items was the responsibility of respective clerks posted in the offices of SDOs and accurate use of store items was supervised by the SDOs themselves and the bills of concerned contractors providing store items were passed after proper verification of record pertaining to issue and consumption of said store items which was maintained in the offices of the SDOs and in the circumstances, the allegations of non- maintenance of receipts of Government stores through bazaar supply and local purchase and abetment in procuring excessive quantity of stores could not have been, attributed to the appellants. In some cases the store items were used in other areas falling in the jurisdiction of other Sub-Engineer Grade-II on the direction of same SDO were shown short in the charge Sheet issued to appellant concerned and the said appellant in his reply to charge sheet clarified this position which was not taken into consideration by the competent authority while punishing that appellant.
The appellants were not supplied complete copy of the inquiry report with statements of the witnesses of the department and copies of the documents relied upon by the Inquiry Board in finalizing their findings and recommendations in the inquiry report. That the appellants pointed in their replies to charge sheet and show cause notice served upon them that the witnesses like of SDOs concerned were to be produced before the Inquiry Board by the departmental authorities but they failed to do so for substantiating their allegations but the Inquiry Board did not consider this stance of the appellants and imposed the penalties upon them on un-proved allegations which was not fair and just. The inquiry report was submitted to the Authorized Officer i,e, Respondent No, 2 who imposed the impugned penalties upon the appellants vide orders dated 16.02.2012 under the Government Servants (E & D) Rules, 1973 which were challenged by &sin before Respondent No, 1 through departmental appeals and on having no response from said authority they filed present appeals before this Tribunal which were admitted on 12.10.2012 for regular hearing and objections were filed by the respondents on 26.12.2012 and today these appeals have been argued by both the parties.
3. The learned counsel for the appellants referred to the charge sheets issued to the appellants and invited our attention to the facts that in all these charge sheets and the statements of allegations annexed therewith, the charges against the appellants were of general nature and stereotype while the requirement of law was to mention specific charge against the accused and the evidence in support of that charge to be relied upon by the prosecution and here in this case by the Authorized Officer and having not been complied with this provision of law, the charge sheet was defective one in all the cases. He vehemently argued that it is the settled law that where a procedure is laid down for doing a thing that must be followed, otherwise, the proceedings conducted and action taken in the case would be vitiated. In this regard the learned counsel relied upon the cases reported as PLJ 2004 SC (AJ&K) 86, PLJ 2004 Lahore 922, 1997 PLC (C.S.) 920, 1992 PLC ( C.S) 751 and PLD 1978 Lahore 972. He further argued that it is an admitted fact in the case of appellants that after receipt, of SAR-8, a fact finding /preliminary inquiry was held by the 'orders of the respondents and as per law laid down in the case reported as PLD 1986 SC 162, the Authorized Officer was under legal duty to provide a copy of report of that inquiry to the appellants with order of inquiry/charge sheet/statements of allegations and similarly the evidence/material collected during that inquiry to be confronted in regular inquiry but none of these- requirements was fulfilled by him. The learned counsel for the appellants contended that prior to de novo inquiry, two inquiries on the same issue were held in 1998 and 2001 respectively but in those inquiries Grade-II staff was not held responsible for the illegalities pointed out by the audit authorities in SAR-8. The learned counsel pointed out that one of the accused namely Mr. Sher Muhammad who was supervisory officer of some of the appellants was awarded major penalty of dismissal from service and recovery of one million rupees by the competent authority vide order dated 26.02.2010 under Section 5(1)(4) of Removal from Service (Special Powers) Ordinance, 2000 and he filed Appeal No, 948 (R) CS / 2010 before the Tribunal against said order which was' allowed by the Tribunal vide judgment dated 19.03.2012 and the impugned order was set aside and the officer was reinstated into service with a direction for de novo proceedings against him strictly in accordance with the relevant law. Against this judgment the respondents filed Civil Petition No, 332/2011 in the Supreme Court of Pakistan and on acceptance of the petition the judgment of the Tribunal was set aside and the appeal was remanded to the Tribunal with the observation that it was a case of documentary evidence where oral evidence had a least role to play. The learned counsel further contended that on remand, the appeal was reheard by the Tribunal and allowed vide judgment dated 19.03.2012 and he heavily relied on this judgment and stated that the case of the appellants is identical rather similar to that of Mr. Sher Muhammad, therefore, the rule of consistency demands that the same decision be made in the case of appellants. It was also argued by the learned counsel that none of the senior officers of the department held responsible for commission of serious illegalities in the inquiry report of Col. Nauman Siddiqui has been punished rather they have been promoted and retired from service with full benefits and on the other hand the lower staff had been made scapegoats in the case just to satisfy the audit authorities and the higher authorities in the Ministry of Defence that the responsible officials in the MES were taken to task.
Before concluding his arguments, the learned counsel for the appellants invited our attention to the fact that in the case of appellants, the Inquiry Board in its report recommended specific penalties to the Authorized Officer for imposition upon the appellants which was against the law laid down by the Hon'ble Supreme Court of Pakistan, Hon'ble High Courts-and this Tribunal in the cases of civil servants that under the Government Servants (E&D) - Rules, 1973, the Inquiry Officer or Inquiry Committee, as the case may be, could not propose a penalty to be imposed upon the accused employee and he strongly stressed that in the circumstances, the Inquiry Board travelled beyond its jurisdiction and that this infirmity vitiated the whole proceedings in the case of appellants and on this sole ground the appeals of the appellant are liable to be allowed and the impugned penalty in each case be set aside.
4. The learned counsel for the respondents supported the penalties imposed by Respondent No, 2 upon the appellants and stated that it was not correct that no other officer involved in this scam was punished and in this regard he referred to the fact that two officers namely Muhammad Arif (now Col.) and Muhammad Abid had deposited the recovery amount of Rs,0.5 million and 0.1 million, respectively on account of penalty inflicted upon them. He further stated that the - appellants were assigned the duties of maintaining proper receipt of Government stores through bazaar supply and local purchase, ensuring legitimate physical use of stores for complaints, maintaining stock as per book being incharge of chowkies and maintaining proper documentation but they failed to discharge their duties. The learned counsel contended that de novo inquiry ordered by this Tribunal was held by the respondents and the appellants were proved guilty in it and therefore, they were awarded appropriate penalties by the Authorized Officer under the Government Servants (E&D) Rules, 1973 and that the appeals of -appellants lack merits, therefore, require to be dismissed by the Tribunal.
5. When we asked the learned counsel for the respondents and the Departmental Representative to show the documents on the basis of which the charge sheets were framed against the appellants and the statements of witnesses examined during de novo inquiry and also the documents relied upon by the Inquiry Board in proving the charges against the accused civil servants, they were unable to produce a single document in this regard and the Tribunal observed that it appeared from the conduct of the respondents that they had no evidence against the accused appellants in their possession that is why they did not annex any document with their objections submitted in each case in the Tribunal.
6. We have heard the parties at length and perused the record of the case of each appellant and are constrained to refer to the judgment dated 19.03.2012 of the Tribunal in the case of Mr. Sher.
Muhammad (Appeal No, 948(R)CS/2010) having been relied upon by the learned counsel for the appellants and reproduce the following extracts from the said judgment:-- "5. The learned counsel for the respondents was directed to refer to the documents connecting the appellant with the commission of charges attributed to him. The departmental representative was also present with record. He too was issued a similar direction. However, no document was produced by the respondents which could connect the appellant with the charges levelled against him. They could not point out any document, on record, wherein the appellant was found involved in the matter.
6. The learned counsel for the respondents has submitted that the case be decided on the report of Fact Finding Committee. This report cannot be taken into consideration. The direction of the Supreme Court was to look into the documents and then decide the matter. No direction was issued for placing reliance on the report of the Fact Finding Committee. In fact such a committee has no legal entity, it is appointed only to collect facts so as to provide a platform from where proceedings against civil servant can be launched The respondents were under legal obligation to submit documents to substantiate the charges levelled against the appellant. In spite of our repeated directions no such document has been referred or pointed out by the respondents.
7. The respondents have place on record personnel manual, contending that Para 100, 101 & 106 had been violated. The production of the manual is not sufficient In compliance of the direction of the apex Court, they were under a legal duty to prove their assertion by placing on record documents showing violation of the manual. The manual itself did not prove the charges levelled against the appellant.
8. But all the same, we have seen the said paras (reference is to paras 100, 101 and 106 of Defence Service Regulations for MES). They refer to the duties of the subordinate officials. It was for the respondents to have produced documentary evidence to prove that the department had suffered loss due to deviation made by the appellant from these rules. A reference has been made to questions put to the appellant and answers given by him. There is no denying the fact that the rules were admitted by the appellant but from his answers it could not be ascertained that he had committed any mischief. On the other hand his assertion was that construction accounts, survey vouchers, demolition registers and other ledgers were not only properly maintained but were also verified by the unit Accountant before release of payment to the supplier. This assertion of the ,appellant is not contradicted nor is it disproved by any documents.
9. As observed above, the commission of mischief should have been proved by the respondents through documents, as held by the Apex Court. But no such documents are produced. The documents on record are of general nature. They do not connect the appellant with the mischief attributed to him.
10. Since the respondents hive failed to discharge the onus laid on them by the Apex Court, we are constrained to accept the, appeal and to set aside the penalty awarded to the appellant vide order dated 26.02.2010."
7. In the present appeals the position was similar to that highlighted in the case of Mr. Sher Muhammad by the Tribunal and in the circumstances, we have to apply the same criteria in these cases and there is no doubt in our mind in holding that no evidence in shape of documents was available with the respondents to connect the appellants with the mischiefs attributed to them and rule of consistency demands that in present appeals same view is taken. In addition to this, the arguments of the learned counsel for the appellants that the charge sheets issued to the appellants were lacking specific charges/allegations and therefore, were defective, non-supply of complete inquiry report with statements of witnesses to the accused civil servants was fatal to the penalties imposed by the Authorized Officer upon them, recommendation of penalties in inquiry report by the Inquiry Board against appellants was against the law laid down by the Supreme Court in the case reported as PLD 1972 SC 332 are convincing and the infirmities pointed out above are sufficient to set aside the impugned orders of Respondent No, 2 passed in the cases of appellants.
8. For the foregoing reasons, we accept all the appeals and set aside the impugned orders of penalties in each case.
9. There shall be no order as to costs.
10. Parties be informed accordingly.