' SYED ARSHAD ALI, MEMBER --- The appellant through the instant appeal assailed the impugned order imposing major penalty of dismissal from service was imputed upon the appellant vide order # Discip-04/-3-04, dated 8.11.2004. The appellant submitted his representation against the said order on 10.11.2004, which remained un responded. The Accountability Court, Sindh, Karachi, pronounced the judgment on 20.02.2007 and acquitted the appellant Following the acquittal by the Accountability Court, the appellant sent a departmental appeal dated 17.03.2007, which was duly replied vide letter dated 19.03.2007; hence, this appeal.
2. The facts in brief, as per memo. Of appeal, are that the appellant was appointed as Time Scale Clerk in 1982 and at posted Garden road Post Office and then worked at various Post Offices including Kutchery Post Office as Clerk (BPS-7) as permanent employee of Post Office.
3. Owing to detection of fraud and defalcation/embezzlement in Kutchery Road Post Office, an F.I.R. # 35/2003 was registered in P.S. City Court, Karachi, against accused lzhar Hussain Siddiqui under Sections 409, 420, 468, 477-A, P.P.C. Read with Section 5(2), Act II, 1947. During the investigation, the case pending in the Special Court, Anti-Corruption # 1, Karachi was transferred to Accountability Court in terms of Section 16(a) on 20.08.2003. Consequent thereupon, the reference was filed by the chairman, NAB, on 07.04.2004 alleging therein that accused lzhar Hussain Siddiqui, a public office holder being in service of Pakistan Postal Service Corporation, established under the Pakistan Postal Service Ordinance, 1992, governed by Federal Government in collusion with co-accused Syed Shakeel Hussain, Arshad Ali, Lhar Ahmed Jaffery on the basis of authority allowed by Ahsan Bashir Shaikh embezzled huge amount lying in saving bank accounts of 408 account holders.
Accused, Izlar Husain Siddiqui was in regular service of Post Master, Kutchery Branch, Karachi from 1984 to 1995, he used to handle saving bank accounts of account holders, used to issue pass books, maintained record of transactions and transmit the same to GPO after making entries in the ledger, thus he had overall domain over the Post Office. While performing his duties accused lzhar Hussain Siddiqui had received deposits from number of post office account holders but with male fide intention by corruption and corrupt practices, did not deposit in the post office account, but misappropriated the amount. It is alleged that in certain cases accused lzhar Hussain Siddiqui seized up the accounts without any account number in official record, same account numbers were allotted to more than one account holder. 'It is alleged that accused lzhar Hussain Siddiqui illegally paid high profits to some of the account holders, whereby caused loss to the public exchequer. During his regular service tenure accused lzhar ,Hussain Siddiqui misappropriated a sum of Rs. 2,22,93,995/-. Accused Syed Shakeel Hussain, Arshad Ali, lzhar Ahmed Jaffery remained Post Masters, Kutchery Post Office from 1998 to 2003. They were bound to receive deposits, to maintain correct entries in the official record and to transmit correct statement of daily deposits/withdrawals to TPO. They failed to perform their office duties according to rules and regulations and with male fide intention, unlawfully allowed accused lzhar Hussain Siddiqui to continue to receive the deposits. He in collusion committed fraud and embezzlement in the funds, causing colossal loss to the State exchequer.
4. The respondents in para-wise comments/legal objections submitted that the accused officer was proceeded against criminally as wen as departmentally. His acquittal from the "Accountability Court is not related to the departmental disciplinary proceedings which resulted into his dismissal from service". The respondent further submitted that it was incorrect to suggest that he had been got involved in the embezzlement case. Notwithstanding he had been enjoying the status of Head Post Master (HPM), a higher selection grade post of BPS-11 or 15, being a low grade functionary, a time scale clerk (BS-7), moreover, he attempted to shift his responsibilities to the higher ups in his written defence before the 'inquiry officer by quoting various clauses for Post Office Manual about his duties and responsibilities.
5. As regards the appellant's charges on the grounds, respondent rebutted vehemently stating that the inquiry officer conducted inquiry as per rules and procedure established examin3d all the available material and oral evidence and reached at the conclusion in a pragmatic manner. As regards the appellants assertion about the inquiry officer is biased, the respondent brushed aside, clarifying that it is practice that the Presiding Officer of a Court of Law more often than not asks questions directly without help and intervention of the respondent - side which does not mean that the findings are biased. On the contrary, the inquiry officer categorically stated that the appellant was not directly involved in Kutchery Post Office embezzlement but the supervisory negligence concealment of facts and Criminal breach of trust on the part of official have been proved.
6. The Assistant Director (Legal), on behalf of the respondent, submitted that it was mandatory upon the appellant to supervise the working of all branches of his office, but he showed criminal negligence towards the offices of the Saving Bank Branch/Section of Post Office, where a retired Post Master of Kutchery Post Office was doing parallel banking. The appellant never reported the wrong doings of lzhar Hussain Siddiqui, moreover, the respondent cited few examples to prove that postal department sustained heavy financial loss due to criminal negligence abetment and connivance of appellant. Notwithstanding the appellant with other co-accused persons were acquitted honourably by the Accountability Court. However, the Criminal Accountability Appeal No. 05/2007 against the said judgment is still under adjudication before the Sindh High Court.
7. Learned counsel for the appellant argued that a low grade official/functionary, time scale clerk (BS-7) in Postal Department has served for about 21 years without any complaint. The appellant was falsely implicated in a case of embezzlement alleged to have been committed in the Kutchery Post Office, Karachi and the appellant honourably acquitted by the Accountability Court No. 1, Karachi. The learned Counsel further argued that the entire departmental proceedings were carried on in the absence of appellant. Further no examination and cross-examination was allowed. Besides, opportunity of personal hearing was not provided; hence, under such factual position, the dismissal order passed is void and not sustainable.
8. The appellant had served as lower ranked functionary as Clork, in BS-7 and was not authorized to open any kind of account. The annexures, referred by the respondent was neither maintained by the appellant nor the appellant had its knowledge nor these annexures/documents were produced in the Accountability Court. It is pertinent to place on record here that appeal of co-accused lzhar Ahmed Jafri, the then Head Post Master, was acquitted by the Accountability Court No. 1, had filed appeal before this Tribunal, Karachi against his dismissal from service and his appeal was accepted by this Tribunal, vide judgment dated 08.11.2010. Similarly, appeal of another co-accused Arshad Ali son of Ashraf Ali also had been accepted and allowed by this Tribunal. The facts of the appellants case were identical, therefore, the appellant is also entitled to the same relief on the basis of principle of consistency.
9. A low grade government functionary, time scale clerk (BS-7) was allowed to officiate as Head Post Master (HPM) of Kutchery Post Office w.e.f.
08.05.1998 upto 21.09.2001 which includes the Saving Bank as well. It is not understandable as to why an officer who had no education, training and exposure was allowed to Work as Head Post Master and keep posted on such an important assignment, whereas, the position of HPM of Kutchery Road is HSG of BS-11 or BS-15. The inquiry officer candidly in his finding admitted the position stating that there was no rule of law in practice at Kutchery Post Office. The administration from the lower to top level ignored breach of rules/procedure at the office and misdoings were allowed deliberately and intentionally.
10. An official, retired on 29.09.1994 from the same station, initially for a period of one year on contract as Assistant to Assistant Director (Legal) and then continued for years together without any legal authority doing parallel banking with impunity in the saving bank section of the Kutchery Post Office and caused huge loss to government exchequer to the tune of an estimated over rupee 270 million. How come a retired non-gazatted government functionary continued doing parallel banking without any appraisal from the superior/high-ups? Was not there any inspection in term of the Post Office Manuals? Was not there conducted any audit?, highlighting such glaring illegality/ irregularities where a retired influential low paid government servant had been playing havoc with the public money within the meaning of criminal misconduct; and none from higher echelon in the management of Post Office in Karachi Division ever took cognizance of such blatant acts of omission and commission. Such was also highlighted by the inquiry officer in his findings very candidly that there was no rule of law in practice at Kutchery PO. The administration from the lower to top level ignored breach of rule/procedure all the office and the misdoings were allowed deliberately or intentionally, which caused huge loss as well as damage to the motto of the department.
11. It is a strange and pathetic case of incompetence, inefficiency and pusillanimity in the management of Post Office and the Karachi Region where an influential retired low functionary, in profound disregard of any accountability of public servants and, work ethics, plundered the government exchequer doing parallel banking in the saving bank of Kutchery Post Office and caused a colossal of approximately over Rs. 270 million right under the nose of senior echelon of management in the bureaucracy of Post Office in the Karachi Region. Inquiry Officer while conducting, inquiry in its finding highlighted that all senior officials who had been visiting the Kutchery Post Office were in complete knowledge of the happenings and misdoings/wrongdoings of Izhar Hussain, Siddiqui, but none had the courage to remove the retired Head Post Master from the Kutchery Post Office, but when time came the low grade functionaries and non-entities in the management were made the scapegoat.
12. It is an admitted position that Accountability Court No. 1, Karachi, in its judgment in reference No. 25/2003 (The State v. Izhar Hussain Siddiqui and others) acquitted/exonerated the accused Syed Shakeel Hussain son of Syed Jamil Hussain; for the prosecution failed to establish a case of corruption and corrupt practices against Ahsan Baseer Shaikh son of Shaikh Azizul Baseer, Syed Shakeel Hussain son of Syed Jamil Hussain, Arshad Ali son of Ashraf Ali, Izhar Ahmed Jaffery son of Nisar Ahmed Jaffery and Rol-ail Siddiqui son of Zakir Hussain Siddiqui. In addition, this Tribunal had allowed the appeals of Izhar Ahmed Jaffery (Appeal No. 95(K)CS)/2005) and Arshad Ali son of Ashiq Ali (Appeal No. 13(K)CS/2005) and reinstated the appellants. On the other hand, inquiry officer also did not find the appellant Syed Shakeel Hussain guilty of corruption, abetment, and connivance in fraud case as per the show-cause notice.
13. In view of the discussion as above, the appeal is allowed and the appellant Syed Shakeel Hussain is ordered to be reinstated in service and his period of absence shall be treated as leave of the kind due as per principle of consistency. No order as to costs.
14. Parties be informed accordingly.