' Muhammad Arshad Bhatti, Member.--Through the instant Appeal No, 3042(R)CS/2012, the appellant has prayed for setting aside the impugned Notification dated 25.04.2012 and the appellate order dated 09.08.2012 with all back benefits.
2. According to the contents in the memo. Of appeal, this is the second round of litigation. Firstly minor penalty of withholding of increment for two years, vide Notification, dated 11.11.2010, under the Government Servants (E&D) Rules, 1973 was imposed upon the appellant, which was challenged by the appellant before this Tribunal in Appeal No, 521(R)CS/2011. This appeal was decided on 24.09.2011, wherein impugned order was set aside and the case was remanded to the respondents with the direction to hold fresh independent inquiry, preferably within a period of four months. In response to which, the appellant was served with a charge sheet alongwith statement of allegation on 14.11.2011 and an inquiry committee was constituted. The appellant submitted reply to the charge sheet on 25.11.2011, which was not found satisfactory by the respondents. The appellant was directed to appear before the Inquiry Committee on 30.11.2011 and questionnaire was given to him which was also replied by the appellant. The appellant was served with a show-cause notice on 17.02.2012 alongwith copy of inquiry report. Following charges were leveled against the appellant:--
(a) Inflicted corporal punishment to a student of the college, which created law and order situation. Parents of the student lodged FIR at Police Station Attock City and the same was given wide coverage in print/electronic media.
(b) A Fact Finding Committee was constituted to explore the facts about over-charging students at the time of admission in which you were held responsible. On the recommendations of Fact Finding Committee, a special audit of funds was carried out and following financial irregrularities/embezzlement were reported by the audit team: --
(i) Fee/funds collected form the students for July- August, 2009 were much more than the approved rates. An amount of Rs,92166/-was collected whereas Rs,51614/- was deposited in the Bank. There is obvious difference of Rs,40552/-.
(ii) Duplication was also clearly observed on original copy of fee challans and second copy issued to the students.
(iii) Maintained all the accounts by yourself despite having permanent/experienced Bursar/Accountant and other clerical staff.
(iv) During the months of November & December, 2008 cheques amounting to Rs,31,000/- Rs, 40,000/- Rs,34400/- Rs,20375 and Rs,30,000/- were drawn for purchase of furniture, crockery and sports items etc but no record was available in the voucher file.
(v) Expended Rs, 38478/- vide PV No, 23 dated 12 November, 2008 on purchase of misc items without obtaining sanction from the competent authority.
(vi) Obtained sanction for purchase of fixtures for Rs,38550/-whereas an amount of Rs,47100/- was expended causing a difference of Rs,8550/-.
(vii) Did not maintain cashbook after 31 December, 2008. During the months of January to September, 2009 expenditures were made amounting to Rs, 1091226/- vide Cheque Nos. 054933 to 054968 whereas detail of expenditure was not provided.
(viii) Denied to show-cashbooks of security, exams and computer funds.
' Charges No, (i) to (iii) were proved against the appellant by the Inquiry Committee. The appellant submitted detailed reply to the show-cause notice on 1.3.2012 by clarifying the position in respect of above allegations. The appellant was granted personal hearing on 13.04.2012. After examining the whole case, minor penalties of Censure, upholding of already imposed minor penalty i,e, "withholding increment, for a period of two years" imposed vide Notification dated 11.11.2010,' while penalty for recovery of the embezzled amount of Rs, 102,400/-" was imposed upon the appellant, vide Notification, dated 25.04.2012 in easy installments from the pay of the accused so as to recover the whole amount before his retirement under Rule 6(1) of the Civil Servants (Appeal) Rules, 1977. The appellant preferred departmental appeal on 26.04.2012 which was returned on 07.06.2012 to the appellant with the direction to submit the same to Respondent No, 1 as appellate authority.
Accordingly the appellant submitted his departmental appeal to Respondent No, 1 on 18.06.2012 which was rejected on 30.08.2012 and received by the appellant on 10.09.2012. Hence this appeal.
3. The learned counsel for the appellant has argued that earlier, penalty of stoppage of increments, for a period of two years, was imposed upon the appellant, which was assailed by the appellant before this Tribunal in Appeal No, 521(R)CS/2011 and the Tribunal, vide its judgment, dated 24.09.2011 set aside the impugned order and remanded the case to the respondents with the direction to hold de novo proceedings within a period of four months, which was not done by the respondents in the stipulated time.
4. He stated that the recovery shown in the impugned order is of Rs, 102,400/-. According to the proved charges, levelled against the appellant, an amount of Rs,92166/- was shown collected and Rs,51614/- was deposited in the Bank by the appellant. The amount payable by the appellant is Rs,40552/-. He further stated that the authorized officer upheld the penalty of stoppage of increment for two years, earlier imposed upon the appellant, vide Notification dated 11.11.2010, which was set aside by this Tribunal in Appeal No, 521(R)CS/2011. He relied upon the judgment 1990 SCMR
995. The Learned counsel contended that whole inquiry was conducted in the absence of the appellant and inquiry committee recorded the statement of the prosecution witnesses but no opportunity of cross-examination was given to the appellant. The learned counsel further argued that inquiry was conducted in question answer form in violation of the dictum laid down by the Hon'ble Supreme Court of Pakistan. He relied upon the judgment as 1993 PLC (CS) 1140 SC.
5. The learned counsel has stated that Rule 5 (1)(ii) of the Government Servants (E&D) Rules, 1973 has been violated which is evident from preamble of the Inquiry Report and substantiated by Para 4 of the Charge Sheet. 'He relied upon 1981 SCMR 244, 2009 SCMR 339.
6. The learned counsel finally argued that only one charge was proved against the appellant out of nine charges and the respondents wrongly imposed three minor penalties i,e, censure, recovery and withholding of increment for two years, which is against the law.
7. The respondents haVe resisted the appeal by filing their objections. Learned counsel for respondents has argued that this appeal cannot be allowed being time barred. Penalty was imposed upon the appellant, vide Notification, dated 25.04.2012 and the appellant preferred departmental appeal before appropriate forum on 18.06.2012 which had to be filed by the appellant within 30 days and if the appellant approached a wrong forum, it does not enlarge the period of limitation. In support of his arguments, he relied on 2007 PLC (CS) 255 and 2007 SCMR 513.
8. On merits, it was contended by the learned counsel for respondents that three charges were proved whereas the remaining charges were not proved' against the appellant. The stance of the appellant that in the inquiry report the amount is far less than the amount calculated by him, is irrelevant because the Inquiry Committee by specifying the name of accounts and account number of various funds calculated less deposit of its. 102400 which is to be deposited by the appellant being DDO. The Inquiry Committee, basing on audit report, confirmed that the amount collected from college students was as under:{{TABLE}} Student Fund Rs,1022078 A/C No, 53141-3 Computer Fund Rs,25800 A/C No, 53142-3 Security Fund Rs,65010 A/C No, 53143-1 Exams Fund Rs,36600 A/C No, 52014.9 ' On the other side, it was detected that the amount deposited by the appellant in Bank was as follows: Student Fund Rs,922134 A/C NO, 53141-3 Computer Fund Rs,22700 A/C NO, 53142-3 Security Fund Rs,64554 A/C No, 52014-9 Exams Fund Rs,37700 A/C No, 52014-9 Excess {{TABLE}} ' There was thus less deposit of Rupees 102400 as pointed out by the Inquiry Committee.
Duplication/alteration in copies of receipts, issued to students, caused loss of Rs,40552/- to Students Fund. The appellant used to maintain all the accounts record by himself, despite having administrative staff.
9. Regarding the point raised that the appellant had not been provided an opportunity of personal hearing, he contended that the Authorized Officer gave him every possible opportunity to defend all the allegations. It was also stated by the learned counsel for respondents that inquiry was conducted in a transparent manner, considering all pros and cons and after consultation of accounts record. Moreover sufficient material was available against the appellant, for irregularities, mentioned in the Show Cause Notice. All the legal formalities were fulfilled before imposing the penalties on the appellant.
10. We have heard the learned counsel for both the parties at length and have also perused the record.
11. During the arguments regarding legitimacy of the inquiry proceedings in question-answer form and non provision of opportunity of cross-examination of the prosecution witnesses by the appellant / accused, has been challenged vehemently. While recording our views in the judgment, we shall emphasize on the following points:-
(i) Limitation.
(ii) Legality of inquiry proceedings in question - answer form.
(iii) The embezzlement of the government money and deposit of some of the portion of the amount by the accused / appellant.
' As far as the limitation issue is concerned, the learned counsel for the respondents has relied upon 2011 PLC(CS)1, 2007 PLC(CS)255, 2007 SCMR 513.
Regarding holding of inquiry in question-answer form and not to allow the cross-examination of some of the witnesses appear to under in the impression that it was a regular trial and overlooks the fact that it was a departmental / domestic inquiry in which provisions of Qanoon Shandat Order may not be applicable stricto sensu as reported in Najam uz Zaman us. Engineer in Chief, GHQ, Rawalpindi case cited as 2005 SCMR 1802. A similar view came up before the Hon'ble Supreme Court of Pakistan and as such this argument was repelled. The law does not emphasize application of Qanoon Shuhadat, 1984, in the departmental inquiries and cannot be strictly stretched rather the applicability of general principle of law of evidence is sufficient to meet the ends of justice.
12. The deposit of some of the embezzled amount in government fund was a confession which could safely be relied upon as conclusive proof of his guilt. By relying upon reported case of the Hon'ble Supreme Court 2011 PLC(CS) 954, vide which the Hon'ble Apex Court took serious note of misappropriation conducted in the financial institution. No doubt the appellant was working as a Teacher but he was handling the government accounts. Furthermore, we are of the view that participation of the appellant in inquiry proceedings do not allow him to take any excuse subsequently that there was any mala fide on the part of the respondents and onus to prove mala fide falls on the appellant/accused.
13. In view of the foregoing reasons, and seeking guidance from the judgments cited by the learned counsel for the respondents, we are not inclined to interfere with the orders, passed by the respondents, regarding impugned penalties. The appeal is therefore, dismissed.
14. There shall be no order as to costs. Parties shall be informed.
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