' Syed Arshad Ali, Member.--The appellant above-named while serving as Town Complaint Clerk at Complaint Branch, Express Post, Karachi was imposed major penalty of removal from service vide order dated 20.05.2011. The appellant preferred departmental representation vide his appeal dated 20.06.2011 which remained responded; hence, this appeal praying that the impugned order be set aside and the appellant be reinstated with full back benefits.
2. The factual position as per memo. Of appeal is that the appellant was appointed as Stamp Vendor (BS-03) and was promoted as Clerk in 2006, subsequently to (BS-09) and was posted as Town Delivery Clerk in Express Way, Karachi. The appellant earlier on was placed under suspension on 01.04.2009 statement of allegations was served upon him on 16.04.2009 and based on fact finding inquiry, the appellant was removed from service on 31.10.2009 on account of alleged omission and commission in the department for tempering sales tax articles, making fabricated FMO PC for removing the original letters of sales tax articles, sent delivery other than the articles addressee and caused loss to the government exchequer. The appellant's departmental representation against the removal on 12.11.2009 remained responded; hence, the appellant filed Appeal # 13(K)CS/2010 on 20.01.2010 before the federal Service Tribunal Karachi. The Tribunal in Appeal # 13(K)CS/2010 handed down the judgment on 17.01.2011. The impugned order of removal from service was set aside and case was remanded back to the department for denovo departmental proceedings against the appellant within a period of four months. The question of back benefits was dependent upon the outcome of the denovo inquiry.
3. In compliance of the judgment dated 17.01.2011, the appellant was reinstated in service vide order dated 17.02.2011 with immediate effect. Further in compliance of the Court order, the respondents ordered for inquiry into the matter on 15.02.2011 vide order No, EP/PF-140/06 dated 15.02.2011. Mr. Jalil Ahmed Siddiqui, Deputy Superintendent, 'Postal Services (Central) was appointed as inquiry officer to conduct" inquiry and submit report within 25 days. The inquiry officer communicated the charge sheet and the statement of allegations dated V1.02.2011 duly signed by the Respondent # 2, the Deputy Controller on the same charges/allegations which were leveled previously. The statement of allegations is reproduced hereunder as:-- "Mr. Muhammad Haseeb Khan, Clerk service about 06 years pay 4600/PM Express Post Karachi (R/o H/No, K-199, Nacuqlas House, Labour Square, SITE, Karachi) is accused of "Inefficiency and Misconduct" arising out of the following acts of omission and commission.
' Mr. Muhammad Haseeb Clerk (B-09) failed to perform his legitimate duties at that time.
1. Committed severe irregularities and malpractices' during the course of deliver, of the UMS articles with collaboration of PCF courier and unknown person, which led to cause Govt. Loss and bad name to the department.
2. Mr.Haseeb Khan was responsible for tampering sales tax articles.
3. Mr.Haseeb Khan, also responsible for making fabricated official record with FMO PC removing the original letters of Sales Tax articles.
4. Mr.Muhammad Haseeb Khan Clerk responsible to deliver articles other than the actual addressee on the address as given on envelopes from the office without obtaining receipts instead normal course of delivery through Postmen.
5. Accused official had not only caused loss to the national exchequer as our valued and potential client namely Collectorate of Sales Tax cancelled its agreement just because of the aforementioned acts of accused official and department sustained loss to the tune of Rs, 2,25,000/- approximately per annum on regular basis".
' The appellant submitted the reply to the charge sheet on 25.02.2011 to the inquiry officer. The proceedings were attended by the appellant. The appellant was called on 19.03.2011. The appellant attended but proceedings were put off to 21.03.2011 because DR Tariq Awan Malik did not attend owing to some official engagements. The appellant again attended and four questions were formed by the inquiry officers which were replied by the appellant. Meanwhile, the management transferred and posted the appellant on 14.3.2011 as Clerk (BS-09) to the Complaint Branch.
4. The inquiry officer without examination of any oral and documentary evidence/witnesses against the appellant submitted his findings proving allegations # 1, 3 & 5 and not proving charges # 2 & 4, recommended for major penalty against the appellant. Based on the report of inquiry officer, a show-cause notice was issued and a copy of the inquiry report was supplied to the appellant. The reply of which was submitted. The appellant was called for personal hearing on 24.05.2011. The authority, notwithstanding the appellant's assertion and documentary evidence, removed the appellant from service and communicated such major penalty on 20.05.2011.
5. The respondents in parawise comments submitted that the appellant had committed severe irregularities and malpractices during the course of delivery of UMS in collaboration of PCF courier and unknown person and was responsible for making fabricated official record with FMO PC removing the original letters of sales tax articles and that he was responsible for delivery articles other than the actual addressee as given on envelope from the office without obtaining receipts instead of normal course of delivery through postman. They stated that the appellant was also responsible for causing loss to the national exchequer as valued customer and potential client namely Collectorate of Sales Tax cancelled its agreement just because of the aforementioned acts of appellant and department sustained loss to the tune of Rs, 2,25,000/- approximately per annum on regular basis.
6. The learned counsel for appellant submitted written arguments and argued as well pleading that no proper inquiry was held, no witness was called for and cross-examined by the appellant, inquiry against the appellant was conducted in question & answer form, witnesses were recorded in absence of the appellant and their statements have been used for awarding the impugned major penalty, defence version of the appellant has not been taken into account while passing the impugned order, relevant record was not confronted nor supplied at the appropriate time to offer defene reply to charge sheet/show-cause notice; hence entire exercise against the appellant was drawn by the department which was against the law. Personal hearing before the authority was eye wash and not meaningful. Major penalty awarded on such type of inquiry is not based upon proper appreciation of facts and law and the appellant has been penalized on the basis of those inquiry which having no worth in the eyes of law. He argued that in the matter regular inquiry was not conducted in presence of appellant and in the absence of such, order of removal dated 26.05.2011 is arbitrary. Learned counsel contended that the appellant had specifically pointed out to the authority as he was not competent to take action against the appellant as Clerk (BS-09).
Learned counsel vehemently contended that when one charge is not proved against the appellant/employee and other charge stemming out of the first charge is also not proved.
Charges # 2 & 4 were not proved as such, it shall be presumed that other charges which were coming out of the said charge is also not proved; hence penalty so awarded to the appellant is not maintainable. Learned counsel argued that no witness was called for and examined by the inquiry officer hence none of the witness was ever cross-examined by the appellant. The appellant was deprived of the right of self defence and the departmental inquiry which is invalid in the face of it is not maintainable and on the basis of invalid inquiry no penalty can be awarded by the authority and if so awarded like case of appellant is arbitrary.
7. The inquiry report prima -facie is suffering from legal infirmities and procedural irregularities. A plain reading of the inquiry report is suggestive of the fact that the inquiry was conducted in a strange manner. The inquiry officer throughout in the process had been asking number of questions, which the appellant kept replying, but not a single independent witness had been examined so question of opportunity to cross-examine was out of equation so much so Asif PCF courier and another unknown individual were not examined in-front of the appellant and no statement of either one is available on record, which in the context of the inquiry are considered as material witnesses. Moreover, not a single independent Witness from among those addresses whose articles/cheques etc were supposed to be delivered to them was examined which purportedly were not delivered to them and half way in the process were either lost or tempered by the appellant. The inquiry was thus conducted non-challently in an non-professional manner and not conforming to the procedure of inquiry as envisaged in Rule-6 of the Government Servants (Efficiency & Discipline) Rules, 1973. The Hon'ble Supreme Court in a plethora of judgments held that for imposition of major penalty and particularly when the charges are denied, the regular inquiry is must as reported in 2010 SCM R 1546 relevant part whereof is reproduced as under:- "...For awarding a major penalty of dismissal from service and in case where documentary evidence was lacking, a regular inquiry is called for"
8. As regards the non-delivery of purported 67 cheques through UMS, which were not delivered to the proper persons/companies it is not understandable as to how the appellant was responsible?
Because as per description of duties/responsibilities, the appellant was responsible for making entries in the relevant registers. Whereas, letter sorting and dispatching was the responsibility of Sorters, Postman and Supervisors in Express Way, Karachi. In addition, no evidence had been brought on record to corroborate such contention as none of the addressees to whom the articles/cheques were supposed to be delivered was examined; hence, the question of opportunity to cross-examine does not arise. Moreover mere indictment that the appellant's omission and commission caused a loss of Rs, 2,25,000/- per annum on regular basis was not sufficient without corroborating evidence which the respondents failed to place on record.
9. In view of the position that no material and independent witness could be examined, resultantly opportunity of cross-examination to the appellant in his defence was non-existent; hence, no clear cut picture could emerge so as to draw inference whether major penalty of removal from service was warranted. We are of the considered view that imposition of major penalty in the backdrop of such a flawed inquiry is not at all warranted or commensurate with the gravity of omission and commission. However, negligence, inefficiency, and many lapses on the part of the appellant are apparent on the face of inquiry. In order to meet the ends of justice, the major penalty of removal from service imposed upon the appellant vide impugned order is set aside and major penalty of removal from service is converted into major penalty of reduction in time scale for two stages for a period of two years in terms of Rule-4(1)(b)(i) of the Government Servants (Efficiency & Discipline)
Rules, 1973. The, intervening period shall be treated as leave of the kind clue. No order as to costs.
10. Parties be informed accordingly.