SAJJAD ALI SHAH, J. --- Through the instant appeal, the appellant has challenged the order dated 9.4.2015 whereby the Service Tribunal while sustaining the punishment order had dismissed his appeal.
2. Briefly, the appellant on 21.4.2005 was enrolled as Sepoy in Pakistan Rangers and at the relevant time, was posted at Shahbaz Rangers Welfare Project (Petrol Pump). It appears that on 5th January, 2011 on account of certain misappropriation, the entire staff of the petrol pump (who consisted of officials of Pakistan Rangers of different ranks) except the appellant, were arrested.
The appellant alongwith three others, was issued charge-sheeted on 25.4.2011 on the following grounds:---
(a) Financial misappropriation;
(b) Hiding facts from the Inquiry Board;
(c) Non-reporting the irregularities of the Shahbaz Rangers Welfare Project.
3. It appears that after regular inquiry, on 28.4.2011, the appellant was awarded sentence of 89 days rigorous imprisonment and was also directed to deposit the outstanding amount which he misappropriated. The appeal filed against the stated punishment was considered by the competent authority and was dismissed on 15.7.2011. The appellant thereafter approached the Service Tribunal by filing an appeal which, after hearing, was dismissed through the impugned order. Leave was granted by this Court on 16.6.2016 through following order:--- "It is, inter alia, contended by learned ASC for the petitioner that there is no evidence on record against the petitioner showing that he has embezzled any amount from the account of petrol pump and that petitioner was not given proper opportunity of defending him in enquiry and amount of Rs. 2,00,000/- was recovered from the family of petitioner through force and coercion and that petitioner has not been removed from the employment rather was given punishment of 89 days' imprisonment plus recovery of alleged loss amount"
4. Learned ASC for the appellant vehemently contended that though the appellant was designated as munshi at the petrol pump but his official duty was to accompany the oil/diesel tanker and make necessary inventory and such functions were performed by the appellant very honestly and diligently to the satisfaction of his superiors without providing any cause of complaint. It was next contended that on 1.1.2011 DSR Zafar of Pakistan Rangers ook charge Of the petrol pump and thereafter on 5.1.2011 'officials of the Pakistan Rangers came at the petrol pump and apprehended the appellant alongwith SI Abdul Shakoor who was managing the petrol pump and Khan Mir Khan Havildar (Cashier) on the allegations of misappropriation. Per counsel during his imprisonment the appellant was forced to deposit a sum of Rs. 200,000/- which was arranged and deposited by him family. It was further asserted that no opportunity for filing a defence was provided to the appellant and the so-called trial was conducted during the period when the appellant was behind the bars. It was asserted that after forcing the appellant to deposit Rs.
200,000/- during imprisonment of 89 days, the appellant was released on 29.4.2011 whereafter on 3.5.2011 he was given a "No Demand Certificate" and was posted at 82 Wing IR, therefore, to again saddle him with the alleged embezzled amount was totally unlawful. It was contended that the trial itself was sham and notwithstanding the fact that no evidence of embezzlement or misappropriation had surfaced on record, an order for recovery was passed which needs to be set aside.
5. On the other hand, learned ASC appearing for Pakistan Rangers contended that the appellant being an educated sepoy acquainted with the latest technology was in fact managing and running the petrol pump. Per counsel, the appellant voluntarily deposited the amount misappropriated alongwith the other accused persons who have not challenged the decision of the Service Tribunal and, therefore, the instant appeal is liable to be dismissed. It was contended that the charge of embezzlement has been concurrently proved against the appellant as a result of full-fledged departmental inquiry which being a question of fact normally is not upset by this Court while exercising jurisdiction under Article 212(3) of the Constitution. As to the "No Demand Certificate", it was contended that it was not a clearance from the charge of the petrol pump but from one unit to another. Per counsel the appellant has already been dealt with very leniently and instead of dismissing him from service, only a recovery of admitted misappropriated/ embezzled amount has been directed. In support of his contentions, reliance has been placed on the judgments of this Court titled Akbar Khan v. Federation of Pakistan (2002 SCM R 684), Muhammad Boota v. Director General Ordnance Services, General Headquarters, Rawalpindi (2006 SCM R 1452) and Fida Hussain v. Director Food, Punjab and others (2004 SCM R 62).
6.We have heard the learned counsel for the respective parties and have minutely scrutinized the record. The record reflects that on1.1.2011 the incharge of petrol pump was changed and on 5.1.2011 the officials who were managing the petrol pump, except appellant, were arrested. The appellant as is evident from the deposit slip annexed with the memo of appeal on 22.1.2011 deposited a sum of Rs. 200,000/- The appellant, thereafter, alongwith other officials was charge sheeted on 25.4.2011 and after full dressed trial on 28.4.2011 he was awarded 89 days rigorous imprisonment and to deposit his share of misappropriated amount. The appellant preferred departmental appeal which was dismissed and the appellant, as stated by him in paras 14 and 15 of the memo. of appeal filed before the Service Tribunal, was taken into custody on 9.7.2011 and that till 9.7.2011 when the appellant was taken into custody he was performing his duties at the petrol pump.
7. In the circumstances, we would like to record our displeasure on the reckless and casual manner in which the facts were presented before us by ASC for the appellant. It was his contention that the appellant was arrested for 89 days during which period the entire proceedings were concluded, therefore, the appellant could not furnish his defence and that during his detention he was forced to deposit the sum Rs. 200.000/-. Even in para 26 of the memo. of appeal filed before us, it has been stated that the appellant was released from detention on 29.4.2011 and on 3rd May, 2011 after issuance of "No Demand Certificate", was posted at 82 Wing IR. Whereas in the memo. of appeal which was filed before the Service Tribunal the narrative of the appellant in paras 12 to 15 was that the other two officials of Pakistan Rangers were arrested on 5.1.2011 whereas he was arrested on 9.7.2011 which appears to be after his departmental appeal against original order dated 28.4.2011 was rejected. It was, therefore, totally misleading to have contended before us that the appellant during his detention was forced to deposit a portion of allegedly embezzled amount and that he was not provided an opportunity to defend himself. Notwithstanding we have examined the record independently and have found that the appellant was provided full opportunity to defend himself The deposit of portion of the embezzled amount made by him appears to be voluntarily. Even otherwise, the charge of misappropriation-embezzlement, being a question of fact, has been scrutinized and proved before the three forums concurrently and appears to be in consonance with the record. As to "No Demand Certificate" dated 3.5.2011, a bare perusal of such certificate reveals that it is a "No Demand" by various branches of Shahbaz Rangers including Officers Mess, Canteen, Washer Man, Barber, Tailor etc. a pre-requisite of transfer of every soldier from one unit to another and not a "No Demand Certificate" in respect of misappropriation as projected before us.
No question of law of public importance has been pointed out by ASC for the appellant calling for interference by this Court while exercising powers under Article 212(3) of the Constitution. This appeal, being devoid of any force, is dismissed leaving the parties to bear their own costs.