' BRIO. ABDUR RASHID (MEMBER).-Facts of the case are that the Army Rationing System was introduced in the Pakistan Ordnance Factories (POFs) in 1977 to cater for the needs of their employees. By 1979 there were 20 ration shops from where payment issues of rations were made.
2. The appellant, Muhammad Hussain, Chargeman, was made incharge of four Shops Nos. 14, 15, 16 and 17 as Inspector to supervise their proper functioning and remained so appointed between March, 1978 and August, 1979.
3. As a result of serious complaints of certain irregularities/pilferage of rations in shop No, 14, Major Mohammad Mushtaq of 699 Field Intelligence Unit, POFs alongwith two of his staff members, paid a surprise visit to the said shop at 0830 hours on 30th July, 1979. The appellant Mohammmad Hussain, Chargeman was, at the time, issuing rations who informed the Major that since the actual incharge of Shop No, 14, Aleemuddin had seen unauthorisedly absent for the last few days hence it had devolved on the appellant to perform the functions of the shop incharge. Immediate check by Major Mushtaq revealed the following Irregularities which are on record, by way of admissions, duly signed by Mohammad Hussain, the appellant :-
(a) 954-K. G. Sugar was deficient as per relevant record and there was no sugar, at all, in the shop at the time of the surprise visit.
(b) Cash memos Serials 175222 to 175228 had been prepared dated 30th July, 1979 but no rations had been issued. Cash memo. 175221 bore the UM and card number of someone but was otherwise blank.
(c) Even though there was no sugar available in the shop, yet certain cash memos. Dated 30th July, 1979 showing issue of sugar were lying ready. The appellant pleaded that sugar would be issued on 1st August, 1979.
(d) The appellant was found in possession of surplus cash of Rs, 94.55 and he admitted that he had issued atta to two persons without cash memo. And the amount related to that sale.
(e) A cash memo. Originally dated 28th July, 1979 had the said date altered to 30th July, 1979 by overwriting to which the appellant pleaded guilty. Otherwise, too, there were a lot of cuttings, overwriting's and mistakes in the accountable documents.
(f) Despite repeated demands, the stock register was not produced on the plea that the appellant was not aware of its whereabouts.
4. It may be mentioned that Aleemuddin, a lower division clerk had been appointed verbally as incharge of Shop No, 14 in January, 1979 at the specific request of the appellant who was actually working at the said shop as incharge. No posting order was ever issued due to obscure reasons.
Also, the appellant did not hand over charge of the said shop when Aleemuddin physically reported to him. On the face of it, Aleemuddin was being shown as the shop incharge but actually it was the appellant, Muhammad Hussain, who was running the shop when, as Inspector, he was not supposed to do so. Although unauthorisedly absent, Aleemuddin had left the keys of Shop No, 14 at the residence of the appellant on 19th July, 1979. (The unauthorised absence of Aleemuddin for which he was charge-sheeted stretched between 11th to 31st July, 1979). The appellant did not open the shop on 20.21 July, 1979. From 22nd July, 1979 onwards, however, he operated the Shop No, 14 without informing his superiors of the absence of Aleemuddin and without the requisite formality of opening the shop in the presence of responsible officials to record discrepancies/deficiencies, if any.
5. On 7th August, 1979 both Aleemuddin and the appellant, Muhammad Hussain were suspended.
Shortly, thereafter, a stock taking of Shop No, 14 was carried out which revealed that various items of rations (atta, sugar, vegetable ghee and tea leaves) of the value of Rs, 1,01,758.54 (rupees one lac, one thousand, seven hundred fifty-eight and fifty-four paisas) were deficient. The ghee tins containing water and sugar bags filled with Atta were detected at closer check.
6. Another shop which the appellant Muhammad Hussain had been running ostensibly due to shortage of staff was Shop No 15. However, on 19th February, 1979 a godown keeper Asif by name was posted there but the shop was not handed over to him. The charge was actually handed over to Godown Keeper Asif on 1st July, 1979 at the express orders of the Superintendent, Administration.
Even after handing over charge, the appellant Muhammad Hussain, gave his own motor-cycle (bearing expenditure of its petrol) to G. K. Asif for two reasons. First, that the said G. K. Asif should learn ''field duties" from shop to shop and to the supplies depot (even though he had no such duties to perform or to learn of) and second, because the appellant had to catch hold of the thief or thieves who had been very active in pilfering the goods of the said Shop No 15. Of course the appellant never did succeed in apprehending the burglars but by his subterfuge and by making available his own motor-cycle he did manage to keep the actual incharge away from the shop.
7. At the time of the surprise inspection of Shop No, 14 on 30th July, 1979 the appellant apart from being an Inspector of four shops as mentioned, was also de facto de jure incharge of Shops Nos. 14 and 15 for pedaling his activities and it is well established that he did, in the hours of darkness, surreptitiously and unauthorisedly, transfer rations between these two shops for ulterior reasons.
8. On 11th August, 1979 an agreement was drawn up duly signed by Aleemuddin and the appellant, Muhammad Hussain which was witnessed by two employees of the POFs and countersigned by Works Manager Rationing,., the immediate superior of the appellant. The said agreement had four clauses as under :-
(1) Muhammad Hussain, Chargeman (Inspector Rationing D Group) POFs, Wah Cantt. And Aleemuddin LDC, incharge Shop No, 14 will make good (through payment) in the ratio of 70 : 30 respectively the deficiencies found in Shop No, 14 during the months of June and July, 1979.The said amount will be deposited by the two parties concerned within one week at all costs.
(2) There is no one else involved in the deficiencies detected (in Shop No, 14).
(3) In case of non-compliance with the agreement, the party con. Cerned will be handed over to the Police.
(4) The appellant, Muhammad Hussain deposited Rs, 30,000 and Aleemudd.In Rs, 30,527 (the latter clearing his 30% liability entirely).
(5) After the surprise inspection of Shop No, 14, and drawing up of the agreement mentioned at para. 8 above, the appellant Mohammad Hussain found himself in a very tight corner. In order to get out of this unsavoury situation, he approached Major Mohammad Mushtaq through various sources but without success.
(6) The appellant filed a hand-written affidavit on 4th September, 1979 only to shift responsibility on to Aleemuddin and to highlight the point that he (the appellant) had been seriously let down due to his naivete of having trusted Aleemuddin who had replaced ghee with water and sugar with atta.
' On 30th October, 1979 the appellant was charge-sheeted on the following counts under rule 5(111) of Government Servants (Efficiency and Discipline) Rules, 1973 (dispensing with the formal enquiry) :-
(a) Misappropriation of ration from Shop No, 14 and non-main tenancy of various records of the said shop.
(b) Cuttings, omissions and overwriting's in document of the said shop.
(c) Failure to carry out requisite stocking of the said shop.
13. On 11th November, 1979,the appellant requested for a copy of the enquiry proceedings so as to prepare his defence which was refused. However, the appellant emphasised while replying to the charges that it was Aleemuddin who was incharge of Shop No, 14 and as a natural corollary, therefore, deficiencies of and tampering with the documents should be legitimately imputed to the said Aleemuddin and not to the appellant. In this connection the appellant also highlighted his view-point "as an important factor" that even though Aleemuddin had been working as incharge Shop No, 14 since January/February, 1979 to 19th July, 1979, he had been shown absent from duty and that this was being engineered only to save Aleemuddin from his involvement in this case. This was, of course, absurd because Aleemuddin was not only made to pay Rs, 30,527 he, too, was dismissed.
14. The appellant also said that the agreement of making good the loss to the extent of 70% (or Rs, 71,231.54) was not legally binding on him even though he had already deposited Rs, 30,000 under heavy pressure.
15. As to the charge of failure to carry out stock-taking, the appellant said that the shop incharge (Aleemuddin) had failed to maintain records and so the stock-taking for two months could not be carried out. He further said that Aleemuddin had informed the appellant that for the month of June, 1979 stock-taking report had been handed over direct to the Assistant, Ration Cell. The stock-taking for July, 1979 had been carried out by the Assistant Ration Cell said the appellant. The discrepancies detected later on were entirely the responsibility of the shop incharge (Aleemuddin) asserted Mohammad Hussain, the appellant.
16. The appellant was dismissed from service with effect from 22nd December, 1979 vide Daily Parr 11 Order No, 6654/1, dated 26th December, 1979. He submitted his departmental appeal on 17th January, 1980 which having been turned down on 11th March, 1980, he came in appeal to the Tribunal on 14th April, 1980 against the impugned order of his dismissal.
17. It is worth highlighting that after his dismissal, the appellant executed a bond on a 25-rupee judicial paper on 3rd March, 1980 "voluntarily, without any pressure, duress or coercion and out of my free will He bound himself and undertook to abide by the following:
(a) That he accepted liability for the payment of the balance amount of Rs, 44,665.88.In regular quarterly instalments of Rs, 4,466.59 and complete the payment of the said entire balance amount of Rs, 44.665.88 in ten equal instalments and in default of payment of two consecutive instalments he stood liable to pay the balance forthwith.
(b) That in case of default, the unpaid amount shall be recoverable from his or that of his surety's movable/immovable property.
(c) That recovery of the unpaid amount if made through the Court shall be at his risk and cost,
(d) That his legal heirs and successors-in-Interest were bound under the decd.
18. The above bond was witnessed by two employees of the POFs and countersigned by Magistrate First Class, Rawalpindi.
19. The appellant kept his promise of paying the first instalment of Rs, 4,466.59 but thereafter defaulted.
20. The learned counsel for the appellant based his defence on the following pleas. First, the agreement of having to make payment of deficiencies to the tune of 70% had been extracted out of the appellant in a police station under serious threats and coercion and was, therefore, not voluntary. Second, the charge-sheet was defective in that it did not specify the major penalty to be imposed and was also vague and general. Third, the appellant had not been provided with a copy of enquiry proceedings to help him prepare his defence reply. Fourth and last, the appellant had been dismissed arbitrarily without giving him any opportunity of self-defence and without holding any enquiry.
21. The learned State counsel made it clear that the appellant was never taken to any police station. The question of police pressure, therefore, not only did not arise but was also ill-conceived and unfounded. From the perusal of the relevant record we, too, find that the said agreement was not signed by the appellant in any police station. In his statement which is on record, the appellant while referring to the said agreement of 11th August, 1979 has this to say : "I do not know where it was written, it was brought to my quarter by Kazmi (the then PA to Spud.
Field Admin.) father of Aleem, another four persons, Aleem and Works Manager Ration. I had agreed to pay 50% but when the Agreement was brought, 70% was to be paid by me and I was asked to sign it."
' At another place he says : ' I signed this with the intention that my case is not referred to Martial Law Authorities/Police."
' Pressure there may have been, but we are clear in our mind that no innocent person would have signed this agreement.
22. As to the charge-sheet not specifying the exact major penalty and thus being defective, the learned-State counsel argued that so long as it is mentioned. "Why one of the major penalties should not be imposed" there is nothing wrong with it. We also find that notwithstanding the earlier views of this Tribunal, if the issuance of charge-sheet as has been done in the present case, does not prejudice the defence of the appellant there is no harm done and, therefore, there is no binding requirement of specifying the exact major penalty so long as the term "one of the major penalties" is stated which includes dismissal.
23. The learned State counsel further contended that the proceedings had been conducted under rule 5 (iii) of Government Servants (Efficiency and Discipline) Rules, 1973 where no formal enquiry as such was conducted though collection of evidence was certainly done and the charge-sheet was based on this evidence. He further argued that the appellant had been associated with the proceedings against him and there was nothing that was not known to him. Nothing was recorded behind his back and the fullest possible opportunity of defence was afforded.
24. Having heard the arguments and perused the relevant record, we now advert to the merits of the case. We find that the main plank of the appellant's defence is that it was Aleemuddin who had been incharge of Shop No, 14 and anything that went wrong resulting in the pilferage of rations was to be apportioned, fairly and squarely, to the said Aleemuddin and not, at all, to the appellant. On the basis of the evidence, however, we have discovered that this plank is not only a shaky one, it is also non-existent. By his own admission, the appellant in his statement has said that Aleemuddin reported to Shop No, 14 in January, 1979 and that the appellant handed over charge of the said shop in the last week of February, 1979 but "handing/taking over was not carried out". At another place in his statement the appellant claims to have banded over charge in May, 1979 but when his attention was drawn by the officers collecting the evidence that he had already stated to have made over charge to Aleemuddin in February, 1979 and that how could he do so again in May, 1979 the appellant said : "I have no answer". In answer to yet another question the appellant says: "I admit it is my fault that I failed to supervise the shop which resulted in a big deficiency at Shop No,
14. But I am not directly involved in this deficiency".
25. We have found no evidence whatever that Shop No, 14 which was under the charge of the appellant was ever handed over to Aleemuddin who was sent to the said shop without any posting order. Both Aleemuddin and the appellant used to work there. The gross irregularities/deficiencies detected in Shop No, 14 were therefore the direct responsibility of the appellant, Mohammad Hussain and charges (a) and (b) stand fully established. In fact it was only one charge split into two because the over writings/cuttings of the relevant accountable documents by the appellant was done with an end in view and that end was the pilferage of rations. As to charge 12 (c) viz. Failure to carry out stocktaking, there are no cut and dried procedures laid down anywhere and therefore, this charge is not proved.
26. As to the non-provision of enquiry proceedings to the appellant we may mention that due to institution of proceedings under rule 5 (iii) of Government Servants (Efficiency and Discipline) Rules, 1973, a formal enquiry as such had been dispensed with. However, very substantial collection of evidence was accomplished. It goes to the credit of the evidence collecting officers that they fully and completely associated the appellant Mohammad Hussain, with the process and nothing whatever was recorded behind his back. The appellant was afforded freedom and opportunity of cross-examining all those who, made statements relevant to the pilferage of rations. In this connection, mention may be made of the most important officials directly concerned with this case viz. Major Mohammad Mushtaq and Aleemuddin who made their statements in the presence and hearing of the appellant, Mohammad Hussain. He was therefore given the, fullest possible opportunity of preparing his defence when the occasion arose in November, 1979, to reply to the charge-sheet. This assumption is also borne out by the fact that the appellant's reply to the show- cause notice was comprehensive and to the point though factually off the remark due to instinct of self-preservation as is not unnatural. This also goes to prove that the charge-sheet was neither vague nor general.
27. From the foregoing we have arrived at the following conclusions:
(a) That the appellant apart from being a compulsive liar, has also been found to be fully involved in this serious case of pilferage of rations and his guilt stands established to the hilt.
(b) That the appellant having been given to reasonable opportunity of defence has not been able to prove his innocence or disprove his guilt.
28. Logically therefore, we cannot accept this appeal which we dismiss with costs, fixed at Rs, 100,