1. Succinctly, appellant Noor Muhammad was serving as Naib Nazir, Accounts in Civil Courts, Chunian. A civil suit for specific performance of contract titled "Ghulam Rasool vs. Ahsan Ullah" was pending with Adnan Mushtaq, Civil Judge, Chunian, District Kasur who passed a decree for an amount of Rs, 1500,000/- on 5.3.2007.
2. That in terms thereof, the decretal amount was to be deposited within the stipulated period with Naib Nazir Account. In pursuance whereof an application dated 13.6.2007 for depositing the amount was submitted in the Court of Duty Judge who directed Abdul Ghafoor/complainant to deposit the amount with Nazir Account which the Nazir received from Ghulam Rasool and in token thereof a receipt duly signed by the appellant/Nazir was given to the complainant on a photocopy made of the said application.
3. The matter was assailed by the parties upto the Hon'ble Supreme Court of Pakistan, wherein it attained finality as the decree was upheld.
4. Mian Muhammad Shafi and Ahsan Ullah, defendents in the suit filed an application before the Hon'ble Supreme Court of Pakistan on 4.6.2010 for receipt of their share in the decretal amount.
5. The share holders of the decretal amount moved an execution petition for receiving their share, it transpired that the amount of Rs, 1500,000/-was not deposited by Noor Muhammad, Naib Nazir Accounts in the Treasury, but retained the amount and embezzled it.
6. Ghulam Rasool/complainant (plaintiff in the suit) also moved an application on 12.6.2010 before the learned District and Sessions Judge, Kasur stating therein facts regarding misappropriation.
7. The learned District & Sessions Judge, Kasur directed for holding of preliminary inquiry which was conducted by Muhammad Amin Shahzad, Civil Judge, Kasur who submitted his report and fixed responsibility on Naib Nazir for non deposit of Rs, 1500,000/- in Government treasury.
8. Thereafter, Ismail Tasleem Akhtar, Civil Judge, Kasur was directed to hold regular inquiry who delivered charge sheet, appellant filed reply denying the charges. Appellant confessed his guilt before the inquiry officer who recommended major penalty of dismissal from service. The Inquiry Officer under rules issued a final show-cause notice as to why major penalty may not be imposed upon the appellant.
9. Thereafter, the Senior Civil Judge, Kasur/Authority vide order dated 1.2.2011 imposed major penalty of dismissal from service on the appellant. The order was assailed in departmental appeal before the District & Sessions Judge, Kasur which was rejected vide order dated 16.11.2011.
10. Appellant assailed orders dated 1.2.2011 & 16.11.2011 before the Punjab Service Tribunal, Lahore in appeal No, 14/2012 which was accepted, directing the competent authority to hold denovo inquiry in accordance with law vide judgment dated 17.7.2012.
11. In deference to the judgment, the authority entrusted inquiry vide order dated 31.7.2012 to Mr. Khalid Saeed Wattoo, Civil Judge, Kasur who charge sheeted appellant vide order. dated 20.11.2012 in the following terms:- "That you on 13.06.2007 when you were posted as Niab Nazir Chunian in the suit titled "Ghulam Rasul Vs Ahsan Ullah" Ghulam Rasul deposited a sum of Rs, 15,00,000/- with you as per the orders of the Court in the presence of Malik Mohammad Arshad, advocate alongwith his clerk and Mr. Mehmood Ali Khan, you subsequently misappropriated the amount which you did not deposit the same in the govt. treasurer, thus you seem to have been guilty of misconduct u/S. 3 Clause (b) of Punjab Civil Servant (E&D) Rules, 1999, which is to be tried by the undersigned as an Inquiry Officer"
12. Appellant submitted reply, denying the charges leveled.
13. The reply being not satisfactory, parties were directed to produce evidence. Respondent department produced complainant (plaintiff) as PW-1, Rana Ghulam Sarwar as 17-2, Muhammad Ramzan as PW-3, Malik Muhammad Ahmad as PW-4, Mahmood Ali .Advocate as PW-5, besides placing on record copy of complaint as Ex.P1, copy of application for depositing amount as Ex.P2, copy of execution petition as Ex.P3, together with orders passed by the Court, application for receiving decretal amount as Ex.P4.
14. Appellant produced Faqeer Hussain as DW-1. In inquiry report it was held that the charge stood proved and recommended for imposition of major penalty/penalties. The competent authority/Senior Civil Judge, Kasur vide order dated 14.6.2013 in terms of Section 4(b)(ii) (v) of the Punjab Civil Servants (E&D) Rules, 1999 dismissed appellant from service and also directed for recovery of embezzled amount of Rs, 1500,000/-.
15. The order was assailed in departmental appeal before the D&SJ, Kasur/appellate authority who upheld the order vide order dated 26.5.2014.
16. Appellant thereafter challenged the impugned orders dated 14.6.2013 & 26.5.2014 by filing the instant service appeal.
2. Learned Counsel for the appellant argued that the prosecution witnesses were examined in the absence of the appellant and he remained bereft of the opportunity to cross-examine them.
17. That signatures on the alleged receipt were denied regarding which an application to the inquiry officer was moved for their comparison through Forensic Agency.
18. That the charge framed was baseless as it is not the duty of the Nazir to collect amount as alleged in the charge sheet.
19. That appellant being a stammer, his application for representation through a counsel was erroneously dismissed. The appeal therefore is liable to be accepted and impugned orders passed be set aside.
3. Conversely, learned District Attorney argued that appellant confessed his guilt before the inquiry officer in the first round of inquiry.
20. That after remanding of case by the Punjab Service Tribunal, Lahore for holding a denovo inquiry, prosecution produced five witnesses in addition to documentary evidence. The prosecution witnesses corroborated the charges leveled which were fortified by documentary evidence.
21. Appellant was provided with an opportunity of cross-examination which he did not avail. The receipt of Rs, 1500,000/-stood proved. After fulfilling codal formalities as required under the rules, the orders impugned were passed in accordance with law. The appeal is liable to be dismissed.
4. Arguments heard, record perused.
5. That on gaining knowledge regarding misappropriation/embezzlement of Rs, 1500,000/- which was deposited under directions of the Civil Judge with the appellant (Nazir Accounts Branch, Chunian). The Authority initially directed for preliminary inquiry, whereafter, inquiry proceedings were conducted in which appellant confessed his guilt in terms whereof the competent as well as appellate authority passed orders for dismissal of the appellant.
22. Aggrieved, appellant filed an appeal before the Punjab Service Tribunal, Lahore which remanded the case for holding of denovo inquiry in view of the same, prosecution in addition to documentary evidence also produced five witnesses who in their statements fortified the allegations contained in the charge sheet, which is evident from statements of the prosecution witnesses appended with the appeal. The witnesses produced were independent having no animosity with the appellant.
23. That the inquiry officer after recording statements of the prosecution witnesses provided appellant with an opportunity to cross-examine which he did not avail. The statements of the witnesses read together with the documentary evidence produced clearly establish that the amount of Rs, 1500,000/- was deposited under directions of the Court in pursuance there for a receipt as a token of acknowledgment was issued on copy of the original application by the appellant, the receipt was duly stamped, dated and signed by him which was submitted before the inquiry officer and exhibited. The contentions of the learned Counsel for the appellant that original of the same was not placed before the inquiry officer is not tenable as the receipt produced contained original signatures of the appellant which was substantiated/ corroborated by independent witnesses thus the need to have 2nd opinion from a Forensic Lab was not required.
24. The other contention of the learned Counsel for the appellant that appellant being a stammer was unable to cross-examine the witnesses is belied by the fact that when provided opportunity to cross-examine he did not avail the same by putting questions to the witnesses orally or in writing.
25. As appellant had no defence to offer he tried to shield by claiming to be a stammer, therefore, the inquiry officer rightly dismissed the two applications.
6. In view above, I am of the considered view that the charge of embezzlement stood proved thus making him liable of misconduct and inefficiency. He being custodian of public property/money his responsibility becomes onerous which he miserably failed to discharge. The orders impugned were passed in accordance with law, the appellant does not deserve any leniency, the appeal in hand is dismissed.