Muhammad Javed Iqbal Kasi, Member.--The appellant has assailed the order dated 14.03.2013 whereby major penalty of dismissal from service along with recovery of Rs.2,205,710/- was imposed upon him.
2. Concisefly, the facts of the case are that the appellant, while working as Postmaster Pitaro Cantt was placed under suspension vide order dated 10.02.2011 and a show-cause notice dated 18.02.2011 was served on the following allegations:-- "1. That on 07.02.2011 there was collection of Rs.2341958/- in . shape of money orders issued, PT 24
(DL) and unclassified receipt, but he remitted cash of Rs.440000/- to account office and unlawfully detained cash Rs.1909558/- without any liability in the office.
2. That he played forgery and prepared daily account dt: 07.02.2011 showing remittance of cash Rs.2340000/- to account office but actually remitted Rs.440000/- to cash office.
3. That he failed to account for Rs. 1276000/- in the daily account of dt.08.02.2011 being account of M.O. issue while receipts of 181 money orders amounting to Rs.1276000/- were issued to the remitters bearing MO. No. from 2303 to 2483. Thus unlawfully detained the MO's and Cash in the office which were cleared/ dispatched by the members of enquiry committee on 10.02.2011.
4. That on 08.02.2011 he carried cash of Rs.2175000/- without deploying security scort and informing to law enforcement agencies or postal administration, which caused heavy loss to the department by the highway robbery on 08.02.2011.
5. That he failed to report the matter to postal administration immediately and get the case registered at P.S. Jamshoro on 09.02.2011 at 15-00 hrs, with delay.
6. That he is negligent and inefficient to perform his legitimate duty".
The appellant in his reply dated 11.10.2011 denied the allegations where-after an Inquiry Officer was appointed vide letter dated 15.12.2011, who, vide report dated 20.12.2011 held the appellant guilty of the charges. A show-cause notice. dated 17.01.2011 was issued wherein explanation of the appellant was called as to why one and more of the penalties including major penalty of dismissal from service may not be imposed upon him. However, vide letter dated 18.05.2012, the show-cause notice dated 18.02.2011, charge sheet dated 25.11.2011 and show-cause notice dated 17.01.2012 were recalled in accordance with Federal Ministry of Postal Services, Islamabad notification dated 30.12.2011 [Change of Authorized Officer end Authorities under. E&D Rules, 1973]. Thereafter, another charge sheet, along with statement of allegations dated May, 2012 was issued containing 15 allegations, out of which first six allegations were the same, which were earlier levelled against him in the show-cause notice dated 10.02.2011. The appellant, in his reply dated 30.07.2012, once again denied the allegations and requested for the supply of record. However, the Inquiry Officer, vide its report dated 31.07.2012, held him guilty of the charges and recommended imposition of a major penalty. A show-cause notice dated 09.10.2012 was issued to which the appellant again denied the allegations vide reply dated 22.11.2012. After grant of personal hearing, major penalty of dismissal from service along with recovery of Rs.2,205,710/- was imposed upon him vide order dated 14.03.2013. The appellant filed departmental appeal on 28.03.2013, which was rejected vide order dated 31.07.2013, hence this appeal.
3. The learned counsel for the appellant contended that major penalty of dismissal from service has been imposed without holding regular inquiry as no witness was examined in presence of the appellant nor he was granted opportunity of cross-examination. He submitted that the appellant demanded relevant documents but neither document was provided nor produced during the inquiry proceedings, which was conducted in questionnaire form in negation of the rulings of the Apex Court. With regard to merits of the case, the learned counsel pleaded that it was the duty of the department to provide security and in this regard he preferred the letter dated 21.06.2010 written by the appellant but no arrangement was made for the safe transaction of the government money. He also stated that the appellant was the complainant as he lodged FIR No. 45/2011 against robbery but he was made accused in FIR No. 21/2011 and the statement of eye-witness, who supported the version of the appellant, was not taken into consideration by the competent authority while imposing major penalty. He also challenged the recovery of the amount, which was not mentioned in the show-cause notice, as such, he has been condemned unheard in this regard.
In support of his arguments, the learned counsel placed reliance on the case law reported as 2009 PSC 333, 2009 SCMR 339, 2008 SCMR 609, PLJ 2008 SC 627, 2006 SCMR 846, PLJ 2005 SC 1189 etc and prayed for the acceptance of the appeal.
4. The respondent-department opposed the appeal. The learned Standing counsel for the respondents rebutted the contention and submitted that on the report of Police, in response to FIR 45/2011, lodged by the appellant against unknown dacoits, wherein it was stated that no incident of robbery took placed, the case was referred to FIR for investigation and finally the case was sent to the Court of Anti-Corruption (Central) Hyderabad and simultaneously the departmental proceedings were initiated against him on account of loss of government money. He stated that the proceedings against the appellant were conducted in accordance with law as charge sheet was issued, inquiry was conducted wherein he was afforded full opportunity to put up his defence, show-cause notice was served and after grant of personal hearing, the order of dismissal from service was passed by the competent authority. The appellant was also heard by the appellate authority before rejecting his departmental appeal. Refuting the contention for not allowing cross- examination, the learned Standing counsel submitted that no such request was made by the appellant during the course of inquiry, as such, the Inquiry Officer held him guilty on the basis of available record.
5. Arguments heard. Record perused.
6. Perusal of the record would show that there were serious irregularities and illegalities in the proceedings conducted against the appellant. First inquiry was conducted by Mr. Perm Chand, Assistant Superintendent, Post Offices, Dadu Sub-Division, wherein the Inquiry Officer conducted the proceedings in question-answer form as is evident from Pages 61 to 73 Annexed with the Memo of Appeal. No witness appeared nor was the appellant given opportunity of cross-examination, even the statement of eye-witness, namely, Iftikhar Alam, Postman, who was accompanied with the appellant, whose statement was also not recorded by the Inquiry Officer. Similarly in the second inquiry, which was also conducted by Mr. Perm Chand, does not show that any prosecution witness was examined. Even the language of the report would clear stipulate that it was not a regular inquiry, as in respect of Allegation No. 11, the Inquiry Officer states that "it is therefore requested that paid voucher may kindly be called for from DA PPO Lahore to unmark the actual position". Similar is the position with regard to Allegation No. 12. It may be pertinent to mention here that despite non-availability of record, the Inquiry Officer held the appellant guilty in respect of all the charges which smack mala fide and made the inquiry proceedings illegal and unlawful. In the case reported in 2002 PLC (CS) 838, the Hon'ble Supreme Court of Pakistan has held that "two departmental inquiries conducted by same Inquiry Officer, the authorities did not act in proper and legal manner while getting thesecond inquiry conducted by the same Inquiry Officer".
7. Another objection of the learned counsel for the appellant that the inquiry was conducted in question-answer form also carries weight. In the case reported as 1993 SCMR 1440, the Apex. Court observed that "inquiry proceedings were conducted by way of questionnaire without examination of witnesses in support of charge or defence. Such inquiry proceedings being not consistent with requirements of Rule 6 of Government Servants (Efficiency and Discipline) Rules, 1973 was not sustainable".
8. For the foregoing reasons, we, without further going into the merits of the case, accept the appeal, set aside the original as well as appellate order, direct the department to reinstate the appellant into service. The matter is remanded to the departmental authorities for de novo proceedings, strictly in accordance with the rules, which should be completed within a period of three months from the date a copy of this judgment is received in their office. The question of back benefits shall be decided by the competent authority in accordance with the instructions contained at Serial No. 155, Vol. II of Estacode 2007, which mode had been approved by the Hon'ble Supreme Court of Pakistan in the case reported as 2010 SCMR 11.
9. No order as to costs. Parties be informed accordingly.