MUHAMMAD IRSHAD KHAN (MEMBER).-The relevant background of the present appeal, briefly speaking, is that the Dairy Department, Karachi, is a part of Military Farm, Malir Cantt. One of the main functions of the Dairy Department is to issue milk powder to the troops. At the relevant time, the appellant was working as Incharge of Dairy Department while, Mr. Muhammad Shafi Bhatti was Assistant Manager of the Farm and Mr. Razi-ud-din was Storekeeper of the Farm. The appellant vide charge-sheet dated 17th February, 1980 was charged for the following allegations:
(i) That he misappropriated 3.432 Kg. Whole Milk Powder which was on his charge and then replaced it with sub-standard Milk Powder and thus caused a loss of Rs. 59,817.70 to the Government.
(ii) That he tried to implicate Mr. Muhammad Shaft Bhatti, Assis--tant Manager, Military Farm and Mr. Razi-ud-Din, Storekeeper, Military Farm in the above-said misappropriation.
Lt.-Colonel Abdul Jabbar Khan was appointed as an Enquiry Officer, who held the enquiry under the Government Servants (Efficiency and Discipline) Rules, 1973 and, in his enquiry report, held the appellant guilty, of charge of misappropriation of 3,432 Kg. Whole Millk Powder and replacing it with a bad quality of Milk Powder, whereon the relevant authority imposed on the appellant the following penalties
(1) Dismissal from service with immediate effect.
(2)Forfeiture of all arrears of pay and allowances, security deposits, pension/gratuity due to him at the time of his dismissal.
2. He preferred a departmental appeal dated 22-10-1980 which was rejected as conveyed to him vide letter dated 22nd November, 1980. He then filed the present appeal in this Tribunal on 15-12- 1980.
3. The learned counsel for the appellant has assailed the impugned order on several grounds of law and facts. On legal plane his main emphasis was on the submission that the impugned order was unlawful and without jurisdiction- inasmuch as the forfeiture of pay and allowances, pension, gratuity etc. Does not find place in the penalties prescribed in the Government Servants (Efficiency and Discipline) Rules, 1973. We are` inclined to agree with the learned counsel that the said penalties imposed upon the appellant in addition to his dismissal from service, could not be legally imposed upon him., However, this legal defect alone, in our view, is not sufficient for qushing the entire proceeding against the appellant and the impugned order passed thereon.
3-A. Viewing the matter on factual plane, it is first observed that there was no direct evidence to show that the whole Milk Powder was misappropriated by the appellant and was replaced by a bad quality thereof. Therefore, the finding of the Enquiry Officer holding the appellant guilty of the positive charge is based only on presumption and conjecture and not on good evidence. On the other hand, reading of the, evidence makes it crystal clear that the Assistant. Manager, Mr. Muhammad Shafi Bhatti and Storekeeper, Mr. Razi-ud-Din were equally involved in the affair because it is established that both these officials while attempt--ing to shift their responsibility, had tried to implicate Maj. Muhammad Hamid Afsar, O. C. Mil. Vety. Department in the affair by alleging that he had called them in his office and told them that the allegedly replaced --powder must be issued to the troops, otherwise it will bring a bad name to the Department. In fact, Maj. Muhammad Hamid Afsar deposed before the Enquiry Officer that Mr. Muhammad Shaft Bhatti and Mr. Razi-ud-Din being a party to this misappropriation have under utter frustration levelled totally baseless and wrong allegations against him while he was not at all concerned with the issue for which Mr. Muhammad Shaft Bhatti being incharge of the Farm, Mr. Razi-ud-Din being a Storkeeper and' the appellant being his subordinate, were the concerned people. Even in the opinion of the Enquiry Officer, Mr. Muhammad Shafi Bhatti had not only failed to report the matter to the higher authority but he also made a false statement that he had verbally reported the matter to the A.D.R, V & F.
4. There are thus ample reasons to conclude that Mr. Muhammad Bhatti Bhatti and Mr. Razi-ud-Din were equally responsible for the default. Strangely enough, however, it appears that Mr. Razi-ud- Din was not at all proceeded against for the charges, while, Mr. Muhammad Shafi Bhatti was only compulsorily, retired. To my mind, it will be a sheer travesty of justice and, indeed, the course of justice will be perverted if for the same offence the appellant has to pay the extreme penalty of dismissal from service whereas Mr. Muhammad Shafli Bhatti is only compulsorily retired. For the same kind of involvement, responsibility and complicity penalty of dismissal from service on one and compulsory retirement on the other would never have been just. In these circum--stances, I am of the opinion that it will be manifestly unjust to uphold the penalty imposed on the appellant.
Even otherwise, it is on record that the appellant had unblemish record of 35 years of service and he was considered to be a trustworthy and reliable-officer, Taking all this into consideration, the quantum of punishment would appear to be much severe. We, therefore, in exercise of the power conferred on the Tribunal under section 5 (1) of the Service Tribunals Act, 1973, modify to impugned order by altering the penalty and reducing it to compulsory retirement with proportionate pension and other retirement benefits. The appeal is disposed of with the above directions accordingly.
5. No order as to costs.
6. Parties be informed.