A. O. RAZIUR REHMAN (MEMBER).--The appellant, formerly Accounts Clerk; Central Monitoring Organization, WAPDA, Lahore, was served with a charge-sheet, dated 2-8-1975, alleging certain acts, on his part,, which amounted to misconduct, and requiring him to submit his reply to the charge-sheet within 14 days and also to state if he desired to be heard in person. He replied to the charge-sheet on 20-8-1975, but, instead of explaining his position or putting forward his defence, he asked for copies of certain documents in order to enable him to clear his position in respect of the charges. In response to this request, he was directed to consult the record in the Office of the Tarbela Dam Project, WAPDA, at Tarbela for the purpose of preparing his reply. Thereafter, a departmental enquiry was held under the WAPDA Employees Discipline Rules, 1975 and a report, dated 30-4-1979, was submitted by the Enquiry Officer to the concerned authorities on 8-5-1979.
On the basis of this enquiry report, a show-cause notice was given to the appellant on 19-8-1979, requiring him to show cause against imposition of the major penalty of removal from service, on which he made a request for the supply of a copy of the enquiry report to enable him to submit his reply. In this communication, he also stated his grievance that his request for supply of certain documents for the purpose of preparing his reply to the charge-sheet had not been acceded to, that he was never afforded an opportunity to consult all the relevant record and that the personal hearing he had asked for in one of his letters had never been granted. It appears that, after this letter, the appellant was asked to appear for personal hearing on 21-11-1979, but he made a request for postponement of the hearing till consultation by him of the relevant record, after which he was heard again on 10-121979. This was followed by an office order, dated 10-4-1980, removing him from service with immediate effect. This office order is reproduced below in extenso: "OFFICE OF THE MANAGER FINANCE (WATER) WAPDA,WAPDA HOUSE, LAHORE Dated 10-4-1980.
No. Accts. /P (808)/200-201 OFFICE ORDER Mr. Farooq-uz-Zaman Farooqi, Accounts Clerk, Office of the Sr. Budget & Accounts Officer, Mangla was charge-sheeted for:
(i) Misbehaviour and manhandling of Mr. Noorullah, Assistant Accountant, Tarbela Dam Project, Tarbela.
(ii) Delaying the Salary, T. A. & medical bills and black-mailing the Medical Superintendent, WAPDA Hospital, Tarbela.
(i.e) Making un-authorized deductions from the Pay Rolls of the officers and staff on account of Club subscription and income-tax.
(iv) Refusing to comply with the orders of the Project Account.
After receipt of his defence reply to the charge-sheet he was given a personal hearing and the case later forwarded to the Inquiry Officer for conducting formal inquiry into the charges against him. The Inquiry Officer in his report dated 8-5-1979 has held the official guilty of 3 out of the 4 charges levelled against him in the charge-sheet.
On the receipt of Inquiry Report the official was given a show-cause notice and he was also heard in person twice and was given full opportunity to explain his position.
After careful consideration of the case the Manager Finance (Water) being the competent authority in this case has decided to impose a major penalty on him under rule 4 of WAPDA E & D Rules, 1978. Accordingly Mr. Farooq-uz-Zaman Farooqi, Accounts Clerk is hereby removed from service with immediate effect as the charges levelled against him in the charge-sheet have been fully established against him.
(Sd.)
(Muhammad Anwar), Authority : M. F. (W)'s ordersSr. Budget & A/cs Officer on N P-13 of(Adorn.) Water."
Inquiry File.
2. On 19-5-1980, the appellant submitted a departmental appeal to Member (Water), which was rejected and the rejection conveyed to him by the Senior Budget and Accounts Officer (Administration), Water, on 7-7-1980. Against this rejection, he came up in appeal before this Tribunal on 24-7-1980. The appeal, having been admitted on 17-9-1980, came up for regular hearing on 16-4-1983 and is being disposed of by this order.
3. The case of the appellant is summarized point-were as under:
(i) The statement of allegations was not supplied to him alongwith the charge-sheet.
(ii) In spite of his request for making the relevant record available to him, this was not done.
(i.e) The Inquiry Officer did not permit cross-examination of the prosecution witnesses and also did not summon the defence witnesses cited by the appellant.
(iv) Copy of the enquiry report was not supplied to the appellant, despite request made by him.
(v) The Office Order removing him from service did not specify which 3 charges out of 4 had been proved against him.
(vi) Only two witnesses deposed in support of the charge of physically manhandling an Assistant Accountant, but they stated that they never witnessed the incident and only heard about it.
(vii) Although, from the charge-sheet, i&' was apparent that the Medical Superintendent had made a complaint against him, neither a copy of the complaint was supplied nor the complainant examined by the Inquiry Officer, which showed that the complaint was not correct and bad been manipulated by interested person.
(viii) The official, who had alleged that the appellant did not comply with the orders to hand over charge of his seat to another official, was not examined by the Inquiry Officer.
(ix) The appellant was prejudiced in his defence by the non-supply of the details of delays made in the processing of salary and T. A. Bills of the Medical Superintendent and other doctors for getting undue benefits from them.
4. The respondent replied to the above points in the written objec--tions, as well as in the course of the hearing. Before we deal with the merits of the points raised by the appellant, in the light of the replies given on behalf of the respondent, we would like to place it on record that we were extremely unhappy that the enquiry file pertaining to the case was not made available to us at the time of hearing, or even subsequently. Even the record of the evidence collected by the Inquiry Officer was not forthcoming, either in original or otherwise. A photostat copy, however, of the evidence recorded was supplied to us after the hearing was over. We shall, therefore, base our findings on a rather incomplete set of documents.
5. To begin with, we shall deal with the points raised by the appellant seriatim:
(i) From the record, we find that no statement of allegations was appended to the charge-sheet served on the appellant. It is, however, observed that the charge-sheet contained fulfil details of two of the charges, namely 1 & 4 and substantial and general statement in respect of the other two charges, which, though giving a general idea of the nature of those allegations, did not precisely pinpoint the specific instances on the basis of which these two charges had been preferred. In this connection, it was-pointed out on behalf of the respondent that, since the proceedings were taken up against the appellant not under the Civil Servants (E & D) Rules, which were made applicable to WAPDA employees much later, but, under the WAPDA Employees Discipline Rules, 1975, the concerned authorities were not bound to provide a statement of allegations alongwith the charge- sheet. It was also stated on behalf of the respondent that no request for such statement was made by the appellant. We agree with the respondent that it was not necessary for the concerned authorities to furnish a separate statement of allegations to the appellant, alongwith the charge- sheet. But, we Ore definitely of the view that the charge-sheet should have contained all the relevant facts pertaining to each specific charge, in order to enable the appellant to furnish his defence. Since precise details were furnished only in respect of two charges, viz. 1 & 4, we can concede that only in respect of these two charges the allegations were clearly brought home to the accused.
(ii) From the record produced before us by the two parties, it 'is seen that, while the charge-sheet was served on the appellant on 5-8-1975, he made a request to the Chief Accountant (Water) on 20-8-1975, for supplying the following:
(a) copy of the complaint lodged by the Medical Superintendent on 2-6-1975 ;
(b) copy of the complaint from the officers and staff' of Tarbela Dam Project against the appellant ;
(c) copy of the complaint from Mr. Noorullah, Assistant Accountant relating to his alleged manhandling.
It appears that be was directed by the Chief Accountant to consult the record of Tarbela Dam Project in connection with his defence. At a later stage, when the appellant made another request for supply of the above documents on 6-10-197fi, he was again given permission to consult the record and allowed to stay at Tarbela for two days, for which be was also allowed T. A. & D. A. It is thus seen that, although the documents asked for were not supplied to him, permission was given to him to consult the documents for the purpose of his defence. His complaint, therefore, on this score is not tenable.
(i.e) So far as the question of cross-examination is concerned, photo copies of the evidence recorded by the Inquiry Officer very clearly chow that, out of 4 prosecution witnesses examined by the Inquiry Officer, the accused official cross-examined as many as 3 and declined to examine the remaining one witness. We are in no doubt that the accused official was not only given full opportunity to cross-examine the witnesses but he availed this opportunity to his fullest satisfac-- tion, so much so that, in the case of one of the witnesses, namely, P. W. 3, Muhammad Ilyas Chughtai, Junior Accountant, Power House Tarbela, the cross-examination, which was started immediately after the examination of the witnesses on 15-2-1978, was carried over to the next day, i. e. 10-2-1978, and as many as 4 pages of cross-examination recorded on the first day and 8 on the second day. The allegation, therefore, that cross-examination of the prosecution witnesses was not allowed, is baseless.
(iv) It is true that no copy of the enquiry report was given to the appellant when the show-cause notice was served on him under a Memo. Dated 19-8-1979. But, on receipt of the said notice, the appellant made a request for supply of a copy of the enquiry report; vide his registered A. D. Letter No. A/XVI/100, dated 2-g-1979. The enquiry report was supplied to him, vide Manager Finance (Water) Memo. No. Acetts/P (808)/2095, dated 13-11-1979, copy of which was furnished by the respondent-Department alongwith the written objections. There is, therefore, no substance in the allegation that a copy of the enquiry report was not furnished. Since the appellant submitted his reply to the show-cause notice after receipt of the enquiry report, earlier non-supply of the report did not prejudice his case in any way and, therefore, he can have no ground for complaint on this point.
(v) So far as the removal order is concerned, it is a fact that it does not mention which three out of the four charges levelled against the appellant had been proved and made the basis of his removal from service. This, however, is not a very material point, because the appellant knew very well which three out of the four charges had been established against him, since, at his own request, the copy of the enquiry report was supplied to him and he must have studied the same before submitting his reply to the show-cause notice. This ground also has, therefore, no legs to stand on.
(vi) In regard to the appellant's contention that only two witnesses deposed to corroborate his physically manhandling an Assistant Accountant and that these witnesses also did not see with their own eyes the alleged incident but only heard about it, the stand of the respondents as disclosed in the written objections was a meaningless denial without any elaboration as to the actual position according to them. From the copy of the evidence tendered before the Enquiry Officer by the two witnesses in question, we find that Mr. Maqbool Hussain did state that the manhandling of the Assistant Accountant had been witnessed by him, while the other witness, namely, Mr. Ilyas Chughtai, deposed that he had heard about the incident. It is thus clear that, although the evidence of Mr. Ilyas Chughtai could be considered to be hearsay evidence, no such view can be taken of the evidence of Mr. Maqbool Hussain, who most clearly and emphatically stated that he had seen the actual manhandling. Therefore, the stand of the appellant on this point also stands rejected.
(vii) The contention of the appellant that non-supply of the complaint made in writing by the Medical Superintendent and non-examination of the said officer showed that the complaint was not genuine and had been manipulated by interested persons does appear to have a great deal of force. The record clearly indicates that the entire case pertain--ing to the allegation made by the Medical Superintendent was based on the complaint made by the said Superintendent and yet neither the written complaint was exhibited during the departmental proceedings nor the Medical Superintendent himself examined. The reply of the respondent on this point is reproduced below: "It is admitted that the Medical Superintendent was a complainant and his complaint was given due consideration by -the-Inquiry Officer WAPDA. A copy of the complaint could not be given to the plaintiff due to administrative reasons."
The reply is so patently absurd that it does not call for any further observation or comments. The appellant's stand on this point cannot but be upheld.
(viii) As for the point raised by the appellant, in connection with the alleged non-compliance with an order to hand over charge of seat to re another official, that the relevant official had not been examined by the Enquiry Officer, we find that Mr. Sarwar Yar Khan, the Project Accountant, who had made the allegation, never appeared before the Enquiry Officer to substantiate the charge. At the same time, from the evidence of Mr. Javed Iqbal, who was required to take over charge from the appellant, we find that the appellant was willing to hand over charge to him but not in writing. As stated by the witness. "the accused official was of the view that as he has taken the charge without anything in writing he should hand over the charge without any written charge report.."
The appellant himself, in his reply to the show-cause notice, tools the following stand: "I cannot dare to refuse to obey the orders of my superiors. I never disobeyed any order. In fact there was no written order as admitted by the I/O himself. Even no post facto orders have so far been issued to regularize the change. I only requested that the orders may be brought on the record. But one sided action was taken and the steel almirah was broken open in my absence (the same was under my charge). Even then no inventory was prepared. The 1/O had also admitted it.
He has recommended mercy. I pray that I may kindly be let of."
The Enquiry Officer's views in the matter are contained in the following observations in the concluding paragraph of his enquiry report: "The P. W. Mr. Chughtai deposed that he personally directed the accused official to hand over the charge to Mr. Javed Iqbal but he refused to obey the orders and at last the Almirah in which the record was being kept was broken open by order of Deputy Project Director and Project Accountant, but no inventory of the contents of Almirah was prepared. The order of Project Accountant for transfer of the accused from one seat to another in one and the same section whether verbal or in writing was a legal order which at all costs the accused ought to have obeyed, and his refusal to obey such orders amounts to misconduct and I am reluctant to exonerate him of this charge also."
Taking all the above facts and circumstances into account, we are unable to agree with the Enquiry Officer's observation that the failure of the appellant to obey the alleged order amounted to misconduct. We are firmly of the view that the appellant was full within his rights to ask for an order in writing given by the competent authority. The failure of those concerned to produce such an order shows that either something was wrong with this alleged order or there was a lack of system prevailing in the concerned section, if not the entire office. At any rate, the request of the appellant, for being given a copy of the order transferring him from one seat to another, cannot be characterised as an act of misconduct and he cannot be held guilty on this score.
(ix) The last point raised by the appellant, which calls for examination, relates to charge No. 2, alleging that it had been reported by the Junior Accountant (Salary) that the appellant considerably delayed the Salary & T. A. Bills of the Medical Superintendent and other doctors for getting undue benefits from them in connection with the medical references. Under this charge, it is also stated ; "he also indulged in acts of blackmailing the Medical Superintendent."
As mentioned earlier, in reply to the charge-sheet, the appellant had asked for a copy of the complaint lodged by the Medical Superintendent and also sought permission to see the relevant cash vouchers, i. e., salary and T. A. Bills, in connection with this charge. There is nothing on the record to show that either a copy of the complaint made by the Medical Superintendent was furnished to the appellant or he was given access to the relevant vouchers. In the course of the hearing also, the learned counsel for the respondent did not come forward with any clarification on the point or with any explanation for the non-acceptance of the request. In the written objections, however, the point made by the appellant has been evaded by the following cryptic reply: "The contents of the para. Are baseless. The charges were dealt with by the Enquiry Officer at length, who eventually found the plaintiff as guilty of misconduct."
Considering the importance of the details of the allegation under this head and of the documents and vouchers on which the charge was based, there could be no two opinions that the refusal of the concerned authorities to furnish the necessary details and to give permission to the appellant to examine the relevant documents could not but have the effect of keeping the appellant in the dark as to the material facts constituting the charge and the documentary evidence relied upon in this behalf.
6. From the above analysis of the points raised by the appellant and the replies thereto furnished by the respondent, the following facts and circumstances have emerged:
(i) The appellant's contention that there was any material irregularities, or departure from the prescribed procedure, which caused prejudice in his defence or vitiated the proceeding, has not been supported by any substantial evidence, except that in regard to charges 2 and 3, the charge- sheet did not furnish enough material to enable the appellant to understand the material' on the basis of which the charges had been framed, although, even in respect of these charges, subsequently, during the course of the enquiry, facts relevant to the charges were brought home to the appellant in order to enable him to defend himself and, refute the allegations. We would not, therefore, impugn the order appeal--ed against on the basis of procedural irregularity or any defect in the charge-sheet or the departmental enquiry conducted against appellant.
(ii) The report of the Enquiry Officer finds the appellant guilty of three out of the four charges levelled against him. The first charge, namely that of physically manhandling an Assistant Accountant, Mr. Noor Ullah, had not, according to the Enquiry :Officer, been proved and the competent authority, who awarded the punishment to the appellant, also appears to have agreed with the Enquiry Officer on this point.
(i.e) So far as charge No. 2 is concerned, as already discussed, although the enumeration, of instances of delay made by the appellant in making some f the payments, are indicative of lack of diligence on his part, mala fide or attempt at blackmailing has not been established and we are unable to agree with the finding of the Enquiry Officers, that the charge stood proved against him.
In fact, from the report of Enquiry Officer, it appears that, in arriving at his finding on this score, the Enquiry Officer relied almost entirely on the statement of P. W. Mr. Ilyas Chughtai, G made before him during the enquiry, in the course of which the latter expressed his own opinion in the matter.
The exact words used by the Enquiry Officer are : "He stated that he verified the complaint of Medical Officers and found the complaints to be genuine and the accused official was found to be guilty of delaying the bills of the Medical Staff as mentioned in the complaint of Dr. Mian Mohammad Sabir appearing at page 42 of the file. The accused official could not produce any evidence in its rebuttal. Hence this charge stands proved against him.
We are unable to support this finding of the Enquiry Officer, for the simple reason that it is merely an endorsement of the opinion of a witness who for all we know may not be an entirely disinterested person. The Enquiry Officer has not gone into the details of the reasons on which this conclusion has been arrived at and, to all appearances, does not seem to have applied hi own mind to the question whether there was any mala fide intention of extracting undue benefits from the Medical Superinten--dent and other doctors and of blackmailing the Medical Superinten-- dent.
(iv) The charge of unauthorised deductions and excess recovery of income tax from the pay bill` officers and staff of the Tarbela Dam Project has been only partially established inasmuch as, while there is nothing to indicate -that there was any mala fide in the excess deduction of income-tax, because there was also refund when it was discovered that excess amount had been recovered (this is true of both the cases which were mentioned by one of the witnesses during the hearing), it is nevertheless, true that club subscriptions were deducted without the consent of those concerned or against their wishes. This was clearly irregular and a misuse of official position. But, since it appears to have been done under some sort of general understanding among the employees on the subject, a less severe view need be taken than would normally be adopted where there was any mala fide intention or attempt to derive unlawful benefit or cause, deliberate harm to somebody.
(v) Regarding the refusal to hand over charge, it is obvious from the evidence on record that whoever passed the order did not do so in 'writing and, if the appellant asked for the same, he did not commit any act of indiscipline or misbehaviour and we do not accept the view of the Enquiry Officer that the appellant deserves to be punished for asking for the same.
(vi) Viewing the charges, the evidence, the report of the Enquiry Officer, with all its shortcomings, and the pros and cons of the appeal in their totality, we are left with the impression that the appellant did conduct himself in such a way as to cause annoyance, incon--venience, and offence to many of his colleagues and superiors.
7. In the light of the foregoing, we are satisfied that this is a fit case for allowing the appeal and setting aside the impugned order. However, for the reasons stated at (vi) of the foregoing paragraph, we consider that the appellant does deserve to be penalised for the following offences :-
(a) He was responsible for creating a situation on 29-5-1975, when he and Mr. Noor Ullah, Assistant Accountant grappled with each other physically.
(b) He delayed the passing of the bills of the Medical Superintendent and other doctors on a number of occasions, which shows either carelesseness or lack of diligence on his part.
(c) He unauthorisedly deducted club subscription from the pay bills of some of the officers and staff of the Tarbela Dam Project.
8. Considering the facts that, in respect of the first offence, the finding of the Enquiry Officer-is positive that he was not the aggressor and that, in the case of the other two offences, no mala fide was established, although, in the case of the second offence, there could be some suspicion of mala fide, as against the third where such a suspicion could not be reasonably warranted, we are of the view that the punishment of removal from service is both disproportionate and harsh. It is, therefore, ordered that the appellant be re-instated in service, with effect from the date of his removal but simultaneously reduced by two stages in his pay scale.
9. No order as to costs.