JUSTICE SHAH ABDOR RASHID (CHAIRMAN).-The appellant, while posted as Head Telephone Operator at Khanpur Mehar Exchange was, on 26-10-1976, served with the following charge-sheet by the Divisional Engineer (Telegraph), Sukkur, who was the Authorised Officer, under the Government Servants (Efficiency and Discipline) Rules, 1973: "Whereas you Mr. Ghulam Qadir, H. T. O. Khanpur Mehar excessively charged an amount of Rs.
6,606.08 from Mr. Daya Ram, subscriber of Telephone No. 21 Khanpur Mehar as shown under, for the month of November, 1975--
(1) By making ordinary calls as urgent and increasing duration from 3 minutes to 6 minuses by tampering the T. C. Tickets by the Telephone Operator. ----Rs. 775.45
(2) By wrong booking the trunk calls against the telephone of the complainant by the T. O.-------- ----------------------------------------------------------------------Rs. 3,761.38
(3) O/W and I/W T. C. Tickets vary with each other which resulted wrong charges due to fault of T.
O.------------------------------------------------------------Rs. 417.29
(4) Maturing time of several calls overlapped which shows wrong booking and calls charges by T.
Os.-------------------------------------------------------Rs. 142.16
(5) Alteration in class and duration of calls by the operators .------------Rs.1,509.80 Total--------------------------------------------------------------------Rs.6,606.08 And whereas you Mr. Ghularn Qadir indulging forgery and mal--practice in the above-mentioned events.
And whereas from the above facts and circumstances it appears that you are prima facie guilty of misconduct and corruption.
Now therefore, you the. Said Mr. Ghulam Qadir are hereby directed to show cause within 7 (seven) days of the receipt of this charge-sheet why you shall not be dismissed from services on the ground of misconduct and malpractice stating at the same time whether you desire to be heard in person and adduce any evidence (or witness) in your defence. Mr. A. Z. Kayani, A. E. Phones-I, Sukkur has been appointed Enquiry Officer under Government Servants (Efficiency and Discipline)
Rules, 1973, to conduct the proceedings against you ... .
The appellant replied to the charge-sheet on 10-11-1976, and refuted the allegations against him.
2. The inquiry was conducted by Mr. A. Z. Kayani, Assistant Engineer (Phones), and thereafter by order dated 9-12-1976, the appellant was removed from service by the General Manager, Southern Telecommunication Region, who was the Authority in his case. .
3. The present appeal was filed before us under section 4 of the Service Tribunals Act, 1973, on 5-3- 1981, and the learned State Counsel has raised a preliminary objection that this Tribunal has no jurisdiction to entertain it, as no valid departmental remedy, as required by section 4 (1) of the Service Tribunals Act, 1973, has ever been sought by way of appeal.
4. The appellant's case is that he did file an appeal to the department, but that was dismissed by order dated 2-2-1981. The order, according to him, was despatched on 4-2-1981 and he received it on 7-2-1981. He has filed a copy of the envelope in which the order of rejection of appeal was sent to him, and the seal of the Post Office shows the date of despatch as 4-2-1981. The appellant's case is that he received the order on 7-2-1981, which appears to be correct, inasmuch as, a period of three days is the shortest, in which a registered letter issued from Islamabad could be delivered to the addressee.
5. The learned counsel for State, however, contends that the order dated 2-2-1981 was not passed on a properly presented appeal to the department, and it has, therefore, to be taken out of consideration. It appears that on Z1-12-1978, the appellant addressed a letter which is not available on record) to the Secretary, Ministry of Communications, and the orders of the Secretary thereon were communicated to him by the Deputy Secretary (Complaints) by letter dated 18-1-1979. This letter reads as follows :- "With reference to your complaint made to the Secretary (Communications) on 21-12-1978, this is to inform you although you had failed to lodge an appeal within 30 days to the appellate authority, the Secretary has been pleased to permit you to make an appeal to the Director-General T & T against the orders of removal from serviceas a special case. You are accordingly advised to submit an appeal to the aforesaid officer through proper channel "
6. The appellant's case is that since the Secretary had allowed the appellant thirty days to file the appeal to the Director-General, Telegraph and Telephone, he did so on 14-2-1979, within the said period, and there--fore, the arguments of the learned counsel for State that no proper depart-- mental appeal had been preferred, are without any substance.
7. We have heard the learned counsel for the parties on the specific issue. The arguments of the State Counsel are that the Secretary, Ministry of Communications had no jurisdiction to extend the period of limitation for filing appeal, which expired on 9-1-1977 i. e. 30 days after the order of the removal. We are afraid, the contention of the learned State Counsel in this respect is not correct.
When the order of removal of the appellant was passed on 9-12-1976, the Civil Servants (Appeal)
Rules, 1977 had not been enacted, and the period of limitation for filing of appeal was governed by the Civil Service (Classification, Control and Appeal) Rules, 1963 which provided a period of six months for filing an appeal with the departmental authority. In this manner, the appellant could file the appeal by 9-5-1977 and NOT by 9-1-1977.
4. As regards the other contention of the learned State Counsel, it has been argued that the respondent-department cannot take the stand that the Secretary, Communications, had no power to enlarge the period of limitation, because the Government cannot challenge its own acts and orders. There is some force in this argument, but even otherwise on facts, the appellant had produced acknowledgments of several registered letters, starting from 11-1-1977 addressed to different authorities which, according to him, were appeals or representations against the order of his removal from service. No doubt, these representations/appeals were not addressed to the appellate authority itself; but that does not make any difference, because the appeal having once been filed, it should have been sent to the appellate authority for disposal. The appeal filed by the appellant finally on 14-2-1979 was not, therefore, the first appeal, but it was an appeal in continuation of his numerous appeals representations, a number of which were addressed to different authorities within the statutory period of six months, as provided for in the Civil Services (Classification, Control and Appeal) Rules, 1963. Apart from that, the departmental appellate authority, which rejected the appeal by order dated 2-2-1981 did not hold that the appeal before it was incompetent or was barred by time. Additionally, the appeal to the Tribunal lies from the final order and the respondent-depart--ment itself admits that order dated 2-2-1981 is the final order, as previous to that, no other order rejecting the appeal or representation of the appellant was produced before us.
9. Coming to the facts of the case, it may be pointed out that proceedings against the appellant were initiated on the written complaint of one Daya Ram, made by him on 7-1-1970 to the Minister for Communications, which was sent to the departmental authorities for necessary action. In this complaint, the name of the appellant was not specifically mentioned and it was stated that the "concerned telephone operator demanded bribe amounting to Rs. 100 for each month", which the complainant refused to pay. According to the complainant, he was heavily billed to take revenge and in his bills, stations like Peshawar, Karachi and Quetta werg also recorded with which he had no connection whatsoever.
10. We have gone through the inquiry report of Mr. A. Z. Kayani with reference to the charge-sheet, and we find that he was not fully convinced of the guilt of the appellant, but had found him guilty contrary to the substance of his report. The Inquiry Officer was handicapped by the limited time allowed to him for sending the report. In para. C of his report, he says : '
"Since very limited time has been allowed to me for the submission of the inquiry report, therefore, all points are being touched briefly though quite a detailed and exhaustive inquiry has been conducted into this complicated and long out-outstanding case."
11. Mr: Daya Ram had deposed before the Inquiry Officer that the appellant had demanded bribe of Rs. 100 from him in June, 1975. However, in the complaint which he had submitted to the Minister for Communica--tions, the appellant's name was not specifically mentioned. The Inquiry Officer also does not appear to have been convinced that there was any demand of bribe by the appellant.
The charge-sheet too does not say that the appellant had demanded Rs. 100 per month as bribe.
The Inquiry Officer had, therefore, rightly held that the charge of corruption against the appellant was not established. In fact, it was not necessary to go into the evidence regarding attempt to receive bribe, inasmuch as that would not have been relevant to the charge which had been served on the appellant.
12. Coming to the charges, the first charge is that the appellant converted the ordinary calls into urgent ones and also raised the duration of several calls from three minutes to six minutes. The second charge is that such calls which were not made by Daya Ram, the subscriber of telephone No. 21. Were booked in his name. The former charge allegedly shows a loss of Rs, 775.45 to the subscriber as well as the Government, while the second charge shows a loss of Rs. 3,761.38. The third charge was that outward and inward trunk calls tickets vary with each other, resulting in wrong charges and thus causing a burden of Rs. 417.29 on the subscriber. The fourth charge was that the maturing time of several calls overlapped, showing wrong booking by the telephone operators. This allegedly caused a difference of Rs 142.16. The last item of the charge says that alteration in the calls and duration of calls by the operators caused a difference of Rs. 1,509.80. In this way, the subscriber-complainant suffered a loss of Rs. 6.606.08. It was argued at the bar by the learned State Counsel that in case of refund of this amount, the loss falls on the Government. In the charge-sheet itself, as reproduced above, it has been further stated that the appellant indulged in forgery and malpractices.
13. We have gone through the evidence recorded by the Inquiry Officer and also the inquiry report.
It is pertinent to note that there is no direct evidence against the appellant for being himself responsible for the irregularities which have been mentioned in the charge-sheet. It was admitted at the time of hearing that the appellant was the Head Telephone Operator and was assisted by other Operators also, all of whom had been performing their duties jointly though the appellant was overall incharge. The same evidence was considered against one Noor Muhammad, Telephone Operator by the Inquiry Officer, but strangely enough, he was not found guilty by simply saying that his defence was satisfactory. Para. N of the inquiry report reads as follows :- "The written defence put forth by the accused official Me. Noor Muhammad son of Mumtaz Ali, T. O.
Under suspension is quite satisfactory in respect of item one of charge-sheets. The relations between complainant and this official were quite normal as such there is no apparent motive for indulging in booking of bogus calls from K. P. M_21. Moreover, he has furnished partial justification for Karachi calls of this subscriber during oral hearing. The only possibility is that he might have been carried away by the sentiments of his senior colleague and may have booked a few bogus calls."
14. From the above, it appears that the Inquiry Officer totally relied on the statement of Daya Ram, who was interested in this case and whose enmity with the appellant is established. We can judge the reasons for the keenness of the Inquiry Officer in recommending some sort of punishment for the appellant. He appears to have been over-awed by the fact that the proceedings had been initiated at the instance of the Minister for Communications. We have found on record copy of the directions of the Minister who in his minutes had made the following orders about the appellant :- "He must be thrown out and compliance reported."
It appears that steps were also taken to report the compliance to the Minister, as is evident from the note of the General Manager dated 1 J-12-1976, which is as follows :- "The report of Mr. K. M. Bhutto, D. E. T., Sukkur has since been received on 9th instant. The official has been found guilty and has, therefore, been removed from service. A copy of the punishment order is placed at 4/C."
It was endorsed to the A. P. S. To the Minister for Communications. All this shows that the Inquiry Officer, the Authorised Officer and the Authority were predetermined to comply with the orders of the Minister, which was to the effect that the appellant should be got rid of.
15. The order of the Minister biased all the subordinate authorities and, therefore, the report of the Inquiry Officer, the recommendations of the Authorised Officer and the orders of the authority which followed the directions of the Minister were mala fide in law, and on this legal ground alone, the appellant deserves to be exonerated: However, on going through the report of the Inquiry Officer, we find that he was quite conscious that the charges against the appellant were not established beyond doubt. In para. 1 (f) the Inquiry Officer says:--- Moreover, in sweeping statement without proper analysis, the responsibility for these calls has been fixed only on two T.Os. i.e. Messrs Ghulam Kadir and Noor Mohammad. Detailed scrutiny was carried out which reveals that five telephone operators Messrs Noor Mohammad, Mohsin Ali Shah, Ghulam Kadir, Mohd. Bachal and Rahim Bux are responsible for it. (Refer Exh. XIX). One T. O. Mohsin Ali Shah has already resigned and left the department, Disciplinary proceedings have been initiated against two and no action has been taken against other officials."
This observation shows that the Inquiry Officer was not happy with what bad been done, and he did suspect that any other Telephone Operators might be responsible for the irregularities. Again in para. (g). The Inquiry Officer's observation shows that he was doubtful of the appellant's guilt. B Paras. (h) and (i) too, to some extent, show that the appellant's guilt was doubtful. The best evidence, i.e. Of the statements of persons receiving the calls was not brought on record to show that calls were bogus or were made by some other subscribers.
16. The Inquiry Officer went beyond his scope, presumably in view of the orders of the Minister that the appellant should be got rid of, when he tried to change the nature and the substance of the charges and asked the accused appellant to explain his position. It is pertinent to reproduce the portion of para. K of the report, which goes to show the interest which the Inquiry Officer tried to take against the appellant: "Reference is invited to toe charge-sheet served upon Ghulam Kadir, T. O., which it may be respectfully pointed out, does not level the charges specifically against him and is rather drawn improperly. Hence the official, in his written defence dated 10-11-1976 (Exh. XXII) became evasive and did not attempt to put solid defence. This lapse was covered during the personal hearing wherein the official was informed about specific charges and afforded every opportunity to clarify his position vis-a-vis the following:
(a) Enhancing of priority and durations of calls booked by KMP-21.
(b) Debiting bogus calls against KMP-21. (c) Overlapping of connecting time of trunk calls of KMP- 21."
It was not in the domain of the Inquiry Officer to go beyond the charges He usurped the functions of the Authorised Officer. If he considered that the charge-sheet required amendment, he should have made a reference to the Authorised Officer in this respect should not have played the role of the Authorised Officer himself.
17. It was explained to us that the calls from Khanpur Mehar to outward stations were being transmitted through Ghotki exchange and that there was difference in the bills of the trunk calls.
We have gone through the table showing this difference and find (which finding is of the Inquiry Officer himself also) that the mistake could take place either at Khanpur Mehar where the appellant was appointed or at Ghotki exchange. It cannot, therefore, be said that the allegations against the appellant were specifically established beyond doubt.
18. As regards the overlapping of calls, it has been explained to our satisfaction that overlapping is quite possible when a three-minute call is converted into six minute call, because even a four minute call will be treated as a six minute call.
19. In view of the above facts, and particularly in view of the bias of the officers who dealt with the case and by giving benefits of doubt to the appellant, we accept this appeal and set aside the order of his removal from service and direct his re-Instatement. Since the appellant himself was responsible, to some extent, for remaining out of job, because- he did not approach the Tribunal earlier, though he could do so under law, and also because his exoneration is not honourable in the technical sense, we will not allow him arrears of salary from the date of removal up to the date of this order, and direct that this period should be treated as period on extraordinary leave without pay, without causing any break in service. The appellant shall be entitled to pay, and allowances from the date of issuance of this order, irrespective of the fact that actual work is assigned to him from any subsequent date. .
20. There shall be no costs.
21. Parties to be informed.