Tauqeer Ahmed Khan, Member.--Through the list at hand, Ex-Senior Auditor Mushtaque Ali Depar, the appellant herein, assails the order dated 24.12.2019 of his dismissal from service. Against the said dismissal, appellant preferred departmental appeal on 23.1.2020, which remained; hence, this appeal having been filed before the Tribunal on 14.07.2020, appears to be barred by 53 days, as pointed by the office, where the appeal was presented. An application for condonation of delay, duly supported by an affidavit, has been filed contending that the appeal could not be filed due to Covid-19 and that the Hon'ble TE Supreme Court have issued notification of condonation of delay, if any litigant could not approach the Court or Tribunal due to the said reason.
2. That while the appellant was performing his duty as Senior Auditor, B-16, a charge sheet dated 03.09.2015 alongwith statement of allegation was served upon him for alleged unauthorized payment! adjustment/ level jumps in salary were made in the salary of Education Department, in 78 numbers of cases resulting unauthorized payment of Rs. 31,983,185/-and that the Monitoring & Evaluation Cell of A.G. Sindh has also verified the above adjustment, which were made through his user ID and no concrete evidence was provided to verify the same. The charge sheet alleges that, "as per system report, un-authorized payment/ adjustments/ level jumps were made in the salary of Government employees of Education Department." Resulting loss of Rs. 31,983, 185/-to the exchequer".
The charge/ statement of allegation was replied vide reply dated 15.09.2015, which is reproduced as under:- "In reply to above referred charge sheet, it is to Submitted that:
(1) I had performed my duties as Key Punch Operator. The Drawing and Disbursing Officer prepares the Pay amendment Forms and present them in Pre-Audit Section where the Senior Auditor being primary Auditor check the entries in accordance with supporting documents under supervision of Assistant Accounts Officer. Both of then after checking and verification put their signatures there on and forward the same for punching into the SAP system.
(2) In my tenure of posting in District Accounts Office Hyderabad, I had done thousands of such entries on the basis of pay amendment forms. I can not explain my position until and unless such forms are available with me because all such forms are under the custody of Computer Section of District Accounts Office, Hyderabad when I have no access to see document which are under observation.
(3) Every month, month expenditure statements of each DDO is electronically generated on which both the Assistant Accounts Officer of concerned section and DDO sign such reconciliation statements.
(4) A per Central Treasury Rules (see paragraph 138(vii) the responsibility of incurring unsanctioned charges rest with drawing officer.
(5) In the light of above, being a key punch operator the responsibility of my omission may not be put over my shoulders and at this stage when the documents are neither in my custody nor I have any access to see them, their status cannot be explained.
(6) It Is therefore requested that till detailed Scrutiny of papers one no completed allegation May not be leveled against me so that charges may be withdrawn: I also want to be heard in Person to explain before your kind honour."
It was stated in the appeal that appellant replied to the charge sheet vide reply dated 15.09.2015 and main plea was taken that unless the forms supplied to the appellant in those 78 cases are supplied to him, he would not be in a position to submit his reply properly. An application dated 05.11.2015 was submitted to the inquiry officer, requesting him to direct the District Accounts Officer, Hyderabad to produce forms Pay-01 and Pay-02 and supply the copies to him. The inquiry officer wrote letter dated 10.11.2015 to Accounts Officer, directing him to give access to appellant to the record of Form Pay-01 and Pay-02. The Accounts Officer vide letter dated 18.11.2015, wrote to the District Accounts Officer for providing copies of such forms, but such access was not allowed neither the copies supplied to appellant.
It was the prime objection of the appellant that he has been condemned unheard for the reason that right after issuance of charge sheet and appointment of inquiry, he was making requests for supply of forms Pay-01 and Pay-02 and to that effect order was also passed, but none was supplied for the purpose of preparing his reply effectively.
It was also stated that the appellant came to know through the charge sheet that some Mr. Khalid Ahmed has been appointed as inquiry officer, but he has never seen the face of inquiry officer as he was not called by him nor any evidence was recorded in his presence. The so-called inquiry report dated 21.4.2017 was never supplied was given any show cause notice before imposing the penalty.
A penalty of compulsory retirement was imposed upon him vide order dated 20.07.2016, where- against, he preferred departmental appeal, which was rejected vide order dated 21.4.2017; whereafter, appellant approached this Tribunal in appeal No. 74(K)CS/2017, which was decided vide judgment dated 29.07.2019 by setting the orders dated 20.07.2016 and 21.4.2017, directing the respondent to reinstate the appellant in service, however, the department was given liberty to conduct de novo proceedings against him in accordance with law. It was further ordered that, "in case it is decided to hold proceedings, it should be completed within a period of four months from the date a copy of this judgment is received in the office".
Appellant was reinstated in service and order of de novo inquiry dated 24.10.2019 was issued alongwith a charge sheet and statement of allegations dated 24.10.2019 was served upon the appellant, to which, the appellant submitted his reply on 04.11.2019 alongwith a letter dated 11.3.2013 wherein it was stated that before start of office timing, some punching are done by misusing the user ID of the appellant, but till date, no action was taken on application of appellant. The record of ID hacking has been attached alongwith memo of appeal.
Thereafter, de novo inquiry was conducted against the appellant in which he was not properly allowed to participate. It was alleged that during the inquiry, conducted upon the orders of this Tribunal, where neither any witness was examined in presence of the appellant nor was he allowed to cross examine the witness which is basic violation of fair trail; such opportunity was not given to the appellant only show cause notice and charge were same, only dates were changed.
It was mentioned that in one's ID, password can be hacked/ thieved/ stolen by any person, therefore, apprehension cannot be ruled out; hence, the appellant requested the authorized officer to provide him computer IP address which was not provided, moreover, he further requested for providing some other documents which have been made basis for imposing major punishment of compulsory retirement earlier imposed and now dismissal from service.
It was contended that it is acceptable information generally given and boosted by a largest News Agency REUTERS on 02.05.2019 through print and electronic media that a hacked could steal anything that sits on company's system application product (SAP) and also modify any information there so hacker can perform financial fraud, withdraw money or just plainly sabotage and disrupt any system.
A show-cause notice dated 03.12.2019 was served upon, but before submitting his reply, appellant made a request for providing/ supplying the evidentiary documents, which were neither supplied not construed exhibited disclosed to the appellant during the inquiry or at the time of issuance of charge sheet so as to enable the appellant to reply and defend properly which is violation of Qanoon-e-Shahadat Order 1984. Hence, no de novo inquiry was conducted and relying upon some illegal manners charge sheet, the appellant was punished with a major penalty of dismissal from service with malafide intentions.
During the inquiry, appellant was not given opportunity to explain his position, but he was compelled to only reply the questions asked by the inquiry officer, no final show cause notice was issued to the appellant before passing the impugned order, in this way, discrimination has been made against the appellant. Appellant was called for personal hearing but was not allowed to explain his position, but it was just a formality. Vide order dated 24.12.2019, major penalty of dismissal was imposed upon the appellant; being aggrieved therewith, appellant preferred departmental appeal on 23.1.2020, which remained unresponded; hence, appeal, explaining his position that due to Covid-19, he could not approach this Tribunal within 120 days, as such, delay be condoned.
3. The Respondent No. 3, being the main respondent and where the appellant was appointed/ working, has submitted its comments. No comments are offered by the said respondent with regard to assignment of duties to the appellant as Key Punch Operator (KPO) and his continued working as KPO in the office of District Accounts Office, Hyderabad as mentioned in paras-1 & 2 of memo of appeal.
Here it is to be mentioned that in reply to the charge sheet dated 03.09.2015, the appellant had clearly and specifically stated that he had performed his duties as Key Punch Operator. This. stand was also taken by the appellant in his reply to the charge sheet dated 24.10.2019, wherein para-1 he stated that, "in response to your letter No. mentioned above I state that I was appointed as Junior Auditor on 07.12.1999 and joined my duties in AG Sindh and then transferred as Key punch operator vide order No. Admn-I/T&P/DAO/1188 dated 29.1.2000 along with job description (Annex-A) in computer section of DSO of Hyderabad Office".
4. We have heard the learned counsel for both sides and carefully gone through the record annexed and placed on record before us.
5. On our scrutiny of record, we find that apart from the above fact that whether the appellant was performing his duties at the relevant time as Senior Auditor or as Key Punch Operator, we find that the annexures filed with the comments and papers specially annexure B' shows that Questionnaire No. 1 & No. 2 were given to the appellant to submit his answers, which he duly answered. As per letter dated 19.11.2012, annexed with the comments, the inquiry officer wrote to the District Accounts Officer, Hyderabad, where it was requested to obtain written statem ents of Aziz Mustafa Shaikh (AAO), Tariq Sahito (AAO), Ashraf Janwari (AAO), Nizamuddin (Senior Auditor), Pervez Abro (Senior Auditor), Muhammad Waseem (Senior Auditor) and Sarwar Rahopoto (Sub Accountant). Their statements are available on record, but it is not known whether during the inquiry, they were called to authenticate and substantiate their statements before the inquiry officer or whether they were allowed to be cross examined by the appellant, record is silent on this point, as such, their statements cannot be taken as gospel truth and cannot be used against the appellant and the findings based on such statements are not reliable, punishment imposed thereupon cannot, therefore, sustain. As stated above, questionnaire was provided to the appellant to submit his answers. Hence, the inquiry held against the appellant is apparently an inquiry based on questionnaire, which has not been appreciated by the Apex Court in a number of judgments. This Tribunal in its judgment dated 28.09.2020 passed in appeal No. 139 (K)CS/2019 has discarded such type of inquiry by observing that, "Proceedings of the inquiry annexed with the comments also makes it abundantly clear that the inquiry was conducted in questionnaire as mentioned in opening para of the report of the inquiry officer at page-10. It has been the emphasis of the Hon'ble Supreme Court that while imposing major penalty upon a delinquent, a detailed/ thorough inquiry has to be conducted providing the accused full chance to defend himself, but in this case, regular/ proper inquiry has not been conducted and penalty imposed upon the appellant in our view cannot be sustained. There are several discrepancies and legal infirmities which have been found in the conduct of inquiry by the respondents against the appellant, which are fatal and in our view has seriously prejudiced the case of appellant. There are serious allegations having been levelled against the appellant which could not have been proved otherwise than holding a proper/ regular inquiry". In this regard, reliance is placed on 2008 PLC
(CS) 973, where this Tribunal had observed that, ".... He also prepared questionnaire on each and every allegations and then sought answers of the appellant on it. No separate statement of appellant was recorded nor was he asked to produce any defence if he wanted to do so. The explanations in answers and questionnaire do not fulfil the requirement of law because in that event the appellant was confined to the answers of the questions which were put to him whereas if he was allowed to adduce his own evidence in defence then he would have been at liberty to bring any other evidence also. Recording of statement in questionnaire form has also been disapproved by the Superior Courts. In these circumstances of the case the impugned orders are not sustainable in the eyes of law..........". Yet in another case reported in 2008 PLC (CS) 786, this Tribunal has also observed that, "12. After going through the enquiry proceedings, it appears that the enquiry against all the three appellants have not been conducted as provided under the Removal from Service (Special Powers) Ordinance, 200, the enquiry was conducted in questionnaire form, which procedure has been disapproved by the Honourable Supreme Court.
Record shows that the respondents did not examine the material witnesses to prove the allegations...........". In a case reported in 2010 PLC (CS) 1299, the Service Tribunal Khyber Pakhtunknaw had also observed that, ".... Admittedly, no proper procedure has been adopted by the respondent-department. In the instant case, the inquiry has been conducted in questionnaire form which practice has been condemned by the super courts. Neither any witness has been examined in presence of the appellant no any opportunity of cross-examination was provided to him to defend himself properly...." No personal hearing was provided to the appellant prior to imposing the major penalty of dismissal from service. This is also against the principles laid down by the apex Court in famous maxim 'Audi Alteram Partem'. (Copy of such report has also not been provided to the appellant alongwith the show cause notice, though it was mentioned that, "2.
According to the findings/recommendation of Inquiry Officer the charges of inefficiency, misconduct and corruption have been proved against you". This has also caused serious prejudice to the case of appellant.
6. At none of the documents, placed before us during the hearing during the first inquiry and in the second inquiry also, no mention is made about loss to the Government Exchequer. Even the impugned order is silent on this point.
7. In our considered opinion, department was provided ample opportunity to defend their case by remanding the case to them earlier, but they failed and even in the second inquiry, they also failed to substantiate the allegations leveled against the appellant; hence, this time too, we cannot time and again provide opportunity, one after the other, to the department to hold inquiry de-novo on one and the same charge, which opportunity they failed to avail; hence, we are restraining ourselves from remanding the case back to the department for further inquiry.
8. For what has been discussed and observed above, we are constrained to hold that initiation of inquiry, on both times, against the appellant is totally illegal and unwarranted. The impugned order, based on such a farce inquiry, therefore, cannot sustain; hence, it is set-aside. Consequently, the appellant is ordered to be reinstated in service with all back benefits, as there is no evidence on record, whether the appellant, after his reinstatement and during the inquiry after judgment of this Tribunal, was paid any penny to him. Delay in filing the appeal is thus condoned.
9. No order as to costs, Parties be informed.