Tauqeer Ahmed Khan, Member. Through the lis at hand, the appellant assails the notification dated 17.01.2022 through which major penalty of "dismissal from service" was imposed upon him.
His departmental appeal dated 29.01.2022, against the said penalty, remained un-responded.
2. Brief facts of the case, as disclosed in the appeal are that, while serving/posted as Ex-DO, FC Shabqadar, allegedly, the appellant committed the acts of misconduct and corruption, as such, a charge sheet dated 19.08.2021 along with the statement of allegation, containing the following allegations, was served upon the appellant:- "Capt (Retd.) Ghulam Murtaza, (PSP/BS-17), while posted as Ex-DO, FC Shabqadar, committed following acts of misconduct and corruption:--
1. He received an amount of Rs. 1,291,500/- through his Accountant and Drill Staff, in lieu of granting ten-days middle break to recruits from 26.10.2019 to 04.11.2019, without noting the break in the Order Book.
2. He received Rs. 80,000/-, Rs. 150,000/-, Rs. 212,000/- and Rs. 256,500/- from the Mess Manager during September, October and November, 2019 and January, 2020. These amounts were illegally adjusted by the Mess Management on his directions. Besides, on various occasions, he received Rs.
199,000/- from Mess Manager in cash and directed the management to illegally adjust these amounts as mess expenditure.
3. He received Rs. 60,000/-from the ration contractor during September, 2019 and illegally adjusted it in the expenditure of the mess.
4. He extracted a total amount of Rs. 622,000/- (in cash) from the recruits and staff, through field munshi, recruit munshi and pay havildar, on account of granting them various kinds of leave (weekend leave, emergency leave etc.) during the month of December, 2019, without reflecting the granted leaves in the Order Book.
5. He also extracted a total amount of Rs. 227,490/- (in cash) from the recruits and staff through field munshi, recruit munshi and pay havildar, on account of granting them various kinds of leave (weekend leave, emergency leave etc.) during the first seven days of January, 2020, without reflecting the granted leaves in the Order Book.
6. He took bribe from the recruits (@ Rs. 500/- per recruit) for allotting their GPF Number during December, 2019. He collected a total amount of Rs. 433,000/- on this account through his munshi.
7. He also received Rs. 150/- from each recruitment for issuing service cards to them during December, 2019, whereas the actual cost of preparing a service card was only Rs. 50/-. On this account, he fleeced Rs. 89,500/-from the recruits through his munshi.
8. He received Rs. 100,000/- from one Nazirullah for appointing as barber in FC. However, he did not appoint him, despite receiving the illegal gratification."
The appellant submitted his reply to the said charge sheet/statement of allegations, denying the allegations and explaining his position. Thereafter, the appellant submitted his reply to questionnaire to the inquiry officer, which is also reflected in the inquiry report. A show cause notice dated 22.11.2021 was then served upon him which was replied by him in detail, maintaining his stance taken in reply to the charge sheet. He was afforded chance of personal hearing, whereafter, impugned punishment was imposed upon him. He preferred a departmental appeal on 29.01.2022, which remained un-responded despite lapse of statutory period; hence, this appeal as above.
3. In the comments filed by the Establishment Division, on behalf of respondents, it was stated that the appellant had a bad service record. He was earlier proceeded against under Government Servants (Efficiency & Discipline) Rules, 1973 on charges of misconduct and corruption and was awarded penalty of "reduction to a lower post for a period of one year", vide notification dated 06.04.2021. Another disciplinary proceedings under Civil Servants (Efficiency & Discipline) Rules, 2020, on charge of misconduct and, corruption were initiated/processed against the appellant and subsequently was awarded major penalty of dismissal from service vide impugned order. His service profile reflects a persistent pattern of his indulgence in inefficiency, misconduct and corruption. It was stated that Ministry of Interior, vide OM dated 02.04.2020 forwarded Frontier Constabulary (Headquarter), Peshawar letter dated 25.02.2020 alongwith fact finding inquiry report, stating that the allegations leveled against the appellant were substantiated by evidence and witnesses, hence requested the Establishment Division to hold inquiry proceedings against the appellant under E&D Rules.
During the fact finding inquiry conducted by Abdul Jabbar PSO-I, FC CHQ, Peshawar, statement of Mr. Taj Wali was recorded, wherein he stated that the appellant collected amount in cash from recruits for mid-term break, for granting various kinds of leave to them and from ration and conveyance allowance. The collected amount was embezzeled by the appellant in connivance with his subordinate staff, moreover, on recommendations of the inquiry officer, Ministry of Interior was approached by this Division vide OM dated 21.01.2022 alongwith copy of inquiry report, with the request to direct the FC (HQ) Peshawar to take departmental action against the staff of DO Shabqadar Office.
As per the fact finding report and inquiry report conducted by inquiry officer (Mr. Azad Khan), the statements of 16 (sixteen) witnesses proved that the appellant was involved in embezzlement of funds from the Heads of Mess, Conveyance Allowance Ration Allowance, on account of Hajjam Cutting, Service Card Charges, for GP Fund Number allotment and was also involved in corruption of granting various kinds of leave to the recruits.
The inquiry officer conducted the inquiry in accordance with the provisions of Civil Servants (Efficiency & Discipline) Rules, 2020 and submitted the report dated 09.11.2021 to Secretary, Establishment Division, finding therein that accused officer failed to offer any valid defence to the charges/allegations leveled against him and was found guilty of misconduct and corruption. The inquiry officer recommended imposition of major penalty upon him, as prescribed under the Rules ibid, as he deserves no leniency and has not only embezzled official funds but also fleeced the constabulary which he was commanding. Upon receipt and examination of the inquiry report, Secretary Establishment Division/Authority in terms of Rule-16(6) of Rules ibid, served show cause notice upon the appellant on 22.11.2021 informing him to show cause in writing within 10 days. The appellant did not submit his defence reply to the show cause notice within the stipulated time period and requested for more time for submission of his reply vide application dated nil, received in this division on 10.12.2021. The Secretary Establishment Division/Authority did not agree with his request as he was buying time to linger on his disciplinary proceedings and granted him opportunity of personal hearing on 07.01.2022, meanwhile, the appellant, submitted his defence reply on 04.01 2022. He was given full opportunity to present his written and oral defence, in addition to what he had already submitted to the inquiry officer in his reply to the show cause notice and heard at length. When asked to explain why he indulged in the acts of misconduct and corruption, he had no justification except attribution to those acts of his few staff members. He failed to produce a single evidence including statement of any of the employees or recruits or official record in his support during the inquiry proceedings as well as personal hearing.
The departmental appeal preferred by the appellant on 29.01.2022 against the impugned order dated 17.01.2022, same was processed in Establishment Division and forwarded to Prime Minister/Appellate Authority for appropriate orders/vide summary dated 02.08.2022. The reply of same is awaited.
4. Arguments at length heard and record minutely perused.
5. The inquiry report submitted by Mr. Azad Khan, Joint Director General (Sindh)/ inquiry officer is based on the fact finding inquiry, which revealed that a questionnaire was provided to the appellant to clarify his position. It was also stated by the inquiry officer, "in his response to questionnaire, he did not state why he did removed". This shows that only a questionnaire was issued to the appellant to which he submitted his reply. The inquiry officer, in his report, only analysis the statements, submitted by the witnesses & cross-questioning. Entire statements of witnesses have not been placed before this Court to conclude anything against the appellant with regard to the allegations leveled against him in the charge sheet.
Prior to holding such an inquiry, a fact finding inquiry was conducted through Mr. Abdul Jabbar, who submitted his report recommending action against the appellant as well as Taj Wali Accountant, F.C. Shabqadar.
On our querry during the arguments, the departmental representative and the learned law officer conceded that no action was taken against Taj Wali, Accountant.
In such view of the matter, the appellant has been discriminated against as Taj Wali appears to be the main accused, against whose instructions, during the fact finding inquiry, witnesses like Sherzada, Javed ur Rehman, Hashmat Ali, Attaullah have stated that Taj Wali called them and stated so and directly took name of Taj Wali, but did not implicate the appellant. During questions by inquiry officer of fact finding inquiry, Sherzada stated that he gave the amount to Taj Wali.
Witnesses during the fact finding inquiry also alleged that they gave the said amount to Taj Wali.
The fact finding inquiry in his recommendations stated that a regular inquiry be conducted against the appellant as well as against Junior Clerk Taj Wali, Ex- Accountant F.C.Shabqadar.
As stated above, on the basis of the said fact finding inquiry, an inquiry was got conducted through Mr. Azad Khan, but in our considered view, while' conducting the said inquiry, principles of natural justice have not been followed nor the procedure provided under the E&D Rules have been adhered to as the inquiry was conducted on the basis of questionnaire and after obtaining answer I thereof, report was finalized.
The learned counsel for the appellant during the arguments relied on judgments as reported in 1993 SCMR 1440, 2017 SCMR 356 and 2022 SCMR 745, vehemently arguing that proper inquiry has not been conducted against, the appellant before imposing such a major penalty as the appellant was not given due opportunity to cross examine the witnesses who appeared against him was not provided to him, nor was he allowed to produce his witnesses in defence.
Analysis of statements submitted by witnesses have been given by the inquiry officer. As per his analyse, Amir Ali handed over the amount to Taj Wali; likewise Muhammad Ismail stated that he gave Rs. 18,000/- to Taj Wali, Aslat Khan also stated that he gave Rs. 15,000/- to Taj Wali. The main accused, in such circumstances, appears to be Taj Wali, but as stated/admitted by the respondents, no action was taken against him, despite recommendations by the inquiry officer and only the appellant has been punished. Since no action has been taken against the co- accused and the appellant alone has been made to suffer, therefore, this appears to be a clear case of discrimination.
The findings of the inquiry officer on allegation No. 01 is quite surprising, where it stated that, "It seems that the above-mentioned has been embezzled by the accused in connivance with ex- Accountant, Taj Wali and Order Book keeper". The word, "seems" has been emphasized by the learned counsel stating that the inquiry officer was not sure about this allegation and that while giving verdict, the inquiry officer or any person recommending any penalty, has to be sure about his findings, but, in the case in hand, so far as allegation No. 1 is concerned, the inquiry officer was not sure, as such, same cannot be taken to be proved against the appellant.
Regarding the findings of inquiry officer against allegation No. 2, it has been stated by the inquiry officer that, "Statement of mess manager Attaullah is cross-checked with the statement of Ex-QSM, Majeed Khan and ex-Accountant, Taj Wali, who took money from mess manager, Attaullah on one or the other pretext for the accused", but here also the inquiry officer stated that Taj Wali took money from mess manager and there is nothing against the appellant, even then, the charge has been said to be "proved".
Charge No. 3, as per report of the inquiry officer, could not be proved against the appellant.
In our view, all the above three charges has not been proved through any cogent and direct evidence against the appellant.
Regarding charge No. 4, the amount of Rs. 920,990/- could also not be established against the appellant, as the amount of Rs. 298,990/-was collected by D/LNK Javed ur Rehman and amount of Rs. 622,000/-was collected by Hashmat Ali and name of the appellant is not appearing having received the said amount. The finding of inquiry officer that, "this establishes that the accused embezzled this amount in connivance with his staff' is not based on evidence. None of the alleged recruits were examined to establish the said allegation against the appellant.
Regarding the findings of the inquiry in respect of charge No. 5, statement of Hashmat Ali, Constable (field Munshi) was required to be looked into by this Court, but, as stated above, none of the statements have been placed before us for our perusal. Complete proceedings of the inquiry was required to have been placed before the Court, which was admittedly, in the custody of the respondents, but, the same have not been placed on record. As such, it cannot be said that proper inquiry was conducted against the appellant and based on such report, imposition of major penalty was justifiable.
When, as per admission of the inquiry officer, there is no other official record for collection of such amount, how the inquiry officer concluded that charge No. 6 is proved against the appellant, except the statement of Javed ur Rehman. The appellant, placed statement of JavedurRehman, wherein he stated that in the month of December, Accountant Taj Wali asked him to deposit Order Book as the same contained wrong entries of AJ Office, but he refused.
Charge No. 7 as per the record of the inquiry officer, also stands proved against the appellant on the basis of statement M/s. Gul Jehan Computers. Such statement is also not available on record; hence, it cannot be said that the allegation has been proved against the appellant. It was the analyze of the inquiry officer only, without any concrete evidence.
Charge No. 8, as per the recommendations of the inquiry officer, also could not be proved, like charge Nos.3 & 6.
The conclusion of the inquiry officer that, "05 out of 08 charges of 'misconduct' and 'corruption' against Capt. (Rtd) Ghulam Murtaza (PSP/BS-17) stand established beyond any iota of doubt" is not based on any concrete evidence against the appellant, thus cannot be said to be established. In his conclusion he admitted that, "It has also been proved that staff of DO FC office Shabqadar namely, ex-Accountant Taj Wali; QMC Majeed Khan, Field Munshi Hashmat Ali, Recruit Munshi Javed-ur-Rehman and D/NK Sherzada were also involved and responsible for this corruption and misconduct". He then recommended, 'award of major punishment' against the appellant. It was also recommended that FC HQ Peshawar may be approached to take departmental action against the staff of DO Shabqadar office, who actively connived with the accused officers in his corruption and mal-practices. But as observed earlier, only appellant has been made scapegoat and no action against those involved has been taken; hence, discrimination is apparent on the face of record.
6. The appellant in his reply to charge sheet has stated some facts, which ought to have been taken note of, but same has not been taken into consideration. The same, paras-2 #3 of his reply to the charge is reproduced as under:- "2. I was posted as DO FC Shabqadar on 4th Oct 2019 with specific task of organizing passing out of recruits and ensuring foolproof security as there was direct threat to Shabqadar training centre.
Passing out parade was planned in Jan 2020, therefore there was not much time. So, I used to spend maximum time at parade ground. Ironically, subject allegations have been framed and leveled against the undersigned by Junior Clerk Taj Wali; who was working as accountant.
Undersigned found clerk Taj Wali to be corrupt, inefficient and troublemaker. He was counseled to mend his ways but to .no effect. As accountant was important post, undersigned removed JC Taj Wali. After his removal, JC Taj Wali started threatening other staff and causing disturbance in routine affairs. Therefore, undersigned wrote against him and surrendered his services to CHQ Peshawar. Undersigned was relieved from FC on 4-2-2021, so reported to Establishment Division. JC Taj Wali leveled allegations against undersigned, once I had left FC and joined Establishment Division, claiming that he had been gathering money from various persons for undersigned.
3. During leave of an employee daily ration and conveyance allowance is deducted, as I had so much to do, I got the deductions of last 10 months before my period and compared them with 'each month's deduction during my time. During my brief four months, mostly leave was banned due to Muharram, Chehlum, Polio Duty, Azadi March of Maulana Fazl ur Rehman and for preparation of passing out parade. Yet my monthly deductions were more than as compared to previous months and didn't receive any objection from CHQ Peshawar as they also received in writing and monitored monthly leave deductions: Recruit mess bill before me for the month of Sept 2019 was around 2400 Rs. per recruit and during my first month for Oct was around 2100 Rs. Despite overwhelming price hike bills didn't go beyond 2400 Rs per recruit. I had no other means except to compare with previous months when rates were cheaper, mess members were more and was no ban on leave. Moreover, undersigned ordered new mess management committee and included one recruit from each company to ensure transparency. To clarify my position, I have certain observations: a. If clerk taj wali is to be considered right and gave me all that amount that he claims. Why had I removed him from his post? Not only removed him I wrote against him and surrendered his services to CHQ Peshawar. b. Why after his clear acceptance of malpractices, no departmental action has been taken against him? c. Salary is directly deposited into employees account. Then, from whom money was extorted? d. Why they gave it in cash, as deductions are done at Accountant General Office? e. Who collected it and under what authority? f. Who no one in hierarchy complained?
If undersigned intended to get money out of recruits mess then whey I ordered new mess management committee and included one recruit from each company? h. Most importantly, what is the documented proof that all that money actually existed? As these allegations were made by clerk taj Wali after my posting out and not by anyone affected. i. What punishment has been awarded to those who were involved".
7. In our considered opinion, it is a case of no evidence as none of witnesses examined by the inquiry officer was allowed to be cross examined by the appellant. The appellant was also not afforded chance to produce his witnesses in defence; hence, it cannot be said that charges against the appellant were proved through a formal/regular departmental inquiry. The inquiry on the basis of questionnaire has not been appreciated by the apex Court. The inquiry officer, as done in this case, is not supposed to cross examine the witnesses. It is the accused, against whom the inquiry was being conducted, who is to be provided opportunity to cross examine the witnesses.
The statements of co-accused cannot be used against the appellant, as the same has no value in the eyes of law on the basis of which, the appellant has been proceeded against and punished.
8. For what has 'been discussed above, we are of the opinion that the appellant has been discriminated against, has not been dealt with fairly, justly, in a proper manner; the impugned punishment imposed upon him on the basis of fact finding inquiry cannot, therefore, sustain; the same is, thus, set-aside. While allowing the appeal, the respondents are directed to reinstate the appellant in service with an option to hold a denovo inquiry against the appellant on the same set of charges in accordance with law. Inquiry be initiated and completed within a period of two months from the date a copy of this judgment is received in the office of respondents. If the inquiry is not held within the stipulated period, appellant shall be entitled to all the back benefits. The appellant is directed to fully cooperate and participate in the inquiry.
9. No order as to costs. Parties be informed.