Tauqeer Ahmed Khan, Member. By means of this appeal under Section 4 of the Service Tribunals Act, 1973, the appellant assails the imposition of major penalty of dismissal from service dated 23.06.2021, allegedly conveyed on 19.07.2021. His departmental appeal dated 09.08.2021 remained un-responded.
2. Brief facts of the case, as disclosed in the appeal are that, the appellant was appointed as Senior Auditor and was posted under the Accountant General Sindh, thereafter, passed SAS Examination, conducted by the Auditor General of Pakistan and served as Assistant Accounts Officer, subsequently, he was posted and directed to report under District Accounts Office, Badin, on 25.09.2002 and relieved on 30.09.2002. Further transferred at DAO, Jamshoro as ADAO (OPS), Thatta, thereafter, further transferred and posted from ADAO Jamshoro Main Office to Mirpurkhas and lastly he was transferred and posted as AAO to vig-I & II, vide office order dated 10.01.2016.
A charge sheet dated 18.10.2016 alongwith statement of allegations was issued to the appellant by the Authorized Officer, containing the following allegations:-- "Mr. Masroor Ahmed, AAO, O/o the AG Sindh Karachi while posted in District Accounts Office, Jamshoro, allegedly displayed a very casual attitude towards his duties and failed to discharge his duties honestly and diligently. He deviated from the prescribed norms of Government service and showed extreme dishonesty criminal behaviour as pointed out by the Additional Director, FIA Commercial Circle Karachi. FIA had lodged a FIR No. 34/2014, against him and other collusion partners for opening and operating Various, bogus accounts in different bank branches. These acts of criminal activities on his part tantamount to "Inefficiency, Misconduct & Corruption" within the meaning of Rule 3(a), (b) & (c) of Govt. Servants (E&D) Rules, 1973. i. Report of FIA Commercial Bank Circle (CBC) Karachi revealed that misappropriation of Government Exchequer amounting to Rs. 472,105,150/- on account of bogus pension bills, treasury cheques issued by DAO, Jamshoro during the period from 1/2013 to 8/2014 and its findings suggests that he is the main culprit of this scam. It also revealed that he has signed and sent 99% bogus pension bills/treasury cheques/daily invoices to, NBP Kotri, which were subsequently cleared by NBP, Kotri. ii. Furthermore the departmental inquiry report also pointed out that apart from bogus pension bills/treasury cheques he also used his ID for processing five bogus documents i.e. 1900286229, 1900286231, 1900473001, 1900472988 and 1900473075 drew public money fraudulently."
A detailed and thorough reply to the charge sheet was submitted by the appellant vide reply dated 17.12.2016. An inquiry was, thereafter conducted by Mr. Muhammad Habib, inquiry officer, who submitted his report, which was treated unsatisfactory. Thereafter, another charge sheet dated 16.04.2020, containing the same allegations, was issued by Mr. Shahid Nadeem as authorized officer, thereby appointing Mr. Majid Rajpar as inquiry officer. The appellant submitted his reply on 12.05.2020. Thereafter an inquiry was conducted and a show-cause notice dated 02.03.2021 was served upon the appellant alongwith copy of inquiry report. The appellant also submitted his reply on 22.04.2021 to the said show-cause notice. The impugned order of dismissal dated 23.06.2021 was then served upon the appellant. After adopting preferring- the departmental appeal, which remained un-responded, instant appeal has been filed before this Tribunal.
3. In its report, the Respondent No. 1 has stated that matter is the purely of administrative nature and relates to the office of Accountant General of Sindh under the administrative control of Controller General of Accounts Islamabad (Respondent No. 2), Secretary, Finance Division (Respondent No. 1) has been impleaded as a proforma party and no relief has been Sought from Secretary Finance Division and it was prayed that Secretary Finance Division be excluded from the array of respondents
4. Report on behalf of Respondents-2 & 3 was submitted; wherein it was stated that FIA Commercial Bank Circle arrested the appellant on 03.09.2014 and was placed under suspension.
An inquiry was initiated against him under E & Rules, 1973, A report of FIA Commercial Bank (CBC), Karachi revealed misappropriation of public money amounting to Rs. 472,105,150/- and appellant, was found involved in the fraudulent payments, through bogus pension bills and treasury cheques issued by District, Accounts Officer (DAO), Jamsohro from January, 2013 to August, 2014. As per FIA report, he sent 99% of bogus pension bills, treasury cheques and Daily invoices to National Bank of Pakistan kotri over his signatures. Moreover, he used his user ID for processing those payments. A charge sheet was served upon the appellant and Mr. Muhammad Habib DAG was appointed as inquiry officer, who- submitted his report, according to which, the allegations against the appellant were proved upto some extent. Such report has not been placed before the Tribunal. The competent authority, being not satisfied ordered for denovo inquiry by appointing Mr. Abdul Majid Rajpar, DAG, who submitted his report and established the charge in the following manner:-- "Mr. Masroor Ahmed Khan was involved in the scam as it could not have been occurred without his connivance: Treasury cheques were issued in the name of DDO but were then deposited into private bank accounts.
Bank scrolls-were not post audited. Reconciliation process was not followed.
The record of those payments was removed from the DAO office".
A show-cause notice was served upon the appellant and was provided opportunity of personal hearing on 27.05.2021, where he produced letter of Government of Sindh dated 05.01.2018 with the assertion that Government had issued policy guidelines/instructions to make manual payments of pension commutation. Appellant claimed that the cheques of commutation in the name of DDO were, therefore, in the line with the said instructions; hence, no irregularity was committed while making payments by issuance of cheques in the name of DDO.
After going through the facts of the case, findings of the inquiry report, available on record, and stance of appellant during personal hearing, the authorized officer observed against the appellant and recommended to impose major penalty of dismissal from service upon the appellant, which was accorded by the Authority.
5. We have heard the learned counsel for parties and carefully perused the record.
6. It is an admitted fact that firstly a charge sheet dated 18.10.2016 alongwith statement of allegations, reproduced above, was served upon the appellant, which was duly replied by the appellant. But there is no letter either available on record or placed by the respondents alongwith their report/comments, whereby the first charge sheet was withdrawn. Without withdrawing the same or closing the chapter, issuance of second charge sheet dated 16.04.2020 in our view, is totally unwarranted and uncalled for, no reason has been assigned in the second charge sheet for issuing the same, it seems to have been freshly issued, but with the same charges/allegations.
Although order of inquiry dated 06.04.2020 has been placed on record, but we do not find any reason or justification by the Authority for not satisfying with the report/recommendations of the first inquiry report. No reason, whatsoever, has been assigned in the said order of inquiry for holding denovo proceedings. As such, issuance of second charge sheet and holding the inquiry on the same set of allegations is illegal and cannot be sustained. Report of the first inquiry has also not been placed before us for our perusal. Only report of the second inquiry officer has been filed which is also sketchy in nature as it does not reflect that any witness was examined, appellant was allowed to cross examine the said witnesses, if any and even the appellant was also not afforded opportunity to put up his defence in a proper form and to produce his witnesses in defence. The report of the second inquiry officer appears to be a fact finding report, upon which a major penalty of the kind, as has been done in the case in hand, can be imposed upon the appellant. The- conclusion drawn by the second inquiry, officer, without any cogent evidence, has no value in the eyes of law, in our considered opinion. In his recommendation- (para-4 of the conclusion), he only states that, "the conduct of Mr. Masroor Ahmed Khan-vis-a-vis these treasury cheques cannot be concluded as record on the basis of which these documents were generated was not available in the office. However, his involvement in the subject fraud cannot be ruled out". Only on such sketchy conclusion/findings of the second inquiry officer, the punishment, as imposed upon the appellant cannot sustain. The authority, in our view, has power to disagree with the recommendations of the inquiry officer, but for that solid/cogent reason has to be assigned, which is missing and nothing has been brought before us for utilizing such power. The respondents should have brought all the documents before us, but they failed to produce the same before us for our perusal, which goes to show malafide on their part. The report of the second inquiry officer also shows that the appellant has not been associated, therefore, such an inquiry and recommendations cannot be relied upon and made basis for imposing the impugned major penalty. Reliance in this respect is placed on 1997 TD (Service) 247, where the Hon'ble Supreme Court of Pakistan has been pleased to hold that: "...Original record pertaining to enquiry was perused which clearly discloses that respondent was neither associated with enquiry proceedings nor allowed opportunity to cross-examine witnesses produced against him....."
"....We have no doubt that a person facing enquiry has right to be associated with its proceedings and entitled to impeach credit of witnesses produced against him through cross-examination.
Obviously, enquiry proceedings and consequential order regarding dismissal of respondent suffer from inherent legal defects as rightly discussed by the Service Tribunal, Peshawar in the impugned judgment."
1993 SCMR 1440 is on the point of inquiry conducted in questionnaire without examination of witnesses in support of charge or defence. 1999 PLC (CS) 423 relates to not adhering of procedure as provided under R.5(i) (iv) of the E&D Rules, 1973. 1986 SCMR 1875 discuses the mala fide in law, while passing order of removal, authority was found to have exercised its power bona fide but based on some extraneous consideration, such an order would stand vitiated.
7. For what has been discussed above, we are of the considered opinion that the impugned order has been passed without providing chance of defence to the appellant, as such, same is set-aside with directions to the respondents to reinstate the appellant in service with full back benefits as the impugned order is held to illegal and tainted with malafide. The first charge sheet was issued on 18.10.2016; second charge sheet was issued on 16.04.2020 without any reasonable cause and after such an inordinate delay, not explained and the impugned order was passed on 23.06.2021:
8. No order as to costs. Parties be informed.