Justice (R) Rooh-ul-Amin Khan, Chairman. Through the instant appeal filed under Section 4 of the Service Tribunals Act, 1973, the appellant has prayed for setting aside the impugned order dated 26.07.2023 of compulsory retirement from service as well as appellate impugned order dated 04.10.2023 and his reinstatement in service with all back benefits.
2. Succinctly the facts of the case are- that the appellant was initially appointed as LDC w.e.f.
02.12.1986 in the respondent-department (Federal Government Polyclinic) and subsequently promoted as UDC w.e.f. 23.05.2018. He remained posted in different Sections and lastly as a Store Keeper (Electrical, Sanitary & Buildings) w.e.f. December, 2016 to May, 2022 wherefrom he was suddenly transferred to General Section vide Order dated 10.05.2022. The door of the Store was locked by the respondents and his entry was banned in the premises of Store Section without proper handing over the charge and completing the record whereas new incumbent namely Ejaz Ahmed was allowed to start work without handing/taking over the charge in the Store Section.
Disciplinary proceedings were initiated against the appellant by constituting a fact finding inquiry.
He was placed under suspension and also served with a charge sheet dated 02.07.2022 on the following allegations:- That you were transferred from Store Department to General Section vide letter No. 1/1354/2022 dated 10:05.2022 but inspite of various times directions issued for handing over the charge of stores which were remained under your charge to the concerned Store Keeper vide letter No. 1/1364/2022 dated 08.06.2022 and but neither comply the order nor hand over the charge to concerned store keeper. ii) That huge shortage of store items in Electric and sanitary stores have been reported by Mr. Ejaz Ahmed, Store Keeper which was conveyed to you accordingly (along with list of short items) with the directions to complete the stock/hand over the charge to the concerned store keeper within 48 hours vide letter No. 1/1364/2022 dated 15.06.2022, but you failed to do so. iii) Your casual attitude towards government instructions is highly objectionable and against the discipline of Government Servants".
The appellant submitted reply dated 15.07.2022 by refuting all the charges but the reply was not found satisfactory. On the basis of inquiry report, show cause notice was served upon the appellant on 10.08.2022. Another inquiry was also constituted comprising Dr. Syed Shamsuddin, Associate Surgeon, (Chairman), and Dr. Muhammad Sarfraz, Orthopedic Surgeon, Mr. Naveed Ashraf, Physcian (Paeds) and Mr. Fawad Ahmed, Khan, LDC (Members). After conducting inquiry, the Inquiry Committee submitted its report and on the basis of recommendations of the Inquiry Committee, major penalty of "compulsory retirement from service" was imposed upon the appellant vide impugned order dated 26.07.2023 against which he preferred departmental appeal on 09.08.2023 which was rejected by the appellate authority vide appellate impugned order dated 04.10.2023, hence this service appeal filed on 26.10.2023.
3. Learned counsel for the appellant based most of his Arguments as narrated in the memo of appeal. It was contended that major penalty of compulsory retirement from service was imposed upon the appellant without adopting proper procedure, despite the fact that the appellant explained his position in detailed reply to the charge sheet/show cause notice. Neither regular inquiry was conducted nor an opportunity of personal hearing was provided to the appellant and also the prosecution witnesses were not examined in his presence. The respondents conducted so- called departmental proceedings which resulted into miscarriage of justice, therefore, the same is liable to be set aside. In support of his arguments, the learned counsel placed reliance on 1194 SCMR 2232, PLD 1989 SC 335, 1195 SCMR 1345, 1999 PLC(CS)1332, 2004 PLC(CS)1003.
4. The appeal is, resisted by the respondents. It was stated that the appellant while performing his duties as Store Keeper in the Hospital w.e.f.23.12.2016 to 10.05.2022, was transferred from Store Section to General Section, FGPC, vide letter dated 10.05.2022. He was directed to handover the charge of Electric & Sanitary Store to new incumbent but he failed to do so despite several directions issued to him vide letters dated 08.06.2022, 15.06.2022 and 16.06.2022. Ultimately, charge sheet was issued to him vide letter dated 02.07.2022 on account of failure to handover the charge of the store and found huge shortage of store items (electrical and sanitary). To probe the matter, inquiry was constituted comprising Dr. Abdul Wali Khan, Assistant Executive Director (HR)
(Chairman), Dr. Tansneem Hafeez, AED(F&A), and Mr. Muhammad Miskeen, AAO (Members), the Committee submitted its report and findings on 03.08.2022 wherein serious irregularities committed by the appellant were proved and the same are as follows:- i) The inquiry committee visited the concerned stores for physical verification of the items on 20.07.2022 and checked Ledger/Stock Register, which was not complete, while the indent book was found missing. ii) Inefficiency/guilty was found on the part of Mr. Asghar Ali that record related to Electric and Sanitary Stores were not keeping record of all expensive electrical and sanitary items (AC, Fridge, Gezer, heavy machinery and others) during his tenure. iii) Inefficiency/guilty was also found on the part of Mr. Ejaz Ahmed as he failed to maintain thereafter record related to Electric and Sanitary Stores of current stock during the last 03 Months of his posting. iv) As per available record and stock of items it seems that various items are missing but it was difficult to determine the exact number because of the incomplete record. v) It is worth mentioning that the scope of this inquiry was limited as the then Administrative Officer being incharge of the electrical and sanitary stores does not under Administrative Authority of existing Inquiry Committee".
Defense reply of the appellant against the charge sheet was not found satisfactory and on the basis of inquiry report, show cause notice was issued to the appellant on 10.08.2022. Reply submitted by the appellant was too not found satisfactory. The respondents conducted another inquiry wherein the appellant confessed all the charges. The inquiry proved all the charges and almost missing items were recovered from him as the cost of the said items amounting to Rs.
2404000/- have been paid by the appellant from his own pocket to the inquiry committee.
5. It is stated by the worthy AAG that after observing all the legal and codal formalities, major penalty of compulsory retirement from service has rightly been imposed upon the appellant and prayed for dismissal of appeal along with MP for interim injunction.
6. We have heard the arguments of both the parties and have perused the record carefully. From perusal of the record, it reveals that major penalty of compulsory retirement from service has been imposed upon the appellant as a result of departmental proceedings on the charge of huge shortage of store items (AC, Fridge, Gezer and heavy machinery and others).
7. The material available on record reflects that the proceedings against the appellant were conducted strictly in accordance with law. Initially, a fact finding inquiry committee was constituted comprising Dr. Abdul Wali Khan, Assistant Executive Director(HR) Chairman, Dr.Tansneem Hafeez, AED(F&A), and Mr. Muhammad Miskeen, AAO -- Members. The Fact Finding Inquiry Committee held the appellant fully responsible for shortage of store items. In pursuance of the recommendation of the Inquiry Committee, the appellant was served with a show cause notice on 10.08.2022 and reply submitted by him was not found satisfactory by the respondents. After completion of due process and having considered all aspect of the case, the Executive Director being competent authority decided to impose major penalty of compulsory retirement from service upon the appellant. To further probe into the matter and to determine the truth, another regular inquiry was constituted comprising Dr. Syed Shamsuddin, Associate Surgeon, (Chairman), and Dr. Muhammad Sarfraz, Orthopedic Surgeon, Mr. Naveed Ashraf, Physcian (Paedsi and Mr. Fawad Ahmed, Khan, LDC (Members) who after conducting inquiry, submitted its report on 23.09.2022. For the sake of convenience, inquiry report regarding physical verification is reproduced as under: "Regarding the details of Air Conditioners and fridge items following irregularities, discrepancies were observed:- Discrepancies in specifications in BTUs of purchased and installed air Conditioners:
1. On physical verification where 2 ton A/Cs were purchased for various offices and wards we found that 1.5 ton A/Cs purchased from 2017 to 2021 were 181, total number installed A/Cs were 127, and total number of Missing A/Cs from the provided record are 54, more over according to tender requirement 1 ton and 4 ton A/Cs are not included in the purchase list of the hospital.
2. There is no record exists of Air, Conditioners returned to stores after their removal.
3. There is no record of donations from different NGOs an various agencies to the hospital.
4. Most of the installed Air. Conditioners are not properly working.
5. We also found that payments are made for Air Conditioners, Refrigerators against the following items:
(i) 2 Tons A/Cs-4,
(ii) 1.5 Tons A/Cs-2,
(iii) 4 Ton Floor A/Cs-2,
(iv) Refrigerators bed side 4CFT-6,
(v) Refrigerators double door 6 CFT-7, All above items amounting Rs. 240,4000/- (Two Million Four Hundred Four Thousand only) were not physically found during verification.
We recovered all the above items from Mr. Asghar."
Furthermore, the cost of the said items amounts to the tune of Rs. 2404000/- was paid by the appellant from own pocket to the inquiry committee as recovery of loss and items were supplied to the hospital and JED issued orders to Assistant Executive Director Stores FGPC, Assistant Executive Director PWD, Islamabad and Assistant Store Keeper (Electric Stores) FGPC with the direction that the recovered items by the inquiry committee be entered in Stock Register properly with model number, serial number and capacity against each vide letter dated 14.06.2023. Therefore, major penalty of compulsory retirement has rightly been imposed upon the appellant vide order dated 26.07.2023. Thereafter, the appellate authority has given opportunity of personal hearing to the appellant on 14.09.2023 before the Senior Joint Secretary, Ministry of NHSR&C to process the case further and after considering all aspect of case, departmental appeal was rejected, maintaining the imposition of major penalty of compulsory retirement. We do not see any reason to interfere with the said findings arrived at by the authorities in the department. Reliance is placed on Water and Power Development Authority through Chairman, WAPDA House, Lahore and 2 others v.
Khawaja Abdul Waheed (2002 SCMR 753). The judgment cited by the appellant is not attracted in his case and is distinguishable having different facts and circumstances.
8. The appellant confessed his guilt and deposited Rs. 2404000/- from his own pocket. The Inquiry Committee also held the appellant responsible for the guilt of misconduct, further disciplinary proceedings were not mandatory. We have been able to lay our hands to the dictum laid down in the case titled "Secretary M/o Defence, Government of Pakistan and others vs. Ghufran Ali" (2019 SCMR 113) wherein it has been held that " Merely raising a technical question as the witness who deposed against the respondent was not examined may alone not be sufficient to dispel the effect of confession made by him before the inquiry, officer as noted above. We are, therefore, of the considered opinion that the learned Tribunal has misdirected itself by taking too charitable view in a matter of corruption in a disciplined force. Accordingly, we convert this petition into appeal, allow it and set aside the impugned judgment".
9. So far as the contention of the appellant that the inquiry was not conducted as per Government Servants (Efficiency & Discipline) Rules 2020, the Hon'ble Supreme Court of Pakistan in a case titled "Hassan Raza vs. Federal Board of Revenue through Chairman and others" (2020 PLC (CS) 890) has held that: "10. There is no cavil with the argument that ordinarily major penalty cannot be imposed unless a detailed inquiry is conducted. However, this is not an absolute rule. Where