' JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-The appellant, Basharatullah Khan, who rose from the rank of Lower Division Clerk to that of National Savings Officer and was performing the functions of Cashier, was served with a show-cause notice on 6th July, 1980 which reads as follows :- "You, Mr. Basharat Ullah Khan, National Savings Officer (Grade-14), are served with following show- cause notice for the misconduct while you were working at the National Savings Centre, Temple Road, Lahore :-
(i) You embezzled/misappropriated the amount of Rs, 1L671 (details given in the statement attached as Annexure 'A') paid on reinvestment of profit on Khas Deposit Certificates under forged signatures. You were instrumental in preparing fake purchase application forms and affixing bogus signatures. Bogus Khas Deposit Certificates were issued in lieu of profit. Fake payment orders were passed in your own hand and signatures and the fictitious certificates were discharged fraudulently, the amount misappropriated and pocketed by you.
(ii) You embezzled/misappropriated secretly an amount of Rs, 16,951 vide Withdrawal Slip No, 373343 on 5th August, 1979 from Account No, 138 in the name of Haji Bashir Ahmad, under a pre- planned programme. Later on when the secret was out, you redeposited the amount of Rs, 10,000 (through Mr. Inayat Ullah Ajiz. (Upper Division Clerk) on 20th May, 1980. Mr. Inayat Ullah Ajiz, during investigations admitted that this amount was given by you to him. On questioning, you remained silent which displayed your admission of guilt.
(iii) You failed (in your capacity as Officer Incharge in the absence of Mr. Muhammad Humayun Zaheer) to bring to the notice of your Controlling Officer any irregularity committed by your subordinate, especially by Mr. Inayat Ullah Ajiz, Upper Division Clerk. Had you brought any irregularity to the notice of your Controlling Officer, the position would have been different.
(iv) While working as Cashier, you made fictitious payments on account of bogus discharge of Khas Deposit Certificates. Had you not co-operated with the Officer Incharge in his nefarious activities, no fraud could be committed at the Centre. A detailed statement is enclosed as Annexure in all the cases mentioned therein, bogus Khas Deposit Certificates had been issued and discharged with forged signatures as no claimant was there to receive the payment. The payment were made by you with mala fide intention.
(2) By reasons of above, you are accused of misconduct and are required to explain as to why disciplinary action should not be taken against you under Government Servants (Efficiency and Discipline) Rules, 1973, and why a major penalty may not be imposed upon you which may result upto your removal/dismissal from service.
(3) You should submit your reply within 14 days of receipt of this communication, failing which you shall be proceeded against ex parte.
(4) Please acknowledge "receipt".
2. The appellant replied to the show-cause, notice on 23rd July, 1980, but his explanation having not been found satisfactory, he was dismissed by the Chief Director, National Savings by order, dated 4th November 1980. His departmental appeal filed on 20th November, 1980 having been rejected on 12th May, 1981 the appellant has approached the Tribunal by way of appeal under section 4 of the Service Tribunals Act, 1973 on 11th June, 1981.
3. It appears that prior to the issuance of the show-cause notice, an informal preliminary inquiry into the circumstances leading to the embezzlement of certain amount had been conducted by one Mr. Abdul Hafeez Khan. In this inquiry, the appellant was also examined along-with several other officers of the National Savings Directorate and private inv tors. Some other officers were also found guilty and action had been taken against them too.
4. The learned counsel for the appellant has argued that whereas against the other officers, a proper inquiry was conducted on similar charges and proceedings had been taken under rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1973, the department, without any reasons, took summary proceedings against the appellant, and initiated the action under rule 5, ibid.
5. The learned counsel for respondent, however, contends that some other employees were equally, if not more, responsible for the embezzlement. They were produced against under rule 6, ibid, after holding a proper inquiry, because they did not admit their guilt during the informal inquiry conducted by Mr. Abdul Hafeez Khan. It was contended that the appellant practically admitted his involvement when he was examined by Mr. Hafeez, and, therefore, the Authorised Officer did not consider it necessary to frame a formal charge or to appoint an Inquiry Officer.
6. We have gone through the statement of the appellant which he recorded before Mr. Abdul Haeez Khan. The statement when read as a whole, would show that the appellant did not make a clean breast of the charges shown in the show-cause notice, but instead he tried to place the blame on his other colleagues. He emphatically stated that whatever was done by him was done either innocently without knowing the actual facts or he was made to do so by his superiors under coercion. While serving the show-cause notice, the confession of the appellant was not referred to, and therefore, he had no occasion to explain, under what circumstances the statement before Mr. Abdul Hafeez Khan was made by him. In any case, we are not convinced that the statement of the appellant before Mr. Abdul Hafeez Khan was sufficient to establish his guilt in respect of all the charges which formed the subject-matter of the show cause notice.
7. Apart from the above facts, we have time and again held that in case of charges which require the recording of evidence in presence of the accused officer, resort to rule 3 should not ordinarily be taken and that in such cases, the more comprehensive procedure provided for under rule 6 should be adopted. In the case of Abdul Ghafoor Junejo v. Pakistan we have held that where there is discretion given to an officer to do a certain act on one way or the other, then that discretion has not to be exercised arbitrarily. The principle laid down in that case has not been followed in the case before us. A mere reading of the charges would show that ' to establish them, evidence was necessary and the appellant could explain and rebut them only when he is given chance to cross- examine the witness and to explain his own side of the case and produce his defence.
8. In view of the above facts, therefore, we accept this appeal, and set aside the order of dismissal, and re-instate the appellant from the date he was dismissed from service. The department shall be at liberty to proceed against the appellant afresh. However, if they do so, then the procedure laid down under rule 6, ibid should be followed and the appellant should first be given a charge- sheet and an Inquiry Officer should be appointed to conduct inquiry. If the department thinks that no useful purpose can be served by proceeding afresh against the appellant, then the appellant shall be entitled to consequential benefits of his re-instatement. If, however, fresh proceedings are taken then the competent authority shall pass necessary orders in respect of the period the appellant remained out of service, when a final decision is arrived at after the, fresh proceedings are completed. 1980 PLC (C. S.) 344