' ABDUR RASHID (MEMBER).- While employed as Sub-Postmaster, Jehangir Road, Karachi, the appellant was charge-sheeted on 3rd January, 1981 as under : "The Divisional Engineer Phones, Trunk Inland Dn. Karachi under his letter No, Q-511/OBS/2, dated 22nd July, 1980 made a report to the P. M. G., Karachi that the official handling the P. C.
0. At Jehangir Road P.
0. Was involved in malpractices of passing free calls in collaboration with the operators of Trunk inland Dn. Karachi. The D. E. Phones tape-recorded the speech of the S. P. M. Jehangir Road and a Lady Telephone Operator on 13th July, 1980, which started at 14.50 hrs. And ended at 15-30 hrs. (40 minutes) in connection with fixing the share of money realised from the public of free trunk calls, manner of its collection by the Lady Telephone Operator and other matters. Mr. Muhammad Ahmed Warsi, was the S. P. M., Jehangir Road P.
0. On 13th July, 1980 and had been handling the P. C.
0.
' Mr. Muhammad Ahmed Warsi, S. P. M., Jehangir Road (under suspension) service more than 16 years and pay Rs, 335 is therefore, charged for ' Misconduct and is called upon to show-cause within 10 days of the receipt of this memo. As to why the penalty of dismissal from service which is considered prima facie appropriate in the case should not be imposed upon him.
' He should clearly understand that if this written defence is not received within the stipulated period the case will be decided ex parte.
' He should also state in his defence if he desires to be heard in person.
(Sd.)
Postmaster (Central), New Town H.
0. Karachi-5."
2. The appellant denied the allegations vide his letter, dated 20th January, 1980. An Enquiry Officer was appointed to conduct the enquiry. The appellant was dismissed vide memo., dated 30th March, 1981 which is also reproduced : "The Divisional Engineer Phones, Trunk Inland Dn. Karachi under his letter No, Q-511/OBS/2, dated 22nd July, 1980 made a report to the P. M. G. Karachi that the official handling the P. C.
0. At Jehangir Road P.
0. Was involved in malpractices of passing free calls in collaboration with the operators of Trunk Inland Dn. Karachi. The D. E. Phones tape recorded the speech of the S. P. M. Jehangir Road and a Lady Telephone Operator on 13th July, 1980, which started at 14-50 hrs. And ended at 15-30 hrs. (40 minutes) in connection with fixing the share of money realised from the public of free trunk Calls, manner of its collection by the Lady Telephone Operator and other matters. Mr. Muhammad Ahmed Warsi, was the S. P. M., Jehangir Road P.
0. On 13th July, 1980 and had been handling the P. C.
0.
' Mr. Muhammad Ahmed Warsi S. P. M., Jehangir Road (under suspension) service more than 16 years and pay Rs, 335 was therefore, charged for :-
(i) Misconduct.
(ii) Under this office memo. Of even No, dated 3rd January, 1981. ' and was'called upon to show cause within 10 days of the receipt of that memo. As to why the penalty of dismissal from service under E & D Rules, 1973 which was considered prima facie appropriate in the case should not be imposed upon him.
' The accused official submitted his written defence on 18th January, 1981. He was heard in person by the undersigned on 29th January, 1981 Mr. Muhammad Akram Malick, Assistant Superintendent Circle Office, Karachi was appointed Enquiry Officer under rule 5 of E & D Rules, 1973 vide memo. Of even No,, dated 31st January, 1981. The Enquiry Officer submitted his report on 25th March, 1981.
' The accused official in his written defence denied the charges levelled against him without any material fact or ground. He has put forward two pleas in his written defence and during the course of Enquiry by the Enquiry Officer that : (0 He was served with 2 memos. Of charges in one and the same case on two different dates.
(ii) He was not supplied copies of certain documents mainly the tape record and the transcript of speech. The accused official was informed about the misplacement of the file concerning to charge-sheet dated 9th September, 1980 by the Enquiry Officer as a result of which a fresh memo.
Of charges, dated 3rd January, 1981 was served on him. The allegation that charge-sheet dated 3rd January, 1981 was issued in order to cover up the alleged irregularities already occurred in proceedings took place earlier have not footings in view of the facts of being the case one and the same. The charge-sheet, dated 3rd January, 1981 was issued on the same facts and grounds and Enquiry Officer appointed a fresh.
' As regards supply of copies of documents mainly the tape-record cassette and transcript of the speech, these were heard/seen by the accused official before the Enquiry Officer.
' After going through the whole case including the report of the Enquiry Officer. I have come to the conclusion that the speech in question (in the tape-record cassette) with the lady operator is in the voice of the accused official which is a recorded evidence which cannot be denied. Hence the charge of misconduct levelled against him stands proved. Therefore I find no justification to retain such o it official in the Department and order that Mr. Muhammad Ahmed Warsi, S. P. M., Jehangir Road P.
0. (under suspension) be dismissed from service with immediate effect. The period of his suspension is ordered to be treated as leave whatever due to him.
(Sd.)
Postmaster (Central), New Town H.
0., Karachi-5."
3. The appellant preferred a departmental appeal on 28th April, 1981 against his impugned dismissal. He received no reply and after exhausting the waiting period of 90 days filed his appeal before the Federal Service Tribunal on 4th August, 1981.
4. We heard the learned counsel from the both sides. It is an admitted position that the appellant had been earlier served a charge-sheet which is reproduced :
5. {{TABLE TEXT}} "PAKISTAN POST OFFICE Office of the Postmaster (Central) New Town H.
0. Karachi-5.
' Memo. No, L2-24/80-81. Dated at Karachi-5 the, 9-1980.
' The Divisional Engineer Phones Trunks (Inland) Division, Karachi under his letter No, Q-511/OBS/2, dated 22nd July, 1980 addressed to P. M. G. SAC, Karachi reported that the official handling P. C. O.
At Jehangir Road P. O. Was involved in malpractice of passing free trunk calls in collaboration with the operators of Trunk Inland Exchange Division, Karachi. This was observed and conversation between the S. P. M., Jehangir Road P.
0. (who had been handling the P. C.
0. And a Telephone Operator regarding fixing of amount of share, keeping the account of free trunk calls and manner of payment of the share of the amount of free trunk calls collected from the public by the S. P. M., Jehangir Road to the Telephone Operator was tape-recorded. The record of this conversation has been kept by the D. E. (Trunk) Inland.
' Mr. Muhammad Ahmad Warsi, S. P. M., Jehangir Road P.
0. (under suspension) service about 16 years pay Rs, 335 is, therefore, charged for misconduct and is called upon to show cause within ten days of the receipt of this memo. As to why one or more penalties as defined in Government Servants (E&D) Rules, 1973 should not be imposed on him.
' He should clearly understand that if his written defence is not received within the stipulated period the case will be decided ex parte. He should also state in his defence if he desires to be heard in person.
(Sd.)
Postmaster (Central), New Town H.
0., Karachi"
' The above charge-sheet did not bear any date and time of the alleged conversation between the appellant and the Lady Telephone Operator. The appellant had replied to the above-quoted charge-sheet on 13th October, 1980 denying the allegations and requesting the Authority to furnish him with necessary details to offer a proper defence. This was not done but, instead, the appellant was informed that his request was under consideration. The Enquiry Officer who had been originally appointed to conduct the 'enquiry held one sitting on 10th December, 1980. Thereafter, the enquiry came to an end.
5. On 8th January, 1981, the appellant received a fresh charge-sheet, dated 3rd January, 1981 which has been reproduced at para.
1. The plea of the department was that the original case file had been misplaced and hence the fresh charge-sheet, dated 3rd January, 1981. It would be observed that in the charge-sheet, dated 3rd January, 1981, the date and time of occurrence has been mentioned which was absent in the first charge-sheet. For the second enquiry, a new Enquiry Officer was appointed. The so-called enquiry report has not been placed before us. All that was stated by the learned counsel for the respondent-department was, that a tape-recorded conversation, as alleged in the charge-sheet, was available which we, too, could hear and decide the case. There is, therefore, nothing available against the appellant except the tape-recorded conversation which could have been very well- contrived to implicate the appellant. We are led to this conclusion from the conduct of the respondents when a few days after the original enquiry had commenced. The loss of certain papers was made a ground for serving a fresh charge-sheet which had been therefore, the plea of loss of documents, if any, with a view to beginning improved upon. In fact, no enquiry had taken place to begin with and with a fresh charge-sheet under a different Enquiry Officer can only raise doubts in our mind as to the bona fides of the respondents. What makes the conduct of the department suspect is that the most important and, in fact, the only evidence viz. The tape- recorded conversation should have survived the loss of the so-called documents.
6. In our considered view there was no enquiry conducted to produce any corroborative evidence which could establish the guilt of the appellant. He has been condemned on the basis of very dubious tape-recorded conversation which could very well be a fake. The respondents, in their written statement at para. 7, have said that the appellant admitted having made the tape- recorded conversation. To our surprise, however, -this statement has neither been placed on record nor was it produced before us for our perusal.
7. We have given this case our serious consideration and have come to the irresistible conclusion that the charge against the appellant has not c been established. We, therefore, exonerate him of the charge. We also hold the period of appellant's suspension to be illegal. He would be entitled to full pay and allowances for the said period.
8. We set aside the order of appellant's dismissal and re-instate 'him into service, with effect from 30th March, 1981. He shall be entitled to full pay and allowances (including increments), with effect from the said date as if he had never been dismissed.