SHAH ABDUR RASHID (CHAIRMAN).--The appellant Maqbool Hussain, was proceeded against under the Government Servants (Efficiency and Discipline) Rules by serving a charge-sheet and statement of allegations upon him on 3-4-1984. On receipt of his reply, dated 17-4-1984, an Inquiry Committee consisting of two officers, was constituted to inquire into the charges. When the report of the Inquiry Committee was finalised the appellant was served with a notice to show 'cause why he should not be dismissed from service. He submitted his reply on 12-8-1984. He was given opportunity of hearing by the authority. Thereafter by a notification, dated 3-9-1984, he was dismissed from service on ground of misconduct. The appellant filed a departmental appeal which was partly accepted and the penalty of dismissal was altered to that of compulsory retirement.
2. This Full Bench was constituted to consider the question whether a second appeal/ representation was necessary if by the appellate order the original order is altered. The learned counsel for State had argued that since the appellate order is fresh order, filing of a second appeal/ representation by the appellant was a necessary requirement of law under proviso (a) to section 4(1) of the Service Tribunals Act, 1973 read with section 22 of the Civil Servants Act, 1973.
However, today, when the matter came up for hearing, attention of the learned State counsel was drawn to the case of Government of Pakistan v. Bashir Ahmad Khan PLD 1985 SC 309, wherein the matter stands settled that in such circumstances no second appeal/ representation was competent. When confronted with this enunciation of law by the Supreme Court, the learned counsel for State did not press his objection any further.
3. Facts leading to the case are that during the period 1-7-1981 to 31-12-1981, some of the Divisional Engineers, Phones, serving under the General Manager, Islamabad to whom the appellant was attached as Accounts Officer, incurred huge expenditure on different works either without allotment or by exceeding the allotment. During the proceedings against them, it was found that the appellant and the General Manager were also privy to what the Divisional Engineers had done.
The General Manager was retired from service as he had completed 25 years' service qualifying for pension. The penalties of dismissal were awarded to the Divisional Engineers. The appellant was also proceeded against in the same connection.
4. The charge-sheet served on the appellant is as follows: "Whereas you Mr. Maqbool Hussain, A.O.T.R., Rawalpindi (B-16) while working as Accounts Officer in the Office of the General Manager, Islamabad, Telecommunication Region, Islamabad, during July- December, 1981, were found responsible for distribution of maintenance and repair funds to the Divisional Engineers of I. T. R in a manner grossly disproportionate to the cost and scope of assets being maintained by them.
And whereas that disproportionate and exhorbitant monthly expenditure incurred by the Divisional Engineers was admitted by you in the Regional Office.
And whereas some of the Divisional Engineers against whom inquiries were conducted stated before the inquiry officers that you had given assurance to them to get the excess expenditure covered by proper allotment.
And whereas you failed to check trend of spending beyond monthly budget proportions and without proper allotment of funds.
And whereas from the facts and circumstances of the (~8se, it appears that you are prima facie guilty of 'misconduct and corruption.
Now, therefore, you the said Mr. Maqbool Hussain A.O.T.R., Rawalpindi (B-16) are hereby directed to show cause within 14 days of receipt of this charge-sheet why you should trot be 'dismissed from Government Service' under Government Servants (E&D) Rules, 1973. On the above-stated charges, statini at the same time whether you wish to be heard in person and adduce any evidence or witness in your defence. A statement of allegations and circumstances which are proposed to b% taken into considerations against you is appended herewith.
Inquiry Committee comprising the following officers his been appointed under Government Servants (E&D) Rules, 1973 to conduct the proceedings against you:
(1) Mian Rehmul Qadir, Divisional Engineer, Development-11 (Defence), Rawalpindi (Chairman).
(2) Mr. Abdul Fatir Siddiqui, SAOTR, Rawalpindi (Member).
In case no written reply is received by the Chairman, Inquiry Committee, within the specified time limit prescribed here in, the case will be decided ex parte."
This was accompanied by a statement of allegations giving the details of the acts of misconduct committed by the appellant.
5. The report of the Inquiry Committee is a considered one and each item contained in the charge- sheet was discussed elaborately, The following conclusions were drawn by the Committee: "The Inquiry Committee after going through the written defence of the accused and all the relevant files, record and verbal interrogations is convinced that though all the allegations levelled against the accused have not been established as discussed earlier in detail), yet it was proved that Mr. Maqbool Russain was sound guilty under the following cases:
(1) Disproportionate allotment of funds.
(2) Laxity in matters of control over expenditure.
The charge of "Corruption" could not, however, be established as no evidence was produced to prove the allegations.
However looking at the system of working of the Regional Office during the period from July, 1981 to December, 1981, it appears that in allotment -of funds, engineering branch was not consulted. The decisions were made in the room of General Manager I.T.R. Islamabad, as reported by the then Director of Telegraph, Raja Iftikhar Ahmad on our querry.
6. The learned counsel for the appellant pointed out and the learned counsel for State could not meet the assertion that the Inquiry Committee while discussing the merits of the charge that the appellant was responsible for disproportionate allotment of funds, did not find the appellant guilty on that account, though in the concluding portion it did mention that the appellant was responsible. In our view, there is no contradiction in the report of the Inquiry Committee, inasmuch as, the finding of Inquiry Committee, in substance, is that the disproportionate allotment of funds was made partly due to the laxity in matters of control over expenditure. The charge of corruption has not been established and this was the conclusion drawn by the Inquiry Committee and also accepted by the Authority.
7. The learned counsel for the appellant first of all contended that the appellant was charged with corruption and misconduct and not for being inefficient and, therefore: no penalty could be awarded to him on the ground of laxity in matters of control over expenditure which at the most amounts to inefficiency. We are in agreement with the learned counsel that ground of penalty for inefficiency is different, from the ground of penalty on corruption or misconduct nevertheless when the appellant had been given opportunity of personal hearing, it cannot be stated that if from the evidence on record the gross negligence of the appellant was established, he can escape the penalty merely by saying that he was not served the charge-sheet on the ground of inefficiency. In fact, when the show-cause notice was served on the appellant, he came to know as what the Inquiry Report contained. In such circumstances, penalty awarded on the ground of "laxity in matters of control over expenditure" cannot be held to be illegal or bad in law, simply for the reason that the word "inefficiency" was not mentioned as ground for penalty in the charge-sheet.
8. The learned counsel then contended that the order passed against the appellant was mala fide.
It was pointed out that the appellant had been making representations with regard to his seniority and that the Director-General, T&T, who was the Authority, was annoyed over it. He also pointed out that he had filed some appeals before the Tribunal which act too the Director-General did not like.
He brought to our notice the remarks of the Director-General on an application of the appellant for interview that the appellant could talk of his seniority in his own group and not with the officers of the Audit Department. It was alleged that the Audit Department employees were being favoured by the Director-General and as that favouritism was contrary to the interest of the appellant and his colleagues, the Director-General was bent upon getting rid of the appellant. In our opinion, the grounds stated for mala fide action are not sufficient. If the Director-General had a view of his own which did not benefit the appellant, it does not amount to mala fide. Similarly, the act of filing representations and appeals cannot annoy the Director-General who is a senior officer and is not persuaded to take revenge upon the appellant for this reason.
9. On facts, the learned counsel for the appellant pointed out that the appellant had been drafting letters and issuing them under the signatures of the General Manager addressed to different Divisional Engineers for strict control over the expenditure and that this fact alone is sufficient to show that there was no laxity whatsoever on the part of the appellant. We need not discuss in detail the evidence this respect, because the Inquiry Committee and the Authority had given the reasons for the conclusion with which we agree. Apart from that, the letters were issued to the Divisional Engineers much before October, 1981, before actual allotments had been made and, thereafter, allotment were made by the General Manager, presumably with the connivance of the appellant, who held a key post of Accounts Officer under him. It was the duty of the Accounts Officer himself to have C control over the expenditure. We cannot agree with the learned counsel for the appellant that the General Manager was doing every thing himself and was not taking the appellant in confidence. When such a huge expenditure was being incurred and when a sum of Rs.
3 Iac was used by one of the Divisional Engineers to be Rs.30 lacs, it should have put the appellant to alert. Negligence on the part of the appellant was more than mere negligence. It was conscious avoidance of responsibility amounting to criminal negligence.
10. The learned counsel for the appellant brought to our notice some cases in which it was held that an isolated act of inefficiency does not make a ground for penalty. In the present case, however, there were series of acts relating to different Divisions under the General Manager, where the appellant was appointed. He cannot escape the responsibility and, I may say. The inefficiency was not less than misconduct.
11. The penalty of dismissal from service awarded by the Director---General has already been changed to that of compulsory retire-men from service, and we think, in the circumstances of the case, this penalty is not in any way excessive. We uphold the order of compulsory retirement of the appellant from service, and dismiss this appeal, with no order as to costs.