1. MUNAWAR ALI KHAN (CHAIRMAN).--By this appeal, appellant Mrs.Rafat Ara Saeed has called in question the order dated 16-9-1985 whereby the Secretary to Government of Sind, Social Welfare, Excise and Taxation Department, found her guilty and imposed on her minor penalty of withholding promotion to BPS-17, for five years. This order was passed as a result of the departmental inquiry held against the appellant.
2. PAGE MISS IN BOOK FROM 745 Briefly stated the facts leading to the departmental inquiry against the appellant are these. While the appellant was working as Superintendent, Day Care Centre, Karachi, she was served with a Charge-sheet and statement of allegations on 8th April, 1984. Initially Mr.Wakil Ahmed, Assistant Director, Social Welfare, Karachi was appointed to hold inquiry into the allegations against the appellant. However he was ultimately replaced by Mr. Muhammad Naqi, Deputy Director, Social Welfare, who made the detailed enquiry. He submitted his report on 22-11-1984, holding the appellant guilty of the charges mentioned in the Charge-sheet excepting the charge of utilizing the services of Aya, House Mothers and Chowkidar for private work at the appellant's residence. On the basis of the report of the Inquiry Officer the Director, Social Welfare, by her letter dated 28th December, 1984 submitted her recommendations to the Secretary, Social Welfare Department for necessary action against the appellant. It appears that in reply to her above letter, the Government vide its letter dated 3rd February, 1985 pointed out to the Director, the errors made by her telling her further that her office had ignored the rules and exhibited vindictiveness against the lady officer, by recommending that she was not fit to be retained in service. Accordingly the Director was advised to make strict compliance of the Efficiency and Discipline Rules before submitting her recommendations.
3. On receipt of the Government's directions as stated above, the Director served the appellant with the final show-cause notice dated 13th March, 1985 wherein she was informed about the charge proved against her in the departmental inquiry, also supplying her a copy of the inquiry report for information. She was further called upon to submit her reply within seven days of the receipt of the notice and state whether she would like to be heard in person. The appellant submitted her detailed reply whereafter the impugned order was passed against her as stated above.
4. We have heard the detailed arguments of the learned counsel for the appellant and the learned Assistant Advocate General and with their assistance, have gone through the relevant documents available on record.
5. The Charge-sheet, served on the appellant enumerates the following four charges against her:
(i) That you remain absent from duty unauthorisedly. You come to office twice or thrice a week and that too for a short period of one hour or so only at 2 p.m.
(ii) that you mismanaged the funds (Receipt of hire charges) of the Dhanak Hall and made unauthorised expenditure from its receipt, (i.e) that you have misappropriated and misused food items, funds and equipment of the Day Care Centre.
(iv) that you have utilized the services of Ayah., House Mothers and Chowkidar for private work at your residence.
6. As required by clause (a) of Sub-Rule (I) of Rule 6 of Sind Civil Servants (Efficiency and Discipline) Rules 1973 (hereinafter referred to as the said rules), the charge framed against, and communicated to, the accused Civil Servant has to be accompanied with a statement of allegations, explaining the charge and other relevant circumstances which are supposed to be taken into considera-- tion. No doubt in compliance of the above legal requirement, statement of allegations was also supplied to the appellant but it is in verbatim the same as the charge-sheet. In other words the statement of allega-- tions does not contain the required explanation of the Charge-sheet framed against the appellant. It does not give the details of the charges specified in the charge-sheet. Therefore it cannot termed as statement of allegations in the eye of law. The question is if such omission would have the effect of vitiating the whole enquiry. In our opinion the statement of allegations serves the purpose of putting the accused civil servant on notice as to the particulars of the allegations he/she has to face. If the record of the enquiry shows that the accused civil servant had the requisite notice, then me . Re omission to supply him/her a statement of the allegations would not render the entire proceedings of the enquiry as invalid. In this connection reference is made to the Enquiry Report wherein the following observations of the Enquiry Officer are noteworthy: "I had been to the Day Care, Centre on 4-11-1984 and conducted detailed enquiry. Prior to this I have given her dates of absence and details of irregularities, mis-appropriation etc. Which is mentioned at page "2".
7. From the above observations it is clear that "before commence--ment of the enquiry, the Enquiry Officer conveyed to the appellant the necessary details of the charges she had to meet with. We would now proceed to examine the truth of this statement and see if the Department has succeeded in proving the charges against her.
8. The first charge against the appellant has two parts: unautho--rised absence from duty and late coming to office. As regard unauthorized absence neither the charge-sheet nor the statement of allegations mention the dates on which the appellant was absent from duty unauthorisedly.
9. However, as stated above the Enquiry Officer had supplied to her the dates of her absence as mentioned at page 2 of the Enquiry Report. We have gone through the whole report including page 2 carefully but nowhere in the report we find the mention of dates of the appellant's unauthorised absence. The Enquiry Officer has discussed the first charge and recorded his findings thereon at page 9 of his report. Even in his discussion he has not specified the dates of the appellant's unauthorized absence of duty. He has however stated in the report that Director, Social Welfare and Deputy Director (Admn), the Assistant Director, Social Welfare, Karachi gave in writing the dates and times when she was not present on their visits to the appellant's office. May be these officers had found her missing. But neither any of these officer has been examined in evidence nor anything in black and white indicating the dates of their visits to the appellant's office and the fact of the appellant's absence on such dates has been proved. Thus not only the appellant had no notice of the dates of her unauthorized absence from duty but also no evidence was produced in course of the enquiry in proof of that charge. Despite that Enquiry Officer has found the appellant guilty of the charge of unauthorised absence from duty. Since this finding is not based on any tangible evidence, it cannot be sustained.
10. Coming to the second part of the first charge, the appellant was allegedly coming late to the office.
11. In this connection the Enquiry Officer has relied upon the evidence of the office staff of the appellant. He has however not discussed the merits and demerits of their evidence but has rather chosen to place implicit reliance on them. Normally they being subordinates to the appellant,, were not expected to say anything against her unless they had for one or the other reason grievance against her or had been coerced to give evidence against her. We have, perused their evidence.
12. Oh this point Syed Shaheen Akhtar, Junior Clerk, Mrs. Ikhlaq Abid, House Mother, Miss Nasreen Fatima, Nurse,y Mrs. Khatoon, Aya, Mrs. Hassan Bano, Naib Qasid, Rehmat Ali, Naib Qasid., Mrs.Kaneez Fatima, Aya, Badar Muneer, Chowkidar have been examined. From them Mrs.Khatoon and Badar Muneer have hot supported the charge as they have shown ignorance about the appellant's late-coming. According to Syed Shaheen Akhtar, Junior Clerk, the appellant came to office sometime in the morning, sometime in ache evening between 12 noon and 4 p.m. However Mrs.Ikhlaq Abid and Miss Nasreen Fatima state that she always came late after 2 p.m. Or 2.30 p.m.
13. The statement of Mrs.Hasan Bano shows that appellant came after 12 noon. From the statement of Rehmat Ali and Mrs. Kaneez Fatima, it appears that in the begiryning she used to come pat 10 or 10.30 a.m. But afterwards she started coming between 12 noon and 4 p.m. Thus there are as many versions of her late coming as there are witnesses. The appellant cannot be punished on such discrepant evidence coming from the lower staff who, as has been pointed out above, cannot be wholly trustworthy. Nevertheless the appellant herself has not denied that sometime she came late in the office. She has explained that she had outdoor duties including the duty of shopping she made for the Day Care Centre. According 'to her in the beginning she had the facility of transport which was however withdrawn subsequently and therefore she came to office after finishing her outdoor duties. It is not disputed that beside attending office, the appellant was assigned outdoor duties. In course of the arguments we were informed that the appellant was required to maintain her movements register. The charge of the appellant's late coming has not been proved from the said register. Moreover the charge is vague and general in nature. There is no proof that she had come late on particular dates. From the above discussion we are not satisfied that the charge of late coming has been proved against the appellant.
14. The second and third charges against the appellant are about the mismanagement and misappropriation of the funds, (receipts of hire charges of Dhanak Hall), food items and equipment of Day. Care Centre. In support of these charges both oral and documentary evidence Has been relied upon. Oral evidence is given by the witnesses mentioned above. None of them has supported this charge. On the contrary they have said that either no mismanagement or misappropria--tion of funds has taken place or they do not know about. Any such mismanagement or misappropriation. Thus the oral evidence is not helpful at all. However, the Inquiry Officer has examined the relevant record and made his comments thereon. As is disclosed in the Enquiry Report he has discussed and disposed the above two charges together. At page 13 of the report, the Enquiry Officer is shown to have detected some misappropriation. It was noticed by him that as per receipt No.75 dated 29-1-1983, Rs..1,000 were recovered from the party in respect of Dhanak Hall but in the cash book only Rs.100 were entered. The report however, clearly shows that the said. Amount was received by Miss Nasreen Fatima, Nurse in absence of the appellant who was on leave and further that both receipts and the entry in the cash book are hot in the hand of the appellant. Despite this the Inquiry Officer found appellant responsible for the above defalcation merely because she had afterwards signed the receipts. No doubt the appellant's signing of the said receipt without due verification of the relevant entries in the cash book speaks of her negligence.
15. Apart from above the Enquiry Officer found that no register or record relating to booking of the Dhanak Hall was maintained. He further found that a sum of Rs.24,300 was recovered during the disputed period in respect of the Dhanak Hall but t' he said amount was never deposited in Bank.
16. The Enquiry Officer l also noted the Managing Committee was constituted to run the affairs of the Dhanak Hall, but the appellant made expenditure unauthorisedly without obtaining the sanction of the committee particularly ',when no power vested in her to incur any expenditure. According to the Inquiry Officer the appellant's explanation in this regard was that she moved for post facto sanctions but that too she could not prove. He however, found that misuse of equipment could not be proved. His report is also silent as to proof of misuse of Food items.
17. It appears that the Enquiry Officer has pin-pointed a number of other lapses committed by the accused officer directly or indirectly. While examining the cash book he found: cuttings and omissions which had not been authenticated by signature of the officer concerned; the balance of Rs.1255 shown on 28-2-1984 was not brought forward in the next following month; and the income and expenditure for months of November and December, 1981 were not mentioned. He also, noticed that the Vouchers were mostly on plain paper and no prescribed stamps was affixed on them. It also came to his notice that for purchase of certain heavy items neither proper sanction was obtained nor quotations were called for. However, these lapses have not been appraised by the Enquiry Officer in the light of the reply furnished by the accused officer as mentioned in the Inquiry Report nor have they been made the basis for findings of the Enquiry Officer as regards the guilt of the accused officer for charges two and three. Nevertheless we have given our thought to above irregularities and have found that the explanation furnished by the accused officer was not entirely satisfactory. We are of the view that the appellant was not only negligent in performance of her duties but also her control over the affairs in her charge was loose. She exhibited gross inefficiency in running the show. Nevertheless the Inquiry Officer in view of his discussion contained in his report found her guilty for mismanagement and misappropriation of the funds. We are unable to agree with this finding. In our opinion in view of the material available on record, the appellant is only guilty of gross-inefficiency.
18. So far the last charge is concerned the Enquiry Report is clear that it has not been proved.
19. At this stage we may refer to the application made by the appellant on 25-8-1986 wherein she has challenged the authenticity of the signature of the Enquiry Officer (Mr. Muhammad Naqi) on the Enquiry Report which according to her was forged. This is obviously after thought. The Enquiry Report was submitted as far back as 22-11-1984. On the basis of this report the appellant was punished by impugned order passed on 16-9-1985. She filed the present appeal on 13-2-1986. For all this period she remained quiet in spite of the fact that enquiry report was supplied to her before passing of the impugned order. We also see no reason why the signature of the Enquiry Officer should be forged. No doubt Enquiry Officer is dead. It is admitted that he died on 9-3-1985, much after the completion of the enquiry. The learned Assistant Advocate General vehemently denied the allegation of forging of the Enquiry Officer's signature. We-see no force in the allegation which, as observed earlier, is clearly after thought.
20. As has, been stated above the appellant is found guilty of gross-inefficiency in performance of her duties. For this Charge, we consider the penalty imposed upon her as excessive. Accordingly we reduce the penalty to that of withholding of promotion for one year E from the date it will be due to the appellant. With this modification in the penalty, the appeal is dismissed with no order as to costs.
21. A.E./121/Sr.S.