MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).--The appellant has assailed the order of his retirement from service, passed by the Government, vide No. Admn.S-IV/General-8/9/84 dated 10- 7-1984. The appellant was suspended, vide No. Admin-1182-93/82, dated 9-6-1981, with further direction, for proceeding, under the Efficiency & Discipline Rules, 1977. He was issued a charge- sheet, by the Authorised Officer (Secretary Services) vide No. Works/2366/82, dated 29-6-1982. The charges are detailed in Annexure 'D' appended with appeal, brought in this Tribunal. Prior to the suspension and the charge-sheet, the Vigilance Commission had conducted the preliminary inquiry, into the affairs of the Electricity, Operation Division Kotli. The Commission made a report, to the Government. On this report, the Government had taken the action of suspension, as well as directed the Authorised Officer for proceeding, under the Efficiency & Discipline Rules.
2. The reply of the charge-sheet was furnished by the appellant, on 28-7-1982, which forms Annexure 'E' to the appeal. The appellant had denied all the charges, levelled against him. As a result of proceeding, against the appellant, he was retired from service, vide order dated 10-7-1984, forming Annexure 'G'. The appellant moved a Review Petition against this order, which had not been decided, when the present appeal was preferred, before this Tribunal.
3. We heard the arguments of the learned counsel for the parties and perused the record. The counsel for the appellant raised the following objections, regarding the validity of the proceedings, conducted against the appellants:-
(a) Secretary Works was Member of Vigilance Commission, which had made a report against the appellant, therefore, he could have not acted as authorised officer, in the case of the appellant;
(b) Mr. Muhammad Iqbal Malik, Electricity Inspector, appointed as Inquiry Officer, in the case of the appellant was holding a post in NPS-19 and the appellant was also holding the post of Superintending Engineer, in NPS-19. The appointment of Muhammad Iqbal Malik, Electricity Inspector, as Inquiry Officer is violative of Rule 6(5) of Efficiency & Discipline Rules, 1977, because he was not senior in rank to the appellant; (c)(i)Show-cause notice was required to be served under Rule 8, before awarding any major penalty, which was not served to the appellant;
(c) (ii)There is no order on file to show that Mr. A.R.Saleem was appointed by the authority to hear the appellant, thus, the mandatory provisions of Rule 8, have not been complied with;
(d) Lack of confidence was expressed, by the appellant on the Enquiry Officer, in the application, before the officer, asked to hear the appellant, before awarding punishment, therefore, proceedings of Inquiry Officer in presence of lack of confidence could not be made the basis for punishment;
(e) Some witnesses have been examined, without oath;
(f) Abdul Aziz, Abdul Karim and two other witnesses were examined by the Inquiry Officer, in the absence of the appellant, therefore, their evidence had no value.
The learned counsel cited PLD 1978 Kar. 132; PLD 1970 Pesh. 170; NLR 1981, Services 40 and PLD 1973, Head Notes 36, 132 in order to support his contention;
(g) Tariq Mahmood was sought by the appellant to be summoned as defence witness but the Inquiry Officer did not summon him, therefore, according to him the inquiry is vitiated. The appellant's counsel cited PLD 1963 Lah. 295 in this respect.
4. Apart from the above preliminary objections, the learned counsel for the appellant raised the following points:-
(i) According to the appellant, there is no evidence on record to implicate the appellant, for any of the charges and that no fault could legally be found with the actions of the appellant mentioned in the charge-sheet;
(ii) It was also contended that charges of corruption, required high standard of proof. For this, the counsel for the appellant referred to PLD 1978 Lah. 972 and PLD 1966 SC 253; (i.e) It was contended by the learned counsel for the appellant that opportunity of cross- examination was not afforded to the appellant, which according to him, vitiated the proceedings.
The learned counsel for the appellant referred to PLD 1963 SC 460;
(iv) The counsel for the appellant also argued that two witnesses did not turn up for evidence and presumption was taken, against the appellant, which was illegal. The counsel for the appellant also cited 1974 P Cr. L J 273.
5. The Additional Advocate-General, representing the respondent, argued that inquiry was valid because the Secretary Works had no personal interest, in the result of the inquiry. He was acting as Member of the Vigilance Commission, as well as authorised officer, in his official capacity. If certain facts came to his notice, as member of the Commission, it does not debar him from acting as authorised officer. The provisions of Rule 2, sub-rule 13) of Efficiency & Discipline Rules, 1977 are in no way violated. It was also pointed out that no objection to the Secretary Works, acting as Authorised Officer was taken at any stage, before passing of the order. No personal interest of enmity or any instance of prejudice has been attributed to the Secretary Works.
(ii) It was also pleaded that the appellant was charge-sheeted as Executive Engineer and not as Superintending Engineer. His actions, which were subject of inquiry and disciplinary proceedings were also in his capacity as Executive Engineer and not as Superintending Engineer. It was also contended that the appellant was re-instated as Executive Engineers after his acquittal in a criminal case, earlier than the present proceedings, therefore, he had lost the status of Superintending Engineer on his re-instatement as Executive Engineer. Hence, the proceedings, of enquiry, by Inspector Electricity suffer no legal defect.
(i.e) It was pleaded by the Additional Advocate-General that it was not necessary to administer oath to every witness, sought to be examined, in a departmental inquiry. According to him, the inquiry is governed by the Efficiency & Discipline Rules, 1977, which is a special law. It does not contain any provision, regarding administration of oath to witnesses, nor the Evidence Act 1872 is applicable to the proceedings. The evidence has been lawfully recorded.
(iv) According to the Additional Advocate-General, expression of any lack of confidence on the inquiry after the close of enquiry and before the officer designated for hearing is immaterial, when finding had been already given, by the Inquiry Officer, against the appellant. If the report of the Inquiry Officer would have been favourable, the appellant would have reposed confidence but in the instant case, the report was made against the appellant, therefore, he expressed lack of confidence. There was no stage for expressing no confidence, against the Enquiry Officer, before the Officer designated, for hearing the appellant. The prejudice if legitimately complained of could be expressed, before the close of inquiry and not afterwards.
(v) It was also argued that Rule 8, of Efficiency & Discipline Rules, 1977 does not envisage the issuance of any show-cause notice, before awarding the major penalty. The rules only require that the accused officer should be given an opportunity of explaining his position. The appellant, in this case, was given opportunity of being heard, through Mr. A.R. Saleem, designated for the purpose.
(vi) In respect of non-summoning of witnesses, it was pleaded that the Inquiry Officer is not bound to examine all the witnesses, cited by the defence. The witnesses, so cited, were out of Azad Kashmir. One person, whom the Inquiry officer wanted to examine in the first instance was not very much material, nor he was available. The appellant had not made any request for summoning him as his witness.
(vii) In respect of recording of evidence, in absence of appellant, it was argued that Inquiry Officer had given due notice to the appellant, regarding the dates of inquiry and it was for the appellant to make himself available at the time of recording evidence. If the appellant absented himself at any stage, during the proceeding that will not invalidate the proceedings. The absence of appellant, in such circumstances is not attributable to any conduct of the Inquiry Officer, rather it shows the negligence of the appellant and no one can be made to reap the fruits of his own negligence or want of due care on his part. It was not a criminal case, where the proceedings should have been suspended or the accused be made to attend the proceedings, by coersive process or by detention According to the Additional Advocate-General, the evidence, relating to the Appellant was recorded in his presence.
6. On merits, the Additional Advocate-General pleaded that the allegations were fully proved by the oral as well as the documentary and the circumstantial evidence and the order, under appeal, according to him suffers no legal defect, nor it was improper, in view of the evidence on record.
7. We proceed to determine the preliminary objections first. The Secretary Works an ex officio member of Vigilance Commission. A report was initiated, by the Commission, against the appellant, on which the Government ordered the inquiry, into the allegations and also suspended the appellant and certain other officials. The Secretary Works, even as Authorised Officer or Head of the Department is supposed to bring to the notice of the Government, any irregularity or objectionable act of the officers, under him and seek direction, from the Government as authorised officer, for proceeding under Efficiency & Discipline Rules. The Secretary Works in his capacity as authorised officer had to make a report against :he appellant, after any material /complaint was otherwise received, by him against the appellant, and thereafter in accordance with the direction of the authority, he could have proceeded as authorised officer. The action of the Secretary Works as Member of the Vigilance Commission cannot debar him from acting as Authorised Officer.
Because, even in that capacity, he made a report to the Government, which should have been made by him as Authorised Officer, for seeking direction, for proceeding under the Efficiency and Discipline Rules. The Secretary of the Department is responsible for ensuring good conduct of the officers, of the department and in case of any complaint of misconduct, bribery, corruption etc. He has to make action on the directions of the authority. He could only be disqualified from acting as Authorised Officer, if it is found that he had a personal interest for implicating the appellant in any charge or it was found that he shifted the burden, of someone else or the appellant or otherwise he had any motive against the interest of the appellant. No personal illwill disliking or other circumstance of the like nature has been attributed to the Secretary Works. The only factor that he contributed to a report for seeking direction of the Government and later on he recommended penalty does not disqualify him from acting as Authorised Officer. In a reported case viz. Muhammad Fazal v. Government PLD 1969 A J K 22 it was held by the High Court that sanction for the prosecution of an official given in administrative capacity does not debar as Judge to try that official for the corruption. The objection of the learned counsel for the appellant, is therefore, repelled.
8. In respect of second objection, the learned counsel for the appellant stated that his client was Superintending Engineer and Malik Muhammad Iqbal, Inquiry Officer was also having the same status, therefore, he could have not been appointed as Inquiry Officer. He placed on record a Government order dated 2-8-1984, whereby Mr. Nisar Ahmad Kiani was shown Superintending Engineer/Executive Engineer for the period 5-6-1976 to 27-2-1980 and a post in NPS-19 was also created to make him payment of some arrears. We requisitioned some record from the department and observed that the appellant was suspended from service vide order No. Admn Electricity/369-77 dated 23-7-1977. He was re-instated as Executive Engineer vide No. Admin, 3400- 3441/80 dated 27-2-1980 and it was also ordered that his adjustment would be made on creation of a post of Executive Engineer, When the proceedings, against him were initiated which are subject of appeal the appellant was holding the post of Executive-Engineer and all actions, under the inquiry were taken by the appellant, as Executive Engineer. The appellant lost his previous status as Superintending Engineer, when he was re-instated and posted as Executive Engineer. The order a fated 2-8-1984 passed after completion of enquiry, restoring the appellants status as Superintending Engineer does not invalidate the proceedings, held earlier. The appellant raised no objection before the Inquiry Officer in this respect. The objection is not sustainable.
9. The appellant, when required to appear before Mr.A.R. Saleem, did appear before him and made written as well as the oral submissions and had all the opportunity of explaining his position, with respect to the charges, levelled against him. The appellant never objected to the hearing by Mr. A.R.
Saleem, at the stage, nor he was under any misconception about him. The only factor that Mr. A.R.
Saleem also made an adverse opinion against the appellant does not mean that the part of the proceedings conducted by Mr.A.R. Saleem had become violative of the rules, or that requirement of any rule had not been complied with, This objection also stands repelled. Similarly the lack of confidence on the Enquiry Officer where the enquiry had been already completed, is immaterial.
When Mr. Muhammad Iqbal Malik was conducting the inquiry, the appellant had an opportunity to complain against his conduct, before the appropriate authority. After the report had been already made against him, the appellant would have been naturally aggrieved by the report but that would not be a ground to discard the proceedings by inquiry officers. This objection is also repelled.
10. The fifth objection relates to the recording of evidence without oath. The learned counsel for the appellant stated that in view of the provisions of Efficiency & Discipline Rules, the proceedings of Inquiry Officer are the judicial proceedings and Oaths Act, 1873 applies to such proceedings, therefore, any statement recorded by Inquiry Officer without administrating oath cannot be treated as a piece of evidence, against the appellant. The relevant provision as embodied in Rule 12(2) is reproduced below:- "12 ................................................
(2) The proceedings under these rules shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Azad Kashmir Penal Code (Act XLV of 1860)."
The provision of Efficiency & Discipline Rules, reproduced earlier, only indicate that the proceedings before any Inquiry Officer shall be judicial proceedings, within the meaning of section 193 and 228 of Penal Code. These provisions appear to have been made to enable the Inquiry Officer to discharge his functions effectively, otherwise, it does not mean that these proceedings are judicial proceedings, for all practical purposes and that provisions of law, relating to the judicial proceedings, shall apply to the proceedings of inquiry, under the aforesaid rules. Similarly, the Oaths Act does not provide that it will apply to the proceedings, in a Departmental Inquiry. In spite of that we think that in order to ascertain the truth, it is necessary that a person, who is sought to be examined, for the purpose of evidence, against any other person, in any civil or criminal or departmental proceedings, his testimony should be relied upon, only if he makes the statement on oath or at least he should declare on solemn affirmation that he is telling truth and nothing but truth. If the statement is recorded without solemn affirmation, it will not be safe to use such a statement as evidence, against a person. We are of the view that so much of the oral evidence, recorded in this case, without oath, as does not get a corroboration from any other source shall not be read as evidence, against the appellant. Only such portion of evidence, which is documentary or that recorded on oath, shall be admissible as evidence, against the appellant. The material which has only a corroborative value or of explanatory character can be looked into. The Additional Advocate-General had cited 1974 PCr.LJ 237 to support that it is not necessary that oath should be administered to every witness. We disagree with the view of Additional Advocate-General, to the extent indicated by us earlier.
11. The next point relates to the recording of evidence of Abdul Aziz, Abdul Karim and two other witnesses, in absence of the appellant The Additional Advocate-General, argued that the Inquiry Officer had fixed a date for proceeding and it was the duty of the appellant, to make himself available. If the appellant himself absented from the Inquiry, he cannot blame the inquiry Officer.
There is no provision, in the rules, that in case the appellant absents himself, it should operate as stay of inquiry. Rule 7(4) provides that in case the accused officer hampers or attempts to hamper the inquiry, the Inquiry Officer can complete the proceeding. The proceeding of Inquiry Officer are of civil nature as held by the Supreme Court, in case of Giasul Haq v. Azad Kashmir Government PLD 1982 SC (A J K) 932. The proceedings shall be conducted by the Inquiry Officer as nearly to C.P.C.
As possible. Thus, it was lawful to record evidence, in absence of appellant, if due notice of the dates of inquiry was given to the appellant. We perused the record and found that the statements of the witnesses were recorded after notice to the accused official. The appellant and his counsel mentioned the names of Abdul Aziz and Abdul Karim, whose evidence was recorded, in absence of the appellant. During the arguments, it was stated that names of the two persons will be shown later on, whose evidence was so recorded, but in spite of inquiry from the counsel for the appellant, in this respect, the names of other two witnesses were not brought to light. As matter of extreme care, we hold that the testimony of Abdul Aziz & Abdul Karim case, if not corroborated by other source shall not be used as evidence although the objection, under the circumstances of this case, was not tenable.
12. The next objection relates to the fact that some witnesses were not summoned. We enquired from the appellant, the names of witnesses, who were sought to be summoned by the appellant, and asked him to refer to any application for the purpose. The appellant failed to point out any application, made by him, in this behalf. He referred to one of his letters, addressed to the Inquiry Officer on 16-3-1983, which is at page 81/299 of the file. The letter is reproduced as under:- This letter of the appellant bears a reference to the letter No.66 dated 17-1-1983 of the Inquiry officer, which is also reproduced below:- The combined reading of the letters shows that some letters were addressed to M/s. Kashmir Electric Co. Muzaffarabad by the Inquiry Officer, in relation to the Inquiry at his own. The Inquiry Officer was intimated by the appellant that Messrs Kashmir Electric Co. Should be contacted at Muzaffarabad through Tariq Mahmood, who was at Muzaffarabad. This letter is in no way a request for summoning of witness. Tariq Mahmood was not a person., who supplied the Stores to the department and Inquiry Officer was not bound to call such a witness because he did not figure in the official record, as a supplier. Contents of the letter do not show that the appellant in his capacity of an accu4ed officer was in any way interested in the testimony of Tariq Mahmood. We have otherwise perused the record and have seen that some letters have been addressed to Kashmir Electric Co. Muzaffarabad. One Mir Abdul Karim, owner of the Kashmir Electric Co. Who appeared in response to the letters at a later stage was examined by the Inquiry Officer. There is no application for summoning any other witness. The proceedings of the Inquiry Officer are perfect and bona fide. The objection with regard to non-summoning of evidence, is, therefore, repelled, being unfounded.
13. On merits, the Additional Advocate-General argued that charges have been fully proved. The following incriminating circumstances have been brought to light:-
(i) Sultan Room, - supplier /contractor has denied that he had supplied the material, mentioned at items Nos. 1 to 7 of Charge No. 2. He has also denied to have submitted tenders/ quotations for the supply of items Nos. 1 to 3 and 6 to 7.
(ii) Mr. Sultan Room also denied the submission of the bills for items Nos. 1 to 3, and he also stated that bills, for items Nos. 4 to 5, were obtained from him, although he did not supply the material. The said supplier also denied the submission of bills and the receipt of cheques of items Nos. 1 to 3 and No.6. Sultan Room also denied the writing of any letter, for the payment of 200 service masts and he denied that he had supplied any such material nor he received such amount; (i.e) The payment for stay were and meters has been made before issue of supply order;
(iv) A fraudulent Account No.158 was opened in the name of Sultan Room, which was practically opene dand operated upon through Javed Akhtar, Store Keeper of the Office of the appellant;
(v) The purchase of various items was made in piacemeal, by obtaining quotations, instead of making the purchase in bulk and getting tenders, for supply of such bulk purchase;
(vi) The sealed quotations /tenders were sometime invited through the newspapers or through the notice on the notice board, but the tenders received, show that they have been received on unsealed envelopes;
(vii) Some of the quotations, received have no sign of having been folded, which shows that the quotations were prepared just to fulfil the formalities and were not actually submitted by the bona fide suppliers, otherwise in case, such quotations were received in the tender box duly enveloped, the quotation paper should bear the sign of being folded;
(viii) Mr. Manzoor Anwar also denied the submission of any paper of supply of material. M/s. Kashmir Electric Company Muzaffarabad was not traceable in the first instance, in spite of letters having been addressed to him, nor the appellant could point out the location of such a shop. He pointed out that one Tariq Mahmood was supplying that material, which purports to have been supplied by Kashmir Electric Company but neither Tariq Mahmood was produced as defence witness, nor any application was made, for summoning of said person, as witness;
(ix) Telephone Number on the pad of the Kashmir Electric Company was 2224, whereas this Telephone actually stands allotted in the name of Messrs Khurshid Ahmad Khan, Poonch Karyana Store. Muzaffarabad. On being enquired Messrs Khurshid Ahmad denied any relation or concern with the Kashmir Electric Company. Thus, showing the purchase of the material, purporting to have been supplied by Kashmir" Electric Company was also some fake transaction;
(x) The cheques are not shown to have been handed over to the supplier, after obtaining receipt on the counterfoil. Normally, the cheques are delivered to the payees after obtaining receipt, It is nowhere shown that the cheques were sent by the post. It was stated that the cheques were delivered to the suppliers, in the office of Executive Engineer, in the presence of Executive Engineer.
It is D . D. O's responsibility to ensure the delivery of the cheque to the right person. Failure on his part coupled with other circumstances and the fraudulent operation of Account No.158 for the drawal of amount of cheques issued by the Executive Engineer, makes him responsible for the affairs, raising a strong presumption of guilt;
(xi) The payment of Rs.10,000 has been made to the Contractor in cash, for which, it was. Stated that the Bank was closed, therefore, the payment had to be made in cash. This payment was against the departmental instructions.
(xii) Some supply orders were issued; after lapse of 4 months from the receipt of quotations, whereas the short quotations are generally invited for the items, required to be purchased, immediately. The delay in issue of the supply order or the purchase shown, makes the purchase doubtful;
(xiii) A cheque was drawn for Rs.28,980 favouring Sultan Room Contractor, who has stated that he did not supply the material and that he had objected to the issuance of cheque in his favour and preparation of record for its supply in his name and consequently, he received Rs.7.980 and paid back the amount of Rs.21,000 to Executive Engineer by means of cheque drawn, in the name of Muhammad Yaqoob Bhatti, Line Superintendent. The receipt of this amount of Rs.21,000 is admitted by Mr. Muhammad Yaqoob Bhatti, although he stated that the amount was obtained by him as loan for his brother. The plea of taking loan cannot be accepted. No record was produced to prove that brother of Mr. Bhatti went abroad or even obtained a passport for going abroad. Thus, the story of taking loan is just concocted one;
(xiv) The amount of Rs.5,000 on account of Call Deposit was also drawn but not paid to Sultan Room. It was credited in the forged Account No. 158 in the United Bank Limited and later on drawn from that account;
(xv) 128 P. V. C. Cables and 22.50 K. M. Aluminium Conductor were shown to have been received, on 10-2-1981 but the payment was made, vide Cheque No. 943212 dated 18-1-1981 and 943213, dated 18-1-1981. The payment made, in advance of supply of the material, indicated that the transaction was fake and at any rate, is violative of the rules. No payment could have been made, before the supply of the material; (xvi)The danger 'Plate' were purchased @ Rs.44 each but the plates, in the Store were of low quality and did not conform to the price, paid for it. It was also observed that a large number of plates were already in the store, therefore, there was no necessity for purchasing of more plates, at the time, this purchase is shown to have been made.
14. The Inquiry Officer started the proceedings in August 1982. After examining the written statements of the accused officials, the notices were issued to them for 24-8-1982 to 30-8-1986.
Their statements were recorded for ascertaining their view point, with respect to the charges levelled against them. The inquiry was adjourned from time to time. A part from the statement, recorded at the earlier stage, in August, 1982, the statements of the following persons were recorded on the dates, shown against their names:- Persons at S. Nos. 3, 6, 9, 10, 11, 12 were examined in presence of the appellant. Sultan Room, Yaqoob Bhatti, Javed Akhtar and Manzoor Awan were examined in his absence; but they were called again for cross-examination and their statements were recorded in his presence. Mir Abdul Karim, Abdul Aziz and, Shaukat Ali seem to have been examined in absence of the appellant. Their statements are not being made the basis for the decision.
15. The Inquiry Officer examined the record of purchases made, by the appellant, in respect of which, the charges have been framed. He also examined the stock Register and the accounts statements of the Branch. The Inquiry Officer also made inquiry, with respect to the receipt of copies of the notices for quotation, in the Office of Deputy Chief Engineer, which were shown to have been despatched to him. As per report, at page No.95 made by Sub-Inspector, Electricity Department, deputed by the Inquiry Officer, vide his letter at page 94, no copy of quotation notice shown to have been endorsed to the Deputy Chief Engineer, Electricity Department was ever received in his office.
16. We also examined the entire record and apart from that, we requisitioned the account opening form, the specimen Signature Card, the Account Statements and Pay in Slips and Cheques drawn on the United Bank Limited Shaheedan Chowk Branch Kotli, in respect of Account No.158. We also requisitioned the Account Opening Form, Specimen signature Card and the Account Statements, in respect of Account No.132, in the National Bank of Pakistan, Chowk Shaheedan Branch Kotli, maintained by Sultan Room.
17. Our analysis of the charges is expressed hereinafter.
A. Forgery: Charge No. 1. This charge relates to the opening and operation of Account No. 158, which is shown to have been fraudulently maintained and operated in the name of Sultan Room, by the appellant and his staff.
(a) This Account was opened on 10-12-1980. Sultan Room, Contractor has categorically denied the opening or operation of this Account, by him.
(b) We have examined the Account Opening form, Specimen Signature Card, Pay in Slips and the Cheques drawn on the Bank, as well as the security deposit receipt, which was sought to be encashed through this Account. All these documents, relating to Account No.158, bear the signatures of Sultan Room, in English and these signatures are illegible. The record of the Electricity Department, consisting of tenders/quotations, bills receipt on the counterfoil, the applications made to the Inquiry Officer, for adjournments' were also examined. On all the documents of the department and papers of enquiry file, the signatures of Sultan Room are in Urdu and are legible.
Even, on an application, typed in English made to the Inquiry Officer, Sultan Room has signed in Urdu. This shows that papers relating to Account No.158 had never been signed by Sultan Room.
(c) On the Specimen Signature Card and Account Opening Form, in respect of Account No. 132, at National Bank of Pakistan, Sultan Room has signed legibly, in Urdu. During the proceedings, before the Inquiry Officer, he signed his statements, in Urdu.
(d) The Cheques No. 940581, dated 8-12-1980 and No. 940595, dated 7-1-1981, drawn in favour of Sultan Room, which were presented for credit in Account No.158, were delivered without obtaining signatures of the beneficiary, on the counterfoils, whereas Cheque No.943329 dated 13-2-1981, for the amount of Rs. 45, 990 deposited in Account No.132 is shown to have been delivered to Sultan Room, after obtaining his receipt, on the counterfoil. We have observed that cheques have been generally delivered to the beneficiaries, after obtaining the signatures on the counterfoil but the cheques presented for the encashment, through Account No.158 in the United Bank Limited Kotli are the exception to this practice. The Cashier of the Division stated that cheques were delivered to the Contractor, in presence of the Executive Engineer, i.e. The appellant. It is not the case of the appellant that Cheques were sent, by post and for that reason, the signatures were not obtained.
(e) There was conservation, in the Office of the Executive Engineer, in respect of opening of the Account, in the name of Sultan Room. Ordinarily, question of opening of Account needed no discussion in the office of Executive Engineer.
(f) Malak Muhammad Ibrahim, shown to have introduced Sultan Room, in the United Bank Limited is also former employee of the Electricity Department. He is also a Supplier of the Electric Goods and deals with this Department. He visits the Executive Engineer's Office. He is not an independent witness.
(g) Abdul Shakoor, Second Officer, United Bank Limited, has categorically stated that Javed Akhtar had opened the Account No.158, Abdul Shakoor, Officer of the Bank is an independent witness. He has no motive to implicate Mr. Javed Akhtar. No valid reason has been put forth to disbelieve him.
(h) Muhammad Ali, Cashier, United Bank Limited Shaheedan Chowk Branch Kotli also supported the version of Abdul Shakoor, although it does not appear that his statement was recorded, on oath, yet, it is not invalidated by this fact due to the protection provided to such a statement, under section 13, of the Oaths Act, 1873. We have also observed, in the earlier part of the judgment that the material, which has only a corroborative value, can be looked into.
(i) Javed Akhtar has admitted in his statement that he made purchases and received the amount of Cheques, out of which he had paid Rs.4,000 as profit to Sultan Room, and he received Rs.15,000 out of the amount of Cheque for Rs.45, 990, which was deposited, in the other Account, viz. 132. The admission of having made purchases on behalf of Sultan Room, shows that he prepared fictitious documents, in the name of Sultan Room. The evidence of Abdul Shakoor, thus, also gets support, from the factum of fictitious purchases.
(j) There are a number of factors, which are being discussed in relation to the transactions, mentioned in respect of Charge No.2, under the head "Forgery" which show that forged and fictitious documents were prepared, for making the purchases, or for showing that purchases have been made. The accummulative effect of the aforesaid circumstances and the mode of purchases, mentioned in Charge No.2, leads to the irresistible conclusion that Sutlan Room never opened nor operated the Account No. 158, in the United Bank Limited, Chowk Shaheedan Branch, Kotli. The appellant is responsible, for opening and operating of this Account and he did so, through his staff. It was his responsibility to ensure that Cheques were delivered to the proper person, against the proper receipt /signatures, which has not been done in the present case. All the actions of the office of Executive Engineer are abnormal and against the settled practice of the department. Without the connivance of Executive Engineer, the course of action, adopted would have not been possible. The Charge No.1, is therefore, proved.
Charge No. 2.
This charge relates to the payment of 7 bills, which were shown to have been made to Sultan Room. He has denied the supply of the items, as well as the receipt of the money, so shown to have been paid to him.
(i) Regarding the first item of this charge, the payment of Rs.9,600 is shown to have been made to Sultan Room, in respect of a bill, for the month of December, 1980. Quotations, purport to have been invited vide No.1200-1 dated 24-11-1980 and last date, fixed for quotation was 27-11-1980. Copy of the notice for quotation was endorsed to the Deputy Chief Engineer Electricity. Three quotations are shown to have been received from Sane Traders Kotli, Sultan Room and Kashmir Electric Company, out of which the quotation of Sultan Room Contractor, being lowest was accepted, by the Executive Engineer. The payment was made, vide Cheque No.940581 dated 8-12-1980. It is strange, how the quotations were received, within a period of 3 days from the date of issuance of notice, for quotation. The copy of notice, endorsed to the Deputy Chief Engineer Electricity was never received in the Office of Deputy Chief Engineer. Sultan Room has denied the submission of any quotation supply of the material, as well as the receipt of the payment. The Cheque, issued on account of payment of the bill was credited in Account No.158, in respect of which, observations have already been made. No receipt was obtained nor signatures of Sultan Room obtained, on the counterfoil for delivery of the Cheque, issued as consideration money of the material purchased. Sane Traders Kotli was owned by Malak Ashfaq Hussain, who is stated to have gone out of country at the time of these quotations. Kashmir Electric Company, third party amongst the persons, submitting the quotations was not traceable, in the first instance. The Telephone number, on the pad/quotation was 2224, whereas the name, pointed out by XEN was "Tariq Mahmood". On inquiry, it was disclosed that aforesaid Telephone Number stood allotted to Poonch Karyana Store. The owner of the Store intimated that they had no concern with Tariq Mahmood, nor with Kashmir Electric Company. Mr. Abdul Karim, appeared in response to one of the notices, at a latter stage and claimed that he was the owner of Kashmir Electric Company. His statement has not been recorded in presence of the appellant, therefore, as per our observations, in the earlier part of this judgment, we ignore his evidence but fact still remains that nobody had come up to support the genuineness of the quotation submitted, or the purchases, made. It has been also pointed out, by the Inquiry Officer, that on 24-11-1980, when the quotation notice was issued, for the purchase of the Articles, mentioned in the relevant bill, large quantity of these Articles was already in stock, as is borne out from the Stock Register. For example; Lighting Arrester'4, 'Shickel Insolator' 900, 'Through Bolt' 533, were in the stock. We have ourselves examined the Stock Register and verified the figures as correct, which were incorporated by the Inquiry Officer, in his report. Apparently, there was no necessity for immediate purchase, through short quotation. The forgery of quotation, the quotation notice, the bills, as well as the record, relating to payment is thus, established.
(11) Second item of Charge No. 2, relates to the purchase of 'Stay Wire' and 'three place Meters; in consideration of Rs.9,500. The payment is shown to have been made, through the same Cheque, which was issued in respect of purchases, mentioned at item No.1. Quotation for these items purports to have been issued, on 8-12-1980 and supply order was issued on 13-12-1980, but the Articles are shown to have been received, in the stock on 25-11-1980. The payment was made, vide Cheque No.940581 dated 8-12-1980, which is strange. Payment as well as the entry of receipt of Articles, in stock, preceded the order, for supply. There is no despatch number, on the Supply Order.
The Cheque was not delivered under the signatures of the Supplier, on the counterfoil. This amount was also credited, in Account No.158. The aforesaid factors show that entire paper work was fictitious and actually, neither purchases were effected, nor the payment was made, to Sultan Room, who has categorically denied the submission of quotation, receipt of amount of consideration, as well as the submission of bill, for payment. The transaction of the type, described hereinbefore, is a fraud with great highhandedness. The appellant, as well as the Store Keeper are responsible for it. They are also responsible, for the transaction, described at item No. 1, of the charge No. 2.
(i.e) Item No.3, of the charge relates to payment of Rs.28,980 on account of price of 200 Service Masts through a running bill. Quotations were invited, through advertisement, in the Newspaper, dated 10-11-1980, for the supply of 400 'Service Masts'. The original Notice, issued from the office, for quotation is not traceable, in the record, except the printed notice. Five persons are shown to have participated, in competition, for the supply of this item and supply Order is shown to have been issued to Sultan Room, Contractor, vide No. 1196-99, dated 20-11-1980. The period, for supply of item was 15 days. We found that the stock entry was made, by Store Keeper, on 25-i1-1980. Sultan Room has denied the supply of this material and also denied the submission of this bill as well as the receipt of any payment. There are no signatures, on the counterfoil of the Cheque No.940595 dated 7-1-1981, for a sum of Rs.28, 980 purporting to have been drawn for payment of the consideration money. This Cheque is also shown to have been credited in Account No.158 as appears from the Account Statement, requisitioned and examined by us. The entry of the despatch of letter No.1196- 99 as a Supply Order, is also doubtful because it has been made at the top of the entries, of a page of despatch register and number 97 to 99 have been repeated, on the same page. The despatcher Mr. Shaukat, in his statement told that letter was sent by hand to Sultan Room, but Register shows the direct delivery of the letter to him. The copy endorsed to the Deputy Chief Engineer, Electricity was not received, in his office. On the face of the denial of Sultan Room, in respect of supply of 'Service Masts' and his denial, in respect of submission of any bill, quotation and receipt of Cheque goes to prove that the transaction is fake. The Executive Engineer and his Store Keeper are responsible. There is a stage phenomenon, in this case that one Mr. Manzoor Awan, in his statement, recorded on 19-1-1983 and 25-1-1983, in the presence of appellant, denied to have submitted any quotation, in respect of this item of purchase. Later on, through a letter, he intimated 'the Inquiry Officer, that his statement, made earlier, before the Inquiry Officer, was incorrect and be treated as null and void. This letter is not admissible, in evidence, as against the statement, recorded, in his presence, under solemn affirmation. The genuineness of this transaction has not been established. The appellant and Javed Akhtar are responsible, for this forgery.
(iv) Fourth item in Charge No.2, relates to the purchase of 'Barbed Wire' and 'Anti Clump Device'.
Quotations were also invited, through advertisement, in the Newspaper. Supply order is shown to have been issued, to Sultan Room, vide No.1448-51 dated 8-1-1981. Sultan Room has denied, any connection with this supply or receipt of consideration, although he admitted that an amount of Rs.45,990 was deposited, in his Account No. 132, in the National Bank of Pakistan, Chowk Shaheedan Branch, Kotli. This amount of Rs.45,990 also included the final payment of Rs. 26, 490, in respect of 400 Service Masts.'
(v) The amount of Rs.26,490 has been shown as item No. 5, of Charge No.2. Sultan Room stated that he had not supplied the material. He stated to have entered into confrontation, with the appellant and his staff, in this respect, as to why they had prepared Cheques, in his name and credited in his Account. As per the statement of Sultan Room, on pursuasion of the appellant, he had returned the amount to the Executive Engineer and his Store Keeper. Sultan Room stated to have signed the bill for Rs.19,500 with three spare papers. It is pertinent to note that in the quotation, the rate for supply of 'Service Masts' was recorded as Rs.144/90 per mast, whereas in the final bill, the rate incorporated was Rs.140/90, which is Rs.4 less than the rate, shown, in the quotation. No presumption can be drawn with regard to the genuineness of the transaction and the Executive Engineer and his staff particularly, Store Keepers are responsible for the preparation of forged documents, in respect of the purchases. Javed Akhtar has himself admitted in his statement that he had made the purchases, on behalf of the contractor and had paid Rs.4,000 as profit to the Contractor. The statement of Mr. Javed Akhter appears at Page No. 269/111 of the file. In his statement, at page 271/109, he disclosed that a Cheque was handed over to him, by the Executive Engineer and he had made the purchases, against a sum of Rs.19,500, in which profit of Rs.4,000 was also included. This profit was given to Sultan Room. Javed Akhtar denied the receipt of entire amount of Rs.45,990 and admitted that he had received the amount of Rs.15,000. Javed Akhtar was examined again, in presence of the appellant and he reaffirmed his earlier statement. The appellant posed no question, but signed the statement. The statement of Mr. Javed Akhtar is sufficient to prove that fictitious' documents were prepared, for showing the purchases, of the various Articles, by the Operation Division of Kotli. Whether the Articles, shown to have been purchased were actually purchased, by the staff, or fictitious entry of purchase was made, is another question. The forgery of document, is proved by the statement, coupled with the denial of Sultan Room, Contractor and the other attending circumstances, like non-despatch of Supply Order/notice or quotation etc.,
(vi) Item No. 6, of the Charge No. 2, relates to the payment of amount of Rs.28,980. This amount is shown to have been paid on account of the price of 200 'Service Masts' vide Cheque No.943384 dated 22-3-1981. Supply Order was issued vide No.1904-6 dated 22-3-1981 and the payment was also made, on the same date. It may be noted that an order, for the supply of 400 'Service Masts' had been already complied with, and entry of 200 'Service Masts' in Stock Register had been made on 25-11-1980 and that of 200 on 14-1-1981. The supply of 200 'Service Masts' has been entered, third time, on 10-3-1981. This quantity was not included, in the Tender, because 400 'Service Masts' had been already shown to have been received, on 25-11-1980 and 14-1-1981. The third entry appears to have been made on 10-3-1981. There was no quotation, invited for this purchase. The supply order and the payments were made on the same date i.e., 22-3-1981. Sultan Room has also denied the supply of this item and stated that an amount of Rs.28, 980 was credited in his Account No.132, in National Bank of Pakistan, Chowk Shaheedan Branch, Kotli and thereafter, he was asked to refund the amount, for which he was unwilling to co-operate with the Department, because all the transactions were made, by the officials of the Department, without his consent. Ultimately, he stated to have deducted some amount, which comes to the tune of Rs.8,000 (which actually could be Rs.7,800) and the amount of Rs.21,000 was refunded in the form of Cheque, issued favouring Muhammad Yaqoob Bhatti, Line Superintendent, which he had to pay to the Executive Engineer.
There is no iota of evidence, to rebut the assertion of Mr. Sultan Room. The letters, shown to have been despatched, to the Deputy Chief Engineer. Electricity, were never received, in his office. The way, in which, the purchase has been made, i.e., stock entry in anticipation of supply order and payment, on the very day of Supply Order and all transactions, without inviting quotations, prove, that the transaction was fake and the officials of the department had to pay a part of money, to Sultan Room. Appellant as Executive Engineer and the Store Keeper, Javed Akhtar and Mr. Muhammad Yaqoob Bhatti, Line Superintendent, are responsible, for the affair.
(vii) Item No.7, relates to the payment of Rs.10,000 in cash, on account of price of 'Dead End Clump'.
Sultan Room denied the submission of any quotation, as well as the receipt of payment. The Cashier, Mr. Nazir stated that the amount was received, by the Executive Engineer, against the Cash Demand Note, from him and payment was personally made, by the Executive Engineer. There is no evidence, to support the genuineness of this payment, which has been denied by the payee. The Supply Order does not bear any despatch number, or the date. Under the attending circumstances, no payment could have been made, in cash. The reply of the Executive Engineer, in this respect, is not convincing, in the circumstances of this case, because other formalities are also doubtful. The Executive Engineer is also responsible, for this transaction. .
19. Charges IBI and 'C'.
These charges are offshoots of the Charge No. 1 and already analysed by us. Hence, no separate finding is required.
20. Charge 'D' Embezzlement.
This charge needs no separate discussion. Item No. 5, of the charge of embezzlement of Rs.5,000, on account of Call Deposit is shown to have been released, in favour of Sultan Room. It is nowhere shown that this amount was a Government money, nor it was proved to have been deposited, by Sultan Room. In the circumstances, coming to light, it appears that this amount must have been deposited, by the staff of the department and then got released and ultimately, drawn, through the forged Account No. 158, at United Bank Limited. This transaction, does not amount to embezzlement but is a forgery, connected with the charges, discussed in detail, hereinbefore. This charge is not established. There is a charge of inefficiency, in respect of purchase of 'Danger Plates' on the ground that no reference of WAPDA specification was given, in the certificate. The price of Rs.44 per plate was also described as excessive, in the charge-sheet. The department has not pointed out any rule, which require the making of reference, to the specification number, nor there is any material, to show that price of 'Danger Plates' was excessive. Thus, this charge is dropped.
21. Charge 'E' dishonesty.
22. Charge 'F' previous conduct.
The previous conduct is no charge, by itself, nor any proof of past conduct has been adduced.
Therefore, the charge is dropped.
23. It has been already expressed that charge No.1, relating to the forgery of Account No.158, in United Bank Limited and its fraudulent operation, has been established. Similarly, Charge No.2, alongwith its details, as per items Nos. 1 to 7, is also proved. So far as the supply of material is concerned, there is no sufficient material that the amounts have been embezzled. On the other hand, Executive Engineer, Kotli has issued a certificate, to the effect that Articles shown to have been purchased, have been entered in the stocks and there is no deficiency, in the Book Balance.
Either, the purchases were made by the officer and his staff, instead of affecting it, through suppliers, or the fictitious entries of the receipt of stock were made and later on, through fictitious indents, the store stocks, were charged of. The overall appraisal of the record, makes the appellant, responsible, as stated earlier. So far as the case-law, cited by the learned counsel for the appellant is concerned, it needs no analysis. There is no quarrel, with the proposition, laid down, in the case- law, but these cases are not applicable, to the facts of the case, in hand. The documentary evidence, on record is incompatible, with the innocence of the appellant. The oral evidence, on which the appellant had any objection, had been already excluded. Nevertheless, the remaining evidence, in the form of documents and the circumstances, leave no room, for any doubt in the truth of the allegations. There are no extenuating circumstances, to award any lesser penalty, in this case.
24. As upshot of the above discussion, the appeal is dismissed but there is no order as to the costs.
A. A. /48-S/Lb. /S
1. Sultan, Room Contractor20-11- 1982Pages 262 and 264 to 268 3- 4- 1983Pages 2 to 6
2. Shaukat Ali, despatcher20-11- 1982Pages 258
3. Nizamuddin, Head Clerk15- 1- 1983(Date shown on top of page in 12-1-1983)
Pages 221to 225.
4. Yaqoob Bhatti20-11- 1982Pages 219 to 220 12- 1- 1983Pages 217 to 218
5. Javed Akhtar20-11- 1982Pages 269 to 273 12- 1- 1983Pages 214 to216 6.Muhammad Nazir Cashier12- 1- 1983Pages 209 to 210
7. Abdul Aziz Awan16- 1- 1983Pages 204 to 205
8. Manzoor Awan (Examined twice)19- 1- 1983Pages 181 to 210 25- 1- 1983Pages 169
9. Muhammad Ali, Cashier U.B.L.25- 1- 1983Pages 163 to 168
10. Muhammad Nazir Khokhar, Manager, U.B.L.25- 1- 1983Pages 160 to 162
11. Muhammad Ibrahim (Examined twice same day)26- 1- 1983Pages 146 to 150 and 158.
12. Abdul Shakoor, Second Officer U.B.L.26- 1- 1983Pages 151 to 157.
13. Nisar Ahmad, XEN (Appellant)6- 2- 1983Pages127 to 134
14. Mir Abdul Karim28- 2- 1983Pages92 to 93