' Syed Shakeel Ahmad Shah, Foodgrains Inspector, Satellite Town, Bahawalpur has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded Director Food, Punjab and Deputy Director Food, Bahawalpur Region as respondents Nos. 1 and 2 respectively.
2. By virtue of this appeal Syed Shakeel Ahmad Shah has prayed that order dated 12-10-1985 passed by respondent No, 2 imposing on him the penalty of recovery of Rs,1,06,366.16 and order of respondent No, 1 rejecting his appeal may be set aside.
3. The facts of the case are that during his posting at P.R. Centre Channi Goth, the appellant purchased 4,419.400 metric tons of wheat during scheme year 1981-82 and stored the wheat stock in 44 gunjies in the open as there was no covered Government accommodation available for this purpose. The wheat stock remained in storage for a period ranging from 2 years to 2 years 6 months and 10 days. On final clearance, after sieving and standardization the appellant declared shortage as follows:- ' Total purchase.
4419.400 ' Dispatches. 4,129.250 ' Shortage.
144.525 ' Damage.
93.100 ' Residue.
52.525 ' Vide his letter No, FP/162, dated 10-12-1984 District Food Controller, Bahawalpur informed the Deputy Director Food, Bahawalpur Region (respondent No, 2) about this shortage.
' In the above-quoted letter after explaining reasons for shortage, damage and residue, the District Food Controller, Bahawalpur made the following recommendations to respondent No, 2:- "I, therefore, recommend that the entire loss may kindly be written off as the official is not found negligent in this regard."
' On receipt of the above report, Deputy Director Food, Bahawalpur Region (respondent No, 2) directed District Food Controller, Bahawalpur to take action against the appellant under PCS (E&D)
Rules, 1975. Accordingly, District Food Controller, Bahawalpur in his capacity as Authorised Officer, issued show-cause notice dated 10-2-1985 against the appellant, the substantive portion of which reads as follows:- "While you were posted at P.R. Centre, Chanigoth during the Scheme 1981-82 a quantity of 4,419.400 M. Tons of wheat was purchased/stored by you and on its final clearance a quantity of 290.150 M- Tons of wheat was shown as a (iodowns Loss at the aforesaid Centre. The loss is considered abnormal, unjustified and self-created which appear to have been misappropriated by you with mala fide intention for which the Government has to sustain a loss of Rs,5,33,876 for which you are fully responsible."
' On receipt of reply from the appellant and after giving him an opportunity of personal hearing, the District Food Controller, Bahawalpur exonerated the appellant of all blames and recommended that the entire loss (144.525 M.Tons of Godown Shortage) may be written off and the remaining loss of residue and damage may be decided" as per Government decisions."
' On receipt of the recommendations of District Food Controller, Bahawalpur (Authorised Officer) and after giving the appellant a personal hearing, the Deputy Director, Food, Bahawalpur Region (Authority) decided to write off the maximum loss in accordance with the powers vested in him and recover the remaining cost amounting to Rs,1,06,366.16 from the appellant in three equal monthly installments within three months.
' The appellant filed an appeal before the Director Food, Punjab (respondent No, 1). According to the appellant, no decision on his appeal was conveyed to him but he was given to understand by the Department that it had since been rejected by respondent No,
1. Hence this appeal.
4. I have heard the learned counsel for the appellant and learned Deputy District Attorney and have also perused the record carefully with their assistance.
5. The learned counsel for the appellant submitted the following main points:-
(i) 4,419.400 M. Tons of wheat purchased by the appellant during 1981-82 scheme had to be stored in 44 gunjies in the open as no covered accommodation for the stock was available at the P.R.
Centre.
(ii) The above stock remained stored in the open for more than 2-1/2 years.
(iii) The stock stored in the open was covered by the appellant with tarpaulins and sprayed with melathine at regular intervals. However, in spite of best efforts made by the appellant, the stocks were damaged due to heavy rains and khapra, susri and rats played further havoc with the stocks.
(iv) The appellant submitted regular reports to the higher authorities about the condition of the stocks requesting for their early dispatch. During this period the Higher Officers of the Food Department also visited the P.R. Centre a number of times and recorded the condition of the stocks in their inspection note. However, no timely action was taken by the higher authorities to dispatch the stocks.
(v) The Authorised Officer had exonerated the appellant of all blame in his report dated 1-4-1985 to the Authority. However, the Authority (respondent No, 2) without holding the appellant guilty of any charge decided to impose the penalty of recovery of Rs,1,06,366.16 from the appellant after writing off the maximum loss in the light of the powers vested in him. Thus, the appellant was penalized merely because respondent No, 2 did not have full powers to write off the entire loss.
(vi) No regular enquiry was held to determine the extent of negligence by the appellant. Instead he has been punished on the basis of a show-cause notice arbitrarily.
(vii) In a similar case of Abubakar Shah, Assistant Food Controller v. Director Food, Punjab etc. (Appeal No, 884/482 of 1985) this Tribunal has already accepted the appeal.
6. The learned Deputy District Attorney adopted the comments filed by the respondents and submitted that there was no merit in the appeal and it may therefore, be dismissed.
7. On careful examination of submissions made by both sides and record of the case, I find that neither the Authorized Officer nor the Authority have held the appellant guilty of the charge conveyed to him in the show-cause notice. The impugned order is therefore unjust and arbitrary and not based on evidence on record. In this connection, attention is invited to the following main points:- (i)In the show-cause notice dated 10-2-1985 issued against the appellant by the Authorized Officer, it was inter alia alleged as under:- "The loss is considered abnormal, unjustified and self-created which appears to have been misappropriated by you with mala fide intention for which the Government has to sustain a loss of Rs,5,33,876 for which you are fully responsible.
' On receipt of reply to the show-cause notice and after giving him an opportunity of personal hearing, the Authorized Officer exonerated him of all blame. The last para. Of his letter dated 1-4- 1985 to the Authority containing his recommendations reads as follows:- "The reasons advanced in support of genuineness of shortage by the aforesaid official ate cogent.
It is indeed correct that the stocks remained in storage for a long period and the shortage was discovered due to weather calamities which was beyond human control. I, therefore, recommend that the entire loss i,e, 144.525 M. Tons of Godowns shortage may kindly be written off and the remaining loss i,e, Residue and damage (52.525 and 93.100 M. Tons respectively) may kindly be decided as per Government decision."
(ii) The Authority also did not hold the appellant guilty of the allegations conveyed to him in the show-cause notice dated 10-2-1985. The impugned order dated 12-10-1985 does not contain a single sentence holding the appellant guilty of misappropriation with mala fide intention as alleged in the show-cause notice. However, in the impugned order the Authority decided to write off the maximum amount possible in exercise of his delegated powers and recover the remaining amount (1,06,366.16) from the appellant. It is, therefore, obvious that the Authority would not have inflicted the penalty of recovery on the appellant if it had full powers to write off the entire loss.
Thus, the impugned order passed by the Authority was unjust and arbitrary and not based on evidence against the appellant.
(iii) In case of Siddique Javid Chaudhry v. Government of the Punjab reported vide PLD 1974 SC 393, the Supreme Court of Pakistan held that a regular enquiry should be conducted by the competent authority in case of allegations involving corruption or misappropriation. In the present case the appellant was charged with misappropriation with mala fide intentions. However, no regular enquiry was held against the appellant to establish the truth. Instead, the appellant was penalised on the basis of a show-cause notice without any evidence against him.
(iv) In a similar case of Muhammad Ibrahim Dasti and another reported vide 1986 PLC (C.S.) 845, the order of recovery imposed on the appellant was quashed on the following grounds:- "Furthermore, it is also on record that the Authorised officer, who was immediate Officer at the spot has exonerated the appellants by holding that the loss so occurred during their tenure was beyond their control and was result of heavy rains, infestation and other vagaries of the nature. In view of the arguments so given above I do not find any justification with the order of the Deputy Director Food, Multan Region, Multan which is not based on any documentary evidence nor any logic which could negate the verdict of the Authorised Officer in this behalf nor in consonance with the policy decision of the Department."
' Judgment by Mr. Justice (Retd.) S. Abdul Jabbar Khan, Chairman, P.S.T.
8. Keeping in view the detailed analysis of the case given above, I have come to the conclusion that the impugned order dated 12-10-1985 passed by the respondent No, 2 is unjust, arbitrary and not based on the evidence on record. I, therefore, accept the appeal and set aside the impugned order dated 12-10-1985 and the appellate order passed by the respondent No, 1 upholding the impugned order. The order of recovery is accordingly quashed. However, it is open for the Department to consider a regular enquiry against the appellant keeping in view the principles of natural justice and the law laid down by the Supreme Court of Pakistan in this behalf.
' There are no orders as to costs.