Justice (Rtd.) Munawar Ali Khan (Chairman). The appellant, Atta Muhammad Chandi was Supervisor, Primary Education, Ratedero when he was dismissed from Service vide order dated 13th December, 1989 of the Secretary Education Department, Govt, of Sind. The charges levelled against the appellant for his dismissal are contained in the show-cause notice served on him on 26th June,1987. Para 4 of the notice is relevant and is reproduced as under: "4/- The details of mis-conduct are that:-
2. While working as Supervisor Primary Education in Ratodere Sub division in the year, 1978-79 to 1980-81 you have prepared bogus G.P. Fund advance bills/pay bills/contingent bills, to the tune of Rs.92537/31 etc. In collusion with Mr. Ali Murad Khokhar, Ex-Sub-Divisional Education Officer, Ratodero. The above amount so fraudulently drawn from public exchequer was embezzled with impunity. Such an action on your part tentamounts to gross misconduct and a crime deception.
You did it with a sole object to get wrongful gain to yourself and wrongful loss to Government.
The details of Bogus Bills prepared by you are as under: ((Tagle Start))S. No: Particulars Amount of the Bills
1. G.P, Fund advance bills. Rs. 84869.00
2. Pay bills of Primary Teachers 18188.65
3. Contingent bill for purchase of Books 1500.00
4. Mis. Contingent Bill 154.00 Grant Total: 104711.34 Subsequently recovered 12174.34 Not amount stand Mis-appropriated. ____ 92537.31(End Table))
3. The appellant furnished his explanation repudiating alb the above charges. H was then given final show-cause notice dated 18th January, 1988 whereby he was intimated that he in collusion with Mr. Ali Murad Khokhar, the then Sub-divisional Education Officer, Ratodero had embezzled a total amount of Rs.92537/31 being the G.P. Fund advances, salaries and amounts of contingencies.
By the same notice he was informed that major penalty of compulsory retirement alongwith recovery of his share of the misappropriated amount was proposed to be awarded to him. After he gave his reply to the above notice, the impugned order was passed, dismissing the appellant from service instead of imposing proposed penalties upon him. The appellant challenged his dismissal in departmental appeal filed before the Chief Secretary on 10.1.1990. After waiting for ninety days for decision on his said appeal, he came to this Tribunal in the present appeal which he filed on 9.5.1990.
4. After hearing the learned counsel for the parties at the bar in the light of the material available on record, the appeal was allowed and the case was remanded back to the concerned Authorized Officer by a short order dated 16.8.1990 which reads as under: " Appellant and his counsel Mr. Illahi Bux Khohar present. Mr. Salman Ansari, Govt, counsel present.
Heard arguments of the learned counsel for the parties. For reasons to be recorded later on, appeal is allowed with no order as to costs and the impugned order is setaside. However, we feel that this is a case of remand as the factual allegations made against the appellant are to be properly investigated into. Accordingly the case is remanded back to the Authorized Officer concerned with direction to take out the departmental proceedings afresh strictly in accordance with the Sind Civil Servants (Efficiency and Discipline) Rules 1973. The appellant will appear before the Authorized Officer namely the Director, School Education, Larkana Division, on 9.9.1990."
5. Following are the reasons in support of the above short order. The allegations made against the appellant are manifestly factual in nature. It is alleged against the appellant that while he was working as Supervisor, Primary Education Ratodere from the year 1978-79 to year 1980-81, he had prepared bogus G.P. Fund advances bills, pay bills and contingent bills to the tune of Rs.92537/31 with collaboration of the then S.D.E.O. Mr. Ali Murad Khokhar and drew the said amount from public exchequer and ultimately mis-appropriated it with impunity.
6. As required by sub-rule (4) of rule 5 of the Sind Civil Servants (Efficiency and Discipline) Rules 1973 the Authorized Officer on receipt of the explanation of the accused official or enquiry report where enquiry has been ordered, shall have to determine if the charge has been proved and it will be there after that he will proceed to decide about imposition of the penalty. As is disclosed in the show-cause notice, no enquiry has been held in the instant case. The question would therefore, arise if on receipt of the appellant's explanation in reply to the show-cause notice, could the Authorized Officer conclude that the charges against the appellant were proved? In view of the appellant's denial of the charges the answer would apparently be in the negative. Since no enquiry was held the Department could not produce the necessary evidence to prove the charges. In the circumstances the only material available to the Authorized Officer was the appellant's denial of of charges which could not certainly be construed to have proved the charges. The preliminary enquiry, if any, preceding the service of the show-cause notice on the appellant had no legal validity.
7. Apart from above, we were told that the appellant was officer of BS- 16. AS such his appointing authority was Secretary Education Department. But for the reasons best known to him, the learned Secretary played the role of Authorized Officer instead of Authority. Had he been a little more vigilant, he could have avoided such error? Further more the appellant's complaint was that he was not given personal hearing although he requested for it in his reply to the first show-cause notice. There is absolutely no indication on record that the appellant was actually heard personally by Authorized Officer. Final show-cause notice which is generally considered as proof in this regard, is conspicuously silent as to calling upon the appellant to appear before the Authorized Officer for personal hearing. Despite this, the impugned order, obviously again through ever sight, has spoken of the appellant having been personally heard by the Authorized Officer.
8. We are further constrained to point out that a grave legal lacuna was committed by the punishing authority in as much as that instead of awarding proposed penalty of compulsory retirement and recovery of his share of the allegedly misappropriated amount, about which the appellant was informed y through final show-cause notice, severer punishment of dismissal was imposed upon him. In this way the very purpose of the final show-cause notice was frustrated. The penalty of dismissal sprang a surprise for the appellant who obviously was deprived of the chance to show-cause against the said punishment. We have also noticed with dismay that although in absence of full-dress enquiry, the Authorized Officer had no evidence before him to base his findings of guilty upon, he did not even indirectly hint in the impugned order that the explanation furnished by the appellant was found to be unsatisfactory. Thus there being no basis for the Authorized Officer's findings the appellant's punishment was absolutely unjustified. Consequently we allowed the appeal by short order referred to above. However the case has been remanded back to the Authorized Officer concerned, requiring him to proceed against the appellant afresh, ensuring due compliance of the relevant provisions of the above said rules.
Given under our hands and the Seal of this Tribunal on this 18th day of August, 1990 at Karachi.