' In 1988 a case of pilferage, embezzelement and misappropriation of articles of .Stationery etc. Was detected in Nazarat Branch of the Deputy Commissioner's Office, Okara. The preliminary inquiry conducted by Ch. Muhammad Ashraf, Magistrate revealed that prima facie the three officials working in the branch namely Qasim Ali Shah, Assistan/District Nazir, Mian Khurshid Ahmed, Senior Clerk/Assistant District Nazir and Mehboob Alam, Junior Clerk/Storekeeper were responsible for the alleged irregularities and misappropriation. They were accordingly placed under suspension and served with common show-cause notices under Rule 6.3 of the (E&D) Rules. While the department proceedings were in progress Qasim Ali Shah and Khurshid Ahmed submitted applications for early retirement from service whereas the third accused i,e, the appellant submitted his resignation because of his short span of service which did not entitle him to pension. These applications were considered to be a ruse on the part of the officials for escaping the imminent major punishment as they had failed to put up any plausible defence. In view of the serious nature of allegations coupled with the admission of their guilt as explained above Qasim Ali Shah and Khurshid Ahmed were awarded the major penalty of compulsory retirement whereas Mehboob Alam, the appellant, having not completed the required service for retirement, was awarded the major penalty of removal from service by the Deputy Commissioner, Okara/Authority/respondent No, 1 vide order dated 5-7-1988. All the three accused went in appeal before the Commissioner, Lahore/respondent No, 2 and whereas the appeals of the other two were accepted and they were reinstated in service, the appeal filed by Mehboob Alam was dismissed in limine. The instant appeal filed before this Tribunal under section 4 of the Punjab Service Tribunals Act, 1974 is against the aforesaid impugned orders dated 5-7-1988 and 22-11-1988 of the two respondents.
2. The learned counsel of the parties have been heard and the original record relating to this appeal examined. Learned counsel for the appellant submitted that the orders passed by repondents were illegal, mala fide and without lawful authority on the following grounds:
(a) The main job of the appellant was to maintain record of the stores beyond which he had no say in the affairs of the Nazarat Branch.
(b) His resignation was obtained under coercion.
(c) No separate charge-sheet was served on the appellant and no separate evidence was recorded by the Inquiry Officer. This was against the principles of natural justice and it should be deemed that there was no evidence against the appellant at all.
(d) All embezzled goods have already been recovered and there has been no loss to the State.
(e) No second show-cause notice was issued to the appellant which has rendered the impugned (original) order illegal.
(1) The order passed by the Commissioner is also defective as in this order no charge has been mentioned which is said to have been proved against the appellant.
3. The learned District Attorney had serious objections to the contentions of the learned counsel for the appellant and stated that the departmental proceedings had been conducted properly which did not suffer from any technical or procedural defect. As far as objections relating to the charge- sheet, evidence, second show-cause notice etc. Are concerned these, according to the learned District Attorney, are based on a wrong assumption that a regular inquiry was held in this case which is factually not correct. The authority/Authorised Officer viz. The Deputy Commissioner/respondent No,1 had adopted the shorter procedure and proceedings were initiated against the appellant under Rule 6.3 of the E&D Rules in which the motions of framing of charge- sheet, issue of second show-cause notice etc. Are not required to be gone through. The inquiry mentioned by the learned counsel for the appellant was only in the nature of a preliminary enquiry and not a formal inquiry under the E&D Rules. As regards the alleged forcible tendering of resignation by the appellant, learned District Attorney argued that the allegation of coercion was far-fetched and an afterthought as the charges against the appellant were self-evident against which all the three accused had not been able to defend themselves and it was only when they saw that the major punishment was glaring them in their faces that they tried to escape it by submitting applications for resignation/early retirement. He further pointed out that the contention is without any force as it could have been valid only if in the case of appellant the resignation tendered by him had been accepted. Regarding the learned counsel for the appellant's contention that the appellant was not responsible for the misappropriation and irregularities, the learned District Attorney explained that all three of them, the District Nazir, the Assistant District Nazir and the appellant were accomplices in this case and were individually and collectively responsible for their acts of commission and omission. He, therefore, concluded that the appellant did not deserve any mercy and the appeal did not deserve to be accepted.
4. It would seem that the learned District Attorney has successfully controverted the contentions put forward by the learned counsel for the appellant. The arguments given by the Deputy Commissioner/Authority/Respondent No,1 in his order dated 5-7-1988 are also quite convincing.
However, when it is observed that the Commissioner Lahore/Respondent No,2 has accepted the appeals of the other two co-accused in this case viz. Qasim Ali Shah and Khurshid Ahmed and they both have been reinstated in service although they too, like the appellant, had been penalized on the same charges, justice, fairness and equity demand that he too be meted out the same treatment.
5. In his appeal before the Commissioner, Qasim Ali Shah, Ex-District Nazir had contended that "so far as the responsibilities are concerned these could neither be shared nor could be shifted.
According to the Duty Roster the Senior Clerk who was working as Purchase Clerk and was responsible for all the contingency i,e, preparation of Contingent Cash Book, Purchases etc. After checking the rates, quality and quantity of stores. The Junior Clerk who was working as Storekeeper was reponsible for the stores (and) in case of any discrepancy he was responsible. The appellant being the overall incharge has been penalized and a major penalty has been imposed on him which is quite unjust. The appeal was accepted by the appellate authority/Commissioner, Lahore with the observation that the former "has been penalised only for the reasons of the pilferage/embezzlement and misappropriation of stationery which was actually the responsibility of the Storekeeper who was removed from service and later on his appeal was also rejected by this Court." The order accepting the appeal further added that "the appellant (Qasim Ali Shah) was in no way responsible for the charge on the basis of which he was compulsorily retired from service".
6. In the case of the other co-accused Khurshid Ahmed it was contended by him in his appeal before the Commissioner Lahore that "the work of stationery and distribution to the officers/branches is the duty and responsibility of the storekeeper and not of the appellant. Even the articles of stationery are distributed by the District Nazir and the Storekeeper after getting the requisitions (demands) sanctioned from the officer incharge". His appeal was also accepted by the Commissioner Lahore on the ground that "the appellant appears to have been penalised only for reasons that he was working in Nazarat Branch. No separate charge has been levelled against him.
Legally a separate show-cause notice should have been issued to the appellant containing clear and well-defined charges."
7. It follows from the above two orders of the Commissioner Lahore that the appeals of the two co- accused Qasim Ali Shah and Khurshid Ahmed have mainly been accepted on the following grounds:
(1) No separate charge had been levelled against (one of) the co-accused and that legally a separate show-cause notice should have been issued to him containing clear and well-defined charges.
(2) Maintenance and distribution of stationery was actually the sole responsibility of the Storekeeper, Mehbub Alam.
8. If the Commissioner Lahore's argument is accepted as valid that a separate charge should have been levelled and a separate show-cause notice should have been served on Khurshid Ahmed containing "clear and well-defined charges" the same argument should then ipso facto be applicable in the case of the other two accused viz. Qasim Ali Shah and Mehbub Alam as well. The Commissioner Lahore should on that basis have accepted the appeal of Mehbub Alam also because in his case too no separate charge was levelled against him and no separate show- cause notice containing clear and well-defined charges wash served on him. It is, therefore, a clear case of discrimination against Mehbub Alam. Although the same basis was available for accepting the appeal in the case of Khurshid Ahmed yet the Commissioner Lahore chose not to extend its protection to the former while accepting the latter's appeal and instead accepted it on a different ground.
9. As regards the contention of the other co-accused Qasim Ali Shah, that according to the Duty Roster the Senior Clerk (Khurshid Ahmed) who was working as Purchase Clerk also and who was responsible for all contingencies i,e, Contingent Cash Books purchase etc. And for checking the rates, quality an quantity of stores and the Junior Clerk Mehbub Alam (appellant) who was responsible for the stores in his capacity as Storekeeper, were actually responsible for any discrepancy and misappropriation of stationery, a reference to the Dut Roster has become necessary of which a copy has been made available to the Tribunal. According to this Duty Roster the following duties, among others, ha been assigned to the District Nazir, Assistant District Nazir and the Storekeeper:
(2) Drawing and disbursing of all cash.
(3) Office correspondence of branches.
(4) Maintenance and supply of material to all Courts in the district as well as in the tehsil offices.
(5) Maintenance of Cash Book.
(6) Overall incharge of the branch. Assistant District Nazir.
(1) Supply of material to officers and officials.
(2) Maintenance of store register.
(3) Maintenanace of confiscated articles register. Contingency Clerk (Storekeeper).
(1) To deal with the contingency.
(2) Maintenance of contingency record uptodate.
(3) Maintenance of contingency vouchers.
(4) Preparation and consolidation of contingent bills.
10. The duties assigned to the three officials as detailed above make it abundantly clear that matters in the branch were Ling looked after by the three officials jointly and no one of them could be singled out for being solely responsible, especially in the case of the maintenance and distribution of stationery articles. While the District Nazir is reponsible for the maintenance and supply of material to all District/Tehsil Courts, the Assistant District Nazir is also responsible for the supply of material to officers. Similarly, the Contingency Clerk is responsible for the maintenance of contingency vouchers and preparation and consolidation of contingent bills of articles which necessarily include stationery items. It is, therefore, not factually correct to say that the maintenance and distribution of stationery was "actually the responsibility of the Storekeepers". In any event, if that was the case then, as observed by the Commissioner Lahore himself, separate charges should have been framed against the three accused and show-cause notices should also have been served on them separately.
11. Thus on the analogy of the orders passed in appeal by the Commissioner Lahore in the cases of the co-accused Qasim Ali Shah and Khurshid Ahmed the appeal filed by the appellant Mehbub Alam before this Tribunal is accepted. The impugned orders dated 5-7-1988 and 22-11-1988 passed by the respondents are set aside and the appellant is reinstated in service with effect from the date he was removed from service. The competent authority shall determine the intervening period between the date from which the appellant was removed from service and the date from which he is reinstated, for purposes of pay etc. Which should be in accord with the determination made in the cases of Qasim Ali Shah I and Khurshid Ahmed. There are no orders as to costs.
12. While still on the subject of reinstatement mention may be made of a lacuna in the Commissioner Lahore's above orders both announced on 27-6-1989 in Appeal No,35 dated 4-8- 1988 and No,37, dated 9-8-1988 filed before him by Khurshid Ahmed and Qasim Ali Shah respectively in which the two appellants were reinstated in service retrospectively with effect from 2-6-1988 i,e, w,e,f, the date of their suspension. An official if placed under suspension still remains very much in service and, therefore, reinstatement w,e,f, the date of suspension in these two cases was uncalled for. Both of them should have been reinstated with effect from the date from which they were retired compulsorily i,e, w,e,f, 5-7-1988 by the Deputy Commissioner, Okara. The above two orders passed in appeal by the Commissioner, Lahore, therefore, need to be amended accordingly. As regards the period of suspension, separate orders should be issued, if not issued already, by the competent authority after determining the quantum of pay and allowances to be granted to the two officials in the light of the facts in each case. Similar orders should also be issued in respect of Mehbub Alam.