' SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).--Through this appeal the appellant Mr. Muhammad Yaqoob Bhatti (Rtd.), Line Superintendent of the Electricity Department impugns the Order No, Admin/S.O-IV/General-8/84, dated 10-7-1984 issued by the Office of Secretary, Services and General Administration Azad Jammu and Kashmir Government by which he was compulsorily retired from service by the respondents.
2. The relevant facts to be briefly stated are that the appellant was employed as Line Superintendent in the Electricity Department Operation Division Kotli and at the relevant time he was performing his duties under the supervision and control of Mr. Nisar Ahmad Kayani, Executive Engineer, incharge of Electric Operation Division Kotli. There were some allegations from the public side against Mr. Nisar Ahmad Kayani and his staff members that they were involved in misappropriating public funds by submitting forged bills to the Audit and Accounts Department.
Initially a vigilance Commission headed by Ch. Nazam-ud-Din, then an Advisor of the Government was set up to probe into the allegations brought against the aforesaid employees but the report submitted by that Vigilance Commission necessitated a proper inquiry into the matter. Mr. Nisar Ahmad Kayani and some of his staff members alongwith the appellant were placed under suspension while Malik Muhammad Iqbal a Senior Officer of the Electricity Department was appointed as Inquiry Officer to proceed against the Officer/Officials at fault under the provisions of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline), Rules, 1977. The charge-sheet is not properly drafted. However, a plain reading of the same reveals that the appellant collected a sum of Rs, 21,000 out of the amount of Rs,28,980 which was perhaps through oversight deposited in Account No, 132 with National Bank of Pakistan Kotli Branch in the name of Sultan Room Contractor on whose name a forged account was being separately operated by the Executive Engineer and Javed Akhtar Store Keeper. The amount so deposited was not a part of payment to Sultan Room against his bill for the supply of any goods to the Operation Division. In fact, the amount was recovered by the Xen. And his staff member Javed Akhtar collusively out of the public funds of the Division after submitting forged bills. Hence, the appellant was also charge-sheeted for abetting the commission of defalcations in the Division. The Inquiry Officer found the charge as proved against him and on the basis of his report and the recommendations of the authorised Officer the appellant was compulsorily retired from the service. He made a review petition before the Chief Executive against the impugned order but no decision was taken on that by the Chief Executive till the filing of the instant appeal before this Tribunal under section 4 of Service Tribunal Act, 1975.
3. The appellant seeks reversal of the impugned order on the following grounds:-
(i) that the impugned order is illegal and unjust.
(ii) that the appellant never acted as an agent of Mr. Nisar Ahmad Kayani nor he collected any amount from Sultan Room Contractor for paying to the former. In fact, he himself fell in the need of money for sending his brother abroad and in view of his close relations with Sultan Room Contractor, he had raised a loan of Rs, 21,000. From him which the latter had given him.
(iii) he being a member of the Field Staff of the Electricity Department had no business with account matters and the punishment awarded to him was severe and harsh.
4. The appellant's prayer, is that the impugned order being unjust and improper be set aside and he may be ordered to be reinstated on his post.
5. In the written objections, it was submitted by the respondents that the appellant has grossly misconducted himself and has abetted in commission of defalcations of the public funds in the Electricity Department Operation Division Kotli and that he was deserving no leniency in respect of the punishment awarded to him.
6. We have given our careful considerations to the arguments addressed at the Bar by the learned counsel of each party. There is only one charge against the appellant which goes like this that he received a sum of Rs,21,000 for his immediate Officer Mr. Nisar Ahmad Kayani from Sultan Room Contractor and thereby contributed towards the commission of the defalcations of the public funds in the office of the Executive Engineer. It is also available on the file that the appellant being a member of Field Staff was not directly concerned with the accounts of the office of his immediate officer. But the unfortunate aspect of the case is that he accepted to work for his officer without having any benefit for him. It is, no doubt, that he was bound to carry out all the legal and valid orders of his immediate officer but he was under no obligation to act as a stooge for him so as to render himself responsible for contributing defalcations of the public funds taking place in the office of the Executive Engineer. We are not convinced with the reply furnished by the appellant that he had received a loan of Rs,21,000 from the Contractor and that he was not to be blamed for misconduct and abetment in the commission of defalcations of public funds in the office of Electric Operation Division Kotli. In our opinion a petty public servant of the rank of the appellant is not expected to raise so much amount of loan from a private citizen especially when he held no proof of the fact that he had sent his brother abroad and that the amount received by him by way of loan was entirely spent by his brother to defray the expenses of his journey Ex-Pakistan. Under the Government Servant Conduct Rules, the appellant was required to seek previous approval of the Government for raising such an heavy amount of loan to meet his family expenses. But he has failed to observe the legal formalities too before raising the amount of loan.
7. It is, no doubt, that the charge against the appellant is well-founded and his conduct is reproachful. But after going through the report of Mr. A.R. Saleem who heard the appellant in person on behalf of the authority, under rule 8 of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, we find that he has not agreed with the recommendations of the authorised Officer for imposing a major penalty upon the appellant. Mr. A.R.Saleem is of the opinion that the imposition of a minor penalty will be sufficient for meeting the ends of justice. We also contribute to this view for the reasons that in rare cases a public servant is found courageous enough to disobey the illegal orders of his immediate officer. Hence, keeping in view the report of Mr. A.R. Saleem and the fact that the appellant has a large family to support we also feel ourselves inclined to accept this argument that the punishment awarded to the appellant is harsh and he deserves at last some indulgence to be granted to him at this stage. We, therefore, reduce the major penalty imposed upon the appellant into a minor penalty and order that the punishment of censure alongwith treatment of entire period of his absence till the date of this order including the period of suspension, as leave without pay, will be sufficient to meet the ends of justice.
8. The appeal is partly accepted and the impugned order shall be amended to the above extent with a right of the appellant to be reinstated on his post with' immediate effect. No order as to the costs.