' CH. HASAN NAWAZ (MEMBER).--While being in the Authority's service as Lower Division Clerk, the appellant was placed under suspension with effect from 27-8-1977 by order dated 12-9-1977 on account of alleged involvement in a case of tampering with the official record and then served with charge-sheet dated 17-12-1977.
2. The appellant's explanation in writing having been found unsatisfactory, the Revenue Officer (Power) Jhang (respondent No,2) referred the case to WAPDA's Inquiry Officer for an inquiry under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978. On the Inquiry Officer's report dated 30-5-1979, respondent No,3 passed the impugned order of termination of appellant's services on 1-9-1979. Grievance notice dated 22-9-1979 having failed to produce any result, on 15- 10-1979 he filed a grievance petition under section 25-A of the Industrial Relations Ordinance, which was dismissed by the Presiding Officer of Punjab Labour Court No,IV, Faisalabad on 28-8-1980, primarily on the ground that the grievance notice served on the department was not in conformity with the law. The appellant challenged the validity of Labour Court's order in appeal dated 2-10- 1980 under section 38(3) of the Ordinance which was accepted by the Punjab Labour Appellate Tribunal on 19-5-1982. The impugned order of dismissal and the one passed by the Labour Court were set aside and the respondents were directed to reinstate the appellant in service.
3. Against the Labour Appellate Tribunal's judgment dated 19-5-1982 the respondents went to the High Court with a writ petition on 6-7-1982 which was accepted on 21-4-1984 in view of the Supreme Court Judgment in F.U. Malik v. WAPDA 1983 SCMR 663. The Appellate Tribunal's order regarding appellant's reinstatement was set aside on the ground that he was a civil servant for the purposes of Service Tribunals Act, 1973; that the Tribunal had no jurisdiction in the matter and that the order was without lawful authority and of no legal effect. The appellant thereafter preferred a departmental appeal on 30-4-1984 to respondent No,1 through respondent No,2, which was returned through letter dated 28-5-1984 with the remarks that the office of Revenue Officer (Power)
WAPDA Jhang was not in a position to forward it to the higher authorities, as his services had been terminated by the competent authority and he was no longer an employee of WAPDA.
4. On 9-6-1984 he came to this Tribunal with the present appeal under section 4 of the Service Tribunals Act, 1973 where it has been prayed that the impugned order of his removal from service may be set aside with a direction for his reinstatement with full back benefits.
5. Detailed address to the pleadings of the parties is not necessary and it will be enough to say that the appellant's case, in the main, is that the material on the record was not sufficient to justify the finding that he had committed any irregularity or in my manner was guilty of tampering with the official record. Merits apart, the appeal has been opposed on the preliminary objection that it is not maintainable under the provisions of the Service Tribunals Act, 1973 and that it is barred by time.
6. The charge-sheet served on the appellant under the signatures of Revenue Officer (Power)
WAPDA Jhang is to the following effect: "CHARGE-SHEET ' You Mr. Sarfraz Khan Lower Division Clerk son of Mr. Shahadat Khan are hereby charged as under:- (1)(a) That while posted as Lower Division Clerk in the office of Revenue Officer, (Power) WAPDA, Jhang you are found in the following acts of omissions and commissions. The detail of forged cash entries made by you in the ledger is given below:- {{TABLE}} Sr.
No, Account No, Date Account of Bank scroll Amount as posted in the ledger. Diff- Remarks erence C-54/2/1 28-7-76 587.04 5587.04 5000.00 --do-- 26-8-76 42.62 10042.62 10000.00 --do-- 28-10-76 910.52 10910.52 10000.00 7/356 30-5-77 Bogus 188.76 188.76 Qs-14/1/I 28-5-77 --do-- 301.11 301.11 SD-28 26-2-77 5.53 95.59 90.00 --do-- 28-4-77 1.14 101.14 100.00 3/419/TW 242-77 Bogus 386.63 386.63 3/450/TW 25-2-77 --do-- 789.90 789.90 --do-- 27-4-77 3.70 383.70 380.00 MB-25/I 24-1-77 49.35 349.35 300.00 --do-- 21-2-77 94.96 394.96 300.00 --do-- 26-3-77 33.34 333.34 300.00 --do-- 25-4-77 1.41 270.41 269.00 --do-- 25-5-77 35.63 235.63 200.00 3/419/TW 30-5-77 9.91 329.91 320.00 --do-- 29-3-77 9.37 114.12 104.75 {{TABLE}}
(b) Besides, you have admitted in writing in this office on 21-8-1977 that you have given the guidelines to your successor Mr. Majeed Ahmad LDC and 'assisted him in playing the foul game after being in league with the consumer.
(II) If the above allegations are proved you will be guilty of misconduct to: under the Pakistan Wapda Employees Efficiency and Discipline Rules, 1975 applicable to you and will render yourself liable to all or any of the major penalties described in the said Rules.
(III) You are, therefore, hereby required to show cause in writing within 14 days of the receipt of this charge-sheet stating at the same time whether you desire to be heard in person.
(IV) Your explanation should reach, the undersigned within the aforesaid period failing which it shall be presumed that you have declined to offer the same.
(Sd.) Revenue Officer, Power Wapda, Jhang."
7. The allegations made in the charge-sheet are rather ambiguous and factually incorrect as is borne out by the record. The respondents' case is that the appellant was guilty of certain acts of omission and commission. This allegation is followed by details in tabulated form of forged cash entries alleged to have been made in the ledger. It has been pleaded by the appellant in defence that he made entries in the ledger in accordance with the contents of the bank scrolls and the cash receipts issued by the bank. Neither the original bank scrolls nor the cash receipt have been produced by the respondents. The explanation is that the record as old and that it could not be preserved because of frequent bifurcation of the Revenue office. Anyway, the fact remains that it has not been produced before us Photostat copies of the scrolls and the relevant entries of the ledger, if read in, the light of the appellant's explanation and other material on the record, show t at changes were made not in the entries of the ledger but in those of the bank s rolls. Therefore, I am inclined to conclude that the charge against the appellant on the point of forgery in cash entries of the ledger is not factually correct.
8. The second charge is that the appellant admitted in his statement in writing filed in the office of Revenue Officer (Power) WAPDA, Jhang on 21-8-1977 that he had given guidelines to his successor Mr. Majid, L D C "and assisted him in playing the foul game after being in league with the consumers." We will deal with this charge in detail at the appropriate place. At present it will be sufficient to say that the charge is rather vague, in that it is not possible to bring out what was meant to be conveyed from the expression "had given the guidelines to your successor." Even if the word 'guidelines' be taken to have connection with the latter part of the charge, the vagueness will still be there, for it is not possible to understand exactly what is conveyed by "assisted him in playing the foul game after being in league with the consumers." The result is, as already observed, that the charge-sheet, apart from being factually incorrect, is rather ambiguous and the appellant cannot be deemed to have been given proper opportunity to defend himself against the proposed action, simply for the reason that his explanation could be effective only if the charge-sheet had been properly framed. An accused can be said to have been provided with an opportunity to defend, only by creating an occasion where he can address himself to the exact allegations against him, which in turn can be possible with service of clear and unambiguous charge-sheet with statement of allegations. This, unfortunately has not been done in this case, with the result that very basis of the proceedings was defective and infirm. This infirmity was imparted to the inquiry report and then inherited by the impugned order. There is no doubt about the fact that an inadequate and improper charge-sheet leads to miscarriage of justice, because in that situation, the accused cannot be said to have been given an opportunity to defend himself against the proposed action.
9. This brings us to the impugned order of 1-9-1979. It makes the following reading: "OFFICE ORDER , ' Mr. Sarfraz Khan S/o Shahadat Khan, Lower Division Clerk/L.K.B.C, Revenue Office (Power) Jhang was placed under suspension on account of misconduct vide Revenue Officer, Power, Wapda, Jhang office order No,90, dated 12-9-1977. He was charge-sheeted by the said Revenue Officer on 15-11-1977 which was acknowledged by the said accused on 17-12-1977. The official has submitted his defence reply to Revenue Officer which was found unsatisfactory. The Revenue Officer, Jhang, referred his case to the Inquiry Officer, WAPDA, Lahore for conducting the inquiry under E & D Rules applicable to him vide his Memo. No,1179, dated 24-9-1978. The Inquiry Officer sent his findings on 30-5-1979 with the remarks that "the prosecution has proved his case to a great extent and hold him guilty of the charge." Considering all the facts, the gravity of the charges etc, nature of allegations, show-cause notice was served upon the official vide this Office Memo. No,711, dated 14- 7-1979. The official submitted his defence reply to the show-cause notice on 26-7-1979.
' The official was given personal hearing on 30-7-1979 and 31-7-1979 but he could not prove himself innocent.
' Keeping in view all the facts produced before the undersigned, record made available, reply to the show-cause notice and personal hearing etc. I, Muhammad , Superintending Engineer, Elecy, WAPDA, Jhang Circle, Jhang being competent authority under West Pakistan WAPDA Employees (E & D) Rules, 1978 applicable to him, am constrained to terminate his services with immediate effect.
He will not be entitled to draw anything over and above the subsistence allowance already paid to him during suspension period.
(Sd.) Superintending Engineer Elecy, WAPDA, JHANG CIRCLE, JHANG."
10. It can be clearly seen from this order that it is based on the Inquiry Officer's report dated 30-5- 1979, where he is said to have remarked "that the prosecution has proved his case to a great extent." It further says that the Inquiry Officer held him guilty of the charges. The report which has been made a basis for the impugned order makes an interesting reading. It is to the following effect: "Findings in the Departmental enquiry against Mr. Sarfraz Khan, LDC, Revenue Office. WAPDA. Jhang.
' Mr. Sarfraz Khan, L D C Revenue Office WAPDA Jhang has been charge-sheeted on the following charges of misconduct, forgery etc. By R.O. Jhang:
(a) That while posted a Lower Division Clerk in the office of Revenue Officer (Power) Wapda, Jhang you are found in the following acts of omissions and commissions. The detail of forged cash entries made by you in the ledger is given below:- {{TABLE}} Sr.
No, Account No, Date Amount of Bank scroll Amount as posted in the ledger. Diff- Remarks erence C-54/2/I 28-7-76 587.04 5587.04 5000.00 --do-- 26-8-76 42.62 10042.62 10000.00 --do-- 28-10-76 910.52 10910.52 10000.00 7/356 30-5-77 Bogus 188.76 188.76 QS-14/1/I 28-5-77 --do-- 301.11 301.11 SD-28 26-2-77 5.53 95.53 90.00 --do-- 28-4-77 1.14 101.14 100.00 3/419/TW 24-2-77 Bogus 386.63 386.63 3/450/TW 25-2-77 --do-- 789.90 789.90 --do-- 27-4-77 3.70 383.70 380.00 MB-25/1 24-1-77 49.35 349.35 300.00 Sr.
No, Account No, Date Amount of Bank scroll Amount as posted in the ledger. Diff- Remarks erence --do-- 21-2-77 94.96 394.96 300.00 --do-- 26-3-77 33.34 333.34 300.00 --do-- 25-4-77 1.41 270.41 269.00 --do-- 25-5-77 35.63 235.63 ' 200.00 3/419/TW 30-5-77 9.91 329-91 320.00 --do-- 29-3-77 9.37 114.12 104.75 {{TABLE}} (b): Besides, you have admitted in writing in this office on 21-8-1977 that you have given the guidelines to your successor Mr. Majeed Ahmad, L D C and assisted him in playing the foul game after being in league with the consumers."
' The explanation of the accused official to the charge-sheet was found to be unsatisfactory by the Competent Authority hence this inquiry was initiated against him.
' This enquiry has been conducted according to the West Pakistan Wapda (E&D) Rules, 78.
The prosecution has produced one P.W. Mr. Muhammad Din, C C A in support of its case.
' Mr. Muhammad Din, C C A, Revenue Office, Chiniot has stated as follows: ' Mr. Ghulam Rasool (C C A) Sr. Clerk had checked various accounts in various routes and found certain irregularities. The details of those accounts had been given in Exh.PA. I have seen ledger 'Book Exh. PC and have seen his entries on various accounts in which certain irregularities had taken place and he has pointed out these irregularities. I have worked with Mr. Ghulam Rasool Sr.
Clerk for about 12 years and I identify his handwriting and signatures. The total discrepancies comes to Rs, 29,030.15. The forged amounts have been recovered from the consumers and thus the Authority has sufferred no financial loss.
' According to my knowledge charge (b) in Exh. PA is also correct as he had given guidelines to his successor Mr. Majeed Ahmad, LDC and assisted him in playing the foul game after being in league with the consumers."
' The accused official did not produce any defence witness but submitte his defence reply Exh. DA and closed his defence. The most important factor against Mr. Sarfraz Khan, LDC/LKBC is his own clerk confessional statement before R.O. Jhang in which he has also involved with him Mr. Majeed Ahmad, LDC/LKBC. Being a new and inexperienced hand he has also requested for pardon.
' After thoroughly going through the file it is evident that the prosecution has proved its case to a great extent and I hold Mr. Sarfraz Khan accused official guilty of the charge.
(Sd.) Syed Ishrat Ali, ENQU IRY OFFICER, WAPDA LAHORE"
11. It is evident from the report that in so far as the first charge goes, it is based on the solitary statement of Mr. Muhammad Din C.C. Assistant. It will be worthwhile to reproduce this statement. It is as follows: "PWl on S.A. Muhammad Din, C.C. Asstt: Office of the R.O.(P) Chiniot.
' Mr. Ghulam Rasool, Sr. Clerk (C.C.C.) had checked various accounts in various routes and found certain irregularities. The details of those accounts had been given in Exh. PA. I have seen Ledger Book Exh. PC and have seen his entries on various accounts in which certain irregularities had taken place and he has pointed out these irregularities. I have worked with Mr, Ghulam Rasool Sr. Clerk for about 12 years and I identify his handwriting and signatures. The total discrepancies comes to Rs, 29,030.15. The forged amount have been recovered from the consumers and thus the Authority has suffered no financial loss.
' According to my knowledge charge (b) in Exh. PA is also correct as he had given guidelines to his successor Mr. Majeed Ahmad, LDC and assisted him in playing the foul game after being in league with the consumer."
12. It is clear from this statement that Mr. Muhammad Din was not a witness of what is alleged to have been done by the appellant in the performance of his duties as Ledger keeper. What the witness has stated is that Mr. Ghulam Rasool, Senior Clerk (C.C.C.) had checked various accounts in various routes and found certain irregularities. It appears from the statement that the witness was examined only to identify Mr. Ghulam Rasool's handwriting and signatures. It is thus clear that his statement does not carry the prosecution's case anywhere. He only identified the handwriting and signature of Mr. Ghulam Rasool, who in accordance with the prosecution's case is said to have checked the accounts maintained by the appellant and found certain irregularities. Under the circumstances, this Ghulam Rasool was a very material witness and I fail to understand as to why he was not examined in support of the case. From the record we do not find any explanation of the Inquiry Officer's failure to procure I his attendance.
13. These considerations apart, even otherwise, the statement of Mr. Muhammad Din as also that of Mr. Ghulam Rasool, if at all it had been there, without any corroboration would not be of any avail to the prosecution under the circumstances of this case, which shows that both these persons were involved as accused alongwith the appellant in the case of embezzlement and commission of irregularities. This is clearly borne out from the report of inquiry committee constituted earlier by the Chief Engineer (Electricity) WAPDA, Faisalabad by his office order dated 12-2-1978 regarding irregularities in the Revenue Office (Electricity) WAPDA Jhang. In this report, both these persons have been mentioned as accused alongwith the appellant and M/s. Abdul Ghani, U.D.C. And Ishaque Khan Assistant. It hardly requires any emphasis that the uncorroborated testimony of co- accused is by no means sufficient to support a finding of guilt.
14. Even in respect of second charge, reliance on behalf of the prosecution is on the solitary statement of Muhammad Din, Current Cash Assistant. What he stated before the Inquiry Officer was that "according to his knowledge, charge (b) in Exh. PA is also correct as he had given guide- lines to his successor Majeed Ahmad, LDC and assisted him in playing the foul game after being in league with the consumers." It is evident that the statement is verbatim reproduction of the phraseology of the charge and I am inclined to believe that he was made to repeat the allegations levelled in the charge-sheet and it is not possible to say that the statement has got any evidentiary value.
15. This aspect of the matter apart, the statement proves nothing, even if it is taken on merits. All what the witness has stated is that according to his knowledge charge (b) in Exh. PA is also correct.
He did not say that he was present at the time when the appellant was giving guide-lines to his successor. It is not clear from the statement that the witness testified to his own personal knowledge and that his statement is not the result of hearsay. I say so because his knowledge can either be the result of his presence at the relevant time or hearsay. This being the situation, I do not feel any hesitation in saying that it was hardly sufficient to promote the prosecution's case. The Inquiry Officer did not examine the witness on how he derived this knowledge and it is difficult to hold that his statement was admissible.
16. There is another aspect of the matter. Even if the statement be regarded as reliable, which I am not prepared to do for the aforementioned reasons, it will hardly make any difference, considering that evidence in support of an ambiguous charge will establish nothing but ambiguity.
17. It is in the report that "the most important factor against Mr. Sarfra Khan LDC/LKBC is his own clear confessional statement before the Revenu Officer, Jhang in which he has also involved with him Mr. Majeed Ahmad LDC/LKBC" and that "being a new and inexperienced hand he has also requested for pardon." It is thus clear that in returning a finding of guilty, the Inquiry Officer has been primarily influenced by the confessional statement alleged to have been made by the appellant before the Revenue Officer, Jhang. As we see from the record, in his explanation in writing (Annexure 3), it was pleaded by him that the alleged confessional statement was obtained by Mr. Bashir-ud-Din Qureshi, Revenue Officer under duress as a result of threat. He denied having guided Mr. Majeed Ahmad in any manner. I feel that in view of this denial, the Inquiry Officer should have examined. Mr. Bashir-ud-Din Qureshi to determine whether the appellant's statement was the result of coercion or he made it of his own volition. This has not been done and I feel no hesitation in saying that there was no justification for jumping to the conclusion that he made a confessional statement; which is in addition to the reason that the previous statement in writing submitted to the Revenue Officer was before the initiation of the disciplinary proceedings and it did not have any evidentiary value in so far as the proceedings of the Inquiry Officer were concerned. It could not be made a basis for the finding of guilty without examination of the concerned witnesses, which is to say the least.
18. Leaving aside this aspect of the matter, there seems to be substance in the allegation that the confessional statement was not voluntary. He gave an explanation in writing to the Revenue Officer on 21-8-1977. As it can be seen, he made an attempt to exonerate himself of the charge in the statement as it originally stood. He denied in clear words that he was responsible for any irregularity. It appears that the appellant was made to make certain additions in his statement in writing by interpolation. The statement that "I confess that I uided Mr. Majeed Ahmad in this respect" is in different ink and handwriting. Likewise, the last portion of the statement to the effect that "I assure your outsell that this was my first mistake and that I will not commit any such mistake in future and that you will forgive me by showing large heartedness and making pity" is also in different ink and handwriting. Even if it may not be so, I am n no doubt whatsoever that these statements were subsequently added in the statement prepared by the appellant and that they clearly appear to be out of context. This circumstance can lead us to no conclusion but that the alleged confessional statement was not the result of appellant's volition. This being so, it could not possibly, without outrage on principles of fair play and natural justice, provide the Inquiry Officer with a basis for a finding that the accused was guilty of alleged irregularities.
19. Therefore, on the basis of these considerations, it will have to be held at the Inquiry Officer's report provided the competent authority with nothing to coed against the appellant and pass the impugned order of termination of services. We may add to it the Inquiry Officer's observation that "the prosecution s proved its case to a great extent", which shows that he was not on a sureting in holding him guilty of the charge and that the report was just casual and functory in character and causing an impression as if he was bound to make it.
20. Before taking leave of the matter, we may deal with the preliminary objection regarding limitation. As we have noticed in the facts of the case, the appellant challenged the validity of the impugned order in a grievance petition under section 25-A of the Industrial Relations Ordinance before the Labour Court concerned on 15-10-1979. The respondents filed a written reply (Annexure VI) where the petition does not appear to have been defended on the ground of jurisdiction. It was, however, dismissed by the Labour Court on 28-8-1980. The appellant successfully challenged the validity of Labour Courts' order on 2-101980 before the Punjab Labour Appellate Tribunal which set aside the impugned order on 19.5-1982, with a direction that he should be reinstated in service. The respondents' writ petition dated 6-7-1982 against this order before the High Court was accepted on 21-4-1984, and it was held that the Labour Appellate Tribunal's order was without lawful authority.
The appellant then came to this Tribunal on 9-6-1984, within one month of the rejection of his departmental appeal on 28-5-1984. Since there was confusion regarding the question of jurisdiction at the relevant time, the appellant had been prosecuting his matter before a wrong forum in good faith. Under similar circumstances, delay in filing appeals has been condoned by this Tribunal in many cases. I am of the view that the circumstances of this case would justify similar treatment and the delay is accordingly condoned.
21. For the reasons mentioned above, the appeal is accepted and the impugned order dated 1-9- 1979 is set aside. The respondents shall reinstate the appellant in service with full back benefits.
They will, however, be within legal authority to start disciplinary proceedings against the appellant afresh from the stage whence the mistake can be rectified. There will, however, be no order as to costs.
22. Parties to be informed.