' SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).---The instant appeal has been brought by Mr. Shames-ud-Din Shah appellant before this Tribunal to impugn the Government Order No,Admin/ S.0-4/-165/86 dated 26-3-1986 by which he was dismissed from the service and a sum of Rs,3,15,164 being the pecuniary loss suffered by the respondent Government was also ordered to be recovered from him.
2. The relevant facts of the case are that the appellant was originally employed as Stenographer in the Department of Local Government on 8-12-1964 and was subsequently promoted and posted as Project Manager at Trarkhal. He served at Trarkhal Station for about four years and after that on 10- 4-1984 he was transferred and posted as Project Manager at Tehsil Headquarter at Bagh. He spent some time at Bagh also and thereafter he was proceeded against under Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter to be referred as Efficiency and Discipline Rules) and the Secretary, Local Government (Authorised Officer) supplied him with a charge-sheet containing the charges of defalcations and misappropriation of Government money pertaining to the period of his posting at Trarkhal, Hajeera and Bagh Stations. In the meantime Sardar Muhammad Rafique Khan, Deputy Director of Food Department was appointed as Inquiry Officer to probe into the allegations of defalcations reported against the appellant and to submit his report within a period of two months. The Inquiry Officer found that the charges of defalcations amounting to 3,15,164 were proved against the appellant. On the basis of this report of the Inquiry Officer, the appellant was dismissed from service and ordered to make up the loss good. The appellant brought a review petition against the aforesaid order of his dismissal before the Prime Minister of Azad Jammu and Kashmir but no decision was taken on his petition and ulimately he was forced to invoke the jurisdiction of this Tribunal under section 4 of the Azad Jammu and Kahmir Service Tribunal Act, 1975. In the memo of his appeal, he has submitted the following grounds of appeal to be considered by this Tribunal:-
(i) that two inquiries one after the other were conducted against the appellant and it was not lawful for the respondents to initiate second inquiry on the same charges as were firstly brought against him before the Inquiry Committee:
(ii) that the inquiry was conducted in utter disregard of Efficiency and Discipline Rules, and he was not provided with an opportunity to make an inspection of the record on the basis of which the charge-sheet was framed against him;
(iii) that the details of the allegations were not supplied to the appellant and he was condemned unheard without affording him an opportunity of defending himself;
(iv) that the proceedings were initiated against him on the basis of some Audit report but no copy of that report was made available to the appellant and the requirements of fundamental principles of law were ignored;
(v) that the statements of the witnessess were not recorded in the presence of the appellant and he was denied the opportunity of placing his case before the Inquiry Committee/Inquiry Officer. No show-cause notice was given to him and the principles of natural justice were violated;
(vi) that the Inquiry Committee failed to appreciate the marked difference between charge-sheet and show-cause notice and the impugned order was not maintainable for that reason also;
(vii) that the inquiry reports were not supplied to the appellant and as such the punishment awarded to him was not maintainable in law,
(viii) that the respondents did not take into consideration 21 years past service record of the appellant which proved it that he held a clean slate of his carrier at his credit; that he has been awarded double punishment viz dismissal from service and the recovery of the pecuniary loss amounting to Rs,3,15,164 which is unjust and illegal.
3. It is prayed by the appellant that the impugned order be set aside and he may be reinstated on his post w.e.f the date of his dismissal with all service benefits and allowed such other relief to which he is found entitled by this Tribunal.
4. In the written statements, it was submitted on behalf of the respondents that the charge-sheet supplied to the appellant was properly prepared in the light of the record and the concrete facts.
The appellant was not found serious about making inspection of the record, although he had sufficient time to make the inspection of the record. It is incorrect that he had made any application for Raja Zafar Ali Khan and Ali Shah Bukhari, Assistant Directors to be summoned as accused or defence witnessess. In fact, there was nothing on record to associate them in the inquiry proceedings. There was sufficient documentary evidence available against the appellant to connect him with the commission of defalcations of Government money. The first inquiry was a fact finding inquiry and was not ordered under Rules. The appellant has remained present before the Inquiry Officer during all the proceedings of the inquiry and it is incorrect that {{PAGE CUT}} ence was recorded in his absence by the Inquiry Officer. The appellant self accepted the charges of defalcations to the extent of Rs,1,47,864 ing to Bagh Centre and as such his appeal was meriting dismissal. We have carefully considered the arguments as were addressed to this unable by the learned counsel appearing for the appellant as well as the respondents. We have also examined the record of the proceedings held under e Efficiency and Discipline Rules against the appellant.
We have gone through 'the order sheets as were passed by the Inquiry Officer from time to time while conducting the present inquiry and we find that the inquiry was precisely conducted quite in accordance with the provisions of the Efficiency and Discipline A rules referred to. The learned counsel for the appellant while addressing his arguments has referred our attention to the grounds of appeal submitted by the appellant in the memo of his appeal. After having considered the grounds of appeal submitted in appeal, we record our findings thereon in the succeeding paragraphs.
6. There does not seem anything wrong if two inquiries one after the other (4)71 ordered to be made against the appellant. The respondents have not er mined any illegality by ordering the second inquiry on the same charges as firstly placed before the inquiry committee constituted to probe into the rations against the appellant. In fact, the respondents has firstly set up an inquiry committee to find out the actual facts about the defalcations reported in the accounts of the appellant while he was posted as Project Manager at Trarkhal, Hajeera and Bagh. In fact, the first inquiry committee was the fact finding committee and it was on basis of the report of that fact finding committee that the proceedings under the Efficiency and Discipline Rules were initiated against the appellant.{{PAGE CUTT}}
7. The second ground of appeal that the inquiry was conducted in this case in utter disregard of the Efficiency and Discipline Rules and that the appellant was not provided with an opportunity to make the inspection of the record for submitting his reply to the charge-sheet is also found to be devoid of force. Under rule 6 of the Efficiency and Discipline Rules, the appellant was required to submit his reply to the charge-sheet within' a period of fourteen days from the date of the receipt of the charge-sheet but in the instant case the appellant had submitted his reply on 21-3-1985 after the receipt of charge-sheet by him on 3-3-1985. This shows that the reply was submitted by the appellant to the Inquiry Officer at a belated stage and sufficient time was allowed to him to submit his reply before the Inquiry Officer. The appellant has submitted his reply on ten pages and probably he could not do that if he had not consulted the relevant record before submitting his reply.
8. It is also available on the record that the detail of charges was also supplied to the appellant alongwith the charge-sheet and that the inquiry was c properly conducted into the charges brought against the appellant and he had sufficient opportunity to present his case before the Inquiry Officer.
9. It is true that the defalcations are invariably reported in Audit but the respondents were under no obligation to supply a copy of the reports to the appellant especially under such circumstances when the rep defalcations in the Audit notes were precisely incorporated in the explain note supplied to the appellant alongwith the charge-sheet. Hence, there was violation of any fundamental principles of law.
10. It is available in the order sheet of the inquiry file that the appellant remained present throughout the inquiry and the statements of all the witnesses were recorded in his presence.
Therefore, it does not lie in the mouth of the appellant to deny the fact that he was not afforded sufficient opportunity for placing his case before the Inquiry Officer. In fact, he has himself not availed of the opportunity of cross-examining the witnesses appearing against him who were mostly the witnessess with official record. In the instant case issue of a separate show-cause notice was hardly necessary because under Efficiency and Discipline Rules as opportunity of personal hearing before an officer of the rank of Secretary to the Government was given to the appellant for defending himself from being punished. The inquiry committee had submitted a fact finding represent to the competent authority on the basis of which the inquiry against the appellant was initiated under the Efficiency and Discipline Rules. The report of inquiry committee had no purpose to serve other than to highlight the actual f resulting in the commission of defalcations and fixing the responsibility thereo upon the appellant. It is immaterial if the Inquiry Committee failed to note the difference between the words charge-sheet and show-cause notice, it is not relevant to be discussed here because it is the report of the Inquiry Officer which supplies the proof of the charges.
11. In the instant case, the service record was not a relevant piece of evidence to be considered by the Inquiry Officer. If the charges of defalcation, embezzlments and misappropriation of Government money brought against the appellant were proved before the Inquiry Officer, the appellant could not escape punishment merely for the reason that he had past good service record at his credit. The appellant has been dismissed from service and has been ordered to make up the loss good in addition to that. The punishment awarded is quite in accordance with the provisions of the Efficiency and Discipline Rules and in his case, there does not appear anything done, illegally or unjustly.
12. It is next argued that the action proposed to be taken against the appellant was neither conveyed to him through issue of show-cause notice nor it was disclosed to him at the time of granting him the opportunity of personal hearing. In the opinion of the learned counsel for the appellant if the issue of show-cause notice to the appellant is not considered to be the requirement of the Efficiency and Discipline Rules even then a copy of the inquiry report or a copy of the report of the authorised officer was necessary to be supplied to him for presenting his case and defending himself against the punisment proposed before the competent authority or his nominee at the occasion of his personal hearing. In {{PAGE CUTT}} of his arguments, the learned counsel has referred a case entitled Islamic is of Pakistan v. Amjad Ali Mirza reported in PLD 1977 Supreme Court ut we find that the arguments addressed do not get any support from the id down by the Supreme Court of Pakistan in the case referred to. The facts e reported case also do not have any bearing so for the facts of the present ,e are concerned. In the instant case after the receipt of the report of the quiry Officer, the Authorised Officer has submitted his report proposing action of dismissal to be taken against the appellant before the competent authority who transferred the file to Mr. Muhammad Yusuf Khan, Secretary works for granting the appellant the opportunity of personal hearing. The appellant has availed of full opportunity of personal hearing and under the Efficiency and Discipline Rules referred to, there was left nothing more to be done in that direction. It is pertinent to note here that the facts of each case differ from one another and in some cases, the indication of charges and the evidence on which those charges are put forward will be sufficient to make it clear that unless the person charged can on that information show good cause against being dismissed or reduced if any of charges is proved, dismissal or reduction in rank will follow. In case of the 4i Alant not only that the charges were properly established and proved against ref before the Inquiry Officer but he has also himself accepted the charge of cation amounting to Rs,1,47,864 pertaining to the period of his posting at agh Centre although a uselss effort was made by him to shift his burden upon the Assistant Directors of Local Government posted at Rawalakot Station at the relevant time. This fact is even supported by the report of Secretary Works also which shows that the appellant had accepted the charge of defalcation in regard to Bagh Centre before him also when he was granted the opportunity of personal hearing by him under the orders of the competent authority. We have examined the file of the case with the help of the learned counsel for the parties and we find that the charge-sheet was approved by the competent authority and the Inquiry Officer was duly appointed by that authority. The charge-sheet was specific and the petitioner was provided with the statement of allegations alongwith the charge-sheet. The evidence in support of the allegations was recorded in his presence and the proceedings were concluded by the Inquiry Officer in accordance with the procedure prescribed for major penalites and the appellant, in our opinion, could have no doubt about the same. He at any rate was not handicapped in any way, nor has he been prejudiced.{{PAGE CUTT}}
13. The upshot of the above discussion is that the appeal merits dismissal and the same is hereby dismissed. The temporary injunction issued for not effecting the recovery of the amount of loss sustained by the Government is vacated forthwith. No order as to costs.