SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).----This appeal is directed against an order dated 13-5-1990 made by the Director of Food Department by which the appellant was held responsible for the loss of 40 bags of wheat at Supply Depot, Hattian. The appeal is further directed against order dated 3-2-1991 by which the Departmental appeal brought by the appellant before - the Secretary, Food Department was rejected by him. The appellant has impleaded Secretary and Director, Food Department, Azad Government of the State of Jammu and Kashmir as respondents for seeking his relief against them.
2. It is stated by the appellant that he has been serving in the Food Department for the last 24 years and his personal record of service has remained fairly satisfactory. He served as Incharge of Supply Depot, Hattian w.e.f. June 1978 to February, 1980 and immediately after his transfer from that station inspection of stock of Hattian Depot was conducted by the District Food Controller, Muzaffarabad.
In his report dated 4-2-1980, the District Food Controller, Muzaffarabad had no complaint against the appellant about the loss of any stock in the godown. It was the subsequent report of the Incharge Depot of Hattian (Bashir Ahmad) who had succeeded the appellant that 40 bags of wheat containing 3,609 kilogram were reported short despite the fact that at the time of handing and taking over the charge, no such shortage was noticed or pointed out by the said Incharge Depot. However, on the report of his successor an inquiry was made by the District Food Controller, Muzaffarabad. It was found by him that the loss of stock had occasioned due to natural calamity and none of the staff members posted at this station was found responsible by him for that loss.
The District Food Controller recommended that the loss of 40 bags of wheat be written off from the stock. But this report was not accepted by the Assistant Director, ' Food at Muzaffarabad and a show-cause notice, a copy of which is placed on the file as Annexure `B' was issued to the appellant allegedly fixing on the appellant the responsibility for the loss of 40 bags. The appellant submitted his reply to the said show-cause notice on 19-11-1989 a copy of which is placed on the file -as Annexure `C'. It is claimed by the appellant that the impugned order is not maintainable on the following grounds:-- (i)That the Assistant Director, Food Department was not Authorised Officer to make any recommendation against the appellant without firstly holding proper inquiry under Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977; (ii)That the Director, Food Department (Authority) was not competent to appoint any other Officer as Authorised Officer for initiating inquiry proceedings against the appellant under Efficiency and Discipline Rules, .977 and if for arguments sake he held such powers even then, the Assistant Director was not authorised to give him show-cause notice without the previous approval of the Director. At the same time, the Assistant Director without having held inquiry in the matter held no powers to recommend punishment in favour of the appellant for the alleged loss of Government stock. The recovery of an amount of Rs.6,705 is undoubtedly a major penalty and the same cannot be awarded to the appellant without giving him an opportunity of being heard by the Authority himself;
(iii) That both the Assistant Director and Director, Food Department have not taken into consideration the inspection note dated 26-1-1980 recorded by the District Food Controller, Muzaffarabad placed on the file as Annexure `A' and have illegally ordered the appellant to make the loss good;
(iv) That the proceedings against the appellant have not been conducted under Efficiency and Discipline Rules, 1977 and hence the exercise of jurisdiction by the respondents is without lawful authority.
3. The appellant brought an appeal before Secretary, Food Department but the same was rejected and hence he has brought the present appeal before this forum. It is claimed by the appellant that the impugned order of Secretary, Food Department was not conveyed to him and he had got knowledge of that order on 18-5-1991. When he had visited the Office of Secretary, Food Department and applied for a copy of impugned order and for that reason his appeal may be held to be within time as the period of limitation for filing the appeal had started in his case w.e.f. The date of his knowledge viz.18-5-1991.
4. By a short order of this Tribunal dated 15-6-1991 the appeal was admitted for regular hearing and the respondents were called upon to submit their objections, if any about the maintainability of the appeal brought against them. On behalf of the respondents through a written statement the following objections were submitted against the acceptance of the present appeal:-- .
(a) The appeal is time-barred and is liable to be rejected on that ground.
(b) The Government was a necessary party and without having impleaded it as a party to the case, the appeal is not maintainable.
(c) The appeal' has not been drafted in accordance with the rule of procedure prescribed to be followed in service appeals before this forum. While submitting the parawise reply it is submitted on behalf of the respondents that the disciplinary proceedings under Efficiency and Discipline Rules, 1977 were initiated against the appellant under the orders of Director, Food Department who was duly designated to be the Authority in case of the appellant. No show-cause notice was issued to the appellant and instead of that h proper charge-sheet was supplied to him by the Authorised Officer for submitting his reply to the Inquiry officer and facing the inquiry proceedings before him.
It shall be noted here that the Authorised Officer was the Deputy Director, Food Department and at the relevant time he was not holding the post of Assistant Director as has been claimed by the appellant. It is further submitted by the respondents that the impugned order of punishment for the recovery of cost of food-grain from the appellant was made by the competent Authority on the basis of reports of Inquiry Officer and the Authorised Officer after granting him an opportunity of personal hearing by the Authority himself. The allegations brought' against the respondents in the memo. Of appeal are baseless and as such the appeal was not maintainable and meriting dismissal.
5. We have considered the arguments as were advanced on behalf of the appellant and respondents before this Tribunal. We have also examined the record and the inquiry proceedings initiated against the appellant. It may be noted here that before initiation of inquiry proceedings under Efficiency and Discipline Rules, 1977 the Government stock and stores available at Supply Depot Hattian was duly inspected by Mr. Gul Zaman Qasid, District Food Controller, Muzaffarabad.
In his report dated 26-1-1980, it was pointed out by him that out of the available stock of wheat about 400/500 bags of wheat were found by him as and he had proposed it to the Deputy Director, Food (Distribution Branch) for arrangements of funds to make that quantity of stock fit for being used by the general public. Mr. Qasid did not make any report that the appellant was responsible for the damaged stock of the wheat. It is rather noticed that on his transfer from Hattian station, the charge of Government stock and store was properly handed over by the appellant to Muhammad Bashir his successor. In the charge list we find that 400 bags are counted as and 40 bags of wheat shown as completely damaged not fit for use by the public were taken in charge by the newly- appointed Incharge of the Supply Depot. In his appeal, the appellant relies on the ground that an inquiry was ordered against him under Efficiency and Discipline Rules and that he was awarded major penalty after issuing a show-cause notice by the Assistant Director, Food Department who was legally not competent to do that. After going through the relevant record placed on the file, we find that the appellant is not correct. As a matter of fact the disciplinary proceedings under the Efficiency and Discipline Rules were initiated against him under the valid orders of the Authority (Director, Food Department) on the basis of reports of District Food Controller, Muzaffarabad and Deputy Director of Food Department. However, the fixation of responsibility upon the appellant is much confusing for the reasons that this inquiry was ordered after passing the period of nine years and the District Food Controller, Muzaffarabad had earlier vide his Letter No. DFC/M/(210)/93-95/86, dated 7-2-1987 recommended for this quantity of stock to be written off from the stock.
6. But it seems that the matter was once again initiated by the food Department vide Deputy Director's Letter No.D-DDF/4261-63, dated 20-6-1989 by which he had directly addressed to the appellant for making payment of Rs.6,705 on account of 40 bags of wheat stock while he was posted at Hattian Supply Depot. In response to the above letter of Deputy Director, the appellant submitted to the District Food Controller, Muzaffarabad that he was not responsible for any loss and without a proper inquiry in the matter, the responsibility of loss should not have been placed upon him. Subsequently a report from District Food Controller, Muzaffarabad was called by the Deputy Director of Food Department and the District Food Controller vide his Letter No.DFC/M/(210)/8641-42/89, dated 25-3-1989 submitted the same to him holding the appellant responsible for the loss of 40 bags of wheat while he was posted at Hattian Supply Depot. We do not know what were the circumstances which had made the Deputy Director, Food Department to initiate the inquiry proceedings against the appellant despite of the fact that Mr. Gul Zaman Qasid who was District Food Controller at the relevant time at Muzaffarabad had absolved the appellant from fixing such a liability upon him and had recommended for that stock of wheat to be written off from the stock register. Prima facie, this letter of Mr. Gul Zaman was quite sufficient to have ended the matter because the stock was personally checked by him as he was then posted as District Food Controller at Muzaffarabad and the transfer of appellant from Hattian station had not taken place as yet. Secondly after having made over the charge of godown to his successor (Muhammad Bashir), the appellant's responsibility of making a report of the wasted stock to the higher officers had shifted upon his successor and it was his duty to do the needful because he had also taken in his charge those 40 bags of wheat stock reported not fit for use by the public. There is, no doubt, in it that the appellant had not kept anything secret about the wastage of stock from his immediate officer and it was rather the duty of his immediate officer to report the matter to higher authority if the former had noticed any dereliction of duty on the part of the appellant at Hattian Station. After the perusal of the record on the file, we find that the material placed by the Deputy Director, Food Department before the Authority (Director, Food Department) was not at all sufficient to justify the order of initiation of inquiry by him against the appellant. In our opinion, the allegation by the appellant that the impugned order was made mala fidely against him does have some substance in it and for the above reasons the major penalty must not have been awarded to him.
7. The impugned order was made on 13-5-1990 and the appellant was entitled to a period of sixty days for taking an appeal before his Departmental Authority. He brought this appeal on 10-6-1990 quite in time before the Departmental Authority (Secretary, Food Department) and the present appeal was brought in this Tribunal on 25-5-1991. The appellant had only a period of thirty days to file his appeal before this forum and he was required to bring his appeal on 4-3-1991 at this forum.
But he filed his appeal on 25-5-1991 which .Is undoubtedly delayed by 81 days. It is claimed by the appellant that the impugned order was not conveyed to him by the Departmental Appellate Authority and that he had got the knowledge of that order on 18-5-1991 and as such his appeal was within time from the date of communication of the order to him. This assertion of the appellant is duly supported by an affidavit of the appellant filed alongwith the appeal. There is no counter- affidavit to controvert the stand of the appellant. The onus of proof that the impugned order was conveyed to the appellant at earlier date was upon the respondents and there being no evidence on the file to that effect, we find no alternative but to accept this contention of the appellant that the impugned order was conveyed to him as late as 18-5-1991 and as such his appeal at this forum is within time.
8. It is argued on behalf of the respondents that the Azad Government was necessary party in the present appeal and without having impleaded that party, the appeal was not maintainable in law.
We are afraid, we cannot contribute to this view because the orders impugned before this forum have been made by the respondents on the file and that an adequate remedy can be provided to him by the respondents without the previous approval of respondent-Government. The objection being devoid of force is, therefore, repelled. The learned counsel for the respondent has not pointed out where the rule of procedure provided for service appeal was not followed by the appellant hence this objection is also not tenable.
9. For the above reasons, the appeal is accepted and the impugned orders are set aside. No order as to the costs.