MISBAH ULLAH KHAN (MEMBER).---This appeal is time-barred by 4 days. The order of removal of the appellant from service was made on 20-9-1992, which was challenged in appeal filed on 17-10- 1992. 120 days expired on 14-2-1993, but the appeal was filed on 18-2-1993. There is, however, an application for condonation of delay in which it is stated that the appellant contacted Khawaja A.
Rashid, a Senior Advocate of Abbottabad on .10-2-1993, who expressed his inability to accept the brief and referred him to Mr. Shah Abdur Rashid, Advocate, Islamabad. The appellant, alongwith his friend named Rashid, came over to Islamabad on 11-2-1993, but when he reached Islamabad Bus Stand Pirwadahi, he got suddenly ill with severe pain in the abdomen with profuse vomiting. It is alleged that he was taken by his companion to Federal Government Services Hospital, where he was examined by the Doctor on duty who gave initial treatment and prescribed medicines with advice to take rest for at least seven days. The appellant, according to the affidavit, was in such a state of pain and vomiting that he could not contact Mr. Shah Abdur Rashid, Advocate on 11-2-1993.
He was taken back to Abbottabad where he remained ill till 16-2-1993. On that date,' he again came lover to Islamabad and handed over the papers to Mr. Shah Abdur Rashid, who prepared the appeal, photo copies etc., and then filed the appeal before the Tribunal on 18-2-1993 with a total delay of 4 days only.
2. The application of condonation is accompanied by an affidavit of appellant himself supported by the affidavits of Khawaja Abdur Rashid and the appellant's companion, Mr. Rashid. The Doctor's clinical notes dated 11-2-1993, also indicate that the appellant's blood pressure had fallen and temperature had arisen and he was vomiting and passing watery stools and was dehydrated. The clinical notes are duly assigned a serial No. Stamp of the Hospital and signature of the Medical Officer who attended the appellant.
3. In the above circumstances, we feel inclined that delay of days hay been reasonably explained, and it was beyond the control of the appellant. Consequently we condone the delay and propose to decide the appeal on merits.
4. The appellant, Muhammad Iqbal was serving in BPS-16 as Incharge of the Supply Bazar Centre, of the National Savings Department, Islamabad in 1990. He was transferred in July, 1990 from the said Supply Centre to the Main Directorate of the National Savings, Abbottabad. On 12-12-1991, he was served with a charge-sheet and statement of allegations, the substance of which is that: -
(i) Two profits of Khas Deposit Certificate of the face value of Rs.100,000 in the name of the one Prof Khurshid Khattack were due on 24-8-1990. She was in need of money and, therefore, she presented the certificate a week before 24-8-1990 when only one profit could have been given to her. The appellant paid the face value of Rs. 100,000 to Dr. Khurshid together with one profit of Rs. 7,500 which was actually due. He subsequently on 25-8-1990 himself encashed the certificate and the second profit of Rs. 7,500 was retained by him illegally for his own benefit. He thus caused loss of Rs.
7,500 to the Government.
(ii) A sum of Rs. 2,500 was to be deducted as Zakat from Prof, Khurshid Khattak. The appellant made certain tempering with the record whereby the certificate was made relatable to one Mst.
Nasira Akhtar Khattak who had another certificate in -her own name and was exempt from the payment of Zakat. By this process Zakat was not deducted, causing loss of Rs. 2,500 to the Zakat Fund.
(iii) The appellant removed the application form for the purchase of certificate of Prof. Khurshid Khattak and fictitiously made it relatable to the form of Mst. Nasira Akhtar Khattak.
5. An Inquiry was held against the appellant Resultantly he was removed from service on 20-9-1992 as already stated.
6. The learned counsel for the appellant has first of all raised some legal objections. In the first instance, it was argued that the witnesses against the appellant were not examined on oath which is the necessary requirement of law. In this respect, he referred to page 523 of ESTACODE 1989, wherein there are instructions that in efficiency and discipline cases the witnesses should be examined on oath as proceedings of the Inquiry Officer are judicial in nature. He contended that these instructions have the force of rules and the violations thereof renders the entire proceedings illegal, void and ineffective. He also referred to PLD 1981 SC 464, wherein at page 467, it had been observed that in administrative proceedings, oath to witnesses is one of the minimum requirement of natural justice. In this judgment, the Hon'ble Supreme Court, followed its own earlier decision reported as PLD 1965 SC 90.
7. Another legal point taken by the learned counsel for the appellant is that it is the statutory requirement of the rules as also of natural justice that if a civil servant accused for misconduct demands personal hearing, denial thereof renders the proceedings, ineffective. In this case the appellant appears to have been called for personal hearing but the Authorised Officer only obtained a certificate from him that he has been given personal hearing. The notes of the authorised officer do not show as to what questions were put to the appellant and what. Was his answers and what statement he voluntarily made. The learned counsel referred to the decision of the Supreme Court of Azad Jammu and Kashmir reported as 1992 PLC (C.S.) 1185, wherein at page 1189 that Court had observed that right of hearing is not an ideal or formal requirement of law and that it will essential that a person given hearing to an accused officer should specifically record the questions put by to him and the answers given. On this basis, the learned counsel contends that the inquiry proceedings are vitiated as the appellant has not been given personal hearing according to the spirit of law and the rules.
8. The above points do need a considered view on our part but for the reasons which we would henceforth state we leave these points for consideration in some other case and propose to decide the appeal on merits irrespective of these considerations.
9. How the illegality and irregularity committed to the appellant came to surface is shrouded in mystery. The Inquiry Officer himself has referred to this aspect of the case in his report. However, it appears that after the transfer of the appellant from the Supply Centre of the Branch to which place the charges are related, an investigation was carried out in October, 1991 by Mr. Ishaq Tanoli.
He appears to have contacted several persons who had dealing with the Centre in which the appellant was Incharge in 1990. He contacted Dr. Khurshid Khattak on 21-10-1991, in the Hospital where a document named as "Affidavit" recorded by himself was given to Dr. Khurshid Khattak who is said to have signed it. It states that she went to the Centre a week before the due date of second profit and got only one profit of Rs. 7,500. She is alleged to have stated that she was compelled to encash the certificate a week before than the due date of the second profit for certain personal reasons. This document is neither here nor there.
10. In the first instance she does not say that she has handed over the certificate to the appellant or any clerk or cashier. She does not explain the reasons which compelled her to forgo Rs. 7,500 which would have become due only a week after the alleged day of encashment. The document is recorded by Mr. Ishaq Tanoli by himself. It has no semblance of an affidavit. Dr. Khurshid Khattak only signed this document. Mr. Ishaq Tanoli says that he wrote the documents himself because Dr. Khurshid was in operation kit. We don't think it is a valid excuse. Strange enough the number of certificate is also recorded in the document. How Dr. Khurshid Khattak knew the number of certificate is not understandable when in her latter statement she categorically stated that she didn't remember the details of date etc.
11. The other witness is Mr. M. Younus Tanoli, who inspected the accounts and is not a witness to the main incident.
12. Dr. Khurshid Khattak does not appear to be sticking to her statement. In the so-called affidavit she made one statement while in a certificate given by her, she made another statement obliging the appellant. In the third statement recorded before the Inquiry Officer she owned the first statement saying that the first one was correct and the second was incorrect. Such a witness is least worthy of credit.
13. The learned counsel has urged that Dr. Khurshid's statement of 21-10-1991 was given the name of affidavit and she was given to understand that in case she resiles from that statement she would be liable for prosecution. Apart from that, it has not been explained as to why Dr. Khurshid Khattak opted to lose a profit of Rs. 7,500 and could not wait for 4 or 5 days. We have seen the certificate and it appears to have been encashed on 25-8-1991. Dr. Khurshid denies and says that the date was not recorded by her. No attempt was made to show that the date was written by the appellant.
14. There is another important aspect of the case. According to the procedure, the certificate holder normally hands over the certificate to the Clerk who compares it with the register and then after making necessary entries; the certificate alongwith relevant register goes to -the Incharge who countersigns all the documents. They then came to the Cashier who makes the payment. In ordinary course, the Cash Box is expected to have two keys; one is kept by the Incharge and the other by the Cashier. In this case, if the allegations were correct, then the appellant could not delay the certificate for 7 days after it was presented without the conspiracy between the Cashier and the appellant who was the Incharge. There is no allegation of conspiracy and we fail to understand how the entire burden of the irregularities even if any can be placed on the appellant. At least if the appellant was proceeded against by exclusion of the Clerk and the Cashier, they could have been made approvers to prove the case against the appellant.
15. The learned counsel has also explained that the certificate is negotiable and if the appellant wanted to get the benefit, he could have easily got the certificate endorsed in his or in the name of some friend and then get it enchased for which procedure no objection could have been raised.
16. For the aforesaid reasons we are of the view that the embezzlement of Rs.7,500 being the second profit due on the certificate by the appellant has not been proved beyond reasonable doubt.
17. As regards, the tempering with the documents, it is stated that the appellant had been transferred in middle of 1990 whereas the matter was taken into hand in October, 1991. The tempering cannot be wholly attributed to the appellant. It could be done at any time thereafter by any one. The second charge regarding tempering the documents by the appellant is also doubtful.
18. As. Regards, the failure of the appellant to deduct the Zakat which had been due, the appellant has himself admitted that he did not deduct the Zakat. According to him the Zakat could not be deducted as he confused Dr. Khurshid with the name of Mst. Nasira Akhtar Khattak who was exempt from the deduction of Zakat. This is a highly negligent action on the part of the appellant and he cannot escape from the consequence thereof. However, the amount of Rs. 2,500 was not used by the appellant for his own benefit but the benefit went to Dr. Khurshid who for reasons unknown did not offer the deduction of Zakat. It is staid that the amount of Zakat has now been recovered from the appellant and he has duly deposited it in the Treasury. In the circumstances, we hold the appellant guilty of negligence amounting to misconduct in as far as his action in failing to deduct Zakat from Dr. Khurshid is concerned.
19. There now remains the question of penalty to be awarded. Two of the charges being doubtful we do not think that for the charge of failure to deduct Zakat, the penalty of removal from service is called far. However, the case remains a case of major penalty. It was admitted at the bar on both sides that the appellant was not directly recruited to BPS-16 but was promoted from the lower rank.
We, therefore, set aside the penalty of removal awarded to the appellant and in its place inflict upon him the penalty of reversion, for a period of three years, to the lower post from which he was promoted to BPS-16. The period, the appellant remained out of service shall be treated as period spent on lower post. However, he shall not be entitled to any arrears of pay for the period he remained out of service which commence from the date of removal and ends on the date this order is communicated to the parties.
20. No order as to costs.
ABDUL RAZZAQ A. THAHIM (CHAIRMAN): --21. With due regard for the views of my brother Mr. Misbah Ullah Khan, I do not subscribe to the proposed judgment and I hold a different view. The reasons are as follows.
22. The appellant was served a charge-sheet. The charges have reproduced in the proposed judgment of Mr. Misbah Ullah Khan. A regular inquiry was held in which the appellant duly participated. He cross-examined the prosecution witnesses. The main witness, Dr. Khurshid Khatak categorically stated that her first statement recorded on 21-10-1991 was correct and the second one was the result of social pressure put by the appellant on her through different quarters. She stated that she had encashed the certificate before one week of the accrual of the profit and had received only one profit of Rs. 7,500. The prosecution witness Mr. M. Younus Tanoli solemnly affirmed that he had audited the Centre and he had reported the defalcation of Rs.10,000. The appellant cross-examined him and put several questions on him to which he replied. The appellant did not point out any infirmity in the inquiry proceedings. As regards the cuttings on the certificate, it is admitted fact that originally in the issue journal the certificates were in the name of Dr. Khurshid Khatak but the appellant in his own handwriting had destroyed the original application and by tampering the record, kept a fake application purportedly in the name of Mst. Nasira Akhtar with the declaration that she was follower of Fiqah Jafaria. The application had the same number 2305 which was in the name of Dr. Khurshid Khatak and as such he misappropriated the Zakat money amounting to Rs. 2,500, and the profit amounting to Rs. 7,500 because he did not account for the proceeds of certificate the same day which had been encashed one week earlier. The appellant confessed his guilt and made good the loss of Rs. 10,000, and in these circumstances as well as on the basis of the findings of the Inquiry Officer, all the charges levelled against the appellant stand proved, and he was liable for appropriate punishment, which was rightly imposed on him by the competent authority.
23. The learned Member in paragraph 18 of the proposed judgment has held the appellant guilty of not deducting Zakat and attributed to him the charge of negligence and recommended modification of penalty to which I do not agree. In similar circumstances, the Tribunal in an appeal had converted the penalty of removal to stoppage of three increments with cumulative effect. The Hon'ble Supreme Court did not approve this. View of the Tribunal observing that admission of the accused civil servant and the charge being of misappropriation in a financial institution having been proved at regular inquiry, could not be taken lightly. The case is reported in 1990 SCMR 1214 and the relevant paragraphs of the judgment read as under:-- "2. It is to be noticed that in the charge-sheet allegations of misappropriation of funds were made against the respondent. In the course of the inquiry, the respondent admitted that he had used the money entrusted to him for his own purpose. Before the Tribunal he did not press the appeal on merits but merely asked for reduction of the penalty. It is, therefore, difficult to see how the learned Tribunal could convert findings of misappropriation into those of mere late posting of moneys in the relevant register. In its judgment it did not care to state why it had elected to ignore the admission of the respondents himself which he made before the Inquiry Officer. Clearly, on his own admission, the charges of misappropriation stood established and the findings of the learned Tribunal to the contrary cannot be supported.
3. The respondent was working in a financial institution and his duties included dealing with moneys entrusted to him by the public. A charge of misappropriation, even though for a short duration, against a person working in a post that the respondent held, could not be taken lightly.
The department had, therefore, sufficient justification for removing him from service. The learned Tribunal should not have, therefore, interfered with the penalty awarded to him."
The above-cited case is relevant in this appeal.
24. Coming to the question of limitation, the impugned order in this case was passed on 20-9-1992.
The appellant challenged that order by making a departmental appeal on 17-10-1992 which remained not responded and as such this appeal was to be filed within 120 days and that period expired on 14-2-1993. The appellant filed this appeal on 18-2-1993 which is clearly time---barred. In the condonation application, the appellant has filed an affidavit of Mr. Khawaja Abdur Rashid, Advocate who referred the appellant to Mr. Shah Abdur Rashid, Advocate for filing this appeal.
According to the appellant, he came to Islamabad and on reaching General Bus Stand, Pir Wadhai, he fell ill and got medical treatment from the Federal Government Services Hospital, Islamabad and was recommended rest for one week, and on recovery he contacted Mr. Shah Abdur Rashid, Advocate. Even if we accept the affidavit filed by Khawaja Abdur Rashid, Advocate, appeal could be filed by the appellant himself or by any Advocate and the engagement of a lawyer was his responsibility at his risk and cost. Moreover, the medical certificate obtained from the Hospital does not inspire confidence because the appellant travelled all along from Abbottabad to Islamabad and then to Hospital from the Bus Stand. According to him, he was in a critical condition and there are so many hospitals adjacent to Bus Stand, as also the Hospital Complex, which was nearer than the F.G. Services Hospital. He by passing all these hospitals chose the Services Hospital where he got medical treatment from the Casualty as is evident from the certificate purportedly to have been issued by the Medical Officer. Therefore, it is all concocted and does not create or make out a case for condonation of delay. The Supreme Court in the case reported in 1982 SCMR 386 has held that in these circumstances, medical certificate obtained by the appellant cannot come to his rescue for condonation of delay. According to law, each and everyday of delay is to be explained for condonation of delay, and in this case the delay of four days remains plausibly explained and is not excusable, and the appeal is time-barred.
25. For the reasons recorded above, I dismiss the appeal on merits as well on point of limitation.
ORDER OF THE TRIBUNAL By virtue of proviso (c) to subsection (2) of section 3-A of the Service Tribunals Act, the judgment of the Tribunal shall be in the opinion of the Chairman and the appeal is accordingly dismissed.