' CH. HASAN NAWAZ (MEMBER).---While serving as Officer Incharge, National Savings Treasury, Gujranwala, the appellant was served with the following charge-sheet dated 28-1-1985 accompanied by a statement of allegations: "GOVERNMENT OF PAKISTAN REGIONAL DIRECTORATE OF NATIONAL SAVINGS ' No, DNS-AE-2(10)/84-95-97, Gujranwala the 28th January, 1985.
CHARGE-SHEET ' You, Mr. Muhammad Aftab Alam Sindhu, National Savings Officer, BPS-16, (under suspension) while posted as Officer Incharge, National Savings Treasury, Gujranwala, are charged as under:--
(i) embezzled a sum of Rs,1,11,500 (one lac eleven thousand and five hundred only) in the shape of 203 pieces of Prize Bonds of Rs,500 each including Prize Winning Bond No, A-036672 of draw No, 12 held on 4-7-1984 on which you cleverly received the prize money of Rs,10,000 through Mr. Abdul Majeed former Gunman of National Savings Treasury, Gujranwala.
(ii) kept deliberately in your custody the duplicate keys of iron safe unsealed whereas the same were to be sealed necessarily in accordance with the laid down procedure of National Savings Treasury.
(iii) got casual leave from 25-6-1984 to 28-6-1984 but attended office and did several transactions with bank and Centres and managed the said embezzlement during that particular period of leave.
(iv) did not observe the proper procedure while handing over and taking over the charge of National Savings treasury, Gujranwala at the time of proceeding on leave and on return from leave in order to deceive the Government by keeping flaws in the proper procedure of handing over and taking over the charge of Treasury.
(v) failed to prepare and submit to Zonal Inspection and Accounts Office and Regional Directorate of National Savings, Gujranwala the listing of prize bonds (T-10) according to the rules held in the Treasury as stock of closing balance at the close of sale period with the intention to embezzle anticipated prize winning bonds which you did subsequently.
(vi) altered the figures of listing of Rs,500 prize bonds which were under your custody.
(vii) recorded a fictitious certificate regarding the pages on cash book of National Savings Treasury, Gujranwala with a mala fide intention of committing fraud/embezzlement.
(viii) did not get reconciled the figures of remittances into Government Treasury, Gujranwala and withdrawal from Government Treasury, Gujranwala as required under the rules.
(ix) used Government vehicle on 27-6-1984 for clearance of Government cheque from District Accounts Office, Gujranwala and entry to this effect was made in log book/movement register of the vehicle with your own handwriting but later on you altered the entry by cutting/over writing with your own handwriting pretending that you were on leave whereas you visited National Savings Centre No, 1, Gujranwala and District Accounts Office, Gujranwala for/clearance of Government cheque.
(2) By reasons of above you are accused of misconduct/inefficiency and corruption and are thus liable to be proceeded against under Government Servants (Efficiency and Discipline) Rules, 1973.
(3) In pursuance sub-rule I(ii) of Rule 5 of Government Servants (Efficiency and Discipline) Rules, 1973 Mr. Munir Ahmad, Assistant Director (Inspection) BPS-17, Zonal Inspection and Accounts Office, National Savings, Gujranwala has been appointed to be the Enquiry Officer and to conduct proceedings against you.
(4) You are required to put in your written defence to the charge-sheet within 14 days of its receipt direct to the above Enquiry Officer under intimation to the undersigned stating as to why you should not be proceeded against under Government Servants (E&D) Rules, 1973 and why the major penalty of dismissal from service as provided therein should not be imposed upon you, failing which it shall be presumed that you have nothing to say and action against you will be processed ex parte.
(5) You should also state whether you would like to be heard in person.
(6) Statement of allegations is enclosed.
(Sd.) (SHAIKH ABDUL LATIF), Joint Director, Authorised Officer 27-1-1985."
2. The charge-sheet was served in the background of these facts: On 18-7-1984 when the Joint Director was on official tour to Gujrat, the Incharge of the National Savings Centre, Gujrat requested for provision of Rs,500 prize bonds for sale to the public. On this request, the Joint Director directed the appellant on telephone to make arrangement for supply of the prize bonds to the National Savings Centre, Gujrat. During checking in compliance, shortage of two hundred and three prize bonds was noticed. The shortage was accordingly brought to the notice of Joint Director through Office Note dated 22-7-1984 by the appellant and Abdur Rasheed Rashad Accounts Officer of the Treasury. By office order dated 26-7-1984 the Joint Director directed Mr. Munir Hussain, National Savings Officer to hold a preliminary fact finding inquiry into the matter.
3. In consequence of this preliminary inquiry, Mr. Munir Hussain came to the conclusion that the missing prize bonds of the value of Rs,1,01,500 included lucky prize bond No, 036672 which won a prize of Rs,10,000 and that the report of shortage made by the Officer Incharge of the Treasury (appellant) was not only of loss but amounted to embezzlement of Government money. He held the appellant liable for this embezzlement on the following grounds:
(a) Being an Officer Incharge, National Savings Treasury, Gujranwala he was fully responsible for the safe custody of cash and Prize Bonds etc. Under the Treasury Rules but he failed to do so.
(b) His statement regarding this incident and his plea that he was on leave from 24-6-1984 to 17-7- 1984 occasionally proved false as he was present on duty but in order to save his position and fix the responsibility of this shortage on other staff members he did not sign the cash book and other record on 25-6-1984 to 28-6-1984, 5-7-1984, 8-7-1984 to 10-7-1984, 12-7-1984 to 17-7-1984.
(c) The duplicate keys of iron chest are still lying unsealed which shows the negligence as well as mala fide intention of Ex.-Officer Incharge, National Savings Treasury.
(d) The. Ex-Officer Incharge Treasury has not adopted the proper procedure to hand over or take over the charge of National Savings Treasury, nor he maintained any record to this effect which shows that he has deliberately kept flaws which resulted Government loss.
(e) His false statement which has many contradictions about this incident is a proof of his guilty conscience and the statements and facts stated by the Ex-Accounts Officer, Treasury, Mr. Saif Ullah, U.D.C. And Gunmen of National Savings Treasury proves that Mr. Muhammad Aftab Alam Sindhu, Ex-Officer Incharge Treasury is the only man who is responsible for this Government loss."
4. It may also be mentioned as a material fact that Assistant Director, FIA, Lahore Circle registered a criminal case (FIR No, 61/89) against the appellant under section 409 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 on the complaint of Assistant Director (Headquarters) Regional Directorate of National Savings Centre, Gujranwala made through letter dated 30-7-1984. It may also be mentioned as an important fact that sometime during the preliminary inquiry, the appellant deposited Rs,70,050 in the accounts of the respondent agency and the remaining amount of Rs,41,500 is alleged to have been deposited by the staff members including Abdur Rasheed Rashad, Accounts Officer, Saif Ullah, UDC, Abdul Majeed Gunman and Munk Hussain, National Savings Officer Incharge of the preliminary inquiry. About the deposit made by the appellant, it is However alleged that he was made to make payment of the amount under "duress and coercion" and "on the explicit assurance of respondent 3 that it will be treated as security and in case of recovery from the real culprit the same will be refunded to the appellant".
5. As is evident from the charge-sheet dated 28-1-1985 that Mr. Munir Ahmad, Assistant Director (Inspection) Zonal Inspection and Accounts Office, National Savings Centre, Gujranwala was appointed as Inquiry Officer. The appellant filed an explanation in writing on 9-3-1985. With regard to first charge, the conclusion arrived at by the Inquiry Officer was that there was sufficient evidence to believe that the appellant had embezzled a sum of Rs,1,11,500. About Charges Nos. 2, 3, 4, 5, 6, 8 and 9, it was held by the Inquiry Officer, on the basis of material before him that they had been proved. His finding in respect of Charge No, 7 was that no irregularity had come to light and that the appellant was not guilty.
6.. After the Inquiry Officer's report, the appellant was served with final show-cause notice dated 19- 9-1985. He submitted an explanation in writing and was also given an opportunity of personal hearing by letter dated 21-10-1985 issued by the Joint Director. He was eventually dismissed from service by the competent Authority on charges of misconduct, inefficiency and corruption by order dated 17-12-1986. The appellant was informed of the rejection of his departmental appeal through letter dated 30-3-1988 which was received by him on 31-3-1988. He then came to the Tribunal on 30-4-1988 in appeal under section 4 of the Service Tribunal Act, 1973 praying that the order of dismissal from service dated 7-12-1986 and subsequent order of rejection of departmental appeal may be set aside with a direction that he may be reinstated in service with all consequential benefits.
7. The first ground in support of the prayer is that the inquiry conducted by the Inquiry Officer was a sham affair. The appellant's case is that he requested him to summon Abdul Qadir as a Court- witness because he "could identify the person responsible for misappropriation of prize bonds" but that he refused to examine him as a witness. It is alleged that Abdul Qadir was an important witness and that the Inquiry Officer's refusal to examine him was mala fide and against the rules of natural justice. But this allegation is factually incorrect, in that it is evident from the record that this Abdul Qadir was summoned and examined by the Inquiry Officer. He made a statement on 21-5- 1985 and was again examined on 22-5-1985. During the course of subsequent examination he said that he was not prepared to appear as a witness in defence of the appellant and that his statement made earlier on 21-5-1985 may be cancelled which appear to have accordingly been done. Whatever be the case, it is quite clear that the aforementioned Abdul Qadir was examined as a witness; that there is no truth in the allegation that the Inquiry Officer refused to summon him as a witness and that attribution of mala fide to the 'Inquiry Officer is absolutely baseless. I would rather say that the allegations made in the first ground are enough, apart from other circumstances, to prove the appellant's implication in the matter. Abdul Qadir, in accordance with appellant's own case was a star witness and his failure to support his case is a very important factor for determination of the question of his involvement.
8. The second ground is made up of the allegation that "the Inquiry Officer having contributed towards the shortage/loss of prize bonds valuing Rs,1,01,500 could not be appointed as Inquiry Officer." It is further alleged that Inquiry Officer "being a witness and a Judge in his own cause" could not be independent and impartial and that he conducted the inquiry proceedings with a view to implicate the appellant. These allegations are also absolutely false and frivolous. There is no truth whatsoever in the allegation that the Inquiry Officer made any contribution towards recovery of the loss caused to the respondents. To say nothing of the pleadings in defence, the appellant's case is falsified even by what he himself said in paragraphs 6 and 7 of the grounds of appeal. It was pleaded that by office order, dated 26-7-1984, Mr. Munir Hussain, National Savings Officer was asked to investigate the matter regarding shortage of prize bonds. In the last portion of paragrph 7 it was alleged that after Rs,70,050 had been deposited by the appellant, the remaining amount of Rs,41,500 was deposited by the staff members and Mr. Munir Hussain, Inquiry Officer.
There should have been no doubt about the fact that this contribution has clearly been attributed to Mr. Munir Hussain, National Savings Officer who held the preliminary inquiry. But the person who held regular inquiry was altogether different from the one who held the preliminary inquiry and who is alleged to have made contribution towards recovery of the loss. As already noticed in the facts, charge-sheet dated 28-1-1985 shows that regular inquiry was entrusted to Mr. Munir Ahmad, Assistant Director (Inspection) who was by no means the same as Mr. Munir Hussain, National Savings Officer. This being the correct factual position, the second ground is rendered baseless. I am inclined to say that the appellant appears to have made an attempt to cause a confusion about who made a contribution towards payment of the amount by taking advantage of the similarity in names of the persons who conducted the preliminary and regular inquiries. Under the circumstances he cannot be said to have come to us with clean hands, which was the basic requirement of granting favourable consideration to the case. His pleadings on the point amounted to an attempt to mislead the Tribunal to an incorrect conclusion and we think that this situation alone is enough to disentitle him to any relief.
9. It should be mentioned that basic flaws in his case were pointed out to his counsel during the course of arguments and while conceding that the allegations made in grounds (a) and (b) of the grounds of appeal were factually incorrect, he made a request to be allowed to submit an application for amendment of the appellant's pleadings. By amendment, he wanted to delete the allegation regarding the Inquiry Officer's failure to summon and examine Abdul Qadir as a witness.
The learned counsel contended that the name of Mr. Munir Hussain was wrongly mentioned in paragraph 7 of his pleadings and by amendment he wanted to replace Mr. Munir Hussain by Mr. Munir Ahmad. An opportunity to make an application for amendment was however declined by us on the assurance that this point will be dealt with in the judgment. What weighed with us during the course of arguments was that the circumstances did not make out a case for allowing amendment. The allegation that it was Mr. Munir Hussain, Inquiry Officer who contributed towards recovery of the amount, was obviously that of fact and the appellant could not be allowed to amend the pleadings and replace Mr. Munir Hussain by Mr. Munir Ahmad. The appellant's pleadings regarding Inquiry Officer's failure to summon and examine Abdul Qadir also constitutes an allegation of fact and he could not be allowed to take them away by amendment. In both the cases, the allegations being that of fact, the damage had been done and subsequent amendment even if allowed, would hardly have made any difference. They could not have removed the impression once caused that the appellant's pleadings were factually baseless and frivolous. They had given him the lie and no subsequent modification of the pleadings could improve the situation.
10. The other grounds do not deserve any detailed analysis. The appellant just seems to have said a few things in a vain attempt to give a colour of plausibility to his case. He said that the appointment of authorised officer was void and that the order of dismissal was not passed by the competent Authority. Nothing was however said to show that this in fact was the case. Then, there is an allegation that he was key sharer of chest with Abdur Rasheed Rashad, Accounts Officer and that initially both of them were held responsible for the alleged shortage; that the Inquiry Committee and the competent Authority ignored this aspect of the case with mala fide intention.
We fail to understand as to what purpose was to be served by these allegations. They evidently do not promote the appellant's case and the allegations hardly contain any substance. Even if we concede that Abdur Rasheed Rashad was incharge of the other key, the appellant's responsibility is by no means reduced as officer incharge as he was still responsible for safe custody of the bonds.
11. Ground (g) is based on these allegations, "it is well-settled that where keys of chest are shared by a number of incumbents, then responsibility cannot be fixed on one official without positive and definite proof. No doubt the appellant was overall incharge of the National Savings Treasury, yet the larger degree of responsibility cannot make him liable for alleged loss or shortage. The keys sharer are equally responsible for the loss or shortage". Here again, it is beyond our understanding as to how these pleadings promote the appellant's case. As already pointed out before, the fact that another person was equally responsible, would not derogate anything from the gravity of the offence committed by him, considering that he was incharge of the Treasury.
12. It is alleged that the respondents had not taken any action against Abdur Rasheed Rashad, Accounts Officer and Saifullah, UDC. But this again is factually incorrect. In letter dated 30-7-1984, a request for registration of a case of embezzlement of Government money was made not only against the appellant but also against Mr. Abdur Rasheed Rashad, Accounts Officer of the Treasury.
Then, it is also incorrect to say that no action was taken against Mr. Abdur Rasheed Rashad and Saifullah, in that, punishments were awarded against them, though lesser in gravity, in consequence of disciplinary proceedings. There was nothing legally wrong in coming to the conclusion, which appears to have been done by the departmental authority, that the offence committed by other two officials was not as grave; and in any case, the fact of imposition of lesser punishment in their case does not necessarily render the impugned order illegal.
13. What with the other material on record, the appellant's case is falsified even by his own pleadings which give us a clear impression that his conduct left everything to be desired. In paragraph 3 of the appeal he has stated that Abdur Rasheed Rashad was "the key sharer of the chest" with him. It is further 'stated that "since the appellant had to appear before the FIA Lahore for investigation of the case FIR No, 4 of 1984, he intermittently remained on leave from 24-1-1984 to 17- 7-1984". This "intermittently" remaining on leave seems to be rather intriguing. The pleadings ex facie suffer from inherent infirmity. This apart, it is quite clear that the appellant did not remain on leave for the whole of this period and that he, according to his own case, had occasionally been attending the office. This being so, he could not be absolved of the responsibility of shortage.
14. Then, he has stated in the same paragraph that during this period "he handed over his keys to Saif Ullah, UDC for smooth running of the respondent's Treasury". There is however no proof of the fact that he ever handed over his keys to Saif Ullah, UDC. Nor is there anything to show that there ever has been any handing over of the charge. In his explanation submitted on various occasions, the appellant appears to have taken different positions. In one of them he said that he sent his application for casual leave from home and it was for this reason that he could not hand over the charge to Saifullah. In other explanation he said that his circumstances did not permit him the opportunity to formally hand over the charge. These divergent statements also show that there is no substance in the appellant's case.
15. We might as well make a reference to the statement, again in paragraph 3 of the appeal that "it is relevant to add that in view of the closing of the fiscal year the appellant was required by respondent 3 to assist the staff during the aforesaid leave period after appearance before the Investigating Officer, FIA, Lahore." This statement, on its face, is also indicative of the falsehood of his case. It is clearly suggestive of the fact that he never remained on leave during this period and that he had all alone been attending the offence.
16. This fact is also proved by the appellant's statement made before the Investigating Officer which shows that matter of leave was only of sham affair and the purpose of this arrangement was to save him from arrest in another case against him registered by the FIA. It was made to appear as if he was on leave, but was allowed to work in the office. Under the circumstances, it is not possible to conclude that he actually remained on leave during the relevant period.
17. Last of all, the admitted fact of depositing a sum of Rs,70,050 by the appellant also deserves our notice. His case is that he deposited this amount under "duress and coercion" and on the explicit assurance of respondent 3 that it may be treated as security and in case of recovery from the real culprits the same will be refunded." There is, however, no evidence to show that any coercion was ever brought to bear upon him and that the deposit was the result of any such coercion or duress.
Nor is there anything to show that any assurance was held out to him by respondent 3 that this deposit will be treated as security and will be paid back to him in case of recovery from the real culprits. There is nothing on the record to serve as a basis for the finding that the deposit made by the appellant was the result of any coercion or assurance. There would, therefore, be every justification for believing that the deposit made by him constituted a circumstantial evidence to show his positive involvement in the matter.
18. For these reasons, we find that there is nothing wrong with the impugned order. The appeal is accordingly dismissed as being without any substance. There will be no order as to costs.
19. Parties to be informed.