' ROSHAN ALI MANGI (MEMBER).---The brief facts leading to this appeal are that the appellant Mr. Mahmood Ali was appointed in BPS-11 on 122-1978 in the Department of National Savings, later on promoted to BPS-16. While he was posted as Incharge, National Savings Officer in Centre VI, Multan, it was alleged that Mr. Muhammad Abdullah, N.S.O. (Inspection) paid a surprise visit to the Centre of the appellant on 9-1-1991 at 8-30 a.m. And asked him to get the cash checked with reference to the closing balance of 8-1-1991, but, he refused to do the same.
2. The appellant was charge-sheeted on 1-4-1991, to which he replied on 29-5-1991 denying the charges if at all he refused the Inspecting Officer to check the closing balance embracing cash and prize bonds. Thereafter, an enquiry was initiated against the appellant on 10-6-1991.
Accordingly the notices were issued to the prosecution witnesses and the appellant. All the witnesses were cross-examined by the appellant. Consequently the inquiry was completed and report submitted to the Authorised Officer.
3. On the basis of inquiry report, the Authorised Officer issued show-cause notice to the appellant on 24-8-1991, the same was replied by him. Being dissatisfied with the reply of the appellant, the Authorised Officer imposed upon him a minor penalty of "Censure" on 23-12-1991.
4. It is further stated that competent Authority disagreeing with the Authorised Officer on quantum of punishment, issued a fresh show-cause notice on 27-5-1992 to the appellant asking him as to why the major penalty might not be imposed upon him. The same was replied on 16-6-1992.
However, the appellant was awarded the major penalty of 'reduction to lower stage in the time scale' on 4-10-1992.
5. The appellant preferred departmental appeal against this impugned order which was rejected on 5-7-1995, and communicated to him on 11-7-1995. Hence this appeal.
6. The learned counsel for the appellant pleaded that impugned order itself was a negation of law, violative of Fundamental Rules, hence could not be sustained in the eyes of law. He further argued that the Inquiry Officer did not hold the appellant fully responsible for the alleged misconduct. The Authorised Officer after thoroughly examining the enquiry report, and hearing the appellant personally imposed upon him the minor penalty of "Censure", which otherwise, he pleaded was not in commensurate with the alleged guilt. However, the appellant accepted it with a view to keep harmony in the departmental hierarchy. However, the competent Authority imposed a major penalty on the appellant after exercising his "Revisional Powers" without any justification. He argued in this regard that if the competent Authority was not satisfied with the Authorised Officer's award of punishment to the appellant, then best course was to hold another regular inquiry to dig out the truth. However, he adopted the other course, which was in violation of the principles of natural justice. He pointed out at bar, that the second show-cause notice was issued to the appellant after the award of punishment of censure after about six months. And by that time, he pleaded, the punishment of Censure had attained its finality. Above all he argued that throughout his enquiry, the Inquiry Officer could not establish the mala fide intention of the appellant. If at all any lapse of appellant it was his negligence.
7. On the other hand, it has been contended, vide objections filed on behalf of the respondents, that appellant was proved involved in serious financial irregularities including the temporary misappropriation of Rs,50,000. The Inquiry Officer after examining oral/documentary evidence in support of charges held him guilty of charges Nos. 1 and 4 and partial guilty in charges Nos. 2 and
3. It is further contended that the appellant refused to show the prize bonds to the Inquiry Officer during the surprise check conducted on 1-9-1991 and had tampered with the record with mala fide intention to conceal the temporary misappropriation of the Government money of Rs,50,000. The appellant held in his possession a withdrawal slip of ZK Khas Deposit Account of an account holder which he used to cover up the shortage in cash. In addition he did not list prize bonds of Rs,50 denomination amounting to Rs,15,000 and did not show the value of 205 pieces of prize bonds of Rs,500 denomination in the Cash Book which were physically available in the chest.
8. After he was found guilty of inefficiency/misconduct he was imposed minor penalty of Censure.
However, his case was examined at the higher level i,e, at the level of Director-General who while exercising powers in terms of Rule 6-A awarded the appellant the major penalty of reduction in his rank keeping in view of magnitude of the crime. It has been vehemently argued in this regard that Inquiry Officer as well as the Authorised Officer had lost sight of the mala fide intention on the part of the appellant who kept the withdrawal slip unaccounted for in the Centre on 8-1-1991, particularly when the profit was due after two days. Moreover, the record was tampered with, by the appellant in order to conceal the shortage of cash of Rs,50,000 in the chest on 9-1-1991. It was also noted that the prize bonds of the shut period were neither listed nor reflected in the break-up of the cash balance.
9. We have heard both the sides and gone through the documents before us. The perusal of the inquiry report shows that appellant refused to show the cash to the Inspecting Officer. In this regard, the prosecution witness No, 1 observed that the Officer Incharge (appellant) was at fault as he did not show the cash to the Inspecting Officer. If there was no mala fide, there should have been no hesitation in presenting the cash and the cash book to Inspecting Officer. And we tend to subscribe to his view. The appellant instead tore the cash detail register. This state of affairs on his part, and as observed rightly by the witness, was objectionable. It would have been better if the Inspecting Officer would have been taken into confidence by the appellant about the payment and should have entered the withdrawal Slip No, 707442, dated 8-1-1991 on the same day in the ledger card and other relevant record in the next day.
10. During the cross-examination made by the appellant, the prosecution witness-I stated that Mr. Abdullah N.O.C. (Insp) had not checked the cash on 9-1-1991 nor he recorded any remarks on the cash book. He further clarified that according to the contention of Mr. Abdullah the cash was not checked due to cutting/alteration in the record in his presence.
11. The witness No, 2 also supported the fact that appellant refused to show the cash book and tore the details of cash recorded on the cash detail register, and also changed the closing balance of Rs,4,40,078.67 into Rs,3,90,078.67. Further, that the break-up of the closing balance was also not recorded in the cash book which was recorded in his presence and unlisted prize bonds of Rs,50 denomination worth Rs,15,000 were also reflected in the cash book. Rs,500 prize bonds Rs,1,02,500 were also not recorded in the break-up of the cash book.
12. It follows from the above statement that first allegation levelled against the appellant was proved. As regards the second allegation, that withdrawal slip No, 707442 was written and signed by the account-holder and the amount of Rs,50,000 was received by him after 2-00 p.m. On 8-1- 1991. As such it is established that the amount of Rs,50,000 was paid to the account-holder although it was irregular payment in terms of C.D.N.S. Islamabad Instructions No, 12/86 Annexure 'I' as the withdrawal slip was not accounted for in the books of the Centre on 8-1-1991 and was accounted for in the Journal and Cash Book as well as in the Ledger Card on the arrival of Mr. Muhammad Abdullah N.S.O. (Insp.) on 9-1-1991 at 8-30 a.m. After making cuttings in the Cash Books of the Centre. Had it accounted for in the Books on 8-1-1991, the appellant would not have made cuttings in the presence of Inspecting Officer and would have shown the Cash and Cash Book to Mr. Muhammad Abdullah, Inspecting Officer. Since the account-holder Mr. Muhammad Siddique had confirmed the receipt of Rs,50,000 through withdrawal slip 707442, as such it does not amount misappropriation by the appellant, although it was an irregular payment. As such allegation No, 2 was partially proved.
13. The third charge emanated from the second charge, and dealt with intention to cover-up the shortage of Rs,50,000 due to at withdrawal at 2-00 clock, and accounting for it on 8-1-1991. The appellant showed payment of Rs,50,000 in the relevant Ledger Card, Payment Journal and Cash Book dated 8-1-1991. The total payment of Khass Deposit Account on 8-1-1991 was written Rs,3,750 but the appellant changed the total as Rs,53,750. He crossed the closing balance Rs,4,40,078.67 on 8-1-1991 in the Cash Book and wrote the closing balance as Rs,3,90,078.67.
14. As such charge No, III was partially proved to the extent that the appellant in order to accommodate the client made payment of Rs,50,000 through withdrawal slip No, 707442 of K.D.
Account No, 1077 and accounted for this transaction in the relevant books of the Centre on 9-1-1991 by changing the total payment journal of N.D. Account and also changed closing balance the cash book of 8-1-1991 from Rs,4,40,078.67 Rs,3,90,078.67. However, it has been clarified by the Inquiry Officer that mala fide intention of the appellant in that regard had not been proved.
15. As regards, the IV charge, as per departmental instructions, the bonds as and when uncashed should be entered into the list (in duplicate) showing the date of encashment, serial number and the value of the bonds and it should be closed on the last day of the month, and a copy of it must be deposited to the Joint Director, National Savings on the same day under registered cover. As per cash book 50 Rupee prize bonds worth Rs,15,000 have been shown in the breakup of the closing balance, but these bonds were not listed on 8-1-1991 as envisaged in the departmental instructions.
Since the appellant failed to enlist the prize bonds of Rs,15,000 on 8-1-1991 as such the charge IV is proved against the appellant but this did not involve any kind of financial loss to the Government.
16. Now coming to the V charge, it was pointed out that 8-1-1991 was sale period of Rs,500 prize bonds and the appellant sold out the prize bonds at the time of closing the books of the Centre, before writing. The cash book. Since the prize bonds were sold out during the sale period as such no irregularity/mala fide was established on the part of the appellant. Hence the charge No, V was not proved.
17. We have reviewed all the allegations levelled against the appellant and come to the conclusion that charge No, 1 is proved beyond doubt. It is not understood, as to why the appellant refused to show the Cash and Cash Books to the Inspecting Officer on his demand, since, the actual payment was made to the account-holder, however, being irregular under normal instructions of the Department, and there was no loss to the Government.
18. Although charge No, 2 has been proved partially but Inquiry Committee did not establish any mala fide intention of the appellant. Since he accommodated, the client; by making payment of Rs,50,000 at 2-00 p.m. When everything was closed and as such the payment was irregular as it was not accounted for in the books on 8-1-1991. The Government did not loose on any account because of this transaction.
19. The remaining charges were of procedural nature, and did not have any mala fide intention, although the appellant cannot be absolved from such lapse/negligence, but there was no big crime committed by the appellant. The minor penalty imposed by the Authorised Officer appears in accord with the magnitude of the guilt committed by the appellant on the ground of negligence.
However, modifying it into major penalty of reducing the appellant to lower grade in time scale does not appear justified in our opinion specially when no period of punishment as required under F.R. 29 has been specified. We consider such punishment as harsh one, and not in commensurate with the magnitude of guilt committed by the appellant. We, therefore, set aside the impugned order, awarding a major punishment to the appellant. We feel, the minor penalty imposed by the Authorised Officer is enough, keeping in view the negligence shown by the appellant.
20. With these observations we accept the appeal to the extent indicated above. There will be no order as to costs. Parties be informed.