AFTAB AHMAD (MEMBER). ---Khalid Pervaiz Butt, the appellant joined Water and Power Development Authority (WAPDA) in January, 1975 as Junior Engineer. In August, 1981 he was promoted as Senior Engineer and in the same capacity was posted as Regional Store Manager, Area Electricity Board, Quetta, in May, 1984. On 23-1-1990, a charge-sheet was served on him for misappropriation in stores. The charge-sheet reads as under:-- "CHARGE-SHEET You, Mr. Khalid Pervaiz Butt, the then Stores Manager, Regional Stores (AEB), Quetta (now absconding), are hereby charge-sheeted as under on the basis of report of Enquiry Committee constituted by the Authority to probe into misappropriation in Regional Stores, Quetta: --
(1) During the period of posting as Stores Manager, Regional Stores, Quetta from January, 1985 to May, 1989, following deficiencies/surpluses were observed during physical verification carried out in June, 1989:--
(a) Deficient items, valued at Rs.2,274.
(b) Surplus items, valued at Rs.1,292,071.
(2) You failed to maintain the stores and record in accordance with Authority's instructions.
(3) You failed to take action on the recommendations of previous stock verification reports carried out by the teams of General Manager (P&IC) and Chief Auditor, WAPDA in 1987-88.
(4) You allowed the Storekeepers to issue the GRNs to the Manufacturers/Suppliers, without receiving the material, or after partial receipt, in contravention to authority's instructions.
(5) You issued GRNs to the Suppliers without signatures of Value Ledger Keeper and Stock Clerk.
(6) You did not ensure that corresponding entries are made on Stock/Ledger Cards after issuing GRNs/signing store requisition, in contravention to the instructions of Deputy General Manager (Finance Distribution).
(7) You issued 25 Transformers to various Line Superintendents without getting store requisitions in contravention to procedure laid down in Distribution Stores Manual. You also failed to maintain a transformer control register in contravention to instructions.
(8) You failed to arrange proper stock taking and handling over of material to the Storekeepers, when Mr. Zahid Ali Khan, Senior Storekeeper, absconded from duty in 1987.
(9) You failed to produce stock and value cards to the Committee constituted for physical verification of Stores when Mr. Zahid Ali Khan absconded from duty during 1987.
(10) You disobeyed orders/instructions of Authority and orders of your Senior Officers while performing your official duties.
(11) You have absented yourself from duty since 31-6-1989 except on 4/5 and 24/25th June, 1989.
If the above allegations are proved you will be guilty of 'misconduct' as defined in "The Pakistan WAPDA Employees (E&D) Rules, 1978". You are required to put in your defence within fourteen days from the receipt of this charge-sheet as to why one or more penalties and described in Rule 4
(ibid) should not be imposed upon you for the abovementioned acts of omission and commission.
Also state if you desire to be heard in person.
If no defence is received within the stipulated period of fourteen days, it will be presumed that you have no defence to offer and ex parte action will be taken against you.
Second copy of this charge-sheet duly acknowledged under your date signatures may be returned to this office as to token of having received the original Statement of allegations is attached herewith.
(Sd.)
(S.M. ARSHAD BOKHARI), GENERAL MANAGER (POWER) WAPDA, WAPDDA HOUSE, LAHORE. "
2. Statement of allegations was also provided to the appellant alongwith the charge-sheet which is also reproduced hereunder for reference:-- STATEMENT OF ALLEGATIONS Mr. Khalid Pervaiz Butt while posted as Stores Manager, Regional Stores (AEB), WAPDA, Quetta (now absconding) during the period from January, 1985 to May, 1989, committed the following irregularities which were observed during physical verification carried out in June, 1989.
(a) Deficient items, valued at Rs.2,690,274.
(b) Surplus items valued at Rs.1,292,071.
He failed to maintain the stores and record in accordance with Authority's instructions. He failed to take action on the recommendations of previous stock verification reports carried out by the terms of General Manager (P & TC) and Chief Auditor, WAPDA in 1987-88. He allowed the Storekeepers to issue the G.R.Ns. To the Manufacturers/Suppliers without receiving the material or after partial receipt, in contradictions to Authority instructions. He issued G.R.Ns. To the Suppliers without signatures of Value Ledger Keeper and Stock Clerk. He did not ensure that corresponding entries are made on Stock/Ledger Cards after issuing GRNs/signing store requisitions. In contravention to the instructions of Deputy General Manager (Finance) Distribution. He issued 25 Transformers to various Line Superintendents without getting store requisitions in contravention to procedure laid down in Distribution Stores Manual. He also failed to maintain a transformer control register in contradictions to instructions. He failed to arrange proper stock taking and handling over of material to the Storekeepers. When Mr. Zahid Ali Khan, Senior Storekeeper absconded from duty in 1987. He failed to produce stock and value cards to the Committee constituted for physical verification of stores when Mr. Zahid Ali Khan absconded from duty during 1987. He disobeyed orders/instructions of Authority and order of his senior officers while performing his official duties.
He has absented himself from duty since 31-5-1989 except on 4/5th and 24/25th June, 1989. He is held guilty of misconduct as defined in Rule 2(5) of the Pakistan WAPDA Employees (E&D) Rules, 1978.
(Sd.)
(S.M. ARSHAD BOKHARI), General Manager (Operation), WAPDA. WAPDA House, Lahore."
3. The appellant submitted a detailed reply to the charge-sheet refuting all the charges levelled against him. It was further submitted that the charges mentioned in the charge-sheet were vague and of general nature and that it was not possible for him to submit any reply to the allegations unless the charges were made clear by quoting specific reference to the particular transaction or documentations etc. An interim reply was, however, submitted by the appellant refuting the charges. Thereafter it appears that the appellant was examined by Mr. Khaliq Baig, C.E. Who had been appointed as Enquiry Officer in the case the statement of the appellant in question answer form was recorded by the Enquiry Officer on 14-3-1991 _ and thereafter the enquiry was adjourned with the following remarks note of the Enquiry Officer: "The interrogation is adjourned for recalling the accused on any subsequent date if need be."
(Sd. )
Enquiry Officer 14-3-1991. "
The record shows that a show-cause notice was then issued to the appellant in December, 1991 alongwith the copy of enquiry report. The reply to the show-cause notice by the appellant did not find favour with the Departmental Authority and the appellant was resultantly removed from service vide order dated 15-6-1994. The appeal filed by the appellant to the Departmental Authority was also rejected by order-dated 2-11-1994 and accordingly the present appeal was filed before the Tribunal on 14-11-1994.
4. The respondent-Authority filed objections inter alia submitting that the enquiry had been conducted in accordance with the rules and that the removal from service of the appellant vide order-dated 15-6-1994 was just and legal.
5. Mian Mehmood Hussain, Advocate appearing on behalf of the appellant at the hearing pleaded that there had been no enquiry in the case except the statement in question answer form of the appellant recorded by the Enquiry Officer on 14-3-1991 and that the Enquiry Officer had based his report mainly on the fact finding inquiry previously conducted by the GM(P&IC). It was argued that the fact-finding report could not be used against the appellant for penalizing him and that rule 6 of the Efficiency and Discipline Rules. 1973 required that after the issuance of the charge-sheet there should be an enquiry with issuance of the charge-sheet there should be an enquiry with which the accused official should be associated and allowed to cross-examine the witnesses adduced during the enquiry. It was pleaded that any procedure adopted in violation of the rules would vitiate the entire proceedings and the order passed therein.
6. The learned counsel for the appellant further submitted that the appellant was transferred from Regional Store to the Office of the Chairman, Area Electricity Board as Deputy Director (Transport) on 26-5-1989 and was asked to hand over the charge of huge stores forthwith. The appellant made a reference to the Chairman, A.E.B., WAPDA, Quetta that immediate transfer of the charge of the huge store of innumerate items especially when certain transactions were pending was not possible. The appellant accordingly requested through letters available on file to give sufficient the for proper handing and taking over of the charge of the stores. The Chairman, A.E.B. WAPDA, Quetta, however, did not pay any heed to the genuine request of the appellant and Mr. Hamid Hassan was made to assume charge of the stores on 31-5-1989 without any handing/taking over of the charge.
The counsel for the appellant submitted that since there had been no handing/taking over the appellant could not be held responsible for any shortage if any that were found during his absence. He further argued that in September/October, 1988 annual 100% stock verification of the regional store had been carried out by the GM (P & IC) wherein nil shortage was shown therefore the exorbitant shortages shown in May, 1989 during the absence of the appellant was unimaginable.
7. Mr. Fida Hussain, Advocate arguing the case on behalf of the respondent-Authority pleaded that the enquiry had been conducted in accordance with the rules and regulations of the Authority and that the penalty imposed on the appellant was justified and legal.
8. We have thoroughly examined the record and given our anxious thought to the arguments advanced by both the parties. The appellant is said to have been transferred from the seat of Regional Store Manager, WAPDA, Quetta on 25-5-1989 (it may be mentioned that neither the appellant nor the respondent-Authority has placed on record the transfer order of the appellant) and Mr. Hamid Hussain assumed the charge of Regional Stores on 31-5-1989 under the order of the Chief Engineer, A.E.B., Quetta. It is an admitted fact that there had been no handing/taking over of the charge of huge stores. It is on record that the appellant made serval written requests to the Chairman, A.E.B., Quetta to allow him few days to accomplish with some of the pending works before handing/taking over of the charge. It is, however, surprising that the appellant was not allowed few days' the as requested by him to complete the record before handing over the charge to his successor Mr. Hamid Hussan was made to assume charge without any handing/taking over.
If the department suspected any shortage or irregularity in the stores and wanted some other officer to take over from the appellant then it was rather necessary for the respondent-Authority to allow the to the appellant to complete his records and to arrange proper handing over of the charge to avoid any allegations by the appellant that there had been no handing over of the charge by the appellant to his successor and that shortages were noticed after the taking over of the new incumbent the appellant had been Regional Store Manager for over five years and it is not understood that why he was not given five few days' the and then to arrange proper handing/taking over. If the appellant had been given the to arrange proper handing/taking over of the charge then of course he could have been charge-sheeted for shortages or irregularities that might have been noticed at that the.
9. The charge-sheet served on the appellant on 23-1-1990 reproduced above shows that it was absolutely a vague charge-sheet it did not disclose or gave7'to the appellant sufficient knowledge of the charges to enable him to submit a proper reply thereto. Similarly the statement of allegations attached with the charge-sheet, is supposed to contain details of the incident to give the accused full background/details of the charges levelled against him. In this case, however, the statement of allegations which has also been reproduced in preceding paragraph shows that it was verbatim copy of the charge-sheet with the only difference that in the charge-sheet the charges were numbered whereas in the statement of allegation the charges were given in narrated form. The appellant had all-along been agitating to the authority that the charges contained in the charge-sheet were vague and of general nature and that it was not possible for him to give a reply to those allegations unless those were made clear by quoting specific references to the particular transaction or documentation. It, however, appears that no heed was paid to his submissions and the Inquiry Officer decided to proceed with the matter in his own way.
10. Now we come to the most important factor of the case i.e. The inquiry conducted by the Inquiry Officer. The record shows that the Inquiry Officer examined the appellant on 14-3-1991 in a questionnaire form and then adjourned the inquiry with the remarks that the interrogation is adjourned for recalling the accused on any subsequent date if need be. The record further shows that the accused officer was thereafter never called for any further inquiry nor was any witnesses were examined in his presence or any document/evidence checked/scrutinized in his presence and he was allowed to cross-examine or submit his comments on that document/evidence. The Inquiry Officer mainly based his report on the preliminary inquiry conducted by the General Manager (M&S) in August, 1989 and the examination of the record of the Regional Store. It is, however, an admitted fact that the preliminary inquiry conducted by the General Manager (M&S) was conducted at the back of the appellant who was never associated with it at any stage.
Similarly the record of the regional store was also examined in the absence of the appellant who was not given chance to explain any irregularity or deficiency that might have been noticed by the Inquiry Officer. It would thus be seen that no inquiry as contemplated by the E&D Rules, 1973 was conducted by the respondent-department and the material collected by the department during the preliminary inquiry conducted in August, 1989 before the issuance of charge-sheet in January, 1990 was utilised against the appellant to justify his removal from service Rule 6 of the Government Servants (E&D) Rules, 1973 requires that after framing the charge the Inquiry Committee or the Inquiry Officer as the case may be shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross---examine the witnesses against him. The record shows that the only inquiry conducted by the Inquiry Officer after the issuance of charge-sheet with which the appellant was associated was the interrogation of the accused/appellant himself in March, 1990. It has been held by the Hon'ble Supreme Court that inquiry proceedings conducted by way of questionnaires without examining the witnesses are of no legal effect and are inconsistent with the requirement of rule. In this respect we are fortified by the judgment of the Hon'able Court reported as 1993 SCM R 1440. It has also been held in a number of cases that fact finding inquiry conducted before the issuance of charge-sheet could only be utilized for taking disciplinary proceedings but could not form the basis for finding the appellant guilty of the charges.
11. For the reasons discussed above we feel that inquiry procedure adopted by the Department was not in accordance with the procedure as laid down by the law and that the appellant was not given adequate opportunity to defend himself. We, therefore, set aside the order of removal-dated 15-6-1994 and remand the case to the departmental authority to initiate fresh proceedings against the appellant in accordance with the law. If such fresh proceedings are not initiated and completed within next four months the appellant shall be deemed to have been reinstated in service with all back benefits.
12. No order as to costs.
13. Patties be informed.