' MUNAWAR AHMAD MIRZA, J.---These appeals by leave of the Court are directed against judgments/order (1), dated 21-9-1994 passed in Appeal No,86(K) of 1994 and (ii) dated 28-9-1994 passed in Appeal No,89(K) of 1994; by Federal Service Tribunal, Islamabad.
2. Facts briefly mentioned are that appellant on selection by the Federal Public Service Commission was appointed as Inspector (B-16) with effect from 28-2-1987 in Ministry of Defence, Rawalpindi.
Subsequently he was posted as Officer Incharge, Pakistan Naval Police, Dockyard, Karachi. During year 1992 certain acts of misconduct and fraudulent deals towards monthly salaries of Personnel and Administration Department were detected. Thus Board of Inquiry was constituted for making a probe into charges levelled against appellant Mirza Wahid Beg.
3. On the recommendation of Board of Inquiry appellant was served charge-sheet. Reply submitted by him, was not deemed satisfactory by the competent Authority. Consequently show- cause notice was issued to appellant, and after considering his explanation penalty for stoppage of increments for three years without future effect and besides recovery of Rs,12,000 (Rupees twelve thousand) was imposed vide order dated 30th September, 1992. Being aggrieved from said decision appellant had filed Service Appeal No,18(K) of 1993 before Federal Service Tribunal, which was allowed vide judgment dated 23rd September, 1993 thereby setting aside impugned order of department dated 30th September, 1992, on technical grounds with liberty of holding de novo proceedings requiring it to be finalised within three months.
4. After receiving above direction Inquiry Officer directed the appellant to appear before him firstly on 14-11-1993 and then 21st November, 1993. But appellant sought adjournment on health ground.
Inquiry Officer then vide letter dated 22-11-1993 warned the appellant that on his failure to participate, inquiry shall be conducted ex parte. Eventually on account of appellant's consistent absence Inquiry Officer finalized the proceedings and submitted a report.
' Authorized Officer by a letter dated 11th December, 1993 served the appellant with show-cause notice alongwith inquiry report. Detailed reply was submitted by the appellant on 18th December, 1993. Eventually competent authority vide letter dated 4th January, 1994 rejected the defence of appellant and upheld earlier order dated 30th September, 1992. After availing departmental remedy the appellant filed Appeal No,89(K) of 1994 before Federal Service Tribunal on 2nd June, 1994. This appeal was, however, dismissed on 28th September, 1994.
' Being dissatisfied appellant approached this Court by way of petition for leave to Appeal No,389-K of 1994, which came up for hearing alongwith C.P.L.A. No, 388-K of 1994.
5. It may be seen that during the pendency of above service appeal appellant was served with another charge-sheet, dated 16th February, 1993 alongwith statement of allegation, as under:-- CHARGE-SHEET "Mr. Mirza Wahid Beg, ' Officer Incharge P.N. Police, At P.N. Dockyard, Karachi.
Charge-Sheet -- Mr. Mirza Wahid Beg, Inspector OI/C PN Police (P No, 1A-324).
1. You are hereby charged for misconduct in terms of Government Servants (Efficiency and Discipline) Rules, 1973, on account of the following:--
(a) Misappropriation of Government funds regarding the salaries of PN Police personnel, mentioned in Annexure 'A' to the statement of allegation, who were not available to receive salaries due discharge/ removal from service by forging their signatures on the acquittance roll, for period from January, 1991 to April.
1991.
2. You are, therefore, called upon to explain as to why a suitable disciplinary action for the alleged offence should not be taken against you. Your written explanation should reach the undersigned within 7 days of receipt of this charge-sheet, failing which it will be presumed that you have nothing to say in your defence and ex parte action against you will be taken.
3. In case you wish to be heard in person you are required to state so in writing in your explanation to the charge-sheet. Statement of allegation is enclosed.
(Sd.)
Javed Iftikhar S.Bt.
Rear Admiral, (Authorised Officer).
" Encl: (Statement of Allegation).
STATEMENT OF ALLEGATION "1. Mr. Mirza Wahid Beg (P. No,1A-324) Inspector, OI/C PN Police was appointed as Pay Disbursing Officer during the period from 1st January, 1989 to 31st December, 1991, by the MPAD. He was accordingly required to disburse the pay and salaries to PN personnel, after necessary verification as required vide CSTM No,9 of 30 January, 1963 and CLTM No, 31/91, dated 14th July, 1991.
2. The monthly salaries of PN Police personnel were drawn from the Pay Section of Personnel and Administration Department by Mr. Mirza Wahid Beg of OI/C PN Police under his signatures for subsequent disbursement to the police personnel who were present to receive their pay. During the period from January, 1991 to April, 1991 when the Regulating Officer was not present at the main office, the salaries were disbursed by the 01/C himself. However, instead of returning the salaries of the PN Police personnel, mentioned in the Annexure ' A' to the statement of allegation, who were not present to receive their pay due discharge/removal from service, to MPAD Pay section, he misappropriated their salaries fraudulently, by forging their signatures on the acquaintance roll.
Afterwards he made a false report to MPAD (Pay Section on payment certificate that salaries have been paid to all the concerned persons, whereas, in fact the payment was not made to the individuals mentioned in the Annexure 'A' to this statement of allegation as they were not present and their salaries were fraudulently received by the OI/C himself. He has, therefore, misappropriated the Government funds entrusted to him for making payments/salaries to the legitimate PN Police personnel being pay disbursing officer. This on the part of Mr. Mirza Wahid Beg, OI/C/PN Police amounts to misconduct in terms of Government Servants (Efficiency and Discipline)
Rules, 1973, and he is charged for the same."
' Appellant submitted detailed reply on 3rd March, 1993 which is reproduced below:- "Through Proper Channel ' Subject: Reply to Charge-Sheet.
' Reference: A Charge-Sheet No,CL/L/0145/2/124, dated 16th February, 1993.
' Sir,
1. With due respects following is submitted in defence against charge levied against me vide charge-sheet under reference:
(a) The charge is refuted.
(b) That the charge-sheet is wholly malicious as the same has been raised/ prepared on the fabrications of a Committee in which one of my subordinate named Mr. Muhammad Sabir Gul, Sub-Inspector PN Police (P.No, 14723) has been a member. No subordinate can sit as member or President against his superior. This is an act of misbehavior with the law and the Senior Officer.
(c) That the Inquiry Committee has been appointed by the Commander Dockyard vide his Letter No, CY/019/123, dated 7-9-1992 against Mr. Khushhal Khan (P.No, 91603) Sub-Inspector PN Police.
The Commander Dockyard may be the Authorised Officer in case of his staff in Grades 1 to 10 only whereas I am an officer in Grade-16 for whom the Commander Logistics only has been the Authorised Officer who can appoint an Inquiry and obtain findings against me.
(d) That the Committee has found the Sub-Inspector concerned guilty of all charges levied against him but mysteriously named me also to be involved in the matter saying that I have shared four months' pay only. It is funny to say that I have taken only four months pay of PN Police Personnel whereas I could take full four years pay of those personnel had I any such dishonest mentality and intentions. Te) That I have been proceeded against and penalized by your honor against which a Service Appeal have been preferred in the Federal Service Tribunal at Karachi Camp Office.
2. In view of the above pointed out legal misbehavior, it is requested that the charge-sheet be kindly withdrawn and action be taken against those who have been named specifically by the Board of Inquiry conducted and concluded in March, 1992 who have so far been dealt with undue leniency and favouritism by your honor. I wish to be heard in person also.
' Submitted for early decision. Yours Obediently, Mirza Wahid Beg (P . No, 1A-324)
Officer-in-charge Police Pakistan Navy.
Dated: 3rd March, 1993."
6. The competent Authority found explanation/reply of appellant unsatisfactory and constituted Board of Inquiry comprising of (I) Cdr. Qadir flux (President), (I) Lt.-Cdr. Muhammad Ishaq and (iii)
Muhammad Amin. The Board had examined entire record, in the presence of appellant and on ,considering all aspects found him guilty. Eventually show cause notice dated 16th May, 1993 by providing summary of inquiry and findings of Board was served upon the petitioner, to which he submitted a detailed reply of representation on 5th June, 1993. Then personal hearing was afforded to appellant by intimating him through letter dated 14th June, 1993, reproduced below:-- "Mr. Mirza Wahid Beg, ' (P . No, 1A-324), Officer-in-charge, ' PN Police, at PN Dockyard, ' Karachi.
' Personal hearing under the Government Servants (Efficiency and Discipline) Rules, 1973.
' Reference: ' A. Show-Cause Notice No, CL/L/0145/2/339, dated 16 May, 1993.
1. On consideration of the written defense offered in your letter dated 5th June, 1993 show cause against the action proposed to be taken in regard to you as spelt out in reference ' A' above, it is proposed to impose on you one of the major penalties. You are hereby offered an opportunity of personal hearing before the undersigned.
' For this purpose, you are hereby advised, in your own interest, to appear before the aforesaid officer on 29 June, 1993 at 0900 hrs in COMLOG Office to offer your additional defence, if any during the said personal hearing.
(Sd.)
Javed Iftikhar S.Bt.
Rear Admiral."
' The appellant did not avail the opportunity and sought postponement on the ground of illness.
Appellant was again directed to appear for personal hearing on 17th August, 1993 but he again absented. Finally competent authority awarded punishment of removal from service by order dated 19th October, 1993; which reads:-- "Mirza Wahid Beg, (P.No,1A-324), Inspector of Police, PN Dockyard, Karachi.
' Removal from service - Mr. Mirza Wahid Beg, Inspector, PN Police (P.No, 1A324) (B-16).
' Reference: A. Show-Cause Notice No, CL/L/0145/2/339, dated 16th May, 1993.
B. Government Servants (Efficiency and Discipline) Rules, 1973.
C. I have examined the proceedings of Boards of Inquiry and recommendations of 'Authorised Officer'. The gravity of the offence committed by you amply justifies the imposition of the penalty of your 'Removal from Service'.
D. I, therefore, award you the penalty of 'Removal from Service' with effect from 1st November, 1993.
(Sd.)
Shamoon A. Khan HI(M), Rear Admiral, Deputy Chief of Naval Staff (Training & Personnel), (Authority)."
7. Appellant after removal from service had addressed a letter dated 2nd November, 1993 to Deputy Chief of Naval Staff for clarifying the position of "Authority" and "Next High Authority" in order to prefer appeal in terms of Civil Servants (Appeal) Rules, 1977. Department conveyed him the information vide letter dated 10th November, 1993 along with copy of Government Notification issued on 3rd June, 1976. The same are reproduced below for ready reference:- REPLY "CL/L/0145/2/946, Mirza Wahid, Beg, Ex. Inspector PNP, (P.No, IA-3124), C/O Mr. Anwar Saeed, House No,2.D-8/21, Nazimabad, Karachi.
Request to clarify the position of Authority and Next Honourable Authority above the Authority in order to prefer an appeal in terms of Civil Servants (Appeal) Rules, 1977.
' Reference: A. Your Application dated 2nd November, 1993.
' A copy of SRO 58(I)/76, dated 3rd June, 1976 indicating the "Authority" and "Authorised Officer" in respect of civilian employees working in Grade-16 is enclosed for your information.
(Sd.)
T.A. Javed TI(M)
Captain Pakistan Navy Chief Staff Officer."
NOTIFICATION "Government of Pakistan Ministry of Defence (Defence Division)
NOTIFICATION ' Rawalpindi, the 3rd June, 1976.S.R.O. 581/(1)/76.--The President is pleased to decide that following Officer shall be designated to exercise the powers of Authority/ Authorized Officer, under sub-rules
(2) and (3) of rule 2 of the Government Servants (Efficiency and Discipline) Rules, 1973, in respect of civilian employees, in Grade-16, paid from the Defence Estimates and employed in the Services Headquarters, Inter Services Organisations and D.M.L. & C., under the administrative control of the Defence Divisions Grades Authority Authorised Officer.
1 - ARMY (Less MES
16. a. Principal Staff Officer/ Engineer-in-Chief/Director Medical Services/Lieut.
General.a. Director concerned at GHQ/Deputy Director Medical Services (Colonel)/Brigadier/ Major- General) b. Principal Staff Officer.
(Major General)b. Commandant Staff College School of Infantry and Tactics/Pakistan Military Academy, (Brigadier/Major-- General)
MES
16. Engineer-in Chief, (Major-General) #TBE Director of Works and Chief Engineer (for staff employed in their Wings). (Brigadier/Chief Engineer). #TBS II-NAVY
16. Engineer-in Chief,.
(Major-General)Director ofWorks and Chief Engineer (for staff employed in their Wings). (Brigadier/ChiefEngineer).
III - PAKISTAN AIR FORCE.
16. Asstt. Chief of Air Staff (Admin). (Air Commodore).Director of Personnel Air HQ/Base Commanders of The Rank ofAir Commodore. (Group Captain/Air Commodore).
IV- MEDICAL DIRECTORATE AND INTER SERVICES MEDICAL UNITS.
16. Director Medical Services(Major General/Lieut. General.Deputy Director, Medical Services (Colonel/Brigadier Major General.
V - MILITARY LANDS 7 CANTONMENTS DEPARTMENT.
16. Director Mily, Lands and Cantonments.Addl: Director Mily., Lands and Cantonments.
(Min of Def. U.O. No,3/1/76/743/D-13 (Regs), dated the 3-61976).
(Sd. )
(Abdul Hayee)
Deputy Secretary, Government of Pakistan (To be published in the extraordinary gazette of Pakistan Part II){{TABLE TEXT}} ' To, ' The Manager, ' Printing Corporation of Pakistan, ISLAMABAD."
8. Appellant then filed departmental appeal on 28-11-1993 to Secretary. Ministry of Defence and Secretary Establishment, but same was returned vide letter dated 9th December, 1993, with remarks that it was not addressed to proper authority. Further representation was also made on the subject. Ultimately appellant addressed an appeal to Deputy Chief of Naval Staff on 22-1-1994, who informed him on 26-3-1994 that his appeal was being examined by 'Authority'. Without waiting any further, appellant challenged the order of his removal from service dated 19th October, 1993 before Federal Service Tribunal through Appeal No,86(K) of 1994 instituted on 19th May, 1994. The appeal was finally dismissed on 21st September, 1994, wherein all the objections were dealt with exhaustively. Operative portion is reproduced herein below:-- "6. We have considered the submissions of the parties and perused the record. Admittedly the appellant was working as Pay Disbursing Officer and was assigned the duties to disburse salaries to PN Police personnel during the period from January. 1989 to 31st December, 1991 under the orders of the Manager, Personnel and Administration, PN. For the period from January 1991 to April, 1991, monthly salaries of PN Police officials were drawn from Pay Section and disbursed to the staff under the signatures of the appellant and the salaries in respect of six police officials, who were discharged/ removed from service, were also drawn by the appellant who misappropriated the amount by forging their signatures on the pay bills and submitted a false certificate to the effect that payment had been made to the staff. The appellant denied the charge contending that Mr. Sabir Gul, Sub-Inspector had disbursed the pay for the months of February, 1991 to March, 1991 and for the remaining months record was not available and will be submitted later. Thereafter, the appellant challenged his stand but could not substantiate his statement through any documentary evidence. At the enquiry, Mr. Sabir Gul categorically stated that he was not the Regulating Officer and he never disbursed the salaries during the period under dispute. The appellant could not refute the statement of Mr. Sabir Gul. The fact is that appointment of Regulating Officer for the purpose of disbursement of salary is made in writing but in the case of Mr. Sabir Gul, there was no such order as to prove the allegation of the appellant against Mr. Sabir Gul.
It was the appellant himself who in fact disbursed the salaries to the staff. It is also admitted that Khushal Khan, Sub-Inspector, on return from his unauthorized absence/leave with effect from 7-1- 1991 to 3-3-1991 was not assigned the duties of Regulation Officer and this fact finds mention in the note recorded by the appellant in his own handwriting on the file. The applicant also solemnly affirmed that even after return of Mr. Khushal Khan from leave on 4-3-1991, the appellant had been disbursing the duties of the Regulating Officer till 6-4-1991 and thus it is also proved that he disbursed the salaries for the month of 3/1991. On a question that in spite of the fact that some pay bills from 1/1991 to 4/1991 had been stamped as "Not to be paid" but even then the appellant made the payment, he could not advance any plausible explanation and only submitted that the Regulating Officer did all this without his knowledge, whereas the fact is that he himself was the pay disbursing officer and the payment was made under his signatures. It is also a matter of record that the appellant had signed the entries of Clothing Recovery Register in respect of recoveries of kit items from the PN Police personnel, having been discharged/removed during 1988 to 1992, but in spite of this he made the payment in their names by forging their signatures. The record bears out that it was the appellant who disbursed the payment to persons who were no more in service of the department and by doing so he misappropriated the Government money fraudulently and as such committed gross misconduct. The charge against the appellant stood proved at fulfledged enquiry in which he participated and was given full opportunity of cross- examining the witnesses but could not prove his innocence. We have also observed that the appellant was repeatedly offered personal hearing which he did not avail on one pretext or the other. We see no legal infirmity in the proceedings taken against the appellant and the order passed by the competent authority of removal from service is unexceptionable, is in the case of corruption and misappropriation of Government money, the appropriate punishment should have been the dismissal from service, but the department taking a lenient view has inflicted on him the penalty of removal from service.
7. The appellant has taken the objection that the order of removal was not passed by the competent Authority. The respondents have placed on record a copy of Notification dated 3-6- 1976 where under the Deputy Chief of Naval Staff (Personnel) has been designated as authority in respect of Grade 16 Officers of Pakistan Navy but according to the subsequent Notification dated 10-3-1984, Assistant Chief of Naval Staff (Admn) has been designated as the Authority but since the order has been passed by the higher authority and not by any subordinate authority, we see no prejudice caused to the appellant particularly when the charges stand proved against him at a regular enquiry.
8. The merits of the case apart, the appeal also fails on the point of limitation. The impugned order in this case was passed on 19-10-1993 and under the rules he was supposed to file departmental appeal within thirty days and in case there was no reply, he had to wait for 90 days and then within thirty days he had to approach the Tribunal for remedy. In this case, the appellant started making applications seeking clarification from department as to who was the appellate authority in his case and exchanged lot of correspondence with the department and as such wasted time at his own risk and cost. The department vide letter dated 10-11-1993 with reference to his applications sent copy of the Notification of the Authority and Authorized Officer. The appellant being a Law graduate was supposed to be well conversant with the rules and there was no necessity of seeking clarification from the department. Under the rules, it was incumbent upon him to have preferred departmental appeal within the stipulated time of thirty days, which he failed to do. The representations and applications from time to time were merely an exercise in futility as the same could not enlarge the period of limitation. Furthermore, the reply sent by the department dated 26- 3-1994 is not a final reply as laid down under section 4 (1) of the Service Tribunals Act, 1973. Thus, the appeal filed on 19-5-1994 is hopelessly time-barred and there being no application for condonation of delay, it is liable to be dismissed on this score as well."
8-A. Appellant felt aggrieved from the above decision and filed petition for leave to Appeal No,388- K of 1994 which came up for hearing with other matter of appellant being C.P.L.A. No,389-K of 1994.
Leave was granted in both these petitions through common order dated 12th July, 1995. Operative portion of the observations is reproduced below:-- "7. The petitioner has appeared in person and contended that the second charge-sheet was nothing but repetition of the first charge-sheet which had been investigated and he was not held guilty of any offence except that he was found negligent in performance of his duties. The petitioner further contended that as the appeal against the order passed in respect of first charge was pending before the Tribunal, there was justification in issuing a second charge-sheet on the same facts and allegations. It was contended that the petitioner could not have been charged and penalized for the same charges twice. In respect of Petition No,389-K of 1994 it was contended that the Tribunal was not justified in maintaining the punishment which was not legal and proper taking into consideration the recommendation of the Board and the inquiry report and further that reliance placed on order of dismissal in the second case was illegal. Leave is granted in both the petitions to consider, inter alia, these questions,"
9. Appellant urged with great vehemence that Deputy Chief of Naval Staff who passed the order of his removal was not ' Authority' for taking action against him. To supplement his submissions reliance was placed by the appellant on Fleet Order C-6/84 Disciplinary Procedure for civilian employees issued by Naval Headquarters on 10th March, 1984.
10. Maulvi Anwaraul Haq, Deputy Attorney-General, has maintained that Government of Pakistan had designated' Authority' and ' Authorised Officer' by means of Notification dated 3-6-1976 for dealing with civil employees in the Defence Division (Pakistan Navy) as provided under the Government Servants (Efficiency and Discipline) Rules, 1973. Learned Deputy Attorney-General further contended that enquiry proceedings drawn and action taken against appellant were in consonance with law and rules. According to him serious improprieties and misconduct committed by appellant were duly established, therefore, impugned orders/judgments were rightly passed.
11. Firstly, it may be seen that Fleet Order was valid only upto 31-12-1988. Appellant frankly conceded that aforementioned 'fleet order' has not been extended thereafter. 'Appellant was removed from service by means of order dated 19-10-1993 reproduced in para 6 supra. Obviously the fleet order relied upon by the appellant for purposes of regulating his service or drawing disciplinary action against him being not enforce at the relevant time has no applicability. The appellant has not been able to point out any other rule or instructions which may support his stand. Perusal of Notification dated 3-6-1976, clearly discloses that Deputy Chief of Naval Staff (Personnel) was designated '
Authority' for the category of civilian employees relatable to appellant. The objection raised by the appellant about competency of ' Authority has no substance.
12. As regards merits, it may be seen that inquiry proceedings were conducted in accordance with prescribed procedure and ample material was available for connecting the appellant with charges levelled against him. The impugned judgments manifest that Federal Service Tribunal has thoroughly dealt with all aspects of the case, There is hardly any infirmity or legal defect which may warrant, inference.
' For the above reasons we find no substance in these appeals, which are consequently dismissed.