' MRS. SYEDA TAHIRA SAFDAR (MEMBER-II).---The appellant being aggrieved of order made on 2-8- 1997, whereby he has been dismissed from service and recovery of Rs,4,69,894.50 has been ordered from him as arrears of land revenue, has preferred this appeal with prayer of setting aside of impugned order.
2. The brief facts of the case are that in May/June, 1991, while he was working as Cashier in Fatimah Jinnah General and Chest Hospital, Quetta, during course of audit it was pointed that excess payment and embezzlement of Government funds to the extent of Rs,17,15,000 had taken place, as per audit the same was happened due to lack of financial, administrative and internal control in the Department. It was also suggested that after inquiry liability be fixed and recovery be made.
Whereupon the Department held inquiry and held responsible Dr. Abdul Rehman, Ex-Medical Superintendent, Dr. Roohullah Qazi, Ex-Assistant Medical Superintendent, Dr. Rehmatullah Ex-R.M.O., Dr. Muhammad Ali Sillachi Ex-R.M.O., Zahur-ul-Haq Diet Incharge and the appellant (Haider Ali)
Cashier for the said alleged embezzlement. In consequence of the same charge-sheets were issued to all the above persons including him (the appellant). He denied the allegations/charges.
This inquiry was conducted by one Muhammad Younas Mandokhel, Chairman, Chief Minister's Inspection Team, who submitted his report, wherein several penalties were suggested to be imposed on them. Thus in view of the same the competent authority imposed penalty upon all the mentioned persons through order, dated 27-3-1995. Feeling aggrieved of the same all the said persons filed review petition, whereupon the Authorities while accepting the same, set aside the findings and fresh show-cause notices were issued. After completion of inquiry impugned order was passed, whereby, he (the appellant) was dismissed from services while recovery of pecuniary loss amounting to Rs,4,69,894.50 was also ordered as arrears of land revenue. As the impugned order was passed by the Chief Minister, therefore he preferred review petition, but no reply has been given. The appellant has prayed for setting aside of impugned order on grounds that the same is contrary to law and fact, no overt act has been attributed to him, nor proved against him.
Further in view of admission of said Diet Incharge Zahoorul Haq the liability fell on him (Zahoorul Haq) and dietary contractors, who later on deliberately tried to implicate him (the appellant) in the matters, without any corroboration of evidence. Furthermore, he has been charged with only negligence, not with embezzlement of money, as such charge was required to be amended. He (the appellant) was also not given opportunity to cross-examine said Zahoorul Haq. Moreover major penalty was imposed upon him without notice and impugned order is also discriminatory.
He has prayed for setting aside of impugned order.
3. The respondent in reply strongly contested the contention raised by the appellant. According to him the inquiry was conducted as per Rules, while penalty was also imposed per Rules. Further no discrimination has been made. The respondent has prayed for dismissal of the appeal, being without merits.
4. The perusal of the record reveals that in respect of alleged embezzlement of Government money initially inquiry was conducted against Dr. Abdur Rehman, Ex-Medical Superintendent, Dr. Roohullah Muhammad Qazi, Ex-Assistant Medical Superintendent, Dr. Rehmatullah Achkazai, ExR.M.O., Dr. Muhammad Ali Silachi Ex-R.M.O., Haji Makhamuddin/M. Rarique contractor, Nazar Muhammad Contractor, Zahoor-ul-Haq, Ex-Diet, Incharge of Kitchen, Ghulam Haider/Haider Ali ex-Cashier (the appellant). As per findings of Inquiry Committee said Zahoorul Haq Ex-Diet Incharge of Kitchen was declared to be the main accused for embezzelemnt of amount of Rs,17,34,000, While the mentioned contractors are his accomplices. While on the other hand Medical Superintendent, Assistant Medical Superintendent, R.M.Os. And Cashier were held negligent in performance of their duties, thus due to the same said embezzlement was committed as such they were also declared equally responsible for the embezzlement. It was suggested that action may be taken against all of them.
5. Thereafter through order, dated 23-12-1993 Muhammad Younas Khan Mandokhel, Chairman, Chief Minister's Inspection Team, Quetta was appointed as Enquiry Officer. He conducted the inquiry against Dr. Abdur Rehman, Dr. Roohullah Qazi, Dr. Rehmatullah, Dr. Muhammad Ali Sillachi, Ghulam Haider. On completion of the same, report was submitted, wherein it was again suggested that action uncle! E&D Rules be taken against all the said officials. Thereafter through order dated 14-3-1995 the Competent Authority imposed the penalties, whereby recovery of pecuniary loss was ordered to be recovered from Dr. Abdur Rehman, Zahoorul Haq, and Ghulam Haider (the appellant) while their further promotions were also withheld. While Dr. Roohullah Muhammad Qazi and Dr. Rehmatullah were warned to be careful in future and Dr. Muhammad Ali was exonerated. Feeling aggrieved of the same the appellant and other officials moved petitions for review. Whereby the said notification was set aside. Fresh show-cause notices were served upon said officials. After completion of formalities inquiry was again conducted, while the Inquiry Officer Muhammad Irfan Kazi submitted his report on 9-9-1996. Wherein he recommended that warning be issued to Dr. Abdur Rehman. While Haider Ali (the appellant) and Zahoorul Haq being guilty be compulsarily retired and recovery of alleged loss be made as arrears of land revenue from them. In view of the same, order dated 2-8-1997 was issued. Whereby Dr. Abdur Rehman, Dr. Roohullah Qazi and Dr. Rehmatullah were exonerated and warned to be careful in future. While Zahoorul Haq and Ghulam Haider (the appellant) are dismissed from service while recovery of loss is ordered to be made as arrears of land revenue. Dr. Muhammad Ali has been exonerated. The appellant being aggrieved of the same preferred review petition. No decision of the same is placed on record.
6. As per appellant he has been implicated in the commission of the offence only on solitary statement of said Zahoor-ul-Haq, the said confessional statement has not been corroborated by any other evidence, further he (the appellant) was not allowed to cross-examine him (Zahoorul Haq). It is apparent from record that in present case inquiry has been conducted twice, as mentioned above, while in both of them envolvement of the appellant was recorded, while punishment was awarded to him. On petitions for review in respect of the first inquiry report alongwith punishment recorded on basis of the same was set aside. Whereafter second inquiry was carried out. The first review petition filed by the appellant is present on record as Annexure F.
The perusal of the same reveals that no such ground has been taken by the appellant that he has not been provided any opportunity to cross-examine the witnesses or co-accused Zahoor-ul-Haq or any other person. It is also apparent from record that no fresh evidence has been recorded in second round of inquiry, rather monthly second enquiry based on evidence collected-in first round.
Thus in view of the same this plea is no* not available to the appellant nor he can take advantage of the same at this stage.
7. The appellant further raised contention that the impugned order is discriminatory against him as other officer charged with and found guilty of gross negligence have been exonerated, while he (the appellant) alone has been awarded penalty on similar charge and evidence. From perusal of the record it is apparent that the allegation levelled against the appellant being Cashier and doctors namely Abdur Rehman, Roohullah Muhammad Qazi, Rehmatullah and Muhammad Ali are of gross negligence and loose administrative control, due to which said embezzlement become possible and there being carried out. In both rounds of inquiry the Inquiry Officers held all the said four doctors alongwith Cashier (the appellant) responsible for the alleged embezzlement and suggested action to be taken against all of them. Despite the same the mentioned doctors were exonerated, only warnings are given to them, they are set free of the charge3 while only the Cashier (the E appellant) was punished on same charge, keeping in view the same evidence, It is absolutely discrimination. The order on the face of it is discriminatory. The perusal of the record further reveals that apart from confessional statement of said Zahoor-ul-Haq, there is clear circumstantial evidence against the appellant and other charged persons, which shows that all the said doctors including the appellant were negligent on their part in performance of their duties.
Thus they were equally liable for the same. As such only imposing penalty over one of them i,e, the appellant, on same set of evidence is absolutely illegal and unjust. The impugned order is discriminatory against the appellant thus also against the norms of-justice.
8. Though no further legal or factual defect has been pointed out by the appellant nor established by him, except the impugned order is discriminatory. Which is not good in the eye of law and justice. Keeping in view it is just and proper to allow the appeal, which is hereby accepted. The impugned order made on 2-8-1997 is hereby set aside as a whole. The case is remanded to the concerned department/authorities with direction to hold fresh inquiry against all the mentioned persons including the appellant, strictly in accordance with law, within a period of four months with intimation to this Tribunal.
9. No orders as to costs. File after completion be consigned to record. /Order accordingly.