1. ' ABDUL RASHEED MEMON (MEMBER-II).---The Appellant being aggrieved and dissatisfied with the order of dismissal from service, dated 16-9-1997 passed on his departmental appeal by SASO Board and conveyed by the Managing Director, SASO preferred this appeal with the following facts: ' That on 19-8-1989 the appellant was serving as District Agricultural Supply Officer, Jacobabad. The Bulk Depots at Thull were in the charge of the appellant and one Mr. Khushi Muhammad was incharge of the said Bulk Depots. The said Khushi Muhammad went to his village at Garhi Khairo to enjoy Eid Holidays on 12, 13 and 14th August, 1989 and 11th August, 1989 being Friday he left the office in the evening of 10th August, 1989. On 16-8-1989 the appellant received telegram from above said Khushi Muhammad who has asked for extension in leave due to illness of his wife from 15th to 18th August, 1989 but it was turned down and he was informed accordingly to report for duty but the said Khushi Muhammad did not join and requested for further leave. On 19th August, 1989 the appellant visited Thull and found Khushi Muhammad absent from duty. However, he went to SASO godowns at Dilmurad Sarki and Bashir Ahmed Soomro which were in the charge of Khushi Muhammad and found the locks of godowns missing and in inspection found no stocks therein.
2. However, rest of the godowns were locked and could not be inspected. After his visit, he returned to Headquarters and took the following steps:--
(i) Made detailed report to Deputy Director, SASO Sukkur vide his Letter No,SASO DASO/JCB/PF/1316- 18, dated 28-8-1989.
(ii) Issued an Office Order appointing various Palladars/Chowkidars to man various godowns of Sub-Bulk Depot, Thull vide Letter No,DASO/JCB/ESTT:1309-15, dated 20-8-1989.
(iii) Proceeded to Larkana, where the above said Khushi Muhammad Leghari, had claimed to have gone for treatment of his wife, and contacted Doctors of Civil Hospital as well as Shaikh Zaid Hospital at Larkana, but neither Khushi Muhammad Leghari was there or his wife.
(iv) Personally contacted various commission agents of SASO at Jacobabad, who were reportedly supplied stocks by the said Khushi Muhammad Leghari, and stopped them from making further payments to Khushi Muhammad Leghari.
3. ' On the same date i,e,, 20-8-1989 Khushi Muhammad Laghari called, the appellant on telephone from Larkana who was informed by the appellant regarding the missing stocks and also directed to report for duty at once. However, no action was initiated by Deputy Director, SASO although the situation called for urgent measures. The appellant reported the matter to the Managing Director vide letter dated 26-8-1989 and at the same time sent letter to the Superintendent of Police, Jacobabad requesting him investigation in the matter but no action was initiated by the police.
4. However, the said Khushi Muhammad Laghari sent a telegram to S.P. Jacobabad from Thull on 21- 8-1989 and also sent similar telegram to the appellant claiming therein that locks of three godowns viz. Dilmurad Sirki, Lal Bux Kalhoro and Bashir Ahmed Soomro were broken and that 23, 192 bags of fertilizer of various categories were missing. The cost of these comes to Rs,39,17,691. That on verbal inquiry the said Khushi Muhammad Laghari informed that M/s Mashook Soomro, Shabbir Ahmed and Suhbat Laghari and others had disclosed to him that the stocks were lifted by M/s Ch. Asghar Ali and Manzoor Ahmed through trucks. On 29-8-1989 the said Khushi Muhammad Laghari lodged F.I.R., with Anti-Corruption Police, Jacobabad and narrated a different story that on his inquiry M/s. Suhbat, Shabbir Ahmed, Mashook and others disclosed that in his absence Hubdar Ali, SASO employee and others had lifted the stocks through trucks and shifted to other places and that on inquiry from Hubdar Ali, he was informed that District Agricultural Supply Officer, Jacbabad Muhammad Ali Mangi had deputed him for shifting of stocks for sale purposes to other places as Khushi Muhammad Laghari was on leave. In the meanwhile on 28-8-1989 Deputy Director, Sukkur Abdul Hameed Shaikh reported the matter to Circle Office Anti-Corruption Jacobabad vide his letter of the same date. However, the said letter did not contain a single word against the conduct of the appellant. That on 30-8-1989 an Inquiry Board consisting of M/s. Mehmood Ahmed, Director Finance and Mr. M.S. Hingorjo assembled at Sukkur and examined certain persons including appellant and submitted their report to the higher authorities. Another fact finding inquiry was conducted by Mr. Saeed Ahmed Laghari but it mainly relied upon investigation carried out by Anti- Corruption Establishment and unspecified sources but did not record the evidence of the appellant nor anybody else in his presence and by that time the appellant was not served by any letter or show-cause notice. However, on the strength of both these inquiries respondent No,2 issued show- cause notice dated 14-1-1990 to the appellant wherein it was stated that in view of inquiry reports the appellant alongwith others were found responsible for the defalcation as shown in the said show-cause notice and were directed to submit their replies to the show-cause notice. The appellant submitted reply to the show-cause notice and denied the allegations and pleaded his innocence. He was, however, suspended from service which was continued to his dismissal from service. The appellant further states that he has specifically denied the allegations but even then no domestic inquiry was ordered to be conducted into the allegations contained in the show- cause notice dated 14-1-1990 and straightaway the appellant was served with final show-cause notice, dated 25-5-1991 and that the penalty proposed was dismissal from service alongwith recovery of pecuniary losses sustained by SASO. The appellant submitted his reply wherein he denied the allegations, however, to his surprise he was dismissed from service illegally, arbitrarily and without affording an opportunity of defence vide order dated 26-5-1994.
5. ' The appellant being aggrieved by the order of dismissal from service submitted departmental appeal on 27-5-1994 which was rejected vide order dated 18-8-1994. The appellant being aggrieved by the order of dismissal filed an Appeal No,101 of 1995 before this Tribunal. However, during the pendency of this appeal he was reinstated in service vide order dated 13-10.1996 by the Chairman SASO who was competent authority and hence appellant through his own motion withdrew his appeal which was dismissed as withdrawn vide order dated 18-11-1996. After reinstatement he was paid salaries and was attached with Deputy. Director' SASO, Sukkur where he continued till 16-9-1997 when he was again dismissed from service by SASO Board after considering his appeal which was rejected, which gave a fresh cause of action to the appellant whereupo the was filed the present appeal on the grounds narrated theirin.
6. ' He has prayed that the action of his dismissal which was illegal and without lawful authority may be declared as of no legal effect and order his reinstatement in service with all back benefits and continuity of service and the order dated 26-5-1994 may also be set aside.
7. ' The appellant vide his statement dated 1-4-1998 supplied a copy of judgment in Criminal Case No,203 of 1989 passed by the Special Judge Anti-Corruption, Larkana dated 15-1-1998. This order was passed by the said Court on a motion by the appellant Muhammad Ali seeking his acquittal under section 249-A. Since no evidence had been produced against the appellant in the said case he was acquitted of the charge and was thus, allowed to go scot free. The respondents i,e, Managing Director, SASO in his written statement raised preliminary objections about maintainability of the said appeal and accepted various steps narrated by the appellant in his appeal. He has, however, stated that while his posting as District Agricultural Supply Officer, Jacobabad the appellant was duty bound to safeguard the Government stocks and property which was under his jurisdiction. Being. District Agricultural Supply Officer, he had the powers to appoint subordinate officials and thus, posting of Khushi Muhammad Laghari as Incharge Sub-Bulk Depot, was on his own discretion. It has been further stated that the appellant had concealed the true facts of the case and that, in fact, the appellant was in the knowledge of unauthorized illegal sale of fertilizer to various Commission Agents of SASO at Jacobabad and due to the said information the appellant immediately contacted the said Commission Agents to stop payments to Khushi Muhammad Leghari. The appellant failed to deposit any money recovered from Commission Agents of. Jacobabad in the absence of Khushi Muhammad Laghari and that he took advantage of his posting as District Agricultural Supply Officer and in the absence of Khushi Muhammad Laghari the appellant is responsible for misappropriation. They have held appellant responsible for not reporting the matter at Police Station Jacobabad which was his responsibility.
8. As far Enquiry Board headed by Mr. Mehmood Ahmed and Mr. M.S. Hingorjo are concerned, they had interrogated the appellant and others held responsible for Government property and that it found them fully involved. That they have taken action against the appellant as per Sindh Civil Servant Act, 1973 as adopted by the SASO and there was no violation of the mandatory provisions of law. The reply to show-cause notice furnished by the appellant was not found satisfactory.
9. Enquiry had already been conducted and the appellant was found guilty.
10. ' Since preliminary Enquiry had been conducted, no further enquiry was found necessary, and therefore, show-cause notice was issued to the appellant but his reply had been unsatisfactory.
11. With the approval of the Authority final show-cause notice was served upon the appellant under the rules and the penalty proposed was dismissal from service alongwith recovery of pecuniary losses sustained by SASO. Again the reply of appellant to the final show-cause notice was considered with relevant record and evidence and found not satisfactory. Thus, major penalty of dismissal from service had been imposed upon him. He was provided full opportunity of defence including personal hearing, therefore, the allegations that he was not heard in person or was not given opportunity of explaining his position is incorrect. That his departmental appeal preferred to the Minister Agriculture/Chairman, SASO was considered and rejected. However, he had been reinstated in service vide order dated 13-10-1996, with the condition that his case will be placed before the next SASO Board meeting for confirmation/approval and accordingly the said matter was placed before the SASO Board in its 70th Meeting held on 15-9-1997. After due consideration the case of appellant was not approved. The compliance with the decision of the Board, he was informed accordingly vide letter dated 16-9-1997. It has been contested that with the approval of competent authority the appellant was challaned before the Court of Special Judge, Anti- Corruption, Larkana where he was proceeded, however, he was acquitted under section 249-A.
12. However, the Government had filed an acquittal appeal against the said order in the High Court of Sindh Circuit Bench, Larkana which was heard on 4-9-1998 and it was observed by the Court that the said appeal was improperly constituted, incompetently filed and highly misconceived, hence was dismissed in limine.
13. ' Keeping in view the above background the Tribunal heard the arguments of the Advocate of the appellant and also that of respondents.
14. ' The Advocate of the appellant while arguing the case submitted that actually it was the case that Khushi Muhammad Laghari was the main culprit who was Incharge of these godowns and that defalcation was not committed by the appellant. Hence his order of dismissal being void and issued by non-competent authority cannot be held good in view of PLD 1983 Peshawar page 140.
15. The malice of the opponents had also been alleged as there had been no defalcation as, far as appellant was concerned. For this he cited 1987 PLC (C.S.) page 522. He also assailed the punishment as too harsh in view of the fact that no enquiry was held which was must in this case: Besides, no personal hearing was afforded by the authority i,e, Chairman in view of following decisions of the Superior Courts:--
1. 1993 SCMR page 1440.
2. 1997 SCMR page 1543.
16. ' That the departmental appeal of the appellant dated 27-6-1994 was turned down on 18-8-1994 which was illegal as the same had not been acted upon by the Appellate Authority and should have been submitted to the proper authority as laid down in 1998 SCMR page 137/167. The earlier petition was withdrawn by the appellant as he was reinstated and was paid the dues for the entire period. Therefore, he had withdrawn the appeal but was again dismissed on the same grounds on 16-9-1997 without issuance of show-cause notice, therefore, the order was void and passed by incompetent authority, as laid down in the following rulings:
1. PLD 1969 SC page 407.
2. 1997 SCMR page 15.
17. ' The contention of the respondents was assailed by the Advocate of the appellant as being coram non judice, affected by locus poententiae; therefore, no limitation would be laid down in challenging the orders as laid down in 1996 SCMR page 856. The question of connivance held in this case had not been proved and equal punishment accorded to the appellant was harsh. He, therefore, pleaded that for the above reasons the appellant may be ordered to be reinstated in service with full back benefits.
18. ' Mr. Muhammad Moosa Laghari, Advocate of SASO assailed the petition that prior to filing of this appeal no departmental appeal had been filed. The order of his reinstatement was subject to the decision by the SASO Board which did not confirm his reinstatement and the appeal filed by him and rejected the same. That the earlier appeal was withdrawn by the appellant after being satisfied with his reinstatement and that it did not allow him to file a fresh appeal again on the same issue. He claimed that the Competent Authorities as laid down by the SASO Act, 1973 were as under:--
(a) Board
(b) Chairman
(c) Government
(d) Member/M.D.
19. ' Besides the Board was the Supreme Authority in all SASO matters under section 5; thus, the order passed by the Minister and Chairman SASO in reinstating him was illegal, hence not valid under 1999 SCMR page 2883/2888 and PLD 1992 (C.S.) page 207. Besides, no procedural rights were created by legal act under 1989 PLC (C.S.) page 622. Therefore, the matter was placed before the SASO Board which did not approve of action of the Minister as the charge of defalcation had been proved beyond any doubt and that six persons were challaned before the Anti-Corruption Courts and the matter remained pending in the Court but only one witness was examined during that period and the accused (appellant) got himself acquitted under section 249-A which does not amount to his honourable acquittal. Besides a full-fledged enquiry was conducted and it had afforded opportunity to the appellant to prove his innocence which he failed to do. He was also heard in person, therefore, there was no question of any violation of the procedure under which the appellant was proceeded and the major penalty of dismissal and recovery of pecuniary losses was imposed upon him with the approval of the Competent Authority.
20. ' From the facts as brought on the record of this Tribunal and the citations of the Courts as brought on record by both the sides, we have to see, whether there was any illegality or irregularity in the departmental proceedings. As the fact of defalcation stood proved against the appellant and there had been no violation of the rules in conduct of the enquiry or subsequent action of his dismissal with recovery of pecuniary losses were also under the rules because the appellant was Incharge of those godowns and appointment of Khushi Muhammad Laghari as incharge was his own discretion i,e, appellant's. Besides the Khushi Muhammad's statement that the stores were removed on the instructions of the appellant and sold to the local traders at Jacobabad had also been proved by the appellant's own statement when he directed the Sales Agents not to make any payment to Khushi Muhammad on account of the stores supplied to them. The procedure adopted was the same as laid down by the Government under (E&D) Rules as adopted by the SASO and the authorities who proceeded against him were competent under the said rules. Besides his acquittal under section 249-A, Cr.P.C. Has no bearing on the present matter as this relates to the departmental proceedings which a department is not debarred from taking. Consequently the appeal is dismissed with no order as to costs.
21. ' Given under our hands and the Seal of the Tribunal this 26th day of May, 2000 at Karachi.