' AKBAR M. MEMON (MEMBER).---The appellant hereinabove has challenged the Order No,513, dated 29-5- 1999 whereby major penalty of dismissal from service was imposed upon him. The impugned order reads as under:-- "After taking into consideration the charge-sheet served upon Mr. M. Nasim Akber, Manager (Pension), HBFC Head Office, Karachi, under No,(05-237) (PSD/CC/98/490, dated 10-10-1998 and his reply dated 16-1-1999, to the charge-sheet Headings of the Inquiry Committee dated 5-4-1999, his reply dated 28-4-1999 the show-cause notice for provision conclusion dated 14-4-1999, and personal hearing by the Authorized Officer, the Managing Director, HBFC being the Authority in the case has found Mr. Muhammad Nasim Akber, Manager (Pension), HBFC Head Office, Karachi, guilty of misconduct and imposed upon him the major penalty of 'dismissal from service' under Rule 4(1)(b)(iv) of the Government Servants (E&D) Rules, 1973 with immediate effect."
2. Mr. Niaz A. Khan, learned counsel for the appellant has contended that the appellant was initially appointed as LDC in the Zonal Office, Karachi on 1-6-1967 and by sheer dint of his hard work and efficient performance he earned promotions from time to time and finally promoted as Manager. While working a Manager (Pension), Head Office, Karachi, his explanation was called for on 27-5-1998, wherein he was informed that the Inspection Team of Operation Division, Head Office, Karachi, had carried out preliminary investigation and - site inspection of the cases where the appellant had carried site inspection in 43 cases where he had made, false/inflated inspection reports and in 7 cases, it was found by the Inspection Team that plots involved therein (7 plots) were lying open whereas in 36 cases construction was not found at the stage which could qualify for the release of instalment and that the credit worthless report was also false. This, according to the respondent-Corporation was an act of misconduct and the appellant was required to submit his explanation. Reply was submitted on which the appellant was charge-sheeted on 10-10-1998 and such statement of allegations was annexed thereto. The said charge-sheet was replied whereafter inquiry was ordered and the Inquiry Committee conducted the inquiry. Mr. Khan has further contended that the Inquiry Committee proceeded with the inquiry, which was ordered on the basis of news items, which had appeared in the year 1989 and the findings were to the effect that some facts of removal of building material had come to lime-light long back but no action in this regard was initiated till State Bank of Pakistan Audit Team called for the report from the HBFC. At the same time neither GM (OPS) nor the FD (OPS) submitted any super inspection report of the Zonal Head as required under paras. 132 and 133 of HBFC Manual of Office Procedure, 1984. The Committee was of the view that the authorities concerned be blamed for their negligence if not connivance, for what was happening in District Nawabshah. Since no number of plots were shown in the statement of allegation, as such refusal of the accused official about the correctness of the credit worthiness could not be contradicted by the prosecutor. At the same time, it was observed that actual loanees were not examined by the either side, whereafter, committee observed that appellant was only guilty to the extent of one open plot about which false report was given by him that on site plinth was raised, etc. He has also contended that neither the appellant was given chance to go through the files nor was allowed to examine his defence witnesses, and even the Inquiry Committee had not taken into consideration the fact that loans were released in the year 1981 whereafter the inspection was carried out in 1998 knowing that certain culprits had demolished and removed the material therefrom, then too, the appellant was served with the show-cause notice which was replied and finally the impugned order was passed. He also contended that certain lines have been inserted after obtaining signatures of the appellant in the inquiry proceedings. He has contended that imposing of major penalty particularly in a case here out of 43 cases only charge in respect of one plot, according to the Inquiry Committee, was proved, knowing that only 22 cases were shown to the appellant whereas rest of the case files were not made available, then too, this sort of penalty has been imposed which is against the canons of law and the same appears to be too harsh. He has contended that the appeal of the appellant merits consideration and he deserves reinstatement. In support of his contention, he has placed reliance on PLD 1977 SC 24 and 2000 PLC (C.S.) 1053).
3. Mr. S.M. Salam Kazmi, learned counsel for the respondents has drawn our attention to the statement of the appellant before Inquiry Committee, where he had specifically stated that though he was supplied photo-copies of 22 cases by the Head Office, Karachi yet all the HBFC files were made available for scrutiny/examination on the basis of which he had prepared the defence. In such circumstances, he has contended that it is wrong to say that the documents were not shown to him or made available as he has been argued by the other side. He has contended that the inquiry was conducted on 19-3-1999 whereas the appellant at the time of filing the reply to second show-cause notice on 28-4-1999 had for the first time appended affidavit of M. Usmani Khashkeli though it appears to have been sworn on 18-3-1999 before the Oath Commissioner but neither it was produced before the Inquiry Committee nor any application was moved by the appellant, which shows that the introduction of this so-called partner or defence witness is afterthought. He has contended that, no doubt, preliminary investigations were in respect of 41 cases but the Inquiry Committee held that the present appellant guilty of one open plot, is not going to absolve him of the charge of misconduct because during the course of site inspection no broken pieces of bricks were found. In case it is said that the culprits had demolished the houses and had removed the building material in respect of houses which were complete in all respects or were complete up to roof level but in the instant case it is an admitted position that the plot in question was having plinth level then how the culprits could have removed the plinth, get support from the fact that in fact it was open plots. Thus, according to him, finding of the Inquiry Committee stands substantiated that no broken piece of brick was found, as such, it was open plot about which the appellant had stated that the borrower/partner had raised the construction up to plinth level was totally wrong.
4. After hearing the arguments of the learned counsel for the parties, we have gone through the appeal file and the material available therein. We have been able to get the benefit of authorities cited by the learned counsel for the appellant.
5. Admittedly the appellant was appointed as LDC in the respondent-Corporation in the year 1967 and due to his hard work he earned promotions and finally he was promoted as Manager. While working as District Manager, Nawabashah, he had recommended certain cases in his tenure till 1982. In the year 1989 certain news items appeared in Daily "Jang" and Daily "Ibrat" to the effect that some miscreants had demolished over 30 houses, which were raised after obtaining House Building loans from the respondent-Corporation. It was also in the papers that building material was subsequently sold out by the miscreants. His information was communicated to the high-ups of the Corporation but no action was taken. Subsequently on the inquiry of the State Bank of Pakistan, a report was made and such F.I.R. Was lodged against the miscreants. Thereafter, the inspection was conducted and in the year 1998, explanation of the appellant was called for in respect of 43 cases. Thereafter, he was charge-sheeted and inquiry was conducted. The Inquiry Committee has, no doubt, given its finding and it has rightly been argued that the appellant was held guilty in respect of only one plot for which, no doubt, the appellant has given explanation but the same is not acceptable as in case the construction was raised up to plinth level then the miscreants had no reason to have demolished it because no building material was involved excepting the bricks which were above the ground level. The Inspection Report shows that not a single piece of brick was lying there on the plot which suggests that the appellant had in fact given a false report. At the same time we are not convinced by the argument of the learned counsel for the appellant that some lines had been inserted after obtaining the signature of the accused/appellant by the Inquiry Committee as all such lines are within the border of the typed material and on the comparison there is no question of insertion at all.
6. We are conscious of the authorities cited by the learned counsel for the appellant but the fact of giving false report cannot be ignored and this falls within the definition of misconduct. If, however, we take into consideration the authorities cited by the learned counsel for the appellant about modification of penalty, then too, we cannot ignore the fact that the appellant has put in service of more than 32 years and in case he is awarded minor penalty or is blessed with the order of reinstatement, it will serve no purpose as he has already served the respondent-Corporation for sufficient long time. Accordingly we, while, accepting the appeal, modify the order of major penalty of dismissal from service to that of compulsory retirement from service from the date of impugned order enabling the appellant to get all his pensionary benefits.
7. With the above modification, the appeal stands allowed with no order as to costs. Parties be informed accordingly through registered post.