' AKBAR M. MEMON (MEMBER).---Appellant hereinabove has challenged the order dated 20-7-2000, whereby he was awarded punishment of dismissal from service with immediate effect under the provisions of E&D Rules,- 1973. At the same time, recovery of Rs,6,92,969.66 was ordered to be effected from him and his period of suspension was treated as leave whatever due.
2. Mr. Sanaullah Noor Ghouri, learned counsel for the appellant has contended that the appellant was appointed as Clerk in the respondent-department on 21-3-1966 and right from the day of his appointment, he had no adverse entry in his record, meaning thereby, that his record remained unblemished, but unfortunately on 20-7-2000, an order was passed whereby he was dismissed from service. He has contended that disciplinary proceedings were initiated against him in the first instance, but the same were quashed from the initial stage due to change of statutory rules vide letter dated 7-11-1998, whereafter the appellant was again charge-sheeted on 12-11-1998. The appellant requested for supplying certain documents, but was declined, as such, the reply to the charge-sheet, which was offered by the appellant on 6-12-1999 was without any document.
However, the appellant had filed a copy of minutes dated 27-2-1996 wherein the former Postmaster General, Northern Sindh Circle, Hyderabad, Mr.. M. Ayaz Malik, had also participated and had disclosed that certain vouchers/bills/cash memos. Etc., were given by him to different Section Officers of Circle Office and subsequently he promised to sort out and to arrange regular sanction after holding meeting with the officers of the concerned Circle. He has contended that the appellant was served with show-cause notice dated 7-3-2000 alongwith inquiry report, which was replied on 16-3-2000 whereafter the impugned order was passed. He has contended that major penalty could not have been imposed till regular inquiry was held and since the inquiry was conducted in a summary manner, as such, impugned order was void in law. In support of his contentions, he has placed reliance on 1999 PLC (C.S.) 1332. He has contended that shorter procedure was adopted under rule 5 of E & ,D Rules and when allegation levelled against the appellant were of serious nature and the same were denied by him, then regular inquiry could not have been dispensed with. On this point, he has placed reliance on 1999 SCMR 1543. He has contended that the appellant was not fully associated in the inquiry and at the same time, he was not given a chance of personal hearing, as such, it can be said that the was condemned unheard and looking to the length of service, lenient view ought to have been taken. On this point, he has placed reliance on 1997 SCMR 1073, 2000 PLC (C.S.) 857, 1996 PLC (C.S.) 1 and 1986 PLC (C.S.) 419.
Referring to Serial No,85 of the ESTACODE, he has contended that impugned order was passed by an unprescribed authority as the authority in respect of Government servants in Grades-3 to 15 (Lower Division Clerk, Upper Division Clerk, Assistant, Stenographer and equivalent) was Secretary, and the authorized officer was the Joint Secretary, whereas the present order has been passed by the Chief Postmaster, Hyderabad, GPO, as such, the order itself is illegal. On this point, he has placed reliance on 1983 PLC (C.S.)
171. At the same time, he has contended that the inquiry was conducted in question and answer form, which is not provided under the rules. On this point, he has placed reliance on 2000 TD (Service) 361. He has further contended that the order of dismissal from service was passed by respondent No,2 without providing documentary evidence and without any iota of evidence against the appellant, which is in violation of the principles of natural justice. On this point, he has placed reliance on 2002 PLC (C.S.) 843. At the same time, he has contended that when the employee was dismissed from service, recovery could not have been effected. On this point, he has placed reliance on 1987 PLC (C.S.) 395. Referring to the inquiry report, pages 47 to 67, he has contended that Special Team comprising of Chief Postmaster and others detected shortage of Rs,6,92,969.66 on 6-2-1996 in absence of the appellant as the appellant had gone to Mirpurkhas to collect stamps and when he handed-over charge on 11-2-1996, the memo. Of handing/taking-over charge makes no mention of any shortage. At the same time, he has contended that the statement of Abdul Hameed was recorded by the Inquiry Officer and the said witness had not at all implicated the present appellant. He has also contended that nothing had come against the appellant in his statement and the Inquiry Officer had also not held him guilty of the charges. He has also contended that the Inquiry Officer had put the entire responsibility on the former Postmaster General, Northern Circle, who had himself accepted the responsibility of the amount detected by the Special Team to the tune of Rs,6,92,969.66 after going through the rough ' details in a meeting held on 27-2-1996, as such, it was the responsibility of the department to have made recovery from the said official, viz. The former Chief Postmaster. Lastly he has contended that looking to the length of service of the appellant, the impugned order be set aside and he be retired compulsorily or in the alternative the case be remanded back for de novo trial keeping in view the defects as pointed out by him in the inquiry.
3. Mr. Niaz A. Khan, standing counsel for the respondents, at the very outset, has contended that when no prejudice was caused to the appellant, supply of the inquiry report was not necessary.
Thereafter, he has referred to paragraphs 2 and 4 of the comments, which speak of the fact that the appellant fully participated in the inquiry and that during the course of inquiry no objection whatsoever was raised by him about the non-receipt of the documents, as such, the objection, which has now been raised during the course of arguments, is not tenable, as legally speaking the counsel for appellant while advancing arguments could not have raised certain points, which were not raised by him earlier. On this point, he has placed reliance on 2002 PLC (C.S.) 430. At the same time, he has contended that the appellant was associated with the inquiry, as such, the authority cited by Mr. Ghouri, counsel for appellant is not applicable in this case. He has also contended that the appellant was called twice, as such, he could not have raised objection that personal hearing was not granted to him. Similarly, he has contended that the appellant had ample chance to put up his defence, therefore, the plea that the inquiry was conducted in question and answer form could not have been raised at this stage. He has further contended that the documents prove his complicity in the act of misappropriation. He has lastly contended that considering the inquiry report, the question of punishment may be one of the grounds to grant him relief.
4. When Mr. Niaz A. Khan, concluded his arguments, a query was made by us pin-pointing the inquiry report where specific mention was made in respect of cash taken by Mr. Ayaz Malik, on which the D.R. Mr. M. Ehsan, Assistant Superintendent stated before us that case of Mr. Ayaz Malik is under investigation with NAB and this very amount is involved in the said investigation.
5. Mr. Ghouri, learned counsel for the appellant, in reply, has contended that when it has come on record that the appellant was denied of his lawful right to cross-examine the witnesses, the penalty imposed upon him was not liable to be sustained. In support of his contentions, he has placed reliance on 2002 SCMR 433.
6. After hearing the arguments advanced by counsel appearing for both the parties, we have gone through the entire appeal file and so also the authorities cited by the respective Advocates.
7. It is an admitted fact that special team had carried out special verification of Hyderabad GPO Treasury on 6-2-1996 where an amount of Rs,6,92,969.66 was found to be short. At the same time, an amount of Rs,1,42,393 was found to have been paid on paper chits without proper sanction of the competent Authority. Prize Bonds worth Rs,40,000 were kept as part of cash and finally that payment of medical bills was paid in excess to the extent of Rs,50,000 in cash instead of cheques.
This all was detected when the appellant was on out of station duty and had gone to Mirpurkhas to receive the stamps. On the said report of the Special Team, the appellant was charge-sheeted on 28-12-1996 in the first instance, which charge-sheet was quashed from the, initial stage due to change of statutory rules vide letter dated 7-11-1998. However, he was again charge sheeted on 12- 11-1998, which was replied on 6-12-1999 as the appellant was not provided certain documents. In the charge-sheet, he denied the allegations and had specifically stated that the entire amount of Rs,6,92,969.66 was taken away by Mr. Ayaz Malik in piece meal, during his incumbency as Deputy Postmaster General, Northern Sindh, Hyderabad. He has also filed a photo copy of the minutes of meeting held on 27-2-1996, which was attended by the said Mr. Ayaz Malik, and 4 other officials of the department alongwith the present appellant where the said Mr. Malik after consulting papers containing rough details had disclosed that several vochers/bills/cash memos. Were given by him to different Section Officers of the Circle Office. At the same time, he promised to sort out and arrange proper sanctions after holding meeting with the Circle Office. The said reply was not considered to be satisfactory and inquiry was ordered and Assistant Superintendent Post Office Kotri conducted the inquiry where he examined the witnesses, Messrs Israr Ahmed, Salahuddin, M.
Iqil, M. Iqbal, Abdul Hameed Khan and so also the present appellant. After concluding the inquiry, he submitted the report and on receipt of the report, the Deputy Chief Postmaster served show- cause notice upon the appellant on 7-3-2000, which was replied on. 16-3-2000 whereafter on 20- 7-2000 the impugned order was passed whereby the appellant was dismissed from service. At the same time, order of effecting recovery to the extent of Rs,6,92,969.66 was passed.
8. We have minutely gone through the report of the Inquiry Officer and it will be beneficial to reproduce a portion of the same, which reads:-- "I have gone through the memo. Of charges other relevant statements/papers and oral interrogation and have come to the opinion that the accused officials is not largely responsible for the shortage of huge amount as Rs,6,92,969.66 keeping paper chits amounting to Rs,1,42,393 payment of medical bills in excess as Rs,50,000 in cash instead of cheque are not appeared to be made by the accused official at his own level, cost and risks in presence of immediate supervisors/officers such a Sr. PM and CPM. The amount of shortage was taken by Mr. Malik Muhammad Ayaz the then PMG on different occasions evidently for official purposes. Their vouchers are stated to be available on PMG Office as yet. It is stated that Mr. Malik Muhammad Ayaz was hard and harsh towards subordinates who refused to obey his orders whether it was wrong. So, all his subordinates were dancing at his tunes that's why several officers have been made responsible under the same these charges and are proceeded under disciplinary actions so to my views, if any other body had been in place of the accused he would have done the same job.
However, keeping in view the departmental rules the accused official cannot be let out absolutely from the responsibilities.."
' At the same time, report shows that an amount of Rs,100,000 was deposited by the appellant and in this regard the Inquiry Officer had stated in his report that the appellant/accused Officials had stated that he was called by the then CPM and Senior Postmaster Treasury, Mr. Qasmi, and was asked him to deposit Rs,93,000 towards shortage, else, he will be handed over to FIA. When the accused officials had shown his inability then the amount was collected by granting GPF advances to various incumbents, namely, Israr Ahmed, M. Aqil, M. Iqbal, Salahuddin whereafter the appellant/accused officials was forced to put his signature on the application and then the amount of Rs,100,000 was deposited. All these clerks have stated that they were asked by the Chief Postmaster, Mr. Khatri to do so and that the amount so paid by them, which was drawn from their GPF Advances would be returned 40 them within one months. One witness, Abdul Hameed Khah, retired Tr. Had even gone to the extent that he had seen Malik Ayaz to be demanded money from the present appellant and in case of refusal Malik Ayaz used to abuse the appellant. At the same time, he has stated that Malik Ayaz was in habit of receiving money in his office or at some time he used to receive the medical bills in cash in the hospitals. Finally that an amount of Rs,100,000 was collectively deposited by the clerks at the instance of Chief Postmaster, Mr. Bashir Khatri.
9. After going through the inquiry report minutely and considering the portion of the inquiry report, which has been reproduced above, we are of the considered view that, no doubt, the amount under dispute was taken away by the then Chief Postmaster at various stages, but considering a single line mentioned in the Inquiry Report, where it has been stated that the present accused official was not largely responsible for the shortage, it can be construed that there was some negligence on the part of the appellant as he did not inform the high-ups about the payments obtained by the former Chief Postmaster. If at all he had worked under harassment, then too, he should have informed the high-ups about the payments, obtained by the officer concerned, but this was not done. In all fairness, the appellant was the custodian of the treasury and it was not his personal property so that he ,should have remained silent over the matter and at the same time, the former Chief Postmaster was not so powerful that he could have harassed such a petty official.
No doubt, there is extra-judicial confessional statement of the said former Chief Postmaster as is evident from the minutes of the meeting dated 27-2-1996, but when the payments were not regularized, it was the prime duty of the appellant to have informed the high-ups. Since this was not done, we, while keeping in mind the facts of the case, are of the considered view that the appellant had acted in a negligent manner, but the punishment, which has been imposed upon him, is rather too harsh looking to the length of service of the appellant. At the same time, considering the fact that the case of former Chief Postmaster is pending investigation before NAB Authorities, we are of the view that it is a fit case where the punishment be converted from that of "dismissal from service" to that of "compulsorily retirement" from the date of impugned order, i,e, 20-7-2000, which will meet the ends of justice. We are not in a position to agree with the arguments of Mr. Ghouri that the appellant was condemned unheard or that there was patent defect in the proceedings excepting the argument that the impugned order was passed by unprescribed authority, we intended to pass appropriate order in this regard, but since we have converted the punishment to that of compulsorily retirement, therefore, we refrain from making any further observation in this regard. At the same time, we consider that since the matter of recovery of Rs,6,92,969.66 is still under investigation with NAB Authorities against the former Chief Postmaster, therefore, the impugned order in respect of recovery of the said amount from the appellant is set aside. In case the amount is finally recovered from the former Chief Postmaster, then the amount, which was deposited by some clerks, by making a sort of contribution, be refunded to them.
10. With this modification, appeal stands allowed with no order as to costs. Parties concerned be informed accordingly.