' ABDUL GHANI SHAIKH (CHAIRMAN).---Both these appeals involve common questions of facts and law, were heard together and are being decided through this consolidated judgment.
2. Both the appellants were employees of Karachi Water and Sewerage Board (hereinafter referred to as KW&SB). Appellant Anis Ahmed was Senior Clerk working as Despatch Clerk in the office of Managing Director, KW&SB, while appellant Zulfiqar Alam was working as Divisional Accountant.
They vide order dated 4-12-1999 under the orders of the Managing Director were placed under suspension. They were served with separate show-cause notice dated 11-12-1999 alleging therein that they had tempered the official documents with the intention of causing financial loss to KW&SB in the case of Messrs. Sajid Gul, Contractor relating to his claim of liabilities for the year, 1993-94. In their separate replies they vehemently denied the allegations. An enquiry was conducted in the matter by the Director, Finance & Accounts, who in his enquiry report found both the appellants guilty and recommended major penalty of 'Compulsory Retirement' against the appellants. On the basis of the enquiry report, the appellants were served with separate final show- cause notice dated 13-4-2000, wherein, also major penalty of 'Compulsory Retirement' was proposed against them. They submitted replies which were not found satisfactory and by separate orders dated 16-5-2000 they were awarded major penalty of ' Dismissal from Service' by the managing Director, KW&SB, Against which they preferred Departmental appeals. On getting no response within stipulated period of 90 days, appellants have invoked the jurisdiction of this Tribunal through these appeals.
3. Respondent KW&SB in its written statement(s) refuted the assertions of appellants and prayed for dismissal of appeals.
4. Mr. Osmani, learned counsel for appellant Anis Ahmed argued that while proceedings initiated against the appellant were against the KW&SB (E&D) Rules, 1987; as neither the statement of allegation was issued nor the regular enquiry as required by the Rules was ordered or conducted by the Department. He submitted that in the final show-cause notice issued to the appellant, major penalty of 'Compulsory Retirement' was proposed while the appellant was awarded major penalty of 'Dismissal from service' and on this score alone, the impugned order is liable to be set aside. He stated that appellant was simply a dispatch clerk and has nothing to do with other official correspondence and by no means he can be held guilty of tampering with the official documents.
He urged that in fact no regular enquiry was ordered to be conducted and the enquiry so conducted was ex parte where at no stage appellant was associated except that on one occasion he was called and for a short while he was heard and that no witness was either examined in his presence or lie was afforded any chance to cross-examine the said witness. In support of his contentions he relied upon, (i) PLD 2000 SC 104, (ii) 2002 PLC (C.S.) 1349, (iii) 1993 PLC (C.S.) 698, (iv)
1993 PLC (C.S.) 447, (v) 1993 PLC (C.S.) 1135, (vi) 1993 PLC (C.S.) 308, (vii) 2002 PLC (C.S.) 136, (iii) 2002 PLC (C.S.) 289 and (ix) 2002 PLC (C.S.) 738.
5. Mr. Khawaja, learned counsel for appellant Zulfiqar Alam supported the arguments advanced by Mr. Osmani and has further submitted that no incriminating material was collected during the so- called enquiry proceedings against the appellant that he at any stage tampered and official documents. He stated that except the fact that appellant purely on humanitarian grounds had written the application of Sajid Gul Contractor which the later submitted to the Managing Director, KW&SB for consideration, nothing else was done by the appellant. He stated that even from the report of enquiry officer it is not clear as to who tampered the office note sheet, who applied white fluid, who forged the signature of M.D. And who added certain words in the note sheet. In the absence of such proof, learned counsel argued appellant cannot be held guilty and penalized in such a manner which is neither warranted by law nor sustainable.
6. As against above, learned counsel for Respondents contended that both appellants were in league and they with the aid and assistance of each other tampered the official record in order to get undue profit/gain and to put the department in losses. He stated that admittedly application for refund of the amount of Sajid Gul Contractor was written by appellant Zulfiqar Alam which he intentionally not get diarised in the concerned inward registered in M.D.'s office where appellant Anis Ahmed was working and subsequently they tampered the office note by applying white fluid and added certain words 'Release amount of Rs,10 lacs' and then put M.D.'s forged signature on it.
He added that entire departmental proceedings were conducted purely in accordance with KW&SB (E&D) Rules 1987. A show-cause notice was given to the appellants, an enquiry was ordered and conducted by an impartial enquiry officer, copy of which was supplied them with final show- cause notice, their replies were legally considered, they were provided personal hearing and then they were awarded penalty of dismissal from service thus no illegality or irregularity of whatsoever nature was committed by the Department. Lastly, he submitted that in the final show-cause notice major penalty of 'Compulsory Retirement' was proposed but appellants were dismissed from service keeping in view the nature of allegations and that since both the penalties are major penalties, they were rightly awarded major penalty of 'Dismissal from service.
7. We have carefully considered the above submissions and have gone through the case-law referred to by the learned counsel for appellant. We have also throughly scrutinzed the record of the Department which was summoned for perusal and to arrive at judicious conclusion of the matter.
8. The allegation against appellant Anis Ahmad was that he was despatch clerk in M.D.'s office but Contractor Sajid Gul's application was not diarised by him in M.D.'s office with some ulterior motives. Perusal of the entire record placed before us does not indicate even remotely if said application as ever given to appellant Anis Ahmed for entering it in in ward register. There is also nothing on the record to suggest that both the appellants were in league with each other. Even otherwie mere fact that an application was not diarised, in the circumstances of the instant case, cannot be treated as 'mis-conduct' defined in the KW&SB (E&D) Rules 1987. Appellant Anis Ahmed, as stated above, was charged with allegation of tampering the official documents, simply because he had not diarised an application of one contractor. Not disrising an application by no stretch of imagination can be termed, as 'tampering the official documents'. The allegation being vague, under the law; the same cannot be made the basis for awarding any penalty what to talk about major penalty.
9. So for appellant Zulfiqar Alam is concerned, he was also charged with same allegation of tampering the official documents. No doubt he admitted that application of Sajid Gul contractor for refund of amount was written by him, but this admission alone does not mean that he had tampered the official documents. In para-6 of the enquiry report it is mentioned that "note sheet relating to the payment of Sajid Gul Contractor for his claim of liabilities for the year 1993-94 has been tampered with by applying white fluid on page-1 and MD's signature have been forged as the MD has disowned his orders". Be that as it may, the fact remains that who tampered the said note sheet, applied white fluid and forged M.D's signature. The entire record as placed before us is completely silent and even the enquiry, officer in his inquiry-repot said nothing that it was appellant Zulfiqar Alam who tampered the said note sheet, applied the white fluid and forged M.Ds.
Signature. The note sheet is in the hand-writing of Accounts Officer (Book) who had not recommended the -payment. The word ' if Rs,10,86,000 is released' were admittedly written by somebody also with altogether different pen style, ink and hand-writing. Like-words 'Release amount of 10th Lec' were also written by some one else which is evident from the spelling of word 'release so also the pen, ink and style. We though are in full agreement with the contention that there was some tampering in the note-sheet but we are afraid we are unable to subscribe with the views/contentions raised by learned counsel for Respondents that note sheet was tampered by appellant Zulfiqar Alam or Anis Ahmed. In the absence of any convincing, cogent and strong evidence, none of the appellant can be held guilty.
10. Adverting to the legal position of the matter, it appears that neither the statement of allegation was ever supplied/given to the appellant nor the enquiry was conducted in accordance with Rules.
In the show-cause notice given to the appellants there is no mention if any enquiry was ordered or any enquiry officer was appointed to conduct enquiry. The Enquiry, Officer had neither examined any witness in presence of the appellant nor the appellants were given chance to cross- examination them. The whole enquiry report is based upon the statement of Sajid Gul Contractor, whose statement was not recorded in presence of any of the appellant. The enquiry report, thus has no legal value and sanctity in the eyes of law and is, therefore, ruled out of consideration.
11. The Enquiry Officer in this report recommended major penalty of Compulsory Retirement's against both the appellants. Same was the penalty proposed in the final show-cause notice issued to the appellant, but they were awarded major penalty of ' Dismissal from Service' Though both such penalties are major as described in KW&SB (E&D) Rules 1987, but admittedly the penalty of 'Dismissal from service' in much harsher than that of 'Compulsory Retirement'. The penalty of dismissal from service is thus not in accordance with the penalty proposed to be inflicted upon the appellants in the final show-cause notice issued to them.
12. For the aforesaid reasons, both these appeals are accepted and the impugned orders dated 16- 5-2000 dismissing appellants from service are set aside. The appellants are directed to be re- instated in service. The intervening period be treated as 'leave if due'. The KW&SB is, however, at liberty to hold enquiry afresh under the KW&SB (E&D) Rules 1987, to bring at home the real culprit.
There will be no order as to costs.
13. Announced in open Court.