' JAVED IQBAL, J---These petitions for leave to appeal are directed against judgment dated 23-5- 2002 passed by learned Punjab Service 'Tribunal, Lahore, whereby the appeals preferred on behalf of petitioners have been dismissed and orders dated 20-8-1990 and 18-10-1992 were kept intact. In view of common questions of law and facts, the above captioned petitions are being disposed of by this order.
2. Precisely stated the facts of the case are that the petitioners were members of ministerial cadre in the Food Department against whom the accusation of huge misappropriation of wheat amounting to Rs,16,55,5000 was proved. After the conclusion of departmental proceedings initiated under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 major penalty of recovery of Rs,3160506/56 was imposed upon each of the petitioners proportionately and in an equal share.
The petitioners being aggrieved preferred representation in terms of section 12(i) of the Punjab Civil Servants Act, 1974 against their pre-mature retirement and imposition of the major penalty of the recovery of above mentioned amount, was rejected. The petitioners thereafter approached the Punjab Service Tribunal by means of appeals which were dismissed vide judgment impugned, hence these petitions.
3. Mr. Muhammad Ozair Chughtai, learned AOR appeared on behalf of petitioners and urged with vehemence that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is next contended that the petitioners could not have been retired compulsory on the exclusive ground of adverse remarks recorded in their ACRs as similar remarks were recorded in the ACRs of Malik Mohib Hussain (Assistant Food Controller) and Ch. Ejaz Ahmed (Foodgrain Inspector) who were subsequently reinstated in service and on this score alone the judgment impugned is liable to be set aside. It is contended emphatically that no regular inquiry was carried out by the respondents and all the proceedings were initiated ex parte and the petitioners were condemned unheard and proper opportunity of hearing was never afforded at any stage.
4. We have carefully examined the contentions as agitated on behalf of the petitioners in the light of relevant record made available and perused the judgment impugned. We have dilated upon the prime contention of learned ASC on behalf of petitioner that proper opportunity of hearing was not afforded, which appears to be fallacious as it transpired from scrutiny of record that the petitioners were served with proper show-cause notice prior to the orders of their pre-mature retirement was passed but the petitioners had disappeared and deliberately avoided to appear before the competent authority and wilfully kept themselves disassociated with the disciplinary proceedings initiated against them. It is worth-mentioning here that the petitioners were retired as a result of subjective assessm ent regarding their performance made by the competent authority as the matter fell in its exclusive domain of jurisdiction. Their performance was not found above board and accordingly they were compulsory retired from service. The contention of the learned ASC on behalf of petitioner that their performance could only be assessed on the basis of ACR is not correct as a serious case of embezzlement of huge misappropriation of wheat was also got registered against the petitioners which aspect of the matter could have been taken into consideration by the competent authority. The accusation of embezzlement has been proved, as a result of departmental inquiry which otherwise could not have been possible without the connivance of the petitioners by whom the relevant documents concerning handing over the stock of misappropriated wheat were signed. They had also signed the papers showing shortage of wheat, hence they cannot be absolved totally merely on the ground that they are not performing their duties in the field and only the field staff was responsible for the misappropriation. The petitioners had failed to appear before the competent authority in spite of publication made in the press for the reasons best known to them. It may not be out of place to mention here that factum of embezzlement being question of fact has been determined by the department after having a comprehensive inquiry and the said determination has been upheld by the Punjab Service Tribunal which cannot be upset without any justification which is lacking in this case. In this regard we are fortified by the dictum laid down in Munawar Tahir Hussain v. Govt. Of the Punjab (1990 SCM R 1470), relevant portion whereof is reproduced hereinbelow for ready reference:-- "2. The main contention on behalf of the petitioner is that the Inquiry Officer completed the proceedings without notice to him and at his back. This contention was also raised before the Tribunal but was rejected with the following observations:-- ' The perusal of the said report shows that the Enquiry Officer was not inimical against the appellant, the appellant had no justification to show lack of trust in him and keep away from proceedings and then make a statement that he was proceeded ex parte'.
' In view of this factual position, we find no merit in 'he contention raised by the petitioner.
3. Another grievance of the petitioner is that the learned Tribunal has taken into account the observations of a Magistrate who was appointed to hold an inquest into the death of the convict.
This is no doubt true but a perusal of the order of the learned Tribunal leaves no room for doubt that it based its decision on the report of the Enquiry Officer after considering the defence of the petitioner at length. We, therefore, do not think that this is a fit case for interference. Leave is refused." (Emphasis provided).
5. While examining a similar proposition it was observed in Najib Ullah v. Assistant Commissioner/Collector (1989 SCM R 679) as follows:-- "3. We have heard the learned counsel for the petitioner. A full-fledged enquiry was conducted against him and he was provided with ample opportunity to defend himself. The learned counsel for the petitioner wanted us to re-appraise the 'evidence which at this stage we decline to undertake. Further, no question of law of general importance is involved in this case. The petition is dismissed." (Emphasis provided)
6. The order dated 11-1-1993 passed by the Deputy Director Food is indicative of the fact that all pros and cons were taken into consideration and mandatory formalities as envisaged under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 were adhered to, the relevant portion whereof is reproduced hereinbelow for ready reference:-- "Accordingly departmental proceedings were suspended. The proceedings were again started on receipt of letter No,SORESS&GAD-1-3/90 dated 20-7-1991 at this time Mr. Shabir Ahmed Alvi, Storage Officer was appointed as Enquiry Officer by the District Food Controller, Multan vide his No,8007/EC dated 30-9-1991. None of the accused officials bothered to submit their reply to the charge-sheet.
Only Mr. Ejaz Ahmed, Foodgrain Inspector appear before the Inquiry Officer but later on he also disappeared without tendering any reply or defence in his favour. Therefore, the Enquiry Officer proceeded against all the accused officials ex parte and submitted his report to District Food Controller/Authority Officer, Multan on 7-4-1992 holding the accused guilty of misappropriation of 6131.313 M. Tons of wheat.
' After receipt of report from the Enquiry Officer, the District Food Controller/Authority Officer, Multan summoned the accused officials for hearing as required under rule 7-A of the Punjab Civil Servants (Efficiency, and Discipline) Rules, 1975 but all in vain. In this situation the authorized officer/District Food Controller, Multan submit his findings to Divisions Food Officer, Multan vide his No,5750/EC dated 9-6-1992. The undersigned also issued several notices as required under rule 8 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 but it also could not bear fruitful results. A notice through press For hearing was arranged though Director Public Relations, Lahore. The said notice appeared in the Daily Nawa-e-Waqt and Pakistan dated 20-8-1992 directing the accused officials to appear before the undersigned on 26-8-1992 to offer their defence but the accused officials failed to avail this opportunity too."
7. The conclusion as arrived at by the Punjab Service Tribunal being well-based does not warrant any interference and thus the petitions being I devoid of merits are dismissed and leave refused.
8. Before parting with the order it has been observed with grave concern that the appeal of Malik Mohib Hussain has been accepted by the Punjab Service Tribunal by means of order dated 11-12- 1997 against whom sufficient incriminating material had come on record on the basis whereof the petitioners were retired and held responsible to make the loss good but amazingly Malik Mohib Hussain has been absolved of the charges which amounts to sheer discrimination. Similarly Ch. Ejaz Ahmad who was found responsible for the alleged misappropriation and embezzlement was also absolved from the charges by Punjab Service Tribunal by means of judgment dated 10-12-1997 in Appeal No,1201 of 1993. As mentioned hereinabove the petitioners have been retired compulsorily with the direction to make payment of Rs,3160506/56 for the huge misappropriation of wheat. In such view of the matter Malik Mohib Hussain, Deputy Director Food, Multan and Ch. Ejaz Ahmad, Ex- Foodgrain Inspector, Multan, are hereby directed to show cause that as to why the judgments dated 11-12-1997 and 10-12-1997 respectively passed by Punjab Service Tribunal may not be set aside which do not appear to be in consonance with the evidence as collected against them during a comprehensive inquiry on the basis whereof the petitioners were compulsory retired and major penalty of recovery of embezzled amount was also imposed upon them and the order passed by the Department imposing major penalty upon them be kept intact. To be fixed after vacation.