JUDGMENT AKBAR M. MEMON, MEMBER.-- Appellant, hereinabove has challenged the order of his dismissal from service dated 4.10.2000 issued by the respondent. The order in question is reproduced hereunder:- "Whereas a domestic enquiry was ordered by the Competent Authority to probe into the charges levelled against you vide Charge Sheet No. A&P/Ind. Cell/99/521, dated 12.4.1999 on account of your criminal breach of trust and dishonest involvement apart from committing severe irregularities in the procurement case of 21 items for H.S.M. Against one time special Imprest of Rs.500,000 during the period of 1996 causing huge financial losses to Pakistan Steel.
2. Whereas an enquiry was conducted to probe into the charges levelled in the charge- sheet dated 12.4.1999. The Enquiry Officer has found you guilty of the charges as contained in the charge- sheet, which constitute misconduct under the rules.
3. Whereas you were provided an opportunity of personal hearing on 4th October, 2000 to defend your position, but you failed to justify your actions position.
4. Whereas after careful examination of the enquiry report and facts of the case, the Competent Authority has decided to dismiss you from the services of Pakistan Steel.
5. Accordingly you stand dismissed from service of Pakistan Steel with immediate effect.
6. This issues with the approval of the Competent Authority."
2. Mr. Muhammad Tasnim, learned counsel for appellant has contended that the appellant was initially appointed as Junior Assistant on 1.4.1975 whereafter he was promoted as Assistant in the year 1979 and in the year 1988 he was promoted as Senior Assistant and lastly he was promoted as Assistant Manger in the year 1990 which post he continued till he was dismissed. However, on 12.4.1999 appellant was charge-sheeted, which was replied and considering the reply to be unsatisfactory, domestic inquiry was ordered. The Enquiry Officer conducted the inquiry in the month of December, 1999 and submitted his report, but no action was taken. Thereafter again in the month of April, 2000, the appellant was charge-sheeted on 17.4.2000 which was replied on which inquiry was conducted whereby the appellant was found not guilty by the Enquiry Officer and accordingly he was exonerated. The respondents, however, wanted to get rid of the appellant, as such, on the basis of charge- sheet dated 12.4.1999 in which no action was taken on receipt of the inquiry report, he was issued letter of dismissal. Arguing further, he has contended that during the course of inquiry it was observed by the prosecutor that no reply was offered by the appellant in respect of charge-sheet dated- 12.4.1999 through such reply was submitted by the appellant, as such, it can be said that the appellant has been condemned unheard as the reply offered by the appellant was suppressed and in case the same would have been considered then the position would have been more, clear. He has contended that the Enquiry Officer held the appellant guilty in respect of the charge's (a), (b) and (c) whereas charge (d) and (e) were not proved against him.
Referring to Charge No. 1' he has contended that one time special imprest was granted vide order dated 16.5.1996, which was in respect of 21 items, In this connection he has referred to page 54 of the inquiry proceedings which shows that the order was passed on 8.7.1996 whereby the items were procured through Committee comprising of representatives of purchase, Inspection, Finance and user department. He has contended that meeting was held by the respective departments and how the appellant could be held responsible when the meeting was being headed by Heads of different departments. At the same time, he has contended that there is no charge of embezzlement against the appellant. Arguing further he has referred to page 37 of the inquiry proceedings where it is said that 15 items were procured without approval of the competent authority, In this connection, he has again referred to question I6 at page 18 where it has been admitted that no payment was made by the respondents for the entire items, which were procured. He has also referred to page 4 of the inquiry proceedings where it was said that the Incharge (HSM) by a separate note No. HSM/Inch/96, dated 8.7.1996 had stated that the procurement was made through Committee comprising representatives of different departments and since the meeting had already commenced, therefore, the procured items were directly delivered and utilized at site. He has further contended that since the PPM had already commenced, as such, he sought approval of Director (Production) to regularize the deliverers at site after proper inspection. The proposal was already approved qn 17.7.1996 by Director (Production). He has referred us to three more lines where Procurement Department had processed the case and procured 36 items instead of 21 items and delivered the same to the HSM, which was accepted by them, In such circumstances, he has contended that charge No. 1 which has been proved against the appellant goes away.
3. As regards Charge No. 2, he has contended that it was duty of the departmental head to have signed the comparative statement, in case it was not signed by Head of the Department it was not the fault of ht appellant as his job was to send the same to the concerned department for signature, In case it was not signed due to reasons best known to the departmental head he cannot be held responsible for the said charge. In this connection, he has referred to page 41 of the inquiry proceedings and so also pages 47 to 53 where at page 47, 48 and 49, which no doubt, bear the signature of the appellant but pages Nos. 51, 53 bear the signatures of the Incharge, as such, this charge also goes away. Even otherwise, he has contended that page 39 Annex-A/7 speaks of indent which was in respect of estimated cost of Rs. 140,860/-, which was routed through different Heads as is evident from their signatures.
4. Replying to Charge No. 3, he had contended that paras 7, 8 and 9 of the memo, of Appeal are relevant on the subject which have not been specifically replied by the respondents in their comments and the respondents have made a mention that the said paras relate to purchase procedure. Even otherwise, the entire proceedings show that it was not the responsibility of the appellant but it was on account of the high-ups that the matter prolonged and it was due to this reason that it was decided that items be procured and sent to the user department. Had it not been so then the required procedure would have followed for which the appellant cannot be held responsible. He has also referred to pages Nos. 12, 14, 17 to 19, 21, 22, 27, 30, 43 to 45, 50 and 55 of the proceedings, which clearly speaks of the fact that the appellant could not have been held responsible for such a delay.
5. At the same time, he has contended that during the course of proceedings the appellant was not allowed to cross-examine PW Taj Muhammad as it is evident from page 30 of the inquiry proceedings, which shows that he appellant was not allowed to put up his defence. Even otherwise, he has contended that there is violation of rules 6.6, 6.9 and 6.10 as no second show-cause notice was served upon him nor he was called for personal hearing, In this regard he has placed reliance on PLD 1996 SC 612. He has lastly contended that it is' purely a case of victimization as the matter was relating to the year 1996 whereas the appellant was charge-sheeted in the year 1999 and inspire of the fact that the report was submitted on 6.1.2000, no action was taken against the appellant. The prosecutor in the inquiry had specifically stated that the reply to the charge-sheet dated 12.4.1999 was not furnished by the appellant though he had done so and had produced copy whereof even during the course of inquiry. He has, however, contended that when the appellant was exonerated of the charge-sheet dated 17.4.2000, this action has been taken in respect of first charge-sheet dated 12.4.1999, where too, inquiry report was given on 6.1.2000, as such, it is a case of victimization on the part of the respondents, who wanted to oust the appellant from the job without any fault.
6. Mr. Niaz A. Khan, learned counsel for the respondents, at the very outset, has contended that the facts about the promotion of the appellant are not denied. He has contended that the charge- sheet was issued on 12.4.1999 and the matter pertaining to second charge-sheet is not relevant for the purpose of decision of this appeal and if the learned counsel for the appellant has given certain facts in respect of the second charge-sheet and in case the appellant was exonerated it speaks of fairness on the part of the respondents as he stood exonerated in the inquiry conducted by the Enquiry Officer. 'Coming to the charge-sheet dated 12.4.1999, he has contended that three charges were proved whereas two charges were not proved against the appellant which shows that there was no pressure on the Enquiry Officer. He has contended that the procedure was not properly followed by the appellant. He has contended that it is wrong to say that no personal hearing was granted to the appellant as is evident from para. 10 of the comments. As regards second show-cause notice is concerned, he has contended that it is only material when prejudice is caused to the appellant and since the appellant has been held guilty by the Enquiry Officer, he has rightly been punished, as such, his appeal is liable to be dismissed, In support of his contentions, he has placed reliance on Mir Muhammad's case reported in PLD 1981 SC 176.
7. Mr. Muhammad Tasnim, learned counsel for the appellant, in reply, has contended that only mention has been made in respect of personal hearing in para. 10 but no letter in support thereof has been produced which could show that the respondents had called the appellant for personal hearing. At the same time, he has contended that the dismissal is based on criminal breach of trust and dishonesty which words do not find place in the charge-sheet and if it was the case of the respondents, then second show-cause notice was necessary.
8. After hearing arguments of the learned counsel appearing for the parties have gone through the entire appeal file and so also the authorities cited by both the respective Advocates.
9. Appellant's case has a chequered history as alleged indents were floated in the year 1996 as a result of approval of more than one time special imprest whereby items were procured and delivery was directly made to the user department. The letter in question was issued by Incharge
(HSM) on 8.7.1996. This letter was issued on the basis of letter dated 16.5.1996 where para 3 is very material which reads:- "3. In order to avoid the frequency of faults during rolling and to keep the downtime to bare minimum level it is essential to arrange these items on priority."
However, the department needed 15, more items but since the meeting had already been held, therefore, its approval was subsequently sought as is evident from page 4 of the inquiry proceedings. The relevant para, is reproduced hereunder:- "Incharge (HSM) through a separate note No. HSM/Inch/96 on 8th July, 1996, stated that the procurement was made through committee comprising representative from Purchase, Inspection, Finance and User Deptt./Complex. He further stated, that since the PPM had already commenced therefore the procured items/materials were directly delivered arid utilized at site, hence he sought approval of Director (Production) to regularize the deliveries at site after proper inspection by Inspection Department. The proposal was accordingly approved on 17.7.1996 by Director (Production).
Central Purchase Deptt, processed the case and procured 36-items instead of 21-items and delivered the same to HSM which was accepted by them."
Looking to the above factual position, it would be wrong to say that the appellant had procured 36 items against the approval of competent authority to procure 21 items. Even otherwise, there is no charge of misappropriation against the appellant as admittedly no payment whatsoever has been released by the respondents as is evident from the inquiry proceedings.
10. Similarly the appellant cannot be burdened in respect of preparation of scanty comparative statement as admittedly he had signed the statement and had sent the same to the departmental Head and in case the same was not signed by the departmental Head he cannot be held responsible for the same as immediately after the procurement was made he was transferred from the said department and had come back in November, 1996.
11. As regards the third charge is concerned, the appellant cannot be held responsible as looking to the requirement of the respondents as is evident from letter dated 8.7.1996 where specific mention Was made not only with regard to the above letter but also letter dated 16.5.1996 where the arrangement of the items was to be made on priority basis. At the same time, inquiry proceedings throughout prove that the arrangement was made on priority basis and after the procurement was made, items were to be delivered to the user department after proper inspection. Looking to the urgency this all appears to have been done for which different departments were to be made responsible as the items were required for the rolling process, In such circumstances, delay if any can be attributed to all the concerned department and not only the present appellant.
12. We have gone through the entire inquiry proceedings and it is most shocking that incident, which took place in May, June and July, 1996 was allowed to be kept in cold storage and it was for the first time that the appellant was charge sheeted on 12.4.1999. After getting reply, inquiry was ordered, which was conducted and the Enquiry Officer had given his report on 6.1.2000 but no action was taken by the respondents. However, the arguments advanced by the learned counsel for the appellant -reveal that the appellant was again charge sheeted on 17.4.2000 and when he was exonerated of the charges, the charge sheet was, no doubt, vacated vide order dated 29.9.2000, the inquiry report in respect of old charge sheet dated 12.4.1999 was taken into consideration and the appellant has been punished whereby he has been dismissed from service vide order dated 4.10.2000. The arguments which have been advanced by the learned counsel for the appellant have not properly been controverted by the learned counsel for the respondents, meaning thereby that no document has been produced which could show that the appellant was granted personal hearing though such mention finds place in para 10 of the comments. At the same time, dismissal order makes mention of criminal breach of trust and dishonest involvement of the appellant alongwith their irregularities, but the charge sheet make no mention of the criminal breach of trust and dishonest involvement which necessitated issuance of show- cause notice as required under rule 6.9 through it has been argued by Mr. Khan, learned counsel for the respondents that show-cause notice was not necessary as it was not going to prejudice to -the case of the appellant, but considering the fact that the words used in the dismissal order were quite contradictory of what was mentioned in the charge sheet. We are of the view that the dismissal order is in violation of rules 6.9 and also 6.10 whereby neither show-cause notice was issued nor personal hearing was granted to the appellant. At the same. Time, it will be necessary to bring it on record that arguments advanced by the learned counsel for the appellant that it is a case of victimization as when the respondents were not able to prove charge sheet dated 17.4.2000 against the appellant then they opened another case wherein he was charge sheeted 0n 12.4.1999 and in case the respondents wanted to take action against him they should have done earlier which has not been done, In such circumstances, we agree with the arguments advanced by the learned counsel for the appellant that it is a case of victimization where the very dismissal order has been issued in violation of the rules of the respondents themselves. Even otherwise, there is no allegation of( misappropriation nor any payment has been made in respect of these 36 items, as.
Such, we are unable to.; maintain the order dated 4.10.2000 whereby the appellant was dismissed from service. Accordingly, we, while allowing the appeal, set-aside the impugned order and direct the respondents to reinstate the appellant on the same position from the date , when the impugned order was passed with all back benefits.
13. In view of the above discussion, there will be no order as to costs. Parties be informed accordingly.