' AKBAR M. MEMON (MEMBER)---Appellant hereinabove, who was lastly working as Commercial Inspector with the respondents has challenged the order dated 14-9-2001 whereby he was removed from service. The order in question is reproduced hereunder:-- ' Subject: REMOVAL FROM SERVICE OF MR. M.A. HAKEEM CMI/SUKKUR ' A copy of General Manager (P) LHR'S Notification No,E-122/705 (A) dated 8-9-2001, is reproduced below for information and further necessary action.
(Sd)
(Bashir Ahmad Soomro) for Divisonal Superintendent, P. Rlys. Sukkur NOTIFICATION
1. No,-E-122/705 (A). Whereas Mr. M.A. Hakeem, Commercial Inspector, Rohri was charged for misconduct, corruption and malpractices vide Show-Cause Notice No,E-122/705 (A) dated '27-6- 2001 under Removal from Service (Special Powers) Ordinance, 2000.
2. And whereas after considering the defence of the accused employee to the show-cause notice and other relevant circumstances, the Competent Authority viz.. General Manager, Pakistan Railways found the official guiliy of the following charges:-- "During the entire year he had failed to inspect the Station till directed by the Division Commercial Officer. During this period large scale fraud to the extent of over Rs,58 lac took place.
' He was also apprised by Station Supdt. Rohri to come and check the record which he failed to do.
3. Whereas the employee has not been able to defend himself from the allegations levelled against him, the Competent Authority, therefore, has imposed on him the major penalty of "Removal from Service" after affording him the personal hearing.
4. Mr. M.A. Hakeem, shall have a right of representation and review to the Competent Authority viz. Secretary/Chairman ' Railways within fifteen' days from the date of communication of this order under Rule-9 of the said Ordinance."
2. Appellant has himself appeared in person and has contended that he had pat in service of about 37 years '-with the respondents and lastly, he was posted as Commercial Inspector Railways Rohri with effect from 31-1-2000. He has contended that as a Commercial Inspector with Headquarter at Rohri-it was his duty to check the commercial working of nominated Station situated at Khanpur, Tando Adam, Section of Sukkur Division under control of Divisional Superintendent. He has contended that the Station headed by Station Masters GR-VI now grade-III were excluded from the jurisdiction of Commercial Inspector and these Stations were assigned to him in advisory capacity being main Stations headed by Station Masters grade-III like Rohri. He has contended that on 30-4-2001 respondent No,3 directed him to avail 60 days forced leave and on expiry of 60 days leave he was not permitted to resume duty and again leave was extended for 60 days more which expired on 30-8-2001. He has contended that during the period of forced leave he was served with show-cause notice which ' contained serious allegations of misconduct, corruption, malpractices and negligence for not having made compliance of the orders of D.C.O., failure on his part to conduct detailed inspection and failure to recover defalcated amount and so on. He has contended that the background of the notice was due to the fact that fraud was committed by Commercial Supervisor/Booking and other subordinates which was detected by the appellant and he reported the matter against defaulters. He has contended that Rs,23,90,000 were recovered from the officials, who defrauded the 'amount and criminal cases were registered against them. He has contended that the show-cause notice was replied by him wherein he had explained and elaborated the position and had denied the allegations levelled against him. He has contended that he was the informer of the entire defalcation but instead of giving him a sort of encouragement he was being treated as an accused. He has further contended that the reply offered by him was neither considered nor enquiry was ordered for finding out the actual facts, but respondent No,2 called him in the wake of personal hearing where only one question was put to him as to wherefrom the appellant was able to obtain Circular of 1945 showing therein the Duty List of the Commercial Inspector and also exempting him from inspection of Station headed by Station Masters Grade-IV now Grade-III. He has contended that 'actual punishment has been awarded to him without holding proper enquiry and since the entire working of the appellant was based on honesty then too, charge of corruption has been levelled against him which is neither just nor proper. Coming to further merits of the case he has drawn our attention to various reports made by him against those who had in fact misappropriated Government money. He has also shown us the Inspection Reports and the efforts made by him whereby recovery of an amount of Rs,23,90,000. Was made by the department with his efforts. He has also shown us Exhs.E./10 to E/15 where a detailed statement was made by him in respect of the defalcating Officers in respect of even fake receipts. He has contended that he has not been dealt with at par with the Station Superintendent Muhammad Khalid Salim. He has contended that almost same charges were levelled against said Officer whereby he was also removed from service vide notification dated 14- 9-2001 on filing appeal the penalty awarded to him was modified to that of reversion to lower grade, whereas his appeal was not considered. At the same time, he has drawn our attemion to a letter dated 29th February, 2000 whereby he requested the S.H.O. Rohri to lodge F.I.R. Against Muhammad Shakil Bhatti and also shown us the various inspection and Joint inspection notes.
Lastly he has drawn our attention to letter dated 14th March, 2002 which was addressed to the General Manager (Personnel) Lahore, wherein request was made to consider his case on the same line as that of Khalid Salim Station Superintendent but nothing was heard. At the same time, he has contended that this letter dated 14th March, 2002 was sent by the same person who was one of the members of the Enquiry Committee, He has contended that those against whom he had reported about the defalcation were again posted on the same position which shows that the high ups were in hand and glove with each other, but he has been made scapegoat. Lastly he has contended that his departmental appeal has remained unresponded, hence this appeal which is liable to be allowed and he be reinstated with all back-benefits.
3. Ch. Rashid Ahmed' learned counsel for the respondents has opposed the contentions raised by the appellant. He has contended that it was the duty of the appellant to have supervised the commercial work of nominated Stations' which came within his jurisdiction. He has further contended that the fraud was detected by respondent No,5, who instructed the 'appellant to recover the defrauded amount. At the same time, he has contended that the appellant himself has remained lethargic in making compliance of the orders passed by the respondent No,4 as well as
5. He has contended that the record of the appellant was not unblemished as is evident from Annexure-B where detail of his punishments has been shown. He has contended that since the appellant failed to comply with the orders of his superiors, as such, he was rightly punished and his appeal is not liable to be allowed.
4. The appellant in reply has contended that the respondents have not considered the case of the appeliant in proper perspective. At the same time, he has produced a chart at page 23 showing as many as 18 Stations which were under his jurisdiction. He has again invited our attention to the Inspection Notes which according to him were not taken into consideration by the respondents and has contended that even the Enquiry Committee has ignored the fact that he had made certain reports.
5. After hearing the arguments of the appellant and so also learned counsel appearing on behalf of the respondents, we have gone through the appeal file.
6. Appeal file has been scanned thoroughly and it appears that fraud/misappropriation was detected by the officials of the respondents though the respondent No,5 Divisional Commercial Officer had required the appellant to inspect the Rohri Booking office and other Stations, but according to the respondents the appellant failed to do so due to which huge defalcation amounting to Rs,1,03,95,448 came to their notice, out of which an amount of Rs,84,97,085 was deposited where the remaining balance amounting to Rs,18,98,363 was misappropriated by the concerned employees. It was, therefore, that show-cause notice dated 30-6-2001 was served upon the appellant followed by statement of allegations. Both are reproduced hereunder:-- SHOW-CAUSE NOTICE I. Whereas you Mr. M.A. Hakeem, C.M.I./Rohri (BS-16) are charged with misconduct, corruption and malpractices as per statement of charges attached.
2. And whereas on the basis of documentary evidence available, it is not considered necessary to have formal inquiry against you and that proceedings are being initiated under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000 which might entail imposition of a major penalty of dismissal from service specified in section 3 of the said Ordinance.
3. Now, therefore, you are required to show cause within seven days from the date of receipt of this notice as to why the proposed action should not be taken against you.
4. If no response is received from you within the time stipulated above, it would be presumed that either you have no defence to offer and/or you have wilfully declined to do so. The case shall then be decided on 'ex parte' without further reference. DA/As above.
(Sd.)
(Iqbal Samad Khan)
General Manager/Operation (Competent Authority)
STATEMENT OF ALLEGATIONS AGAINST Mr. M.A. HAKEEM, CMI/ROHRI.
' You Mr. M.A. Hakeem, CMI/Rohri are charged for serious misconduct and facilitating CS(B) Rohri and Booking Clerks in committing fraud and defalcation of Government Revenue as is evident from the following:--
1. DCO during surprise inspection of Rohri Booking Office on 31-12-2000 observed heavy outstanding in the balance sheet and recorded the following observations in your presence on the reverse side of the balance sheet.
"What is the CMI/Rohri doing, outstanding is very high. It shows slack attitude of CMI/Rohri. Please check CS (B) Rohri and put up report within 7 days. If this outstanding is not cleared, then CMI/Rohri will be personally responsible".
' Despite the directives and authorization towards a specific task, you connived with the aforesaid staff and did not response resultantly CS (B) Rohri alongwith his Booking Clerks continued defalcating Government Revenue.
2. Apprehensive of the situation, DCO directed you to carry out detailed inspection of Rohri Sation, which you failed to do.
3. That vide para-2 of inspection notes dated 23-12-2000, DCO pointed out heavy short remittance of continuous nature and directed you to check the same, but you did not take any action.
4. That despite the fact that SS/Rohri had been reminding you about short remittance in the Booking Office, but you failed to take cognizance or any note of the same.
5. MR Nos. 835951-75 were used during transaction in Oct/2000 out of series when another series was in process. An amount of Rs,4,84,684.00 was defalcated through the use of MRs referred to above 7 was not accounted for. Repeatedly asked and instructed by the DCO to recover the amount and made good the short remittance, but you did not respond to the directives of the D.C.O. And allowed the misdeed to occur the subject amount was accounted for in the month of December, 2000.
' Your non-compliance of DCO's instructions has resulted in temporary misappropriation of Government Revenue.
(Sd.)
(Iqbal Samad Khan) (Competent Authority)
7. The said show-cause notice was replied but since the respondents had already dispensed with the enquiry he was simply called for personal hearing where he had shown Cricular of 1945 but his view point was not considered. The reports submitted by the appellant on 20-3-2001, 21-3-2001, 23- 3 2001, Special Report on 23-3-2001, reports dated 29-3-2001, 2-4-2001 and Statement of Facts Annexure-F were not considered. At the same time, these all facts were incorporated in the reply to the show-cause notice which was replied on 9-7-2001 Annexure-G page 97 but nothing was heard.
The orderly duty performed by the Divisional Commercial Officer on 12-2-2001 makes a mention that both the CMIs were directed to inspect Booking Office frequently whereas the appellant started sending reports from 20-3-2001 clearly show that compliance was being made by him in respect of all these Stations which were under his supervision but the respondents without considering the documents produced by the appellant, on the basis of the Enquiry Report of Enquiry Committee submitted on 16th July 2001 imposed the penalty of removal from service upon the appellant on 8-9-2001 which was intimated by the Divisional Superintendent on 14-9-2001.
8. It is pertinent to bring it on record that when the allegation levelled against, an incumbent is denied then regular enquiry was the requirement of law as has been held in 2003 PLC (CS) 514:-- "Government Servants (Efficiency and Discipline) Rules, 1973-- Rr.6,5, & 4---Service Tribunals Act (LXX of 1973), S.4---Compulsory retirement---Inquiry procedure---Full-ledged inquiry is to be made whereby an Authorized Officer is required to !Frame a charge and inform the accused civil servant of the statement of allegations against him---Provision of R.6 (1) (2), Government Servants (Efficiency and Discipline) Rules, 1973 ! Clearly stipulates that the accused officials shall be provided not less than 7 or more than 14 days' period to put in his defence, oral or documentary evidence, and also to cross-examine the witnesses against him---Mere factum of taking in hand inquiry proceedings under the Rules against a civil servant cannot be equated with the procedure prescribed in R.6(1)(2(3) of the Rules---Ample convincing and reliable evidence has to be on the record which could safely go to prove the charges levelled against the civil servant and only then findings of compulsory retirement could be recorded---Where the departmental proceedings were initiated only on the basis of criminal charge, which was not subsequently proved by the competent Court of law and resulted in acquittal, order of Service Tribunal upholding the order of compulsory retirement by the Department was set aside by the Supreme Court."
9. At the same tune, the enquiry conducted by the Enquiry Committee without associating the appellant could not have been equated with regular enquiry as has been held in 1997 TD Service 346:-- "(a) Efficiency and Discipline Rules, 1973---Rule 6(3), rule 8, Regular inquiry cannot be dispensed ' if allegations against accused civil servant/employee are of such nature and he denies the same.
In such case, disciplinary action taken against accused civil servant/employee without holding a regular inquiry would not be sustainable in law. Procedure pf summary inquiry adopted in such case by dispensing with regular inquiry would not be warranted by law and would be contrary to law as enunciated by Supreme Court.
(b) Departmental Inquiry--- ' Departmental disciplinary proceedings through departmental inquiry under Efficiency and Discipline Rules cannot be equated with a legal proceedings in a Court of law. Technicalities, which are the hallmark of proceedings in a Court of law, cannot be pressed into service in judging legality of departmental inquiry. There may be some technical lapses on part of Inquiry Officer while conducting disciplinary proceedings. If such lapses have not caused any material prejudice to accused servant/employee, the same would not vitiate departmental inquiry or order passed in consequence thereof."
10. It appears from the record that no specific order was passed by the respondents while dispensing with the regular enquiry at the time of issuance of show-cause notice. Even subsection 4 of section 5 of the Removal from Service (Special Powers) Ordinance, 2000 makes a specific mention that for the purpose of dispensing with the enquiry reasons are to be recorded in writing when the authority is satisfied that there is no need of holding enquiry. Similar view was already taken by Hon'ble Supreme Court in case reported in PLD 1994 SC 222 wherein it was held:
(b) Government Servants (Efficiency and Discipline) Rules, 1973 ' ----R.5(1) (iii)---imposition of major penalty, without holding an inqUiry-Validity-Question, whether any major punishment could be imposed upon any civil servant without holding enquiry, would depend upon facts of each case---Authorized Officer was empowered to dispense with the enquiry but he was required, (by an order in writing) to inform the accused of the action proposed to be taken in regard to him and the grounds of action and to give him reasonable opportunity of showing cause against the proposed action."
(Underlining is for emphasis)
11. Record shows that the action initiated against the appellant is based on the report of the Enquiry Committee where responsibility of the appellant has been shown to the extent: "RESPONSIBILITY OF Mr. M.A. HAKEEM CMI/ROHRI ' Vide Para No,2 of Inspection notes dated 23-12-2000, DCO/Sukkur pointed out heavy short remittance of continuous nature and directed to dear the same, but he didn't take any action, hence he is held responsible for not complying with the orders of the authority. As per record CMI/ROH during his stay did not check the Booking Office, Rohri and also failed to carry out inspection of Booking Office, Rohri in spite of repeated directive/instructions by DCO/Sukkur,CMI/Rohri was directed by DCO/Sukkur during his inspection of Rohri Booking Office on 31-12-2000 to check the irregularities of Booking Office, but despite the directives and authorization towards specific task, CMI/Rohri failed to carry out comprehensive checking of Booking Office Rohri, DCO Sukkur directed CMI in August, 2000 to inquire and report the irregularities committed as calculated by SAO TA on 10-6-2000 in his letter as Annexure-4, CMI/Rohri kept the direction of DCO/Sukkur pending with him till 16-4-2001. Had he been vigilant in his duties and checked the whole commercial would have come to his notice and the embezzlement/short remittance could have been checked."
12. In case the responsibility fixed by the Enquiry Committee is taken into consideration then the entire picture becomes more clear and it appears that the documents submitted by the appellant as Exhs. E, E/5, E/6, E/9, E/10, E/12 and F were not considered by the respondents. Even the reply offered by the appellant to the show-cause notice on 9th July, 2001 was not considered. Had these documents been considered then the matter would have been thoroughly probed whereafter proper responsibility would have been fixed on a person who was responsible for all these actions.
Even otherwise, the entire question of embezzlement/misappropriation is against others and the appellant has been held responsible for not obeying orders of the DCO for not having inspected Stations, but the reports as mentioned above and the reply offered by the appellant would have been considered, the position would have been otherwise. At the same time, one of the members of the Enquiry Committee was Mr. Muhammad Yousuf Soomro who has signed -the report on 16th July, 2001, whereas the same officer on 14-3-2001 had written a letter to General Manager (Personnel) Pakistan Railways Lahore for considering the case of the appellant on the same lines of Mr. Muhammad Khalid Salim Ex-Station Superintendent who was served with the same show- cause notice and was subsequently imposed penalty of removal from service on 14,9-2001 which was subsequently modified from removal from service to reversion to a lower grade on 7-1-2001.
13. These all infirmities/discrimination on the part of the respondents have convinced us that this is a clear case where regular enquiry be held. Accordingly, while allowing the appeal in hand we set aside the impugned order dated 8-9-2001 whereby the appellant was imposed penalty of removal from service as communicated on 14-9-2001 Annexure-A and direct the respondents to reinstate the appellant. The respondents are directed to hold proper enquiry in the light of the documents submitted by the appellant as mentioned above and to afford full chance to him to cross-examine the witnesses within three months of this judgment. The question of back-benefits would depend on the report of the enquiry. In case the enquiry is not conducted and concluded within the stipulated period, the appellant would be entitled to all backberiefits.
14. With this observation appeal in hand stands disposed of with no orders as to costs.
15. Parties be informed accordingly.