' Through this common judgment, we intend to dispose of these three appeals as common questions of facts and law are involved.
2. Facts forming the background of these appeals, briefly stated, are that appellants Muhammad Ali Channar, Assistant Food Controller/Incharge Kandiaro P.R. Centre. Shahmir Solongi and Ghazanfar Gli Pathan, Food Inspector/Incharge Moro and Meljrabpur P.R. Centres, respectively, were served with show-cause notice dated 21-4-2001 issued by the Additional Director Food/Authorized Officer, alleging therein that they without authorization sold Government wheat in open Market and after knowing constitution of Committee they deposited its cost in Government Treasury and that they have put the Government in great financial loss. In their respective replies, appellants explained their position, which were not found satisfactory. They were served with final show-cause notice dated 22-5-2001, which too they replied. Ultimately, by separate orders dated 11/12-7-2001, they were awarded major penalty of 'Dismissal from Service' by the Deputy Director Food, Sukkur Region, Sukkur. Feeling aggrieved, they preferred departmental appeal (s) to the Director Food, Government of Sindh, Karachi. On getting no response within stipulated period of 90 days, they have preferred the instant appeals before this Tribunal.
3. In support of appeals, learned counsel for the appellants mainly contended that wheat was sold in the open market by the appellants at prescribed Government rate with the verbal permission of the Deputy Director Food as the wheat stock lying in the stores was being weevilzed. Its entire cost was deposited in Government Treasury, thus the question of misappropriation or even temporary misappropriation does not arise. He submitted that Inspecting Officers time and again reported to the high-ups to dispose off the wheat lying at the Godowns to avoid further loss but no timely action was taken. Further, he stated that although the members of the Enquiry Committee constituted by the Government in their report dated 14-4-2001 reported that there was no shortage of wheat stock in the Godowns and that Centre Incharges sold Government wheat in open market and credited total costs in Government, Treasury on the basis of permits and challans issued by the District Food Controller, Nausharo Feroze, yet instead of dropping the matter on the basis of enquiry report, appellants were proceeded with departmentally under the Efficiency and Discipline Rules. He forcefully argued that in view of the nature of allegation, which the appellants denied vehemently, the department was not justified to dispense with the regular enquiry. He urged that awarding major penalty to the appellants by adopting a summary procedure was not warranted by law and is liable to be set aside. In support of his contentions, he relied upon, I) 1989-PLC (C.S.)-414, ii) 1995-PLC (C.S.) 795, iii) 1997 SCM R 1543 iv) 2002 SCM R 71, and v) 2003 PLC C.S.) 7), Lastly,, he contended that the impugned orders dismissing appellants from service' are discriminatory as their co-civil servant Haji Fayaz Ahmed Memon charged with similar allegations has been reverted while the appellants have been awarded major penalty of dismissal from service.
4. In rebuttal, learned Assistant Advocate-General argued that appellants in their statements before Enquiry Committee' so also in their replies to the show-cause notice(s) have admitted the sale of Government wheat in open Market. Therefore, in view of admitted facts there was fib necessity of ordering/conducting regular enquiry. Next, he submitted that their act of selling Government wheat without permission of Authorities concerned was against the law and the policy of the Food Department which amounts to misconduct, they were rightly awarded major penalty and the same in the circumstances of the case calls for no interference by this Tribunal..
5. We have considered the above submissions, perused the material/documents placed on the record and have gone through the case-law cited at the bar. There is no denial of the fact that appellants had sold the Government wheat in open market. In this regard, the explanation offered by the appellants that a huge stock of Government wheat lying in the procurement centres was being weevilzed and such intimations were given to the higher authorities time and again and that the Inspecting Officers after physical verification of the stock lying in the godowns supported the appellants plea and they in their reports remarked that if the wheat stocks are not cleared, the Government would sustain heavy financial loss. Therefore, in order to save the Government from financial loss some wheat bags were sold by them in an open market at the Government rate of Rs.850 and deposited the entire amount in the Treasury through challans duly signed by the District Food Controller, Naushahro Feroze. Be that as it may, the fact remains that why the appellants had not obtained the permission from the concerned authorities and for what reasons they did not inform the concerned quarters about selling of Government wheat in an open market. Their contention that verbal permission was obtained by them from the Deputy Director Food, has no substances. In official matters, verbal permission in such-like cases, has no legal sanctity. Besides, explanation so offered in the absence of any convicting proof is hardly believable. Contentions that no regular enquiry was conducted and the appellants were not afforded opportunity .To rebut the allegations, therefore, major penalty awarded to them is not sustainable, has no substance. In view of the material on the record coupled with appellant's admission, no regular enquiry was necessary. It is well-settled principle of law that the question, as to whether a regular enquiry is to be held in a case of misconduct against an,accused civil servant/employee or not, will depend on the facts of each case. In the case of Nawab Khan and another v. Government of Pakistan through Ministry of Defence Rawalpindi and others, PLD 1994 SC 22, the Honourable Supreme Court after referring/relying number of reported cases on the subject, observed that; an authorized officer has discretion to decide, whether in a disciplinary proceeding against a civil servant in response to his reply to the charge sheet, a regular enquiry should be held or not. The above discretion is not controlled by any precondition or guideline but nevertheless this discretion like all other discretions is to be exercised fairly and reasonably and not arbitrarily or capriciously with the object not to deny the civil servant the right of fair defence. So, if the charge is founded on admitted documents/facts, no full-fledged enquiry is required but if the charge is based on disputed questions of fact, a civil servant cannot be denied a regular inquiry, as the same cannot be resolved without recording evidence and providing opportunity to the parties to cross examine the witnesses. In the instant case, as observed earlier, the appellants in their statements before the Enquiry Committee as well as in their replies to the show-cause notice so also in their memo. Of appeals have admitted in clear terms that they had sold the Government wheat in an open Market.
Their explanation that it was due to some compelling circumstances, is not believable. In these circumstances, the Authorized Officer had committed no illegality or irregularity in dispensing with the regular enquiry.
6. It appears that during tenure of appellants service, it was the first charge of inefficiency and negligence proved against them. It is not a case of fraud, forgery or permanent embezzlement/misappropriation, as the total cost of wheat has already been deposited with Government Treasury. It also appears that there was no ulterior motive behind the sale of Government wheat in an open Market. On the contrary, it is case of inefficiency and negligence.
Punishment shall always be commensurate to the guilt established. Taking all the aspects of the three appeals into consideration, we are of the considered opinion that except the fact that appellant had sold Government wheat without obtaining prior permission from the higher authorities and had acted in negligent manner, no other charge of embezzlement has been proved against them. Viewed in this context, the penalty of dismissal from service would seem to be a bit too harsh, coupled with the fact that their co-civil servant Haji Fayyaz Ahmed Memon charged with similar allegations was treated differently. It is absolutely discrimination. The impugned order (s) being discriminatory are not good in the eye of law and justice.
7. For the aforesaid reasons, we are of the considered view that the penalty imposed upon the appellants is too harsh. Accordingly, the penalty in the shape of dismissal from service is converted to that of "Reduction in Rank for a period of two years". Which will meet the ends of justice? With the above modification in the penalty, the appeals stand disposed off. There will be no order as to costs.
8. Announced in open Court.
' Given under spur hands and seal of the Tribunal, this 15th day of July, 2003.