' JUSTICE (RTD.) ABDUL GHANI SHAIKH (CHAIRMAN).---This appeal is directed against the original impugned order dated 28-10-2000 passed by Respondent No,4 awarding major penalty of 'Removal from service' to the appellant.
2. Precisely, the facts of the case are that appellant who remained posted as Assistant Accounts Officer-cum-Drawing and Disbursing Officer in the office of District Education Officer (Female)
Secondary, Hyderabad twice for the periods from 30-4-1992 to 15-12-1996 and from. 26-2-1997 to 25-3-1999, was directed to proceed on forced leave w,e,f, 26-3-1999, vide order dated 25-3-1999.
During forced leave, he was served with a charge sheet dated 29-7-1999 issued by the Director Secondary Education, Hyderabad Region, containing acts of misconducts as under:-- "1. That you have drawn and disbursed the salaries to the teachers and menials (list attached) without obtaining attendance certificate. This number can be increased if entire record is produced.
2. On verification of pay bills and muster rolls, it reveals that you had drawn the salaries of 64 + 19 absentee teachers and menials (Lists attached) whose initials do not appear in muster rolls. Thus you have embezzled government money to the extent of Rs,40,82,816.
3. You have drawn the salaries of 32 teachers and menials of Middle Schools Hyderabad District upto March, 1999 in the regular pay bills whereas these teachers have been shown on leave in the monthly pay bill of April, 1999 as reported by the Deputy Education Officer (Female) Secondary, Hyderabad. This shows that they were also on leave before April, 1999.
' The following record has not been maintained at all as the same was not produced to the enquiry committee for verification:
(i) Bill register in which all kinds of bills are entered, during your incumbency as D.D.O.
(ii) The record of all kinds of bills encashed by you i,e, cash book.
(iii) Distribution sheets containing receipts of the salaries by the teachers and menials of Govt. Girls Middle Schools, Hyderabad District. In absence of above record it is apprehended that large amount has been embezzled by you."
3. A three-member Enquiry Committee headed by Mrs. Rehmat Qazi, Headmistress (BS-19), Govt.
APWA Girls Higher Secondary School, Latifabad No,8, Hyderabad Sindh, was constituted to probe into the matter with direction to appellant to furnish his reply/explanation to the said Enquiry Committee which vide separate order dated 29-7-1999, the Authorized Officer appointed with the following:{{TABLE}} Mrs. Rehmat Qazi, Headmistress (B-18 Chairman Mrs. Allah Bachayo Khaskhely (B-18) S.D.E.O. (Male), Kotri. Member Mr. Ghulam Hussain Soomro, (BS-16) Supdt. D.E.O. (Male) Pry. Hyderabad. Member {{TABLE}} ' Subsequently, at the request of the Chairperson, Mr. Rasool Bux Sammo, Agro-Technical Officer, Directorate of Secondary Education, Hyderabad was appointed as member of the Enquiry Committee in place of Mr. Allah Bachayo Khaskheli, vide order dated 6-10-1999.
4. In his interim reply, appellant denied the allegations and pleaded his innocence. He also made a request for supply of certain documents. Enquiry proceedings, however, were commenced on the above charges. Later, as per enquiry report appellant was found guilty. Appellant was served with a final show-cause notice dated 27-5-2000, which too he replied and once again requested for supply of several documents not provided to him with the Enquiry report, However, in the light of findings of Enquiry Committee, the competent authority vide order dated 28-10-2000 imposed upon him the major penalty of "Removal from service and recovery of loss sustained by Government". Aggrieved by the said order, appellant preferred departmental appeal and on getting no response within stipulated period of 90 days, he invoked the jurisdiction of this Tribunal through the instant appeal with a prayer to set aside the impugned order. He also requested for his reinstatement in service with all back and consequential benefits.
5. In support of appeal, learned counsel for the appellant contended that a number of important documents which would have enabled the appellant to defend him properly were not supplied to him, before and after Enquiry despite repeated requests, hence serious prejudice was caused to him in his defence. He added that under the law copy of whole enquiry report with the statements of witnesses were to be provided to the accused civil servant but in the instant case except a simply copy of enquiry report no other relevant and necessary document was supplied to appellant, thus mandatory requirement of law was not complied with. Next, he submitted that as per Inquiry Report inasmuch as 46 witnesses were examined by the Inquiry Committee but no proper and reasonable opportunity was afforded to the appellant to cross-examine any of these witnesses, which rendered the entire inquiry proceedings and the report illegal and void. Learned counsel pointed out a number of other legal flaws and factual discrepancies in the enquiry proceedings in order to show that neither the inquiry was conducted in proper and legal manner nor the statements of witnesses and the documents placed were carefully scrutinized to arrive at a legal and proper conclusion rendering whole inquiry proceedings as having been conducted in casual, cursory and routine manner not calling for awarding major penalty. During the course of arguments, learned counsel for the akellant filed a Photostat copy of letter dated 17-7-2003 of D.C.O. Hyderabad forwarding copy of letter dated 4-7-2003 of Executive District Officer (Education), Hyderabad to the Section Officer (C-III), S&GAD, Karachi, stating therein that employees whose salaries were drawn and disbursed were serving at different places of their posting.
6. Conversely, learned counsel Asstt. A.-G. While referring to the inquiry report, argued that the appellant was given full and fair opportunity to cross-examine witnesses but he failed to avail such opportunity. She further submitted that the members of Inquiry Committee were independent and impartial having no personal bias and grudge against the appellant, that the Inquiry Committee conducted the inquiry purely in accordance with the rules and after considering and examining each and every aspect of the case found the appellant guilty and that in view of overwhelming documentary evidence appellant who was rightly awarded major penalty of removal from service calling for no interference. She prayed that the impugned order may by maintained.
7. We have considered the above submissions and with the assistance of both the learned counsel we have gone through the material placed on the record, minutely. There is no denial of the fact that appellant submitted interim reply of the first show-cause notice and demanded the relevant documents to enable him to furnish detailed reply.
' He, as it appears from the perusal of case file, repeated his requests but there is nothing on the record to indicate if the requisite documents were ever supplied to him. Contention Of learned Asstt. A.G. That appellant in his letter dated 12-10-1999 addressed to the Chairperson had stated that reply furnished by him was quite elaborate and comprehensive be treated as his final reply, no doubt is correct, but it appears that appellant was constrained to submit such application on his failure to get the requisite documents. According to enquiry report itself 26 witnesses were examined in presence of the appellant, however, perusal of the statements clearly reveals that no opportunity of cross-examination was given to the appellant. In absence of such opportunity, the statements of said witnesses, have no legal value. We have gone through the statements of witnesses. It is not only that the statements are in English, Sindhi and Urdu language, even the writing is in different hands. In the enquiry report, it is stated that statements of above witnesses were recorded in presence of accused. It is, however, strange that these statements neither bear any cross-examination was afforded. There statements also do not bear any note that accused did not cross-examine any of these witnesses. It is thus evidence that none of the said statement was written either by Chairperson or by any , of member of the Committee and appear to be in the hand-writings of the concerned witnesses and the members of the Inquiry Committee.Who have simply put their signatures on the same by using word "Before us". So far other remaining 20 witnesses are concerned the same were admittedly examined in the absence of appellant and even there is nothing on the record to indicate if the appellant was informed about the dates of recording statements of said witnesses. Perusal of the enquiry report further reveals that the findings of the committee are perverse as the evidence of the witnesses has not been discussed therein. The main allegation against the appellant was that he had drawn and disbursed salaries to the teachers and manials without obtaining attendance certificates and without verification of muster rolls so also he had drawn salaries of the teachers who were on leave. Besides, it was also alleged that bill register, cash book and distribution (D) sheets were found missing. All these allegations were denied vehemently by the appellant in his replies to the show-cause and final show-cause notices, so also during enquiry proceedings. So far missing of certain record is concerned, appellant categorically stated that the same was lying with Ghulam Muhammad, Junior Clerk of the office of District Education Officer (Female) Secondary, Hyderabad. This fact teas also admitted by said Ghulam Muhammad during enquiry proceedings, but surprising enough he was never asked/directed to produce the said record for scrutiny. However, after conclusion of the enquiry and even after issuance of a final' show-cause notice to the appellant, said Ghulam Muhammad's explanation was called through letter dated 4-7-2000 (annexure 2C' Page-51 of the file) on account of non-production of the above said documents. Contents of said letter read as under: "You stated in your reply that the 'D' sheets and attendance certificate of lady teachers of middle school for the period during which Mr. Muhammad Farooq Memon was working as D.D.O. Are in your custody.
' You were asked on 1-7-2000 to produce the record. You promised to bring it on 3-7-2000 but you have failed to do.
' This shows negligence on your part. You are directed to explain as to why you should not be sent on forced leave and disciplinary action be-initiated against you.
' It may be pointed out the tampering with record is a crime and F.I.R. Can also be registered against you."
' Perusal of the above letter reveals that Ghulam Muhammad Junior Clerk has admitted that he was holding in his possession the relevant document rather it supports the plea taken by appellant Muhammad Farooque is his defence that the relevant documents were in possession of said clerk and it also reflects that the allegation against the appellant was false and fabricated. If the said record lying with Ghulam Muhammad Junior Clerk had been procured and produced before the Inquiry Committee the result' of the enquiry might have been different. This also shows that enquiry was conducted in a causal and perfunctory manner.
8. Perusal of the record further. Reveals that before commencement of enquiry proceedings rather before issuance of charge-sheet dated 29-7-1999 to the appellant, the Derectorate Secondary Education Hyderabad through its letter dated 28-5-1999 had forwarded 7 lists bearing names of Mistresses/officials working in various Government Middle/High Schools of Hyderabad District to the District Education Officer. (Female), Secondary Hyderabad, requiring her to certify whether said Mistresses/officials had actually performed their duties, as in the pay bills and Muster Rolls their whereabouts (place where they worked) were not mentioned and it was said that most of them were on verbal derailment at other schools and/or on leave. The D.E.O. (F) was also required to submit their attendance certificate to show as to in which school they had performed their duties.
In response thereto, the District Education Officer (F) Hyderabad through her letter, dated 23-6- 1999 submitted the Muster Rolls/Attendance Register of all such teachers/menials working in various branches of Girls Middle Schools functioning in Hyderabad District. However, as it appears either the said letter was hot placed before the Inquiry Committee or if produced the same was not taken into consideration at all, meaning thereby that the enquiry proceedings were just an eye- wash. It is worthwhile to mention here that in a letter dated 4-7-2003 addressed to the District Coordination Officer, Hyderabad, while offering comments to the appeal of appellant, the Executive District Officer (Education), Hyderabad in Para-5 stated that: "It is also a fact that District Education Officer (F.S.) Hyderabad through her Letter No,391/Hyd. Dated 23-6-1999 had confirmed that all the employees whose salaries were being drawn and disbursed were serving at the place of postings and their existence was proved by the record."
It is thus clear that the findings of the Inquiry- Committee are patently based on whims, surmises, conjectures and are without any valid reasons.
9. As observed in the foregoing paras, the appellant time and again moved applications for supply of various documents to enable him to C defend himself, but neither before the enquiry proceedings nor during the said proceedings nor after conclusion of enquiry proceedings the same were supplied to him. It ;s settled principle of law that nature and conduct of departmental enquiry is not a confidential matter but record must show involvement/association of accused civil servant with commissioned misdeeds. Enquiry proceedings are of judicial nature in which participation of accused civil servants as per law condition since qua non for the reasons that departmental authority is the first stage of judicial proceedings which must be conducted strictly in accordance with D requirements of law and not whimsically. Examination of witnesses must be in presence of accused civil servant during enquiry proceedings. Reference is invited to the cases reported in 1997 PLC (C.S.) 929 and 2000 PLC (C.S.) 857. Besides, the appellant at no stage was allowed to produce evidence in his defence, thus the mandatory provisions of the Sindh Civil Servants (E&D) Rules, 1973, were violated. Under the law, the proceedings conducted in violation of the rules and principles of natural justice, would not be sustainable.
10. For the foregoing reasons, we are of the considered view that the impugned order dated 25-10- 2000 being not sustainable is liable to be set aside. Accordingly, we allow this appeal, set aside the impugned order dated 28-10-2000 with directions that the appellant be reinstated in service and intervening period from dismissal till his reinstatement be treated as a 'leave of kind due'. There shall be no order as to costs.
8. Announced in open Court.