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Petitioner: AFTAB AHMAD VS Respondent: GENERAL MANAGER (PLANNING), PLANNING DIVISION, WAPDA, LAHOREHonorable Justice CH. HASAN NAWAZMian Mahmood Hussain,Ch. Ghulam Hasan Gulshan
1993 P L C (C
1993 P L C (C.S.) 662
[Federal Service Tribunal]
Before Ch. Hasan Nawaz and Muhammad Ismail, Members
CH. AFTAB AHMAD
versus
GENERAL MANAGER (PLANNING), PLANNING. DIVISION, WAPDA, WAPDA HOUSE LAHORE and another
Appeal No. 228(L) of 1984, decided on 31st January, 1993.
Civil service‑‑‑
‑‑‑‑ Dismissal from service‑‑‑Employee was dismissed from service on serious allegation of embezzlement of public money‑‑‑Employee was duly charge sheeted and enquiry was held against him in accordance with law‑‑‑No procedural defect appeared to have been made in conduct of enquiry and all requirements of relevant rules were observed by Inquiry Officer during his proceedings‑‑‑Nothing was on record to show that employee was not given adequate opportunity to defend himself‑‑‑Employee failed to establish that Inquiry Officer was biased or interested against him‑‑‑No miscarriage of justice had come about in case‑‑‑Allegation on basis of which employee was dismissed having been substantiated, order of his dismissal, could not be challenged.
1983 SCMR 769 and PLD 1973 Lah. 188 ref.
Mian Mahmood Hussain for Appellant.
Ch. Ghulam Hasan Gulshan for Respondents
Date of hearing: 27th January, 1993
JUDGMENT
CH. HASAN NAWAZ (MEMBER): ‑‑We are concerned in this judgment with the disposal of an appeal under section 4 of the Service Tribunals Act, 1973 filed by the appellant, an erstwhile Senior Engineer in the respondents' service, after fulfillment of statutory requirements in the background of the following facts.
2. The appellant was served with the charge‑sheet dated 9‑6‑1983 (Annexure H) which was accompanied by a statement of allegations (Annexure K). In response he submitted his explanation dated 30‑6‑1983 (Annexure E) where the correctness of all the allegations was denied.
3. By office order dated 18‑7‑1983, Col. Retd. BA. Kaif, Director (Inquiries) WAPDA was appointed as an Inquiry Officer to enquire into the charges levelled against the appellant and Mr. Muhammad Aslam, Senior Engineer who had succeeded the appellant as Executive Engineer, Dams Investigations Division. After inquiry he submitted his report to the competent authority on 29‑10‑1983 (Annexure P). This was followed by service of a final show‑cause notice dated 2‑11‑1983 (Annexure O), which said that on consideration of relevant material and the report of the Inquiry Officer, the competent authority was of the tentative opinion that the penalty of dismissal from service should be imposed against the appellant. After the report of the Inquiry Officer was made available to him, he submitted explanation dated 22‑12‑1983 (Annexure Q) to the final show‑cause notice.
4. Eventually, after due observance of necessary formalities, major penalty of reducing the appellant to the lowest stage in his time scale for a period of two years was imposed against him by the General Manager (Planning) WAPDA by office order dated 27‑2‑1984 (Annexure T). It said that after a lapse of two years he would be entitled to earn increments, "but without the benefit of past service in the time scale". His pay was accordingly to be fixed at the lowest stage in the time scale with effect from 27‑2‑1984.
5. The appellant addressed a departmental appeal dated 25‑4‑1984 to the Member (Water). It was during the pendency of this appeal that the General; Manager (Admn.) issued notice dated 11/13‑5‑1984 (Annexure V) on behalf of respondent No. 2 under Rule 12 of the Pakistan WAPDA (Efficiency & Discipline) Rules, 1978. It said that on a reference from the Director (Inquiries) WAPDA the Authority "was ex facie of the view that the question of adequacy or otherwise of punishment imposed on you needs reconsideration". The appellant was called upon to show cause why the punishment awarded earlier should not be specifically enhanced by the Authority in exercise of powers under Rule 12 of the Rules, so as to commensurate with the nature of the charges against him.
6. The appellant submitted his explanation to this notice dated 27‑5‑1984 (Annexure W). Thereafter, he was given personal hearing by the Authority which was followed by order dated 27‑6‑1984 (Annexure X) dismissing him from service. This order purports to have been passed by the Authority in exercise of its powers under Rule 12 of the Rules.
7. The validity of orders dated 27‑2‑1984 and 27‑6‑1984 conveyed to the appellant on 9‑7‑1984 has been challenged on this appeal which is based on the main ground that the allegations against the appellant have not been substantiated. The gist of the appellant's case is that there was nothing before the Inquiry Officer to justify the conclusion that the charge against him has been established.
8. Another ground is that the inquiry was not held in accordance with law and that the Inquiry Offer reached the conclusion on charges Nos. 7 and 8 without examining the original cash vouchers. It was alleged that he relied only on the statements of the Auditors who appeared as prosecution witnesses and failed to exercise his own judgment. It is also pleaded that he exceeded his jurisdiction during the course of inquiry by adding certain allegations which were not a part of the statement of allegations served with the charge‑sheet. It is alleged that while reaching certain conclusions the Inquiry Officer was influenced by considerations which were ulterior to the charge‑sheet. It was further pleaded that the relevant record was not shown to the appellant during the course of inquiry and that he was not given an opportunity to defend himself.
9. In the written statement, it has been pleaded that the inquiry was held in accordance with the rules and that all the relevant record was made available to the appellant for consultation. About the report it was pleaded that it was in accordance with the law and that the Inquiry Officer did not exceed his jurisdiction in recording his findings. It is also on the respondents' pleadings that the appellant had access to the record at the time of submitting his reply to the charge‑sheet and that he was given adequate opportunity to defend himself against the proposed action.
10. As we see from the record, there are nine charges of permanent embezzlement against the appellant. Out of these, he was exonerated by the Inquiry Officer of the allegations made in charges Nos. 1, 2, 3, 6 and 9 of the charge‑sheet.
11. Charge No. 4 was in respect of embezzlement of Rs.254.17. The Inquiry Officer's finding about this charge was that the appellant was, responsible for embezzlement of this amount along with Mr. Abdul Ghafoor, Divisional Accountant and Fazal Din, Cashier.. The conclusion arrived at by him is that the appellant and the Divisional Accountant are equally responsible for embezzlement of this amount "as they had signed the physical cash counting certificate on 30‑4‑1980 showing the cash balance of Rs.254.17 lying in the chest, whereas subsequent events proved that this cash balance was not held in the chest at the time of handing over the charge of Dams Investigation Division on 31‑7‑1980.
12. Charge No. 5 was regarding embezzlement of Rs.111. The Inquiry, Officer's finding was that "it is, however, felt that this petty amount of Rs.111 was pocketed by Mr. Fazal Din Cashier to whom it was returned by the advance at the time of submission of contingent bill. Since the accused XEN and the Divisional Accountant had recorded a wrong pass order on the contingent bill, therefore, they also become responsible for the non‑accountal of this amount".
13. Charge No. 7 was in respect of embezzlement of a sum of Rs.70,000. It was accompanied by the following statement of allegations:
"G EMBEZZLEMENT OF RS.70.000
(1) According to the cash book page No. 224581 of Imprest Cash Book of Perur High Level Canal Bank A/c MP/110 a. Cheque No. 765026 dated 19‑7‑1979 for Rs.80,000 was drawn and got encashed on account of cash for chest. Out of this amount a temporary advance of Rs.55,000 has been shown as issued to Mr. S. Altaf Hussain Shah, SDO on the same date i.e. 19‑7‑1979 for initial set up of rigs etc.
(2) Again, a Cheque No. 765063 dated 13‑1‑1980 for Rs.60,000 was got encashed on 13‑1‑1980 on account of cash for chest wherefrom a sum of Rs.15,000 has been shown as issued to Mr. S. Altaf Hussain Shah, SDO as temporary advance for repair of vehicles.
(3) Neither any acknowledgements of the receipt of these amounts of Mr. Altaf Hussain Shah, S.D.O. are available in any form on the record nor said Mr. Altaf has accepted receipt of these amounts. The statement showing the position of temporary advances issued to Mr. S. Altaf Hussain Shah, S.D.O. as extracted from the Cash Book of Pehur High Level Canal Bank A/c No. 110 (para No. 130) is indicative that no adjustment account was ever rendered by the advance and the balance of Rs.70,000 still outstands.
(4) Thus bogus/fictitious advances amounting to Rs.70,000 have been shown in the Cash Book while the cash has been embezzled by him in connivance or jointly with his Divisional Accountant and/or the Cashier.
(5) Again as per CPW A/c Code and as well as in para. 66 with para. 73 of WAPDA Accounting Manual (Cash Portion) Revised Edition Mar. 1978, all the entries in the cash book were required to be checked by him in the capacity of Drawing and Disbursing Officer. Further it is also required vide paras. 17, 44, 45, 80 of CPWA Code and paras 4, 5, 66, 67 and 73 of WAPDA Accounting Manual. He has signed the certificates on 19‑7‑1979 at page 224501 and on 13‑1‑1980 at page 224513 regarding balance of cash in chest and temporary advances which were incorrect being the inclusive of the said amounts of Rs.55,000 and Rs.15,000 respectively. Such certificates are all the entries recorded in the cash book. In the light of para. 73 (Cash portion) of WAPDA Accounting Manual (Revised Edition Mar. 1978) he was also responsible for the safe custody of imprest money. As such he has alleged to have embezzled Rs.70,000."
14. The details of Charge No. 8 regarding embezzlement of Rs.46,000 can be found in the following statement of allegations: ? "(1) During his incumbency as XEN/Drawing & Disbursing Officer in DID (P&I), the following temporary advances were shown as issued to Mr. Manzoor Hussain, S.S.K. in the Cash Book of Baghal Chour (DID) Bank A/c No. 104 on the date and at the page of Cash Book noted against each case:
S. No.
Date of issue and cash? counting certificate
Amount???????????
Cash Book Page No.???????????????????????
1.
12‑12‑1978????
10,000 ???????????
207155
2.
5‑3‑1979
500????? ??????????? ???????????
207166??????????? ???????????????????????
3.
15‑3‑1979??????????????????
23,000
207170??????????? ???????????
4.
11‑4‑1979?????????????????? ???????????????????????
8,000??
??????????? 207172
5.
11‑4‑1979
2,000?? ??????????? ???????????
207173???????????
6.
12‑9‑1979??????
6,000
207192??????????? ???????????????????????
7.
7‑10‑1979?????????????????? ???????????????????????????????????
4,500
??????????? 207196
Total?????????????????????????????????????????????????????????? ?????????????
54,000
??? -------????????? ???????
??????????????????????????????????????????????????????????? ?
(2) In his reply to A/Para No. 129, the said SSK Mr. Manzoor Hussain has accepted receipt of an advance of Rs.8,000 only (vide entry dated 11‑4‑1979 made at page 3 of the register of Temporary Advance No.4).
(3) In respect of the remaining temporary advances noted above totaling Rs.46,000 (Rs.54,000) (‑) Rs.8,000) neither any acknowledgements of the receipt of these amounts by said Mr. Manzoor Hussain, SSK are available in any form on the record nor said Mr. Manzoor Hussain, has accepted receipt of these amounts. However, out of these bogus/fictitious advances amounting to Rs.46,000 a bogus advance of Rs.2,000 (probably dated 11‑4‑1979) was again adjusted by the Cashier in the Cash Book at page 207199 against Vr. No. 77 dated 30‑10‑1979 for Rs.10,552 showing this adjustment against temporary advance of Rs.10,000 with additional cash payment of. Rs.522 whereas said Mr. Manzoor Hussain has stated in his written reply to Audit Para. 129 that account for Rs.10,522 was rendered by him against temporary advance of Rs.8,000 and had received additional cash payment of Rs.2,522 on 30‑10‑1979. The contingent bill bearing Vr. No. 77, dated 30‑10‑1979, has not been signed by the said advance and appears to have been replaced in the Divisional Office in order to cover up bogus/fictitious advance of Rs.2,000 shown issued on 11‑4‑1979. This contingent bill bearing Vr. No. 77, dated 30‑10‑1979 has been passed for adjustment jointly by him and the Divisional Accountant. Evidently cash amounting to Rs.2,000 was embezzled temporarily for the period from 11‑4‑1979 to 29‑10‑1979 (i.e. for 6 months and 19 days).
(4) The position of temporary advances shown issued in the Cash Book of Baghal‑Chour (DID) in the name of Mr. Manzoor Hussain, SSK has been extracted as under:‑
1. Total Temporary advances??????????????????????????????????????? ??????????? Rs.54,000
2. Addl., Cash Payment??????????????????????????????????????????????? ??????????? R s. 22 ??????????????????????????????????????????????????????????????????????????????????? ??????????? Rs.54,522
3. Less account rendered and adjusted????????????? ??????????? Rs.10,522
4. Balance still outstanding ?????????????????????????????????????????? ??????????? Rs.44,000
(5) From the position explained above as well as the fact that he has been recording cash account certificate for net amounts i.e. after reducing the balance by the amount shown as advances, it is evident that bogus/fictitious advances amounting to Rs.46,000 have been shown in his cash book of Baghal Chour (DID) Bank Account No. 104."
15. In respect of Charge No. 7, the Inquiry Officer's finding makes the following reading:
"In the light of above discussion, I am convinced that the accused persons have embezzled the amount of Rs.70,000 but have tried to cover it up in the cash book by showing it as fictitious advance in the name of Syed Altaf Hussain Shah, which was subsequently adjusted by making entries against bogus vouchers and by recording incorrect cash counting certificates or by showing wrong temporary advance in the name of Mr. Imtiaz Ahmad Butt at the time of handing over the charge on 31‑7‑1980. I, therefore, proceed to hold that Mr. Aftab Ahmad XEN, Mr. Abdul Ghafoor, Divisional Accountant and Mr. Fazal Din, Cashier had jointly connived to embezzle this amount and hold them guilty of the charge:"
16. The conclusion arrived at by him in respect of charge No. 8 is as follows:
"In the light of above discussion, it is proved beyond any shadow of doubt that Rs.2,000 was temporarily embezzled for a period of six months and nineteen days i.e. from 11‑4‑1979 to 29‑10‑1979 and Rs.47,445.96 have been permanently embezzled. Though later on, through the efforts of Ch. Muhammad Aslam XEN. Rs.13,800 were recovered from Mr. Fazal Din, Cashier but this recovery in no way lessens the quantum of embezzlement by the accused persons which stood at Rs.47,445.96 on 31‑7‑1980 when Ch. Aftab Ahmad had handed over the charge of DID to Ch. Muhammad Aslant. I, therefore, proceed to hold that the accused persons are guilty of permanent embezzlement of Rs.47,445.96 and temporary embezzlement of Rs.2,000 for a period of 6 months and 19 days."
17. In addition, the charge‑sheet contained the following allegations regarding temporary embezzlement alleged to have been committed during the period from 22‑1‑1980 to 6‑2‑1980:
"TEMPORARY EMBEZZLEMENT:
(1) In nine cases heavy temporary advances totaling Rs.2,01,000 have been shown as issued to Mr. Altaf Hussain Shah, S.D.O. on different dates in the Imprest Cash Book of CRBC Bank A/c No. 96. Neither any acknowledgment of receipt in any form is available on the record nor said Mr. Altaf Hussain Shah has accepted the receipt thereof. Similarly, sums of amount have been shown as cash received back from said Mr. Altaf Hussain in 8 instalments amounting to Rs.2,01,000 on subsequent dates. The return of this cash has also been denied by the S.D.O. in his replies to audit para. Nos. 26 and 110. The details of amounts of these fictitious issues of temporary advances and receipt back of the same are given in the enclosed statement Annexure B. The bogus issue and receipt back of cash on various occasions in fact amounts to temporary embezzlement of Rs.2,01,000 in aggregate for the period shown against each case is Annexure B. Thus you are responsible for these temporary embezzlements of Rs.2,01,000.
(2) In eight cases heavy temporary advances totaling Rs.85,676.69 have been shown as issued in the Imprest Cash Book of Main (ADP) to Mr. Altaf Hussain Shah, S.D.O. Similarly an aggregate amount of Rs.72,072.30 in 14 instalments have been shown as returned to chest in the name of said S.D.O. at subsequent dates.
However, there have been temporary advances issued to said S.D.O. which though acknowledged on the Temporary Advance Register have not been entered in the Cash Book. Such advances are in aggregate sum of Rs.13,604.39.
In his reply to audit para. No. 108 the said S.D.O. has denied either the receipt of advance or the return of cash etc. totally Rs.85,676.69. The details of issue of temporary advances and return of cash to chest etc. are given in the list attached hereto as Annexure C.
It is, therefore, evident that a sum of Rs.85,676.69 has been embezzled temporarily for the period as shown against each cash in the enclosed list.
You are, therefore, responsible for temporary embezzlement of various sums of amount for various period, as shown in the list which aggregates to Rs.85,676.69 (Annexure C).
(3) In twenty cases as per list attached hereto as Annexure (D), heavy temporary advances totaling Rs.2,29,000 have been shown as issued to Mr. Tajamal Hussain, S.D.O. on different dates as mentioned in the list in the Imprest Cash Book of Baghal Chaur (DID) Bank A/c No. 104. Neither any acknowledgements or receipts for these advances are available on the record nor said Mr. Tajamal Hussain has accepted the receipt thereof. Similarly, there have been shown return of cash to chest on different subsequent dates in the said cash book as amount received back from the said S.D.O.
Mr. Tajamal Hussain, S.D.O. has since denied in reply dated 31st December, 1981 to audit para. 117 to have either received these advances or return these amounts to chest.
Again Mr. Tajamal Hussain has stated in his written reply dated 31st? December, 1981 that temporary advances totaling Rs.1,56,318.44 were actually issued to him for which he has acknowledged receipt in the Register of Temporary Advances. These amounts, however, were not entered in your cash book on the dates specified in the Register of Temporary Advances.
The systematic fictitious issues of temporary advances in various amounts and thereafter, actual issue of advance not recorded in the cash book but acknowledged in the Temporary Advance Register and fictitious entries of cash returns have been made intentionally to cover temporary embezzlements of various amounts. As a result of this process there has been temporary embezzlement of an aggregate amount of Rs.2,29,000 for the period noted against each case in the said Statement (Annexure D).
Thus you are responsible for temporary embezzlement of various amounts as stated in the statement totaling Rs.2,29,000 during the periods indicated in the said Annexure (D).
(4) A cash amount of Rs.35,000 has been shown as received and deposited into Bank on 10th November, 1979 (over written as 14th November, 1979) at page 157781 in the Imprest Cash Book No. 3156 of CRBC, Bank A/c No. 96. But a reference to the Bank statement for the month of 11/79 revealed that this particular lump sum amount of Rs.35,000 was never credited into the Bank. There are sums of Rs.20,000 and Rs.15,000 which appear as credited in the Bank statement on 27th November, 1979 and 17th December, 1979 respectively. There are no entries in the cash book for these deposits,
The cash amount of Rs.35,000 was neither deposited into bank by you nor this amount was lying in the chest as is evident from the physical cash (i.e. Rs.99.81 only) counting certificate recorded and signed on 14th November, 1979 in the Cash Book at page 157782 by you as well as by your Divisional Accountant Mr. Abdul Ghafoor.
Thus you are responsible for temporary embezzlement of cash amounting to Rs.35,000 as detailed below:
(i) Rs.20,000 from 14th November, 1979
to 26th November, 1979????????????????????????????????????????????? M??????????????????????? D (both days inclusive)???????????????????????????????????????????????????? 0??????????????????????? 13
(ii) Rs.15,000 from 14th November,???????????????????????????? 1??????????????????????? 3
1979 to 16th December, 1979
(5) Advance of Rs.50,000 has been shown as issued to Mr. Nazir Hussain, Sub‑Engineer, for Bhimber Nallah work on 16th December, 1979 from the Imprest Cash Book No. 3156 of CRBC at page 157785. Immediately after showing issue of temporary advance of Rs.50,000 on the same date the cash book was signed by you and your Divisional Accountant in token of physical cash counting at page No. 157785 which endorses the fact that a sum of Rs.50,000 has been removed from the chest.
The Sub‑Engineer, in his reply to audit para Nos. 112 and 157 has denied to have received the said temporary advance of Rs.50,000 in lump sum. Instead he has confirmed to have received Rs.30,000 on 17th December, 1979 and Rs.20,000 on 31st January, 1980. The receipt of these advances in two instalments in further supported by the entries as recorded at page Nos. 79 and 80 of the Temporary Advance Register No. 4.
These facts indicate that Mr. Nazir Hussain, Sub‑Engineer was given an advance of Rs.30,000 only on 17th December, 1979 and a sum of Rs.20,000 i.e. Rs.50,000 (‑) Rs.30,000 was embezzled temporarily upto 31st January, 1980 when this amount had actually been given to Mr. Nazir Hussain.
You are, therefore, responsible for:
(i) temporary embezzlement of a sum of Rs.50,000 for one day i.e. for 16th December, 1979.
(ii) temporary embezzlement of a sum of Rs.20,000 for a period from 17th December, 1979 to 30th January, 1980 (i.e. for one month and 14 days).
(6) A sum of Rs.17,000 was entered as deposited into the bank on 20th October, 1979 in Imprest Cash Book of ADP (Main) No. 4383 at page 219124. The physical cash counting certificate of Rs.395.26 was recorded on 20th October 1979 at cash book page No. 219126 signed by you and your Divisional Accountant. It meant that the sum of Rs.17,000 was removed from the chest on 20th October, 1979.
The scrutiny of the Bani Statement for 10/1979 revealed that this sum of Rs.17,000 was not deposited into the Bank‑on 20th December, 1979. However, there is a deposit on 17th December, 1979 for Rs.17,000.
It is evident that the said sum of Rs.17,000 was embezzled on 20th October, 1979 and remained temporarily embezzled upto 16th December, 1979 and thereafter it was deposited into the bank on 17th December, 1979.
You are, therefore, responsible for temporary embezzlement of Rs.17,000 for a period from 20th October, 1979 to 16th December, 1979.
(7) Cash amount of Rs.5,000 was shown deposited into bank on 21st May, 1980 in the Imprest Cash Book of DP (Main) at page No. 160011 and physical cash counting certificate to Rs.390 recorded at page No.160012 was duly signed by you and your Divisional Accountant meaning thereby that this cash amount of Rs.5,000 was not lying in the chest on 21st May, 1980.
As a result of scrutiny of bank statement for the month of 5/80, it was observed that this cash amount of Rs.5,000 was not deposited into the bank on 21st May, 1980. Instead the amount appears as deposited on 29th June, 1980.
You had, therefore, removed an amount of Rs.5,000 on 21st May, 1980 from the chest and did not deposit the same till 28th June, 1980.
You are, therefore, responsible for temporary embezzlement of Rs.5,000 from 21st May, 1980 to 28th June, 1980.
(8) Cash amount of Rs.1,000 was shown as received from Mr. Altaf Hussain Shah, S.D.O. and deposited into bank on 22nd January, 1980 in the Imprest Cash Book No. 3392 of ADP (Main) at page No. 169562. The physical cash counting certificate showing cash balance as Rs.434.17 has been recorded on 22nd January, 1980 at Cash Book Page No. 169564 duly signed by you and your Divisional Accountant.
As a result of scrutiny of the bank statement for the month of 1/80 it was noticed that this amount of Rs.1,000 was not deposited on 22nd January, 1980. It was in fact deposited on 7th February, 1980. Since amount of Rs.1,000 shown as deposited on 22nd January, 1980 was neither deposited into bank nor the same was available in the chest as evident from Cash Balance Certificate, the same remained temporary embezzled upto 6th February, 1980.…
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