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Petitioner: SARDARMUHAMMAD VS Respondent: AUDITOR-GENERAL ' OF PAKISTAN, ISLAMABAD
2000 P L C (C
2000 P L C (C.S.) 1019
[Federal Service Tribunal]
Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members
SARDAR MUHAMMAD
Versus
THE AUDITOR‑GENERAL OF PAKISTAN, ISLAMABAD and 3 others
Appeal No. 17‑P of 1997, decided on 5th November, 1998.
(a) Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑ ‑
‑‑‑‑Rr. 5, 6 & 7‑‑‑Departmental Enquiry‑‑‑Powers of Enquiry Officer‑‑ Scope‑‑‑ Procedure‑‑‑Enquiry Officer, was not supposed to express his views regarding imposition of penalty, but was supposed simply to record enquiry proceedings and to submit his report before Authorised Officer‑‑‑Authorised Officer was authorised to award minor penalty if he considered that case deserved for imposition of such penalty, otherwise in event of imposition of major penalty, Authorised Officer would forward proceedings to Competent Authority for appropriate order.
(b) Service Tribunals Act (LXX of 1973)‑‑‑ .
‑‑‑‑Ss. 4 & 5‑‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R. 4(1)(b)(i)(iii)‑‑‑Penalty of stoppages of increments and reduction in pay was converted into removal from service‑‑‑Penalties of stoppage of two increments with cumulative effect and penalty of reduction in pay were imposed on civil servant after charge‑sheeting him and holding enquiry against him on allegation of making over‑payment to staff‑‑‑High powered Committee which conducted thorough probe into the matter, had concluded that said overpayment to staff was result of fraud and corruption in which huge amount was misappropriated by civil servant in connivance with others‑‑‑Charges pf misappropriation, fraud, misconduct and inefficiency having stood proved against civil servant, Service Tribunal empowered under S.5 of Service Tribunals Act, 1973, converted said two penalties imposed on civil servant into removal from service.
Sheikh Riazul Haq for Appellant.
Javaid Aziz Sandhu, Standing Counsel for Respondents alongwith M. Israr, A.O. and Manzoor Abbas, A.O., Departmental Representatives.
Date of hearing: 2nd October, 1998.
JUDGMENT
MUHAMMAD AYUB KHAN (MEMBER).‑‑‑As per the remand order, dated 26th June, 1998, by the Honourable Supreme Court of Pakistan vide which this Tribunal has been directed to decide this appeal purely on merits and without pressing the technical and procedural defects relating to the enquiry proceedings and due to this reason both the parties in the Honourable Supreme Court agreed and as such we will confine ourselves to discussion of the appeal purely on factual side without touching the vires of the departmental proceedings on technicalities such as non‑issuance of show cause .notice before passing the impugned penalty order, non‑supply of enquiry report to the appellant and non‑association of the appellant with the enquiry proceedings.
2. In the wake of the above background it is to state that, as per the averments made in the appeal, the appellant joined the Government Service as Senior Auditor. (B‑11) under respondent No.1 on 12‑10‑1983, qualified SAS Examination, then promoted as Accountant (B.16) and posted as District Accounts Officer, Nowshera, and while serving as such he was suspended on 28‑7‑1994 on the allegation of making overpayments to the staff of Sub‑Divisional Education Officer (Female), Nowshera, for which he was departmentally dealt with. He was served with a show‑cause notice which was accordingly replied and ultimately by order, dated 23‑5‑1996 penalty of stoppage of two increments with cumulative effect was awarded to him by respondent No. 1, and as per the facts at para. 5 of the appeal he was again charge‑sheeted on 30‑7‑1995 on a charge of inefficiency and in this respect he also explained his position regarding the allegations and ultimately a major penalty of reduction in pay to minimum of B.16 was awarded to him by order, dated 12‑9‑1996 by respondent No. l against which he preferred a departmental appeal on 12‑10‑1996 which when not responded, within ' the stipulated period of ninety days, he filed service appal on 11‑2‑1997 which appears to be within time. It has been averred at Serial No.III of the Grounds that:‑‑
"the penalty of stoppage of increments with cumulative effect cannot be imposed under the rules."
We do not support this view for the reason that there is no bar on stoppage of increments with cumulative effect. However, stoppage of increments with cumulative effect is, ordinarily as exceptional order, resorted to in extreme cases of misconduct and corruption etc. It depends upon the nature and gravity of each case.
3. It is also averred in the appeal that the appellant was singled out and penalized while others in similar situation were not taken to task and hence he stood discriminated. It is further alleged that similar misappropriations/over‑payments of money were made at Charsadda as well, the short answer to which is that he has no concern with Charsadda Office having been posted at District Nowshwera. In support of this allegation no documentary proof is available on the file to show that misappropriation of funds was committed at other stations with which he was not the least concerned. It is also stated in one of the grounds that Respondent No.3 had a personal grudge against him due to previous enmity. It appears to be a wild allegation against respondent No.3. Objection for the sake of objection does not work/valid. The allegation must be of a substantial nature and promptly pursued to its logical end and the irregularities, if committed, fell under the responsibility of the Computer Section and not the appellant, who in fact, was on forced leave w.e.f. 23‑5‑1994 when inspection was taken and he was not afforded an opportunity to explain his position. However, it is wrong to suggest that the Authorised Officer exceeded his limits by not accepting the views of Enquiry Officer. Legally an Enquiry Officer is not supposed to express his views regarding imposition of penalty. He is simply supposed to record enquiry proceedings and to submit his report before the Authorised Officer, who is authroised to award minor penalty if he holds that a case deserves for imposition of a minor penalty otherwise in the event of imposition of a major penalty he would forward the proceedings to the authority for appropriate order. It is further stated that the penalties awarded to the appellant by order, dated 23‑5‑1996 and‑ 12‑9‑1996 were extremely harsh and not commensurate with the facts/irregularities, if any, on file.
CASE NO. 1
4. A perusal of the Summary/History of the case, annexed to the file, which is detailed and most explanatory, and also the parawise comments reveals that as per the reports regarding fraudulent drawals of huge amount on account of salary to Female Teachers of the Office of the Sub‑Divisional Education Officer (Female), Nowshera, in league with staff of DAO Officer, Nowshera, (Audit Office) an Inspection Team, consisting of M/s
(i) Elahi Bakhsh, A.O.
(ii) Nawab Khan, A.A. O. and
(iii) Abdul Raziq, Senior Auditor.
was deputed to conduct a preliminary enquiry which ultimately dug out/pointed out fraudulent drawlas of Rs.2,17,601 pertaining to the period from 7 of 1991 to 5 of 1994 on account of pay and leave salary etc. for
(a) Sardar Muhammad, Appellant,
(b) Senior Auditor and
(c) Data Coder
were responsible for the said fraudulent overpayments and as such they were suspended from service w.e.f 28‑7‑1994 and later on proceeded against under the Efficiency and Discipline Rules, all were given full opportunity to produce any documents in defence and accordingly out of thirty allegations, seventeen allegations could not be proved/established whereas seven allegations were partly established while four allegations regarding allowing of over‑draft/fraudulent
drawals of Rs.7,04,392.71 were established against the appellant as per Annexure‑II to the comments. The charge was established against Sardar Muhammad, A.O., who was awarded a minor penalty of stoppage of two annual increments by the Competent Authority i.e. the A.‑G., Ns‑W.F.P., and simultaneously he was reinstated in service with effect from 21‑5‑1996 while treating the suspension period from 28‑7‑1994 to. 20‑5‑1996 as leave on half pay by Office Order, dated 23‑5‑1996 against which the appellant, Sardar Muhammad, did not avail departmental remedy and hence the minor penalty so imposed attained finality and as such, it is further averred, that there is no legal justification for the appellant to file an appeal before the Service Tribunal whereas Senior Auditor Abdul Karim was awarded punishment of compulsory retirement from service while Noor Rehman, Data Coder was imposed a penalty of stoppage of two annual increments and both of them accepted the penalties by not challenging the same further.
CASE N0.2
5. There was detected , another case which has been termed under the heading:‑‑
FOLLOWING IS THE SUMMARY/HISTORY OF THE CASE
It is reported that during the internal inspection/checking of the Office of the DAO, Nowshera, in March, 1995 further over payments to the tune of Rs.3,16,143 were detected for which the appellant, Sardar Muhammad, AAO, Abdul Karim, Ex‑Senior Auditor in Pension Section and Rs.5,558.80 in GAD Section were detected and in one case the total of amount of Rs.4532.50 + Rs.453.25 was worked out as Rs.5,985.75 instead of Rs.4,985.75 resulting in over payment of Rs.1,10,714.60 as per the details in Appendix‑III to these comments. It is stated that this charge had no concern with the earlier charge‑sheet. In this case the authority imposed penalty of reduction in pay to minimum of B.16 to the appellant, Sardar Muhammad, by order, dated 12‑9‑1996 against which he preferred a departmental appeal and thereafter, he filed an appeal before the appellate authority i.e. the Deputy Auditor‑General Co‑ordination, Islamabad. However, all the three aforesaid officials were held responsible and accordingly punished.
6. A perusal of the record inclusive of the High Powered Committee I conducting a thorough probe into the matter, the parawise comment's ‑and other connected documents, all boils to the proof to the charge of misappropriation of huge amounts by the appellant in connivance with his other two colleagues, referred to above, and as such the charges of misappropriation and misconduct/Inefficiency stand proved against the B appellant. He was to the relevant time acting as Accounts Officer, Nowshera, and was legally and morally bound to safeguard the public funds but instead of doing so he became a party to the unauthorized drawal of the same. The amounts appears to. be heavy and as such cannot lightly be waived/considered. Corruption is rampant in our society. There is no justification for indulgence in corruption under the tenets of Islam i.e. the Holy Quran and the Sunnah of the Holy Prophet (p.b.u.h.) and according to which:‑‑
7. Analysis of the factual evidence available on the file involves the appellant with misappropriation of huge amounts of money and as such in view of the solid evidence appearing against him this appeal fails and is hereby dismissed and while exercising powers under section 5 of the Service Tribunal Act, 1973, herein reproduced, we convert the major penalty imposed under rule 4(1)(b)(i) to that of 4(1)(b)(iii) (i.e. "removal from service") of the Government Servants (Efficiency and Discipline) Rules, 1973. Sec
MISSED PAGE NO.959
definition of "workman" underion 5 of the Service Tribunals Act, 1973, reads:‑‑--
"(5) Powers of Tribunal ‑(1) 'A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against.
There shall be no order as to costs. All concerned be informed accordingly.
H.B.T.l2981Sr(Trib.) Appeal dismissed.