Full Judgment Text & Judicial Ruling

2008 P L C (C

2008 P L C (C.S.) 390

[N.-W.F.P. Service Tribunal]

Before Noor-ul-Haq and Sultan Mahmood Khattak, Members

NAIK MUHAMMAD

Versus

GOVERNMENT OF N-W.F.P. through Secretary Schools and Literacy Department, N.-W.F.P., Peshawar and 3 others

Appeal No.8 of 2007, decided on 11th December, 2007.

North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973---

----R. 4(a)(iv)---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Recovery of amount from the salary of employee---Appeal---Appellant, serving as Associate Professor, certain amount was detected to have been illegally withdrawn by him from G.P. Fund---Preliminary enquiry was conducted, however, appellant was never associated with the said enquiry, nor any copy thereof was provided to him---Without conducting any departmental enquiry, recovery of alleged over-payment on account of fraudulent withdrawal was ordered to be recovered from appellant---All persons, involved in the case had been proceeded departmentally and punished, but while dealing with the case of appellant, no proper departmental proceedings had been initiated against him---Recovery order had been made against appellant who could not be held responsible for the whole mishap without adopting the legal procedure---No show-cause notice, charge-sheet/statement of allegations had been issued to appellant---Appellant had been condemned unheard which was not sustainable under the law---Appellant, in circumstances had made out a case for indulgence of the Service Tribunal---Impugned order was set aside and respondent-department was directed to stop further deduction and to refund the deducted amount to the appellant.

Ijaz Anwar and M. Asif Yousafzai for Appellant.

Usman Ghani, A.-G.P. for Respondents.

JUDGMENT

NOOR-UL-HAQ (MEMBER).--- Mr. Naik Muhammad appellant has filed the instant appeal against the order, dated 30-6-2006 whereby recovery of Rs.8,30,024 including interest from the salary of the appellant has been started. He has prayed that the impugned orders may be set aside and the appellant be exonerated of any Government loss or recovery from his pay and he may also be paid the deducted amount.

2. Facts of the case as narrated in the memo. of appeal briefly are that the appellant has been serving as Associate Professor in the Education Department. While serving in the said capacity certain amount was detected to be illegally withdrawn from the G.P. Fund without ascertaining the true facts or the person responsible. A preliminary enquiry was conducted however, the appellant was never associated with the said enquiry nor any copy was provided to him. Without conducting any departmental enquiry, vide order, dated 30-3-2006, recovery of alleged over-payment on account of fraudulent withdrawal from Account No.IV/CLASS-1/CII/37/CSS was ordered to be recovered from the appellant. The appellant protested against the said order because the appellant had never withdrawn any amount from his G.P. Fund, however, he was given dead response. His wife on his behalf had submitted different representations, however, the same were not replied. The appellant as a last resort submitted a departmental appeal, dated 27-11-2006 however, it was rejected vide order, dated 8-12-2006 communicated to the appellant on 14-12-2006. Hence, the appellant has filed the instant appeal on the following grounds on 6-1-2007:--

(A) the appellant has never withdrawn any amount from the G.P. Fund, illegally nor legally the amount which has been shown as withdrawn could legally be allowed to be withdrawn. In fact the persons responsible for the illegal withdrawal were never proceeded or enquired into and illegally the responsibility has been fixed on the appellant;

(B) all the proceedings conducted against the appellant run counter to the express provisions of law. No law or rules have been referred whereunder the proceedings were conducted, hence the same was illegal and run counter to the express provisions of N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000 or N.-W.F.P. Government Servant (Efficiency and Disciplinary) Rules, 1973;

(C) no show-cause notice or charge-sheet has been served upon the appellant prior to the recovery order, the impugned orders are, therefore, illegal and against the principles of natural justice,

(D) the order of recovery from the pay of the appellant is illegal and incompetent. Despondent No.3 was not the Authority of the appellant nor could assume the power of Authorized Officer,

(E) the appellant has performed his duties to the best of his ability and thus, should not be punished for the efficiency and dedication to his job,

(F) under section 4(a) sub-clause (iv) of the N.-W.F.P. Government Servant (Efficiency and Disciplinary) Rules, 1973 recovery from pay has been declared as minor punishment but before imposing the penalty of recovery the procedure prescribed under rule 5 or 6 is to be followed, however, in the case of the appellant this procedure has been bypassed and thus, the appellant has not been treated in accordance with law.

3. The case had been admitted to regular hearing on 7-8-2007. Notices had been issued to the respondents. They appeared through their representatives, filed written reply, contested the appeal and denied the claim of the appellant.

4. Arguments heard and record perused.

5. The learned counsel for the appellant contended that the appellant was innocent and he never withdrew any amount from the G.P. Fund illegally nor legally the amount which had been shown as withdrawn could be allowed to be withdrawn. In fact the persons responsible for the illegal withdrawal were never proceeded or enquired into an illegally the responsibility had been fixed on the appellant. All the proceedings conducted against the appellant run counter to the express provisions of law. No law or rules have been referred whereunder the proceedings were conducted, hence, the same was illegal and run counter to the express provisions of N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000 or N.-W.F.P. Government Service (Efficiency and Disciplinary) Rules, 1973. No show-cause notice or charge-sheet has been served upon the appellant prior to the recovery order. The order of recovery from the pay of the appellant was illegal and incompetent. Respondent No.3 was not the Authority of the appellant nor could assume the power of Authorized Officer. The appellant has performed his duties to the best of his, ability and thus, should not be punished for the efficiency and dedication to his job. Under section 4(a) sub-.clause (iii) of the N.-W.F.P. Government Service (Efficiency and Disciplinary) Rules, 1973 recovery from pay has been declared as minor punishment but before imposing the penalty of recovery the procedure prescribed under rule 5 or 6 was to be followed, however, in the case of the appellant this procedure had been bypassed and thus, the appellant had not been treated in accordance with law.

6. The learned Government Pleader contended that the recovery was started after conducting proper inquiry by the Accountant-General Office wherein it was found that the amount was actually withdrawn by the appellant under this signatures. The appellant withdrew the G.P. Fund unlawfully and illegally. The recovery was ordered under sub-rule (5) of Rule 17 of G.P. Fund (N.-W.F.P. Service) Rules. Under the above mentioned rules the Agency Accounts Officer/A.-G. Office was Competent Authority to make recovery of any illegal withdrawal of G.P. Fund. He prayed that the appeal be dismissed.

7. After listening to the parties and perusal of record, the Tribunal observed that all concerned/involved in the case had been proceeded departmentally and punished. However, while dealing the case of appellant no proper departmental proceedings had been initiated against him. While recovery order has been made against the appellant who could not be held responsible for the whole misshape without adopting the legal procedure. No show-cause notice, charge-sheet/statement of allegations had been issued to the appellant. No proper enquiry had been carried out by the respondent Department and the appellant had been condemned unheard which was not sustainable under the law. Therefore, the appellant has made out a case for indulgence of the Tribunal.

8. The Tribunal, therefore, keeping in view the above accepts the appeal, sets aside the impugned order, dated 30-3-2006 and directs the respondent-Department to stop further deduction and to refund the deducted amount to the appellant. However, the respondent-Department is at liberty to initiate a fresh inquiry/departmental proceedings in the instant case. No order as to costs. File be consigned to the record after completion.

H.B.T./1/N-W.F.P. Appeal allowed.

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