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Petitioner: ABDUL RASHEED MEMON VS Respondent: GOVERNMENT OF PAKISTAN
Court Name: Federal Service Tribunal Judge(s): Tanvir Bashir Ansari, Rashid Ali Mirza, Muhammad Javed Ashraf Hussain Title: ABDUL RASHEED MEMON vs GOVERNMENT OF PAKISTAN Case No.: Appeal No,262(K)(C.S.) of 2004 Date of Judgment:2007-09-13 Reported As: 2008 PLC (C.S.) 433 Result: Order accordingly
JUDGMENT
JUDGMENT ' RASHID ALI MIRZA (MEMBER).--- The appellant while serving with the respondents was removed under Removal from Service (Special .Powers) Ordinance, 2000, vide order, dated 30th August, 2004 against which he preferred a departmental appeal to the Secretary, of Finance in the capacity of his appellate authority vide eprVlinistryesentation dated 10th September, 2004 which was within time, but no reply was communicated to him, hence he filed the present appeal with the prayer to set side the impugned order, dated 30th August, 2004 and reinstate him in service with all consequential back-benefits. 2. The facts leading to this appeal are that disciplinary proceedings against the appellant were initiated upon anonymous complaint, dated 13-5-2003. A formal inquiry into the allegations in the complaint was made vide inquiry report, dated 30-4-2004 which was followed by a charge-sheet, dated 10-3-2001. The appellant replied the charge-sheet vide his reply, dated 10-1-2004 wherein he denied the allegations levelled against him. Consequently, a departmental inquiry was held against him by an Inquiry Committee comprising of Rehmat-un-Nisa, Assistant Director (Schemes) R.D.N.S., Karachi and Abdul Hayee Abro, R.A.O.N.S., Sukkur. As per inquiry report, charges levelled against the appellant were partially proved; hence, a show - cause notice, dated 20-5-2004 was issued to him. He 'replied such notice vide reply, dated 21-6-2004, but it appears that it did not find favour with the concerned authorities, with the result that vide impugned order, dated 30-8-2004 he was removed from service. 3. In the written comments filed on behalf of the respondents, the penalty of removal from service imposed upon the appellant was supported, stating that the appellant had been punished in accordance with law, observing all necessary legal formalities.
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4. We have heard both the learned counsel for the parties and have also perused the record. 5. The learned counsel for the appellant contended that the appellant was inducted in the organization of National Savings, Hyderabad on 2-10-1973 as upper division clerk (UDC) and later on was selected as Assistant National Saving Officer (BPS-11) and thereafter on completion of codal formalities and on the basis of good service record and performance as well as on fulfilment of conditions for promotion he was promoted step by step as Deputy National Saving Officer (BPS-14) and National Saving Officer (BPS-16). In the year 1995 he was granted selection grade in BPS-17 on the basis of his good service record plus seniority with effect from 13th June, 1995 and in the year 1998 he was confirmed as National Savings Officer in BPS-16 with effect from 6th August, 1998. He contended that the appellant served the organization for about 31 years and uptill his removal from service there was nothing against him and he had an unblemished record of service for which he really worked hard and further that he left no stone unturned in bringing the respondent No,2 organization in a reputable institution so that the people may pose confidence in such institution. Appellant was issued a charge-sheet along with statement of allegations on 29-12-2003 by the Director-General (Authority) whereby 5 charges were levelled against him, whereas under section 5 of Removal from Service (Special Powers) Ordinance, 2000, the mandatory requirement is that Inquiry Officer or Inquiry Committee shall communicate to the accused the charges and statement of allegations specified in the order of inquiry passed by the Competent Authority which has not been done in this case. However, for the sake of brevity, it would be appropriate to reproduce hereunder the aforesaid charges in question which read as follows:--- (i) He on 16-4-2003 with the collaboration of his staff i,e, Mrs. Asma Qadir Shaikh, ANSO 2nd Officer/Cashier and UDCs Messrs Muhammad Arif Kazmi and Muhammad Ali Zaidi made less payment of profit to the tune of Rs,609,180 to Dr. Amanullah Khan (Investor) at the time of encashment of his Defence Saving Certificates Reg. No,9276, 12484,14731 and 15210 total worth Rs,2,178,000 and thus defrauded Dr. Amanullah Khan. ' The actual amount of principal and profit came to Rs,4,141,840. Whereas only Rs,3,532,660 were paid to Dr. Amanullah Khan (Investor) and remaining amount of Rs,609,180 was defrauded by showing the payment of full amount i,e, Rs,4,11,840 in the books of centre. (ii) He on 9-5-2003 and next day along with other staff i,e, Mrs. Asma Qadir Shaikh, ANSO 2nd Officer/Cashier and UDCs Messrs Muhammad Arif Kazmi and Muhammad Ali Zaidi visited the residence of Dr. Amanullah Khan (Investor) for settlement of the issue and made the payment of less paid amount of Rs,609,180 conditionally to obtain a receipt of payment showing payment of full amount of Rs,16,04,2003 at the time of encashment, which shakened the confidence of investor on Government schemes besides bad name to the organization. (iii) He on 12-6-2002 while posted as Officer Incharge NSC Market Road, Hyderabad with mala fide intention and ulterior motives -stole/pilfered the Special Savings Certificate Registration No,24868. Worth Rs,50,000 from the bunch of Certificates presented by Mr. Yasin Ahmed (one of the purchasers) along with other certificates of various registrations for receiving profit. (iv). He on 31-7-2002 fraudulently encashed the said stolen certificate Registration No,24868 worth Rs,50,000 by making fictitious signature of the purchaser on the back of certificate and thus, he defrauded Mr. Yasin Ahmed for Rs,40,000. (v) He on 31-7-2002 failed to observe the procedural requirement with regard to punching and affixing the paid stamp on the profit coupons and thus, he violated sub-para. No,(v)(II) of para.1-6 at page No,11 of the National Savings Hand Book Volume-II. ' He contended that appellant had submitted its reply to the Inquiry Committee which was constituted by the Director-General being authority vide letter, dated 29-12-2003 in exercise of his powers vested in him under section 5 of the Removal from Service (Special Powers) Ordinance, 2000 to scrutinize the conduct of the appellant through formal inquiry proceedings into the said
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charges whereby appellant denied all the five charges levelled against him and further elaborately explained situation and the circumstances of the case before the Inquiry Committee, particularly charge No,1 was fully explained, as Defence Saving Certificates mentioned in the said charge No,1 were passed on to the appellant along with the voucher (S.C.-1) from the counter having entry of principal plus profit amount which comes to Rs,4,141,840 at the relevant column of S.C.-1. The appellant personally calculated the profit amount and found it correct and as per office routine passed the voucher along with the folder to the cashier for payment as usual. Dr. Amanullah Khan had also acknowledged the amount at the back of the certificates. He contended that on the close of the business, the discharge journal was prepared which the appellant had personally checked as per his routine and found it correct as per record (Journal Entry Nos.41 to 44) was also mentioned in the reply to the said charge No,1 and therefore, the amount was correctly paid with principal plus profit which comes to the tune of Rs,4,141,840 as such- the Charge No,1, being incorrect and baseless requires to be dropped. He further contended that duties and the responsibilities of the appellant as per National Savings Hand Book Volume-II clause 10.2(i)(v) for sanction of the amount passed on to him by way of folder, were regarding calculation of the principal amount and as the profit accrued thereon was in accordance with the certificates and was accurately calculated, he passed on to the cashier for payment as usual and since there was no complaint regarding any error in calculation or making any deficiency in clearing Defence. Saving Certificates and also absolutely there was no fraud recorded in disbursing the profit amount, as such, the appellant discharged his duties diligently, honestly, efficiently as such there cannot be an iota of doubt of defrauding the customer by the appellant and further there was no proof of paying less amount than the amount calculated by the appellant. He also contended that absolutely there is no evidence in the finding of the Inquiry Officer to show that the appellant had paid the amount to Dr. Amanullah or that the amount given to him was less than the amount calculated by the officer and in any case it is- not the responsibility of the appellant to pay cash to the customer. Regarding Charge No,2, he contended that on 9-52003, the appellant was available at the Centre upto 10-30 and later on he proceeded to Nawabshah for conducting investigation into a matter at NSC-1, Nawabshah as assigned to him by RDNS, Hyderabad. On his return in the evening he was apprised of the situation when was informed by the staff of the Centre that Mr. Muhammad Saleem Shaikh, Assistant Director RDNS, Hyderabad contacted on telephone and informed that one Dr. Amanullah Khan has telephonically complained about less payment on 16- 4-2003 on encashment of his Defence Savings Certificates. Immediately the appellant contacted customer Dr. Amanullah Khan at his residence on 10-5-2003 and inquired from him about the said complaint, to which Dr. Amanullah told that he neither complain in writing nor telephonically against NSC to the RDNS and further confirmed that the amount worth Rs,4,141,840 was correctly paid to him on 16-4-2003, i,e, the day on which he submitted the Defence Savings Certificates. On this confirmation, the appellant requested him to give a receipt with regard to correct payment for satisfaction of Officers of the RDNS which receipt was prepared by Dr. Amanullah in his own handwriting and signatures, copy of which is at page 47 of the appeal file. He contended that the Inquiry Committee made Dr. Amanullah Khan as prosecution witness and issued him a notice for his appearance before the Inquiry Committee but he did not appear before the said Inquiry Committee despite ample opportunities provided to him by the Inquiry Committee, but the appellant on the basis of Charge No,1 was found guilty by the Inquiry Officer, without any evidence on record and without giving him a chance of cross-examination as there was no any circumstantial evidence regarding short payment to the said Dr. Amanullah Khan. If there was any action Of short payment of Rs,609,180 the complainant would have turned up, as such, the story cooked up by the prosecution seems to be incorrect and baseless. Regarding Charge No,3, he contended that the charge against the appellant for pilfering the Special Certificate bearing
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Registration No,24868 worth Rs,50,000 from the bunch of the certificates presented by one of the purchasers namely Mr. Yasin along with other certificates of various registration for receiving profits was refuted by the appellant being bogus and baseless, as the same was paid to him and was entered in the journal vide Entry No,349, the relevant coupon was detected and other Special Savings Certificates were returned by the Cashier as per routine. He contended that customer Muhammad Yasin had visited the centre only for receiving the profit for his SSC(R) 24868 and he did not submit any other certificates hence the question of pilfering certificate from bunch of the certificates does not arise. Regarding pilferage, the learned counsel for the appellant contended that Inquiry Committee had itself recorded that said certificate was presented to the counter clerk Mr. Ismail Soomro UDC for making entry who stated that he had done so and then passed on to the Officers, despite recording of such fact as at no where the name of the appellant Abdul Rasheed Memon was indicated but still the charge has been concluded to have been established against the appellant when neither there is any evidence against the appellant with regard to pilferage of the said SSC nor there is any entry to show that pilfered certificate has been found from possession of the appellant nor there is anything which could show that the amount of alleged pilferage certificate has been received by the appellant as such finding of the Inquiry Committee for holding the appellant responsible for alleged pilferage is devoid of real facts and it cannot be relied upon. Regarding Charge No,4, the learned counsel contended that this charge seems to be in continuation of charge No,3 which goes in favour of the appellant as the prosecution side failed to bring on record any evidence. He contended that there was neither a complaint to prove the defraud of the amount nor any complainant. He contended that there must be a direct evidence and in absence of such evidence there cannot be a finding against the accused. He contended that the finding of the Inquiry Committee reveals that investor Muhammad Yasin vide letter, dated 15-10-2003 addressed to the Joint Director Hyderabad copy endorsed to the Director-General Central Directorate, Islamabad, had withdrawn his complaint by specifically mentioning that due to his ill health ad high blood pressure he was misguided about his encashment, even then the Inquiry Committee concluded that the charge against the appellant has been established. Regarding Charge No,5, the learned counsel contended that the appellant in his reply to the charge-sheet had submitted that the Certificates mentioned in the said charge. Were already punched and affixed, moreover, the record of NSC Market Road, Hyderabad was also audited upto 31-8-2002 and no such observation regarding non-punching and affixing of paid stamp on SSC (R) 24868 was ever pointed out, as such, charge No,5 being misconceived and baseless, was vehemently denied by the appellant, but the Inquiry Committee without any basis held that Charge No,5 is partially proved against the appellant. He has placed reliance on an identical judgment of this Tribunal passed in Appeal No,337(K)(C.S.) of 2002 Muhammad Azam Jan Pervaiz v. Ministry of Finance, through its Secretary, Government of Pakistan and 2 others, wherein major penalty of compulsory retirement was awarded to the appellant which order of compulsory retirement relying on 1984 SCMR 451, PLD 1981 SC 176, PLJ 2003 Tr.C. (Service) 66, 1996 SCMR 841, 2003 SCMR 1126, 2001 SCMR 934, 2001 PLC (C.S.) 270, 2005 SCMR 678, 2004 PLC (C.S.) 598 and PLD (sic) SC 187 was set aside and the appellant was reinstated in service with all back-benefits. 6. The learned counsel for the respondents contended that the appellant was found involved in two different cases of corruption, dishonesty and misconduct. The said incidents were initially got investigated and later on enquired through the Enquiry Committee consisting of the senior officers of the Department. The said incidents of corruption were proved against the appellant without any shadow of doubt. Accordingly, in accordance with the provisions of the Removal from Service (Special Powers) Ordinance, 2000 he was awarded major penalty of dismissal from service which fully commensurate with the nature of misconduct. 7. We have considered the arguments of both sides and perused the record:
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8. We are fully convinced with the arguments advanced by the learned counsel for the appellant. It is an admitted fact that no witness had come forward to depose against the appellant in the inquiry proceedings, nor there was any direct evidence to prove the charge against him. The nature of allegations was such that until and unless the witnesses of such incidents appear before the Inquiry Committee and the accused availed the opportunity to cross-examine such witnesses it is not admitted practice in the judicial proceedings or quasi judicial proceedings that the accused against whom the charges are levelled ought to be punished without establishing the charge beyond any shadow of doubt. Even otherwise there is nothing on record to substantiate the charges levelled against the appellant. From the perusal of National Savings Hand Book Volume II, it appears that the responsibilities of the appellant were to check the certificates and calculate the profits and then to pass on to the cashier for its payment which the appellant had done very well. There is also nothing on record to show that the appellant had made any pilferage in respect of any certificate but the Inquiry Committee in its findings has reached to the conclusion that the appellant being incharge should have exercised greater vigilance to discharge his duties. The conclusion of the Inquiry Committed is reproduced hereunder:-- "CONCLUSION ' The Inquiry Committee having considered all aspects of the case and its above observations and findings having a profound study of theentire case with the help of reply, of the accused, relevant documentary evidences, statements of witnesses and oral clarifications, have reached to the conclusion that there have been certain lapses on the part of the accused. He was working as Incharge on 5-7-2002, 31-7-2002, 16-4-2003 and 10-5-2003 in that capacity he should have exercised greater vigilance and alacrity to discharge the official duties honestly and faithfully with sincere devotion as expected from him." 9. In view of the facts and circumstances and for the reasons mentioned above, it cannot be said that the respondents have been successful in bringing home the charge to the appellant but being the Incharge, the appellant should have exercised greater vigilance and alacrity to discharge the official duties honestly and faithfully with sincere devotion as expected from him. 10. Besides respondent No,2 himself issued charge-sheet and thus, violated the provision of section 5(1)(a) and (c) of the Removal from Service (Special Powers) Ordinance, 2000, therefore, the impugned order is not sustainable in law. ' In any case, according to the finding of Inquiry Committee appellant should have been vigilant, meaning thereby that the charges of misconduct levelled against the appellant were not proved against him and in that eventuality the appellant at the most should have been awarded minor penalty of "Censure". Accordingly, the major penalty ,of removal from service awarded to the appellant vide impugned order is modified to that of minor penalty of "Censure". Resultantly, the appellant is directed to be reinstated in service from the date of passing of impugned order with all back and consequential benefits. With the above modification in the penalty, the appeal stands disposed of, with no order as to costs. 10-A. Copies of the judgment be sent to the parties and to the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974. (Sd.) Rashid Ali Mirza, Member ' MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).--- I have minutely read the judgment written by my learned colleague in the above appeal whereby the penalty of dismissal from service has been reduced to minor penalty of censure with direction to reinstate the appellant in service with payment of all back and consequential benefits. I disagree with the judgment for the reasons as discussed below.
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2. The appellant was charge-sheeted on five counts. The two member Inquiry Committee established all the charges against the appellant. The findings of the Inquiry Committee on the various charges are summarized as under:-- Charges Nos.(i) and (ii) (i) He with the collaboration of his 2nd Officer/Cashier Mrs. Asma Qadir Shaikh, ANSO and UDCs made less payment of profit to the tune of Rs,609,180 to Dr. Amanullah Khan (Investor) at the time of encashment of his Defence Savings Certificates Reg. No,9276, 12484, 14731 and 15210 valuing Rs,2,178,000 on 16-4-2003. The actual amount of principal/profit payable to the above named investor came to Rs,4,141,840 as shown in the payment journal whereas a sum of Rs,35,32,660 was paid to the above named investor thereby pocketing the difference of Rs,609,180 and thus, defrauded the investor. (ii) He on 9-5-2003 and 10-5-2003 along with Officer/Cashier and UDCs visited the residence of Dr. Amanullah Khan (Investor) for settlement of the issue and made the payment of less paid amount of Rs,609,180 And obtained in lieu thereof a receipt showing payment of full amount on 16-4-2003 at the time of encashment, which shakened the confidence of investor on Government schemes besides bringing bad name to the organization. ' On 14-4-2003 Dr. Amanullah Khan had approached the National Savings Centre of which accused officer was incharge for submission of prior advance notice of encashment of his Defence Saving Certificates (DSC's). A notice amounting to Rs,3,500,000 was made in advance notice register although the actual amount payable to the investor on his investments was Rs,4,141,840. The Inquiry Committee is of the view that this was a preplanned game played by officer Incharge i,e, the appellant in collaboration with his subordinates to make less payment to investor Dr. Amanullah Khan. The investor along with Mr. Tariq Mehmood his bank representative visited the NSC on 16-4- 2003 to claim encashment of his aforementioned DSCs. The investor was paid Rs,3,532,660 instead of the amount of Rs,4,141,840 thus, causing a short fall of Rs,609,180. Mrs. Asma Qadir Sheikh, ANSO was performing the duties of Cashier on this date and in the instant case testified before the Inquiry Committee that she tried to make payment in routine to the investor at the counter but the Officer Incharge (appellant in the present case) took the whole amount from her table saying that as the amount was heavy, paymerit will be made under his supervision and in the presence of Mr. Arif Kazmi, the then UDC and she was asked to deal with the other work at the counter. ' As per joint statement of the Investor Dr. Amanullah Khan and his Bank Manager, Mr. Arif Kazmi the then UDC deposited in the Muslim Commercial Bank account of the Investor on 16-4-2003 an amount of Rs,3,532,660 and subsequently on 10-5-2003 an amount of Rs,6,09,180. The bank deposit receipts bear out the fact of deposit of the two amounts on different dates. Earlier, on coming to know that only an amount of Rs,3,532,660 was remitted to him in his bank account, the investor agitated the matter with the concerned authorities. As per the inquiry report, the departmental representative stated that on 9-5-2003 the Assistant Director (HQ) Hyderabad received a telephonic complaint from an investor of NSC, Market Road, .Hyderabad to the effect that he had encashed his defence savings certificates bearing Registration Nos.9276, 12484, 14731 and 15210 from the NSC, Market Road, Hyderabad on 16-4-2007 when he received an amount Rs,3,532,660 instead of Rs,4,141,840 thus, receiving less amount of Rs,6,09,180. The Assistant Director (HQ) contacted the centre staff of Market Road, Hyderabad asking them to re-check the payment to the investor Dr. Amanullah Khan. Subsequently, on 12-5-2003 the investor contacted the AD (HQ) saying that he had now received the amount of Rs:6,091,80 which was earlier less paid to him on 16-4-2003. It transpires from the inquiry report as per the joint statement of the investor and his banker, the accused officer (appellant) along with Mr. Arif Kazmi the then UDC on coming to know that the matter of short payment was being agitated, went to the residence of the investor on 10- 5-2003 at about 10-30 a.m. According to the statement, the accused officer demanded from the
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investor a receipt showing full payment of Rs,4,141,840 otherwise he threatened that the investor will continue to be deprived of the amount of Rs,6,091,80 less paid to him. As per statement of the investor and his banker on account of this pressurizing the investor gave him the "so-called" receipt. It is, therefore, clear that on receiving the telephonic complaint of the investor through the A.D. (HQ) , Hyderabad, the appellant and his accomplice i,e, Mr. Arif Kazmi, ex-UDC saw that the game was up and therefore, rushed to the residence of the investor to make amends. The bank deposit shows that the defrauded amount of Rs,6,091,80 as having been deposited in the investors' account on 10-5-2003 while the other amount of Rs,3,132,660 was deposited on 16-9-2003. According to the departmental representative, on 9-5-2003 a lady officer and two clerks had also approached the investor Dr. Amanullah Khan and admitted that less amount was paid to him and they were ready to remit the remaining amount. The mala fides of the appellant were established by the…
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