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Petitioner: ABDUR RASHID BUTT VS Respondent: AZAD GOVERNMENT OF THE STATE OF J & K
Court Name: Azad Jammu and Kashmir Service Tribunal Judge(s): Sardar Muhammad Ashraf Khan, Kh. Ghulam Qadir Title: ABDUR RASHID BUTT vs AZAD GOVERNMENT OF THE STATE OF J & K Case No.: Appeal No, 100 of 1979 Date of Judgment:1982-01-24 Reported As: 1982 PLC (C. S.) 635 Result: orders accordingly
Judgment ORDER ' KH. GHULAM QADIR (MEMBER).--ThiS appeal under section 4 of the Service Tribunal Act by Mr. Abdur Rashid Butt appellant is directed to challenge the legality and validity of Government Order No, S&GAD/ 4335-43/78 dated 9th December, 1978 whereby the respondent/Government was pleased to award the punishment of compulsory retirement from service to the appellant under Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter referred to as "The Rules, 1977") for having found him guilty of inefficiency, misconduct, and corruption under the said rules. Under para. U of the impugned order the respondent was further pleased to order that the Local Government Department shall calculate the actual amount mis-appropriated by the appellant and take necessary steps for recovery of the same. 2. Brief facts of the case as put down in the Memo. Of appeal are that the appellant who had joined the service under the respondent in 1956 in the Village-Aid Department as Supervisor was holding the post of Assistant Director in the said Department at the time of passing the impugned order. The respondent had appointed as Commission of Enquiry No, II to probe into the allegations of corruption and mis-appropriation etc., in certain specified departments of the Government (including Local Government Department) and their officers. Accordingly, after holding an enquiry against the appellant the said Commission-II submitted a report against the appellant whereupon the respondent issued a show-cause notice dated 25th September, 1978 to the appellant .Wherein it was said that having considered the report of Commission of Enquiry No, II the competent authority had decided to serve show-cause notice under Civil Servants (Efficiency and Discipline) Rules, 1977 on the following charges:-
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(1) That on 30th March, 1976 you had drawn an amount of Rs, 1,50,000 from National Bank of Pakistan vide, cheque No, 330407 and deposited it into Kashmir National Bank (which is not a scheduled Bank) and in reward of this you got your son employed in the said Bank. (2) That you advanced an amount of Rs, 60,000 to the following Project Leaders for which no work has been done :- (a) Ch. Ghulam Gillani Project This amount was advanced Leader Rs, 12,000. He is General for the purpose of pro- Manager, Muslim Commercial tection of land against Bank. I flood damage. Total cost of land does not exceed 2,000 approximately. (b) Ch. Gheeba Khan father of the above-named gentleman Rs, 8,000 (c) Mr. Muhammad Rafiq Rs, 20,000 (d) Mr. Munshi Khan Rs, 20,000 3. That 11,000 mandays have been utilized on the road of Akbri Bridge Sarhoota Road. On the basis of detailed estimates of the work done furnished by Assistant Director, Local Government and People Works Programme it has been established that 50% amount has been misappropriated by you 4. That 2,399 mandays have been shown as utilized for the project Chapprian-Dberi Suhibzadian Road. It has bean proved that the expenditure is not commensurate with the work done and approximately wages/ funds for 1,040 mandays have been misappropriated by you. 3.. The appellant submitted a detailed reply to this show-cause notice explaining his innocence but the same did not satisfy the competent authority who later on passed the impugned order whereby the appellant was compulsorily retired from service. The appellant filed a review petition requesting the recall of the impugned order but this petition was rejected by the respondent vide his order dated 4th Mar9h, 1979- ' It is under this background that the appellant has now sought his redress by way of appeal before the Service Tribunal. 4. The appellant has raised the following objections to the validity and legality of the impugned order on law as well as on merits :- (a) That the impugned order has been passed under rules 3 and 4 of Civil Servants (Efficiency and Discipline) Rules, 1977 which rules are contrary to the very spirit of the Interim Constitution whereunder every person is guaranteed equality before law and a fair trial. As such the said rules are void and any order passed under such void rules would be ineffective and of no legal consequence. (8) That the report of the Commission upon which the impugned order has been based was factually incorrect and was made without hearing the appellant and as such was invalid. (c) That the appointment of the said Commission of Inquiry was illegal. (d) That the respondent rejected the Review petition without considering the reply submitted by the appellant. (e) That the charge No, 1 in the show-cause notice is factually wrong and incorrect as the appellant had got his son employed in the Kashmir National Bank much before drawing the amount of rupees one and a half lac from the National Bank of Pakistan and depositing the same in the Kashmir National Bank. (f) That the charge No, 2 was also baseless because the schemes against which amounts in question were advanced were prepared by the District Council and the Advisory Council and were approved by the respective Chairman and the appellant had nothing to do with the preparation of these schemes who only advanced the amounts to the concerned persons under rules for completion of the schemes/projects. At the time of inquiry by the Commission more work than due, was found to have been done on spot as was evident from the report of the concerned Overseers.
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(g) That charges Nos. 3 and 4 are also incorrect and false and would transpire from the record. In this connection copies of reports of Assistant Director and Assistant Engineer Local Government are submitted which clearly falsify the charges levelled against the appellant. ' With the above-mentioned submissions the appellant has prayed for reversal of the impugned order and his reinstatement from the data of his compulsory retirement. 5. The respondent-Government appeared through its counsel and filed written objections wherein it was contended that the impugned order was passed absolutely in accordance with law and rules in force and that the objections raised by the appellant in his memorandum of appeal were unfounded and without any force. Moreover, an objection to the maintainability of the appeal on the ground of limitation was also raised. 6. The appellant got summoned the relevant record in evidence and appeared as his own witness and closed his evidence. The counsel for the respondent neither examined any witness nor produced any record in rebuttal. 7. We have heard the arguments addressed by the learned counsel for the parties and have also gone through the record minutely with the assistance of the parties. We now proceed to decide the charges levelled in the show-cause notice seriatim and do not propose to consider and give any findings on the legal objections raised in the Memo. Of appeal as the same were not argued or pressed into service at all during the course of arguments by the learned counsel for the appellant who mostly relied upon and concentrated his arguments on the facts and merits of the case. 8. Charge No, 1-The 1st charge against the appellant as laid down in show-cause notice is that the appellant drew an amount of one lac and fifty thousand rupees from National Bank of Pakistan vide Cheque No, 330407 on 30th March, 1976 and deposited the same in Kashmir National Bank in reward of which the appellant got his son employed in the later Bank. The appellant has categorically refuted this charge in his appeal in the manner that be never got his son employed in the Kashmir National Bank in lieu of transfer of the above-mentioned amount from National Bank of Pakistan to Kashmir Bank and rather admitted the fact of the appointment of his son in the said Bank before the date of transfer of the above-stated amount from the National Bank of Pakistan. In support of his plea he has placed on record a copy of the letter regarding appointment issued by the General Manager of Kashmir National Bank, Mirpur Azad Kashmir on 1st February, 1976 addressed to Mr. Tariq Rashid appointee wherein it is stated that in response to his application dated 27th January, 1976 the post of Junior Officer is offered to him who was required to report for duty to Manager Kotli Branch on 1st January, 1976 failing which the offer of appointment was liable to cancellation. The fact of employment of the son of the appellant is not in dispute and according to the photostat copy Exh. P-2 of the letter of appointment placed on record it can be safely presumed that the incumbent must have joined on the due date. Although, copy of the letter of appointment EMI. p-2 refers to an application dated 27th January, 1976 and requires the applicant to join on 1st January, 1976, i. e. a date much earlier in time than that of application and thus a sort of anomaly was created as regards the date of application. To remove the doubts thus cast we felt advised to call for the personal file of Tariq Rashid appointee from the concerned department which was accordingly summoned for examination. This file was received by the Officer and we perused the same for our satisfaction. On page 8 of this file-there is a letter dated 27th January, 1976 from Manager Kashmir National Bank Branch Kotli addressed to the General Manager K. N. C. B. Head Office Mirpur wherein it islstated that Tariq Rashid appointee had joined the service in the Bank on 1st January, 1976. It is an official record and carries alongwith it a presumption of truth under the law of evidence. This record has dispelled and diffused the cloud of suspicions which had arisen on account of reference to application dated 27th January; 1976 in the letter Exh. P-2 which in fact is the date of endorsement of the application by the concerned Bank. Thus, we are satisfied that the stand of the appellant stands proved beyond an iota of doubt that his son was
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employed three month earlier thant he drawal of amount as charged in the show-cause notice. The respondent did not rebut the statement of appellant by any documentary or oral evidence. As such, as discussed above, the charge that the appellant withdrew an amount of one and a half lac of rupees from the National Bank on 30th March, 1976 and deposited the same in Kashmir National Bank in order to secure employment of his son stands dissolved and refuted. The learned counsel for the respondent was confronted with this position of the matter but he had no answer or explanation to offer in support of the charge. As a result the appellant is absolved of this charge. 9. Charge No, 2-The second charge as framed in the show-cause notice is to this effect that the appellant advanced an amount of sixty thousand rupees to the following project leaders for which no work has been done. (1) Ch. Ghulam Gillani Project Leader-12,000. (2) Ch. Ghebba Khan Father of the above-named Project Leader-8,000. (3) Mr. Muhammad Rafiq-20,000. (4) Munshi Khan-20,000. ' (These amounts were advanced for protection of lands against flood-damages); the cost of protected land does not exceed 2,003 approximately). Before assessing the liability of the appellant in the light of the charges levelled against him we think it advisible and advantageous to briefly narrate here the working system of Rural Works Programme for a better appreciation of the matter. According to the record made available to the Tribunal and the statement of the appellant the procedure for preparation of development schemes which was in vogue in pursuance of the Manual of instructions appears to be that the Local councils were authorised to formulate the schemes in the interest of community at large on pro forma and then were to be submitted to District Council or the Government as the case may be, in accordance with the powers of sanction as specified in the manual. Only such schemes as were technically sanctioned and administratively approved were to be executed under the works programme. However, before the approval of competent authority the Project Director was to append a certificate that on the basis of expert advice he is satisfied that the scheme is technically sound. After the approval of the competent authority the Local Council concerned was to implement the scheme through a project committee who's Project Leader was to be the Chariman or Member of the Local Council. The Assistant Project Director was the Drawing and Disbursing Officer in the district on behalf of the Project Director. The Disbursement of funds was to be done by him under the overall supervision and control of Project Director. The release of funds was to be made in in-statements in accordance with the progress of work. The officers engaged in the Rural Works Programme were expected to conduct frequent inspections of the projects. The Government vide its order issued under No, 1214-73/75 dated 9th July, 1975 sanctioned fresh constitution of Central Advisory Council and District Works Council according to which the Prime Minister was the Chairman and the Ministers were the Members of the Central Advisory Council and Minister nominated by the Prime Minister was to act as Chairman and the elected Members of Legislative Assembly were to be the Members of the District Works Council. Accordingly on 9th July, 1975 the Constitution of District Works Councils was made and Ch. Ghulam Ahmad Raza Minister was appointed Chatiman of District Works Council Kotli. 10. Now, keeping in view the above scheme of the Rural Development we would like to adjudge in the light of record whether the procedure laid down for guidance was followed or whether there was any deliberate departure or deviation from procedure resulting in any loss or misconduct etc. And if the appellant was responsible for any such default as to justify his involvement in the charges framed against him. As the charge reads it is alleged that no work was done against the amounts advanced by the appellant for the schemes under discussion. On the other hand the record to which the reference would be made clearly shows that the schemes in question were
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either completed or partially completed much before the inquiry by the Commission started. In order to reach a correct conclusion we would discuss the charge in detail. As regards the advance to Mr. Ghulam Gillani for construction of a protection Bund called 'Hill Androt Bund' an amount of Rs, 12,000 was advanced in two instalments. Six thousand rupees were paid as advance to the Project Leader on 17th January, 1976 and proper receipt was obtained which is in file No, 12 at page 3 made available to this Tribunal. Ch. Muzher Hussain concerned M. L. A. Was associated with the Project Committee as required by rules. On 30th June, 1976 the remaining amount was paid to the project leader vide his receipt on page 7 of the said file on the report of Overseer who had certified that two Bunds measuring 80 x 6 x 2/2 x 5 were constructed on the spot by the project leader. Similarly as regards advance made to Muhammad Rafiq project leader the record of file No, 5 shows that an amount of Rs, 12,000 was paid to the project leader on 25th January, 1976 vide, his receipt at page 3 of the relevant file. This amount was advanced for the construction of Khud-Bal protection Bund. Later on, 22nd April, 1976 according to the progress report submitted by the Secretary Union. Council in the month of April, 1976 the remaining Rs, 8,0)0 were also released for the completion of the scheme as it was reported by the Secretary, Union Council that 80 x 3/4 x 3/4 protection wall was already constructed by project leaders and some material was lying on the spot the cost of which is estimated in the report to be nearly Rs, 12,000. The files regarding the construction of Chamber-Khud Bund to be constructed under the leadership of Munshi Khan and Water Tank Narhote to be constructed under the leadership of Ch. Yaqub have not been made available by the concerned department/authority despite repeated reminders and rather it was stated before the Tribunal that the same were not available. However the appellant got summoned the reports of concerned Supervisors relating to the progress of these two schemes and from the perusal of these reports and the relevant available record, it is established that Rs, 10,000 were paid to Ch. Yaqub Project Leader for the construction of Water Tank Narhote and Rs, 20,000 were paid to Munshi Khan Project Leader for the construction of Chamber Khud Bund. According to the report submitted by the Supervisor on 21st June, 1976, it was reported that some work was done but the scheme was not finalized due to carelessness of the Project Leader. Again, the concerned Supervisor vide his letter Exh. p-7 submitted a list of incomplete scheme Exh. p-8 in which at serial No, 38, it is mentioned that 45 x 30x 30 Water Tank was dug but the massonry work was yet to be done. Similarly the Supervisor submitted another report dated 16th June, 1977,Exh. p-10 about Chamber Khud Bund which shows that 150 x 3 x 16, protection Bund was built but the scheme was not finalized due to slackness of the Project Leader. From these reports and the available record, it is evident that work on the concerned schemes was partially done and it was not correct as mentioned in the charge-sheet that no work at all was done on these schemes. So far as the payment made by the appellant are concerned it is provided under rules that about 50% amount of the sanctioned fund could be released by the drawing and disbursing officer in advance and the remaining amounts were to be released according to the progress of work. As such there seems nothing to blame the appellant for making payments as he was authorised under rules to make the payment in advance and the remaining amount to be paid on the attestation of the concerned Supervisors or Secretary Councils, Besides, the appellant had, in fact nothing to do with the preparation or the usefulness of the schemes. The usefulness of these schemes was, however, confirmed by the Project Director by finally entering these schemes in the Annual Development Programme register after proper approval and sanction. In the light of above discussion the charge that no work was done against the advances made for the schemes is definitely falsified by the evidence based on official record and consequently no charge as levelled in the Charge-sheet is established against the appellant with the result that he is absolved of this charge as well. 11. Charge No, 3.-It has been alleged under charge No, 3 that 11,000 mandays were untilized on the Akbri Bridge Sarhota Road and on the basis of detailed estimates of the work done furnished by
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Assistant Director Local Government and Peoples Works Programme it was established that 50% amount was misappropriated by the appellant. 12. The appellant has refuted this charge and stated in his statement as witness before the Tribunal that according to the approved Development Programme 2 mile Akbri Bridge Sarhota road was to be constructed within the prescribed period of the plan and the total strength of Labour estimated to be engaged on this road was 44,776 mandays. According to the appellant he held the post of Assistant Director Kotli till the end of August, 1976 whereafter he was transferred from Kotli. During his stay at Kotli 4 mile road was got constructed by him with the help of 9,448 mandays. 13. According to the ratio of original approved estimate of 44,776 mandays for a total of 2 miles road a strength of 11,194 mandays was to be consumed in the construction of 4 mile road whereas somewhat less mandays (9,448) were actually utilized as is evident from the official record Exh. p- 32 (an attested Photostat copy) which is a detailed report of the sanctioned projects of all the districts of Azad Kashmir and under the head of Kotli District' the detail of this road is given at serial No, 5. Presumption of truth attaches to the correctness of this record under section 114 of the law of Evidence as all official acts are presumed to have been performed correctly unless proved otherwise. This version of the appellant or the record produced in support of his statement has neither been challenged in cross-examination by the learned counsel for the respondent nor any document or evidence was adduced to rebut the genuineness of the statement of appellant. There is no other documentary evidence on record which could lead us to the inference that out of 11,000 mandays 50% amount was, misappropriated by the appellant. No such evidence has been made available to the Tribunal which could establish that 11,000 maydays were fake and fictitiously shown in the amount of 50% mandays was misappropriated by the appellant himself. How can the Tribunal form an opinion or come to a conclusion for which there is no basis or proof at all. In the absence of any proof or evidence we were helpless to draw adverse conclusion on surmises or conjectures and as such hold that the authority has failed to prove the accusation levelled against the accused appellant and as a result we absolve him of this charge also. ' Now, lastly, we take up charge No, 4 which is identical to charge No, 3 in nature. Under this charge it is alleged that on the construction of Chapperian-Dehari Suhibzadian Road utilization of 2,399 mandays was shown in the record whereas it was approved that the expenditure was not commensurate with the work done and approximately funds for 1,000 mandays were misappropriated by the appellant. ' The appellant has denied the charge and made a statement saying that according to the sanctioned scheme the total length of this road was 3 miles for the construction of which 67,164 mandays were approved to be utilized under the programme. During his stay at Kotli station he got 1/8 mile (one furlong) road constructed with the help of 2,399 mandays as is proved by Exh. p-32 which an attested photostat copy of the original record of the department whereas according to the ratio of sanctioned man-days 2800 mandays could justly be used for the construction of 1/8 mile road in question. Thus about 400 less mandays were spent than the estimated figure. This version of the appellant is supported as correct by reports Exhs. P-34 and P-35 which are the photostat copies of the original record produced before the Tribunal. These reports were submitted by the Assistant Engineer and Assistant Director concerned jointly regarding the present position of the project on 5th February, 1977 that is, much later after the appellant has left charge on account of his transfer. Progress reports of roads Exhs. P-40 and P-42 prepared by the Director of Local Government and Peoples Works Programme showing position of the roads upto 1st January, 1977 also confirm the figures of mandays given by the appellant. The truthfulness of this statement of the appellant was not questioned or impeached through cross-examination by the counsel for the respondent. No documentary or oral evidence was brought on record by the respondent to falsify statement of appellant. In these circumstances when there is no evidence to connect the appellant
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with the alleged misappropriation of 1,000 mandays it would be unfair and unjust to draw conclusion of guilt on the mere charge or unfounded assumptions. 15. Before closing the case we feel duty bound to advert to the legal objection of limitation raised by the respondent in written objection although this legal point was not agitated or pressed into service during the arguments by the counsel for the respondent. The impugned order was made by the respondent/Government on 9th December, 1978. The appellant filed his review petition before the respondent on 1st July, 1979 which was rejected on 4th March, 1979. The appellant filed this appeal before the Tribunal on 1st April, 1979 that is within 30 days of impugned order. As such the appeal was filed within the presented limitation of time. ' For the reasons discussed above, 1 have come to the conclusion that the charges framed against the appellant have not been pro led with the result that the appellant stands exonerated from all the charges. ' Consequently, accepting the appeal the impugned order of compulsory retirement of the appellant dated 9th December, 1978 is set aside. ' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-While agreeing with the conclusion arrived at by the learned Member that the charges framed against the appellant having remained unproved the impugned order deserves to be set aside, I would like to briefly express myself in support thereof. ' From the perusal of the file…
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