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Petitioner: Mrs. SHAMA RASHDI and others VS Respondent: GOVERNOR OF SINDHHonorable Justice ABDUL GHANI SHAIKHNizam Ali Khan,Mrs. Tabassum Ghazanfar
2007 P L C (C.S.) 490
[Federal Service Tribunal]
Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman, Moula Bux Khatian, Member-I and Ashique Hussain Memon, Member-II
Mrs. SHAMA RASHDI and others
Versus
GOVERNOR OF SINDH and 3 others
Appeals Nos.63, 79, 117 of 2001, decided on 11th May, 2006.
Government Servants (Efficiency and Discipline) Rules, 1973---
----Rr. 3, 4(1)(b)(i)(iv) & 5---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service and reduction in rank---Appeal---Penalties of dismissal from service and reduction in rank were imposed on allegation of misconduct like embezzlement of huge government money and making illegal appointments, even in violation of ban imposed by Government on said appointments---Appellants were issued show-cause notices and inquiry was also held against them--Allegations levelled against one of the appellants, on the face of it, in the light of the correspondence made by appellant, appeared to be absurd and there was no mala fide intention on part of the appellant---Penalty of reduction in rank for a period of two years awarded to appellant, being opposed to facts brought on record, was neither maintainable nor sustainable and was liable to be set aside---Allegations of very serious nature levelled against appellants having been denied by them, regular inquiry was very much necessary---Previously, regular inquiry though was conducted, but since said disciplinary proceedings were withdrawn being infructuous on account of legal lacunae, findings arrived therein could not be made basis for awarding major penalty in subsequent proceedings---Impugned order in respect of two appellants, was set aside and matter was remanded for conducting fresh inquiry in accordance with existing law---Appellants were directed to be reinstated in service to clothe with status of civil servant only for purpose of facing fresh disciplinary proceedings, which would be concluded within specified period--Intervening period would follow the outcome of fresh proceedings.
Nizam Ali Khan for Appellant (in Appeal No.63 of 2001).
Ansari Abdul Lateef for Appellant (in Appeal No.79 of 2001).
Abdul Lateef Channa for Appellant (in Appeal No.117 of 2001).
Mrs. Tabassum Ghazanfar, Asst. A.-G. for Respondents.
Date of hearing; 11th May, 2006.
JUDGMENT
JUSTICE (RTD.) ABDUL GHANI SHAIKH (CHAIRMAN).---These above titled three appeals involving common question of facts and law, by consent of the parties' counsel were heard together and are being disposed of through this consolidated judgment.
Relevant facts for the purpose of disposal of these appeals as emerged from the perusal of case files are that appellants Mrs. Shama Rashdi remained posted as Sub-Divisional Education Officer (Females), Hyderabad City w.e.f. 22-7-1989 to 31-7-1997, appellant Mst. Zaibunnisa Sahito remained posted as D.E.O. (F), Hyderabad City w.e.f. 10-10-1997 to 18-11-1997 (she remained as Drawing and Disbursing 'Officer (D.D.O.) from 15-10-1997 to 18-11-1997), while appellant Muhammad Hassan Daidano remained posted as Junior Clerk in the office of S.D.E.O. (F), Hyderabad City, w.e.f. 1-4-1990 to 18-11-1997. In the month of November, 1997, a case of preparation of double pay bill of primary School Teachers of Nationalized cadre for the month of October, 1997 amounting to Rs.12,62,478 in the office of S.D.E.O.(F), Hyderabad City, was detected. It was also detected that a large number of lady P.S.Ts. were appointed/inducted in service in an irregular and illegal manner, besides, the salary of teachers in the bills was shown at the exaggerated rates in order to draw the amount more than the actual requirement. Accordingly, under the directives of the then Education Minister, an Inquiry Committee comprising Director, Secondary Education, Deputy Director (Primary), Directorate of Primary Education, District Officer (F), Primary and Assistant Accounts Officer (B&A), Directorate of Primary Education, Hyderabad was constituted to probe into the cases of illegal/irregular appointments of Teachers/induction of ladies as P.S.Ts. in the Girls Primary Schools of Hyderabad City and drawl of salary of Teachers at the exaggerated rates during the period from September, 1993 to 2-12-1997. The Committee scrutinized the record of appointments of P.S.Ts. from September, 1993 to December, 1997, which revealed that in September, 1993, 68 teachers who were selected on merit by the District Recruitment Committee, Hyderabad, were appointed. Out of which 51 teachers were appointed on general merit, 16 against teachers quota (25% of vacant posts while one girl was appointed against the seat reserved for disabled person). Out of said 68 posts, 28 posts were vacant posts while 40 posts were provided under the Prime Minister's Programme. On further verification of that record, it was noticed by the said Committee that in the year, 1993, as many as 370 lady P.S.Ts. were shown to have been appointed on the basis of forged documents. Similarly, in the year 1994, 9 lady P.S.Ts. were inducted in service despite ban on appointments besides, the documents of appointments were also found forged and fabricated. It also transpired to the Committee that in 1995 the then Government allocated some posts to the M.P.A./M.N.As., but there was no vacant post in Hyderabad City Sub-Division. However, during the period from January, 1995 to September, 1996, 137 lady P.S.Ts. (78+14+25+19=137) were appointed. The perusal of offer, letters of appointment revealed that same were issued under the forged signatures of the D.E.O. (Primary), Hyderabad, namely. Mst. Khairunnisa Memon and Hakimzadi Ansari, even the medical fitness certificates contained forged signature of Medical Superintendent, Services Hospital, Hyderabad. The appointment orders of said ladies contained signature of Mst. Shama Rashdi, the then S.D.E.O.(F), Hyderabad City. The documents, as per report were taken into custody and Committee recommended that same may be handed over to the police for verification of signatures of the officers concerned and for further investigation. The Committee also worked out that an amount of Rs.19,064,715 from November, 1993 to October, 1997 was overdrawn. The Committee also disclosed the names of Messrs Moula Bakhsh Buledi, Assistant/Head Clerk, Liaquat Ali Joyo, Senior Clerk, Muhammad Hassan Daidano, Junior Clerk, who were said to had been in connivance with the beneficiary teachers and other private persons and were responsible for the said blunder. The Committee also disclosed the names of Abdul Ghafoor, Zulfiqar Ali Shaikh and Mansoor Ali, the Chowkidars who being matriculate were working with above said clerks in preparing the bills and issuance of cheques to teachers. In the end, the Committee pointed 'but that in the pay bills from October, 1993 to October, 1997, the names of real employees were not mentioned but instead the names of such ladies were entered who were not the employees of Education Department. Besides, the service books were also not maintained properly and in case of many teachers the same were not even available.
As it appears on the basis of above referred inquiry report submitted in July, 1998, the disciplinary proceedings against Mst. Shama Rashdi, Mst. Rasheeda Soomro and Mst. Zaibunnisa Sahito were initiated by the Secretary, Education Department in the capacity of `Authorized Officer' and they were issued separate charge-sheet(s) dated 27-2-1999. Initially Mr. Nizamuddin Memon, Director Secondary School Education, Hyderabad was appointed as Inquiry Officer. However, by another order, dated 3-4-1999, a five members Inquiry Committee comprising Mr. Muhammad Siddique Memon, Deputy Secretary (Admn.-I), as Chairman, Mr. Nizamuddin Memon, Director, Secondary School Education, Hyderabad, as Co-Chairman, Mr. Zamir Hussain Qazi, Director Primary School Education, Hyderabad, Mr. Muhammad Sajjan Malah, District Education Officer (Male) Primary, Hyderabad and Ms. Afroze Siddiqui, Principal, Government Girls Pilot Higher Secondary. Miran School, Hyderabad, as its Members, was constituted to conduct inquiry against the above said three S.D.E.Os. During the course of inquiry against the above said three ladies, the Committee noticed that the three clerks namely Messrs Moula Bux Buledi, Head Clerk, Liaquat Ali Joyo, Senior Clerk and Muhammad Hassan Daidano, Junior Clerk, were alleged to have acted in collusion with above said three female S.D.E.Os. Accordingly, with the permission/order of the Secretary, Education Department, the three clerks were then served with charge-sheets dated 5-6-1999 issued by Mr. Zamir Hussain Qazi, Director, Primary Education, Hyderabad in the capacity of "Authorized Officer". The Committee then restarted the inquiry proceedings. However, Mr. Zamir Hussain Qazi, one of the member of the Inquiry Committee, who acted as "Authorized Officer" in respect of three clerks, voluntarily disassociated himself from the inquiry. On conclusion of inquiry, the committee declared appellant Mrs. Shama Rashdi as guilty of the charge of fake and illegal appointments, induction of their names in the pay bills and embezzlement of huge Government money in collusion with his staff. Mrs. Zaibunnisa Sahito, was also found guilty of the charge of the signing second bill amount to Rs.12,62,478 and attempt to encash the said bill through his staff, illegal withdrawal, of an amount of Rs.1,96,528 through cheque but not disbursed the same to teachers and later on under pressure she deposited an amount of Rs.2,00,000 in Bank and induction of names of fake teachers in pay bills in collusion with his staff. Similarly all the three Clerks were also found guilty of the charge that they in, collusion with female S.D.E.Os. made illegal appointments and embezzlement of huge Government money. However, Mrs. Rashida Soomro was not found guilty of any of the charge and was thus, exonerated. The said inquiry report was then submitted to the Secretary, Education Department, Karachi on 30-6-1999. On the basic report, final show-cause notices were issued against the culprit employees, which were subsequently, said to have been withdrawn, on the plea that officers and the ministerial staff were proceeded against separately instead of jointly.
Once again appellants Mrs. Shama Rashdi, Maoula Bux Buledi, Liaquat Ali Joyo and appellant Muhammad Hassan Diadano, were served with a joint show-cause notice, dated 17-2-2000 issued by the Secretary Education Department, in the capacity of "Authorized Officer". The details of misconduct against appellant Mrs. Shama Rashdi and appellant Muhammad Hassan Daidano, were as under:
Mrs. Shama Rashdi, Ex-S.D.E.O.(F), Hyderabad City.
(i) That you in collusion with each other, have inducted by fraudulent means, 814 female P.S.Ts. during your incumbency as S.D.E.O.(F), Hyderabad City, even in violation of ban imposed by Government on the appointment.
(ii) Some fictitious names who did not exist physically but against their fake names cheques for monthly salaries were drawn from time to time and huge amount was misappropriated.
(iii) You have also given the colour of appointment to some teachers and postings in some cases by inducting the girls as teacher, later on shifted from original school to somewhere else.
(iv) That you have fraudulently prepared service books in respect of 814 fake appointees/teachers whose joining was shown much after the date of their fake appointment. You have made 814 appointments without adopting legal process of selection prescribed under the Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974 i.e. the advertisement, tests/interviews conducted and the merit list prepared by the Recruitment Committee headed by the District Education Officer, you have drawn the salaries pf these fake appointees long after their fake appointments.
The bills of salaries were drawn after the date of fake appointments. Besides, salaries of fake appointees were drawn in excess showing fabricated emoluments of pay against their actual salaries admissible under rule. Copy of the statements showing the details of such fake appointees and salaries drawn fraudulently is enclosed.
This imagined amount shown against all the teachers that bills were drawn from District Accounts Officer and kept Account of S.D.E.O. in various branches of Banks and thereafter personal cheques were issued. Some of those fictitious teachers appear to be acting as your agents, such act established the commission of fraud and misappropriation of Government funds to the tune of Rs.25 millions causing the financial loss to Government exchequer.
Muhammad Hassan Daidano, Junior Clerk
(i) That during your posting as Junior Clerk in the office of the S.D.E.O.(F), Hyderabad City from 1-4-1990 to 18-11-1997 you were performing the work of preparation of pay bills of Primary Teachers and you with ulterior motives incorporated the huge number of ladies in the bills who were neither the employees of the Education Department nor were appointed as P.S.Ts. and draw their salaries with an intention to misappropriate the Government money.
(ii) That you were in a knowledge that there was a ball on appointment but you in collusion with Mrs. Shama Rashdi the then S.D.E.O.(F), Hyderabad City entered the fresh names in the monthly salary bills and drew same fraudulently and put the Government into the loss of crores of rupees.
(iii) That you knowingly concealed the fact of illegal appointments and misappropriation of Government money and never brought such illegalities to the notice of higher authorities as such you are the part and parcel of inducting forged names of P.STs. in the pay bills and wrong withdrawal of Government money from the State exchequer in collusion with Mrs. Shama Rashdi the then S.D.E.O.(F), Hyderabad City. The above acts of misconduct were done by them in collusion with each other to cause wrongful loss to Government and the wrongful gain to ourselves and the illegal appointees involving an amount of millions of rupees.
6. Similarly vide another show-cause notice dated 17-2-2000, appellant Mst. Zaibunnisa Sahito, Ex-S.D.E.O.(F), Hyderabad, City, appellant Muhammad Hassan Daidano along with Messrs Moula Bux Buledi and Liaquat Ali Joyo, were served with a joint show-cause notice, dated 17-Z-2000 issued by the Secretary, Education Department, in the capacity of "Authorized Officer". In the said notice the details of misconduct against appellant Mrs. Zaibunnisa Sahito and appellant Muhammad Hassan Daidano were as under:
Mrs. Zaibunnisa Sahito, Ex-S.D.E.O.(F), Hyderabad City
(i) You in collusion with your concerned clerks made an attempt to draw an amount of Rs.12,62,478 being double bill on account of salaries of the P.S.Ts. for the month of October, 1997, with an intention to misappropriate the same.
(ii) You have drawn a sum of Rs.1,96,525 through a cheque on 17-10-1997 and not disbursed to the teachers. Subsequently, the cheques were also issued to individuals for the same purpose i.e. salary for the month of October, 1997 but after knowing that the cheques issued to the P.S.Ts. are being dishonoured due to nil balance, you deposited a sum of Rs.2,00,000 in the same account on 27-10-1997 to cover the fraud of withdrawal of amount from the Bank.
(iii) That you in collusion with your official staff had induced the names of fake teachers in the pay bills and claimed the amount of Rs.12,62,478 for fraudulently appointed P.S.Ts. and towards salaries for the month of October, 1997 and caused loss of Rs.12,62,478 to the Government.
Mr. Muhammad Hassan Daidano, Junior Clerk
(i) That during your posting as Junior Clerk in the office of S.D.E.O.(F), Hyderabad City from 1-4-1990 to 18-11-4997 you were performing the working preparation of pay bills of Primary Teachers and you with ulterior motives incorporated the huge number of the ladies in the bills who were neither the employees of the Education Department nor were appointed P.S.Ts. and draw their salaries with an intention to misappropriate the Government money.
(ii) That you in collusion with Mrs. Zaibunnisa Sahito drew a double pay bill amounting to Rs.12,62,478 tried to encash with an intention to misappropriate the Government money.
(iii) That you knowingly concealed the fact of illegal appointment and misappropriation of Government money and never brought such illegalities to the notice of the higher authorities as such you are the part and parcel of inducing forged names of P.S.Ts. in the pay bills and wrong withdrawal of Government money from the State Exchequer in collusion with Mrs. Zaibunnisa Sahito the then S.D.E.O.(F), Hyderabad City.
In both the show-cause notices the regular inquiry was dispensed with as ' according to "Authorized Officer" it was not necessary.
7. In their respective replies to the show-cause notices, appellants denied the allegations and explained their positions, which were not found satisfactory, as such they were separately served with final show-cause notices dated 22-3-2000 proposing major penalty of dismissal from service against appellants Mrs. Shama Rashdi and Muhammad Hassan Daidano and major penalty of 'reduction in rank against Mrs. Zaibunnisa Sahito, which too they replied. They were also provided chance of personal hearing. Ultimately, with the approval of "Authority" appellants Mrs. Shama Rashdi and Muhammad Hassan Daidano were awarded major penalty of dismissal from service vide joint order dated 24-10-2000, whereas appellant Mrs. Zaibunnisa Sahito and appellant Muhammad Hassan Daidano vide another joint order, dated 30-10-2000 were awarded major penalty of "Reduction to lower post/pay/scale for a period of two years and major penalty of removal from service, respectively". After availing departmental remedy which remained unresponded, appellants Mrs. Shama Rashdi and Muhammad Hassan Daidano filed Appeals Nos.63 of 2001 and 117 of 2001 against original impugned order dated 24-10-2000, whereas appellant Mrs. Zaibunnisa Sahito after availing departmental remedy which too remained unresponded filed Appeal No.79 of 2001 against original impugned order dated 30-10-2000. It is very much pertinent to point out here that appellant Muhammad Hassan Daidano has not filed any service appeal against the original impugned order, dated 30-10-2000 whereby he was awarded major penalty of removal from service.
8. In their written statement filed separately in cash appeal, respondents have controverted the assertions raised in the memo. of appeals.
9. Mr. Nizam Ali Khan, learned counsel for appellant in Appeal No.63 of 2001 argued the matter at length. After going through the details of appellant's past services so also his family background; he submitted that in fact-finding inquiry conducted by a committee headed by Mr. M.A. Rasheed, the then Deputy Director Secondary Education, Hyderabad in the year, 1998, appellant was not found guilty of the charges and she was exonerated, while the ministerial staff which includes appellant Muhammad Hassan Daidano were found responsible for all such illegal appointments, misappropriation of Government money and other bunglings. Despite the fact that appellant was earlier exonerated from the charges, she was again proceeded against departmentally under the orders of Mrs. Mehtab Akbar Rashdi, the then Secretary Education Department, with whom appellant had some family dispute. An Inquiry Committee under the Chairmanship of Mr. Muhammad Siddique Memon, Deputy Secretary (Admn.) Education Department (who was direct subordinate of Mrs. Mehtab Akbar Rashdi) was constituted to probe the matter and in the said inquiry proceedings two female officers Mrs. Zaibunnisa Sahito (appellant) and Mrs. Rashida Soomro so also three members of ministerial staff namely Messrs Moula Bux Buledi, Head Clerk, Liaquat Ali Joyo, senior clerk and Muhammad Hassan Daidano, junior clerk were also joined. Further, he contended that although the Inquiry Committee was comprising of five members, however, during proceedings, two of its members namely Mr. Nizamuddin Memon, Director Secondary School Education, Hyderabad and Mr. Zamir Hussain Qazi, Director Primary School Education Hyderabad, as per note appended at the end of the inquiry report disassociated themselves from the inquiry while two other Members namely Mr. Muhammad Sajjan Malah, District Education Officer, (Male), Hyderabad and Ms. Afroz Siddiqui, Principal, Government Girls Pilot Higher Secondary Miran School, Hyderabad, attended the inquiry proceedings only once, but they subsequently were made to sign the inquiry report, therefore, the said inquiry report has no legal value. Even otherwise, as argued by learned counsel, the whole inquiry was conducted in cursory manner, the statements of witnesses were not considered in true perspective but on account of personal assumptions and presumptions coupled with mala fide, in the inquiry report which was drafted and prepared by one man, appellant was made responsible for all such alleged fake appointments and misappropriation of Government money and on the basis of said inquiry report appellant was served with a final show-cause notice which was elaborately replied. In any case, the said inquiry proceedings were, however, declared as being infructuous for the reason that female officers and ministerial staff were proceeded against separately instead of jointly as required under rules 5(6) of the Sindh Civil Servant (E&D) Rules, 1973, and the show cause so also final show-cause notices were withdrawn. However, once again appellant with three clerks was proceeded against jointly and at that time the inquiry was dispensed with, without showing any justifiable reason and ultimately appellant was penalized vide impugned order dated 24-10-2000. Learned counsel also stated that in view of the seriousness of the charges which were denied vehemently, regular inquiry was must and major penalty in the absence of regular inquiry as neither warranted by law nor justified and proper. He added that not a single teacher was ever appointed by the appellant but the clerks concerned managed the said fake orders by manipulating and forging appellant's signatures and subsequently, included their names in the pay bills slowly and gradually, which fact is evident from the perusal of record so also the inquiry reports. In the end learned counsel submitted that due to personal vendetta and rivalry appellant has falsely been implicated and that impugned order being illegal, perverse, passed in utter disregard of mandatory provisions, of law so also in violation of the principles of natural justice may be set aside and appellant may be reinstated in service with all back and consequential benefits.
10. Mr. Abdul Latif Ansari, learned counsel for appellant in Appeal No.79 of 2001 in his lengthy arguments contended that appellant while posted as Head Mistress,' Government Girls Zeenat-ul-Islam High School, Pretabad, Hyderabad vide order, dated 8-10-1997 issued by the Director, Primary Education, Hyderabad Region, allowed to look after the affairs of S.D.E.O.(F), Hyderabad City as Incharge till further orders. She remained incharge S.D.E.O.(F), Hyderabad from 10-10-1997 to 19-11-1997 i.e. only for 40'days and as D.D.O. for 25 days in addition to her own duties of Head Mistress. Immediately after taking over charge she was apprised that cheques of salaries of September, 1997 issued to the teachers were not being honoured by the Bank for want of balance in the relevant account, whereupon, she called the dealing clerks namely Moula Bux Buledi, Head Clerk, Liaquat Ali Joyo, senior clerk and Muhammad Hassan Daidano, junior clerk and direct them to bring relevant record but since her orders were taken lightly and on receiving no response appellant reported the matter to the Director, Primary Education, Hyderabad vide confidential letter dated 25-10-1997, with a copy to D.E.O.(F), Hyderabad. In response thereto appellant received letter' dated 28-10-1997 from D.E.O.(F), Hyderabad, whereby she was asked to suggest ways to stop and curb loot, which the appellant replied vide letter, dated 3-11-1997. Learned counsel further submitted that on 8-11-1997 appellant on direction of her superior visited State Bank where she was informed that Bank has received a duplicate bill duly passed by the Treasury Office for encashment and when she made inquiry from Liaquat Ali Joyo, senior clerk who slipped away from office without permission along with related record, as such appellant reported the matter to the Director Primary Education, Hyderabad vide letter dated 8-11-1997 followed by comprehensive report dated 8-11-1997 but on receiving on positive response from her higherups the appellant reported the matter to the Anti-Corruption authorities vide letter dated 8-11-1997 with full details of fraudulent activities of the ministerial staff and the fictitious appointments the copy of which was also…
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