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Petitioner: SALAHUDDIN VS Respondent: REGIONAL DEPUTY POSTMATER GENERAL, HYDERABAD SINDHHonorable Justice RASHID ALI MIRZASanaullah Noor Ghauri,Asif Hussain Mangi
2006 P L C
2006 P L C.(C.S.) 734
[Federal Service Tribunal]
Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members.
SALAHUDDIN
Versus
REGIONAL DEPUTY POSTMATER GENERAL, HYDERABAD SINDH and 2 others
Appeal No. 125(K)(C.S.) of 2002, decided on 16th April, 2005.
(a) Civil service---
---Duty of civil servant---Not to obey any illegal order of his superiors.
(b) Government Servants (Efficiency and Discipline) Rules, 1973---
---Rr.3, 4, 5 & 6---Dismissal of civil servant from service---Misconduct---Delay of four years in passing impugned order after giving personal hearing to civil servant---Validity---Such delay had not caused any prejudice to civil servant---Misconduct had been proved against civil servant who could not be exonerated---Service Tribunal converted impugned punishment into compulsory retirement from service in circumstances.
Sanaullah Noor Ghauri for Appellant.
Asif Hussain Mangi, Standing Counsel for the Respondents.
Date of hearing: 15th April, 2005.
JUDGMENT
RASHID ALI MIRZA, (MEMBER).---Appellant has filed this appeal under section 4 of Service Tribunals Act, 1973 challenging the order dated 30-11-2001 whereby he was removed from service under Efficiency and Discipline Rules, 1960. The order in question is reproduced hereunder;
"PAKISTAN POST OFFICE OFFICE OF THE CHIEF POSTMASTER HYDERABAD G.P.O. (71000)
No: F-9/9/95-96....dated Hyd, the 30-11-2001
Mr. Salahuddin, Treasurer-Vth, Hyderabad GPO accepted the following loss cash without vouchers/receipts, from Postamaster, Hyd, NPO, on the dates mentioned against each remittance.
DATED
AMOUNT TAKEN SHORT
1-6-1995
15000
28-6-1995
19000
29-6-1995
15000
15-7-1995
5000
7-8-1995
15000
9-8-1995
5000
15-8-1995
5000
19-8-1995
15000
5-10-1995
10000
8-10-1995
10000
12-10-1995
25,000
24-10-1995
10000
28-10-1995
10000
23-11-1995
4200
28-12-1995
5500
2-1-1996
10000
3-1-1996
10000
8-1-1996
10000
Total
198700 .
Similarly Mr. Salahuddin received short cash from the Fax Counter Express Post Centre, Hyderabad GPO on the following dates.
DATED
AMOUNT
13-6-1995
20173
15-6-1995
8113
24-6-1995
11128
27-6-1995
1073 ,
3-7-1995.
17158
11-7-1995
5098
6-8-1995
11128
20-8-1995
3088
24-8-1995
3088
26-8-1995
323
5-9-1995
10123
7-9-1995
10123
18-9-1995
6103
25-9-1995
15148
26-9-1995
21178
2-9-1995
4093
510-1995
10123
17-10-1995
10128
29-10-1995
6103
6-11-1995
33238
16-11-1995
18163
29-11-1995
28213
3-12-1995
31236
19-12-1995
4598
Total
288940
Mr. Salahuddin then Treasurer-V was therefore charged for Misconduct on the basis of following counts:
1. Receiving short cash from Postmaster, Hyderabad NPO, and Fax Operator without vouchers/receipts.
2. Connivance in Mis-appropriation of Government Cash amounting Rs.487640.
3. Falsification of records of the office.
He was called upon to submit his written defence within 14 days of the receipt of this memo. as to why penalty of dismissal From Service" under Efficiency and Disciplines Rules, 1960 should not be imposed upon him.
He had submitted his written defence on 11-1-1997.
Inquiry officer was appointed vide memo. of even number dated 20-10-1997, and he (Mr. Salahuddin) submitted his written explanation on 25-10-1997 and oral hearing was allowed on 28-10-1997.
I examined the whole original case, memo. of charges, enquiry report, his defence and other connected, documents. I reached on the conclusion that the charges levelled against him are fully proved. Hence therefore, ordered his removal from service with immediate effect.
(Sd) CHIEF POST MASTER HYDERABAD G.P.O."
Against the aforesaid order of removal from service the appellant preferred a departmental appeal to the Regional Deputy Post Master General Hyderabad which was not responded hence he filed appeal before this Tribunal praying therein to set aside the impugned order of removal from service and reinstate the appellant in service with full back-benefits.
2. The facts as narrated in the Memo. of Appeal are that initially the appellant was appointed as Postman. Thatta Head Post Office on 13-8-1986. On passing departmental examination he was promoted as Clerk BPS-7 in 1988 and was posted as Clerk Head Post Office Kotri. In 1991 he was transferred to Hyderabad GPO to work as Sub-Accounts Clerk. Later on he was posted to work as Clerk-cum-Treasurer No.V in the Treasury of Hyderbad GPO. On 6-2-1996 a defalcation of Rs.6,92,961 was detected in the Treasury of Hyderabad G.P.O. by anti-leakage squad of the office of respondent No.l consequent upon which M/s. Muhammad Ismail Qasmi, Senior Postmaster (Treasury) and Nafees Ahmed Head Treasurer of Hyderabad G.P.O. had been placed under suspension but the appellant continued to work as Treasurer No.5 because there was no prima facie case against him calling for his suspension. However after a lapse of ten months of detection of defalcation, Senior Postmaster (Treasury) Hyderabad G.P.O. Charge sheeted the appellant vide memo. dated 28-12-1996. The appellant vide his reply dated 11-1-1997, denied all the allegations levelled in the Charge Sheet against him. Thereafter Mr. Muhammad Ahsan, Assistant Superintendent Post Officer (Town) Hyderabad was appointed as enquiry officer vide respondent No.2's letter dated 16-1-1997. The appellant thereafter was heard in person on 28-10-1997 by the then respondent No.2. After the aforesaid personal hearing silence prevailed and after four years thereafter, the respondent No.2, passed the impugned order.
3. We have heard both the learned counsel appearing for the parties and have also gone through the relevant record.
4. Learned Counsel for the appellant contended that it is evident from the charge sheet that the then Postmaster General Hyderabad (Mr. Ayaz Malik) used to take cash from the Postmaster Hyderabd Night Post Office frequently and the cash taken away by the then Postmaster General was not shown in official accounts although the same was transferred less to the treasurer No.1 Mr. Nafees Ahmed) who had ordered the appellant to maintain a separate register for the details of the cash taken away by Mr. Ayaz Malik. He contended that the appellant being subordinate of the Head Treasurer, complied with his instructions. Likewise Mr. Muhammad Ayaz Malik, the then Postmaster General Hyderabad used to remit thousands of rupees to Multan and other Districts of Punjab through fax money orders without paying cash to the fax, clerk (Muhammad Asif) who showed full cash in the accounts submitted to the Treasury of Hyderabad G.P.O. He contended that Qazi Saleem Ahmed the then Postmaster Hyderabad N.P.O. was also charge sheeted on the allegations of giving out government cash to Mr. M. Ayaz Malik un-authorisedly but he was exonerated from the charges by the District Superintendent of Post Officer Hyderabad and no disciplinary action has been taken against the fax clerk (Mr. Asif) for booking of money orders without realizing cash for the money orders from Mr. M. Ayaz Malik the then Postmaster General, although the offence of giving out Govt., cash to Mr. M. Ayaz Malik was initiated by M/s Qazi Saleem Postmaster Hyderabad N.P.O. and Muhammad Asif Fax Clerk of Express Post Centre Hyderabad. He contended that Mr. Nafees Ahmed Treasurer as well as Senior Postmaster (Treasury) Hyderabad G.P.O. had an underhand deal with Mr. M. Ayaz Malik, the then Postmaster, General. He contended that the cash taken away by Mr. Ayaz Malik was not mentioned in the books of Treasury which was signed by M/s. Muhammad Ismail Qasmi (Senior Postmaster Treasury) Nafees Ahmed (Head Treasurer) and Ali Khan (Deputy Chief Postmaster Treasury) Hyderabad G.P.O. He contended that M/s Muhammad Ismail Qasmi, the then Senior Postmaster Treasury and Ali Khan the then Deputy Chief Postmaster Treasury Hyderabad G.P.O. were also charge-sheeted in the same case but they have been exonerated from the charges. He contended that the charge sheet was issued to the appellant under defunct E&D Rules 1960, hence the charge sheet was without lawful authority and a nullity in the eyes of law.
5. The Learned Counsel for the respondent contended that the appellant has himself admitted his guilt as to have received short cash from Postmaster, Hyderabad N.P.O. and fax money order clerk. He contended that M/s. Nafees Ahmed, Treasurer, Muhammad Ismail Qasmi, Senior Postmaster, (Treasury) and Ali, Khan, Deputy Chief Postmaster (Treasury) of Hyderabad G.P.O. have no relevance with the case of the appellant. Regarding issuance of Charge Sheet under E&D rules 1960, the learned Counsel for the respondents contended that it is admitted that the Charge under E&D Rules, 1960, but Enquiry Officer was appointed under E&D Rules, 1973. The learned Counsel for the respondents further contended that though the case of the appellant was decided too late after giving him personal hearing, but the E&D Rules did not bind the authority to decide the case within any stipulated time. He contended that the appellant is not entitled to any relief claimed by him. He therefore, prayed that the appeal be dismissed with cost.
6. After going through the inquiry report minutely, we are of the considered view that, no doubt, the amount under the dispute was taken away by the then Chief Postmaster at various stages, it can be construed that there was some negligence on the part of the appellant as he did not inform the high-ups about the payments obtained by the former Chief Postmaster. If at all he had worked under harassment, then too, he should have informed the high-ups about the payments obtained by the officer concerned, but this was not done. In all fairness, the appellant was the custodian of the treasury and it was not his personal property so that he should have remained silent over the matter and at the same time, the former Chief Postmaster was not so powerful that he could have harassed such a petty official. When the payments were not regularized, it was the prime duty of the appellant to have informed the high-ups. We find that the accused official is not largely responsible for the shortage of huge amount as Rs.6,92,969.66 keeping paper chits, receiving short cash from Postmaster, Hyderabad N.P.O. and Fax Operator without vouchers/receipts, amounts to connivance and collusion in criminal mis?appropriation of Government Cash amounting Rs.487640 and falsification of records of the office by accused official at his own level, cost and risks in presence of immediate supervisors/officer such as Sr. PM and CPM. The amount of shortage was taken by Mr. Malik Muhammad Ayaz the then PMG on different occasions evidently for official purposes. Their vouchers are stated to be available on PMG Office as yet. It is stated that Mr. Malik Muhammad Ayaz was hard and harsh towards subordinates who refused to obey his orders even if it was wrong. While keeping in mind the facts of the case, we are of the considered view that the appellant had acted in extremely irresponsible and negligent manner for a long time which amounted to smacked of his collusion with M/s Nafees Ahmed and Ayaz Malik. It was none of his duties to obey any illegal orders of his superiors for a prolonged time. The Inquiry Officer appears to have given go bye to the appellant by stating on the last page of the enquiry report as under:--
"Also whatever record was maintained was in the immediate knowledge of the superior officers of the accused. The accused discharged his responsibility in right way by informing his superior officers of the situation in time.
From the above discussion I conclude that the case has not been proved against Mr. Salahuddin, Treasurer-V . "
We do not agree with above findings and conclusion of the Enquiry Officer for the reasons that the appellant had been admittedly and consciously colluding with his superiors in criminal activity for a long time. There is no cogent evidence that he had informed the higher authorities about the nefarious activities carried on by his superior. If his hands and mind had been clear, he could have secretly informed the higher authorities about the same but he did not do so and willingly participated in the scam. There is no serious discrepancy in the proceedings against the appellant. The mere mention of E&D Rules, 1960 in the Show-cause notice could not have prejudiced the appellant as this might have been mistakenly mentioned so and subsequently rectified by ordering the enquiry under E&D Rules, 1973. Similarly, delay in passing the impugned order could not have caused any prejudice to the appellant and on these grounds the appellant against whom misconduct has been proved cannot be exonerated. However in our opinion the punishment which has been imposed upon him, is rather too harsh looking to the length of service of the appellant. We are of the view that it is a fit case where the punishment convert from that of "Removal from service" to that of "compulsory retirement" from the date of impugned order, i.e. 30-11-2001 which shall meet the ends of justice.
7. In the circumstances parties to bear their own costs.
8. Copies of the judgment be sent to the parties by registered post and to the relevant quarters under rule 21 of Service Tribunals (Procedure) Rules, 197,4.
S.A.K.I181/FST????????????????????????????????????????????????????????????????????????????????? Order accordingly.