SAIF ULLAH vs DIVISIONAL SUPERINTENDENT, POSTAL SERVICES, FAISALABAD

' IQBAL HAMEEDUR RAHMAN, J.---This appeal by the leave of the Court is directed against the judgment dated 17.04.2012 whereby the appeal filed by the appellant has been dismissed by the Tribunal.

2. The concise facts of the case are that the appellant was working as Postmaster in the Night Post Office, Jaranwala, Faisalabad when he was served with a show cause notice dated 15.09.2009 under the Removal from Service (Special Powers) Ordinance, 2000 on account of following allegations:- STATEMENT OF ALLEGATIONS 1) Failed to take acknowledgements of cash remitted to Jaranwala GPO in hand to hand cash book on 01.09.09, 02.09.09, 03.09.09 and 04.09.09 under rules.

2) Non reporting the case to Sr. Postmaster Jaranwala GPO which is gross negligence on your part.

3) Facilitated the fraud to the accused official.

4) Cheating the Department.

5) Dishonesty.

6) Failed to perform the legitimate duties.

7) Misconduct.

8) Inefficiency."

' The appellant duly replied to the show cause notice denying the said allegations while laying stress that neither he had committed any act in facilitating the committing of fraud nor he had committed any cheating by fabricating any document and there is no dishonesty on his part and no embezzlement had been committed by him. He even denied any misconduct or inefficiency on his part. The said reply of the appellant was found by the Competent Authority to be unsatisfactory and consequently he was awarded with the major penalty of dismissal from service vide order dated 16.06.2010. Being aggrieve a the appellant filed a departmental appeal before the appellate Authority who converted the penalty of dismissal from service to that of compulsory retirement vide order dated 28.12.2010. The appellant still aggrieved approached the Tribunal by filing an appeal which has been dismissed through the impugned judgment, hence this appeal.

3. On 7.03.2013, leave to appeal was granted in this case in the following terms:- "The learned counsel for the petitioner has taken us through various orders passed and proceedings taken in the matter and has submitted that the allegation against the petitioner was not in respect of any misappropriation or embezzlement but at best the allegation against the petitioner was in respect of negligence in performing his duties. He has, therefore, submitted that in view of the allegation leveled against the petitioner the penalty of compulsory retirement upon him is oppressive and excessive.

2. In view of the submission of the learned counsel for the petitioner noted above this petition is allowed and leave to appeal is granted to consider as to whether the penalty of compulsory retirement imposed upon the petitioner was commensurate with the allegation leveled against him or not."

4. Learned counsel for the appellant has forcefully argued that too harsh punishment has been awarded to the appellant without adverting to the fact that there is no allegation against the appellant of having committed any embezzlement; that he had not, in any conscious manner, facilitated the act of embezzlement committed by one Muhammad Tariq, ex-Treasury Clerk, Jaranwala, Post Office and in fact, the said Muhammad Tariq has in categorical terms admitted his guilt. Learned counsel vehemently argued that the Tribunal in the given facts and circumstances while arriving at the conclusion that it was not a case of inefficiency but a case of collusiveness has misconceived the statement of the appellant.

5. On the other hand the learned DAG has fully supported the impugned judgment and while referring to Rule 590(3) to PO Manual Vol. VI, wherein acknowledgment of cash remitted ought to be taken, has stated that the appellant had failed to get signatures in hand to hand cash book on 1.09.2009, 2.09.2009, 3.09.2009 and 4.09.2009 which was required under the rules. Learned DAG has further stated that there are number of FIRs against Muhammad Tariq co-accused of the appellant. At the end the learned DAG asserted that the learned Tribunal has rightly dismissed the appeal of the appellant and the same does not need to be interfered with.

6. We have heard the learned Counsel for the parties and have also perused the available record as well as the judgment of the Tribunal. Admittedly there is no allegation against the appellant of having embezzled any amount and on the contrary, there is admission on the part of his co- accused Muhammad Tariq regarding the said embezzled amount which he had admitted and promised to return in part payments on two different dates. In the given circumstances and in the absence of any. Substantial and cogent evidence placing the appellant to be in collusion with Muhammad Tariq co-accused and particularly when there is an admission of the said guilt on his part alone, would not be fair and justifiable. At the most the failure of the appellant to get signatures in hand to hand cash book could have been considered to be a lapse on his part which could not entail the major penalty of removal from service resulting in his compulsory retirement rather fall within the parameter of inefficiency on the part of the appellant. Punishment should always commensurate with the guilt proved. We have observed that in the circumstances, case against the appellant cannot be considered to be of fraud, forgery or embezzlement rather at the most it can be considered to be that of inefficiency.

7. In light of the above, we while partially allowing this appeal convert the punishment of compulsory retirement of the appellant to that of stoppage of five years increments following his reinstatement in service. However, no back benefits are granted to the appellant.