NISAR AHMAD KAYANI Versus AZAD GOVERNMENT OF STATE OF JAMMU AND KASHMIR
ORDER
SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).--- The instant appeal is directed against the Government Order No. Admin-S.O-iv/General-8/84, dated 1t)-7-1984 by which the appellant was compulsorily retired from service.
2. The relevant facts of the case are that the appellant Near Ahmad Kayani held the job of Executive Engineer in Electric Branch Operation Division Kotli. On the basis of a report of Vigilance Commission set up for the purpose, he was placed under suspension along with some other members of his staff for the alleged defalcations and misappropriation of Government money in his office and he was also ordered to be proceeded against under the Efficiency and Discipline Rules, 1977. A charge-sheet was supplied to him by the authorised Officer (Secretary Works) while Malik Muhammad Iqbal, Inspector Electricity Department was appointed as Inquiry Officer in the matter. The inquiry was completed by the Inquiry Officer within the given time and as a result of that inquiry, the appellant was compulsorily retired from his service under the impugned order. The appellant moved a review petition before the respondent Government against that order but the same was not decided by the Government till the present appeal was brought before this Tribunal under section 4 of the Service Tribunal Act, 1975.
.3. The appellant seeks reversal of the impugned order on the following grounds:--
(i) That under the provisions of Efficiency and Discipline Rules only a Senior Officer is held to inquire into the allegations against a junior Officer. But in his case the Electrical Inspector Muhammad Iqbal was not holding a senior post as compared to him and as such he was not competent to hold inquiry against him.
(ii) The authorised Officer was also biased and being a Member of the Vigilance Commission, he should not have acted as authorised officer in his case for having participated in the meetings of the Vigilance Commission set up against the appellant.
(iii) The Inquiry Officer ha; not followed the prescribed procedure provided in Efficiency and Discipline Rules and has recorded statements of some of the witnesses appearing against him in presence of some other witnesses. He was also biased against the appellant and had refused to summon Tariq Muhammad owner of an Electric Store at his request.
(iv) The Inquiry Officer has failed to appreciate the evidence on the file. HC has absolved the Divisional Accountant and Head Clerk of the appellant's office of the charges which were quite identical to those as were levelled against the appellant. The payments have been made to the contractors through cross cheques and under the Negotiable Instruments Act, such payments could not be disputed.
(v) The charges levelled against the appellant were neither established nor proved against him from the evidence and record placed on the file of the Inquiry Officer.
4. It is prayed by the appellant that by accepting his present appeal, the impugned order may be set aside and he may be reinstated with all the service benefits.
5. In the written statement Filed on behalf of respondents, it was submitted that the appellant was never promoted as Superintending Engineer on regular basis and he held the job of Executive Engineer Electricity in Pay Scale B-18. In June 1976, he was placed under suspension because of his involvement in a misappropriation case. He was challaned in the Court of Special Judge Anti Corruption and after being exonerated of the charges of corruption by that Court he was reinstated as Executive Engineer (B-18). On the basis of the report of Vigilance Commission he was once again found involved in corruption, inefficiency and misconduct and was, therefore, proceeded against under Efficiency and Discipline Rules. It is incorrect that the impugned order was made by the Government without application of independent mind and thorough examination of the inquiry report. In fact the impugned order was passed by the respondent Government after giving due consideration to the inquiry report, recommendation of the authorised Officer and the record of personal hearing prepared by Mr. A.R.Saleem. The inquiry report was not suffering from any legal defect. The Inquriy Officer held the post of Electricity Inspector in National Pay Scale No. 19 while the appellant held the post of Executive Engineer in pay scale No. 18.
6. By order dated 18-11-1986, the appeal was previously disposed of by this Tribunal consisting of Mr.Muhammad Sidique Farooqi and Kh. Abdus Samad who were then Chairman and Member respectively of this Tribunal. But on appeal their order was set aside by Hon'ble Supreme Court on the sole ground that the order was recorded by the Tribunal 6 months after hearing of final arguments. The appeal was remanded back for a fresh decision on all the points at issue. Hence, the file was once again taken up by this Tribunal for proper adjudication.
7. We have heard the arguments as were addressed at the Bar by the learned counsel of each party. We have also examined the tile of the Inquiry Officer as well as the record and evidence placed on that file. In his arguments, Kh. Muhammad Saced, the learned Advocate for the appellant has addressed this Tribunal on all the grounds noted above taken in memo of appeal. It is submitted by him that the prescribed procedure under the Efficiency and Discipline Rules, 1977 has not been properly followed by the Inquiry Officer and the Authorised Officer and that the charges brought against the appellant arc not well established to hold him responsible for the alleged defalcations. In support of his arguments, he cited P L D 1983 (SC) AJ&K pages 95 and 199, P L D 1981 S C
(Pak.) page 176 para.181, 1984 S C M R page 451, 1985 S C M R 1747 and P L D 1963 (W.P.) Karachi 660. He has also referred our attention to a decision made in Writ Petitions Nos. 6 and 7/84 decided by High Court of Azad Jammu and Kashmir on 28th February, 1985 in case Muhammad Akram Shah v. Azad Government reported as 1985 P L C (CS) 711 and has argued that under the Efficiency and Discipline Rules the proper course for the Inquiry Officer was that he should have obtained explanation from the appellant about the action proposed to be taken against him. But in this case, the action proposed was never communicated to the appellant nor his explanation was obtained in the matter and hence the punishment ordered on the basis of present inquiry report being violative of principles of natural justice was ineffective, void and without jurisdiction.
8. Before we discuss the charges brought against the appellant we would like to discuss the objections of the appellant taken up in his appeal as to the jurisdiction and competency of the Inquiry Officer and the authorised Officer. The first objection against the authorised Officer is that he being a Member of the Vigilance Commission constituted to probe into the allegadbns against the appellant was not competent to act as authorised Officer on behalf of the respondent Government. It is very true that Mr.Muhammad Yusaf Awan Secretary Works was a Member of the Administrative Vigilance Commission but he has not personally conducted any inquiry with respect to the charges against the appellant. In fact, the preliminary inquiry was conducted by Mr. Ghulam Haider, Secretary Vigilance Commission and the authorised Officer had participated in the meeting of Vigilance Commission merely for drawing up a charge-sheet against the appellant on the basis of material produced before the Commission. In our opinion, the mere fact that Mr.Muhammad Yusaf Awan (Secretary Works) participated in the meeting of Vigilance Commission does not debar him of his function as authorised Officer in the instant case especially when there is no allegation of his being biased coupled with sound reasons available against the appellant on the file. In his reply to the charge-sheet, the appellant has not challenged the position of Secretary Works to become arthorised Officer in his case. Apart from that the authorised Officer had nothing to contribute so far as the charges brought against the appellant were concerned. They were to be inquired into by a competent Senior Officer. In the present case, an independent inquiry was ordered by the Government and the same was held by the Inquiry Officer without there being any interference by the authorised Officer.
9. We find no truth in this allegation also that the Inquiry Officer was also biased in making report against the appellant. In his reply to the charge-sheet, the appellant has never raised any objection to Malik Muhammad Iqbal being appointed as Inquiry Officer. It is a hard fact that Malik Muhammad Iqbal at the relevant time held the rank of Superintending Engineer in the Electric Department and the mere fact that the appellant had also held the job of Superintending Engineer for some time does not a credit him senior to Inquiry Officer for the simple reason, that such an appointment was purely temporary and secondly on account of the fact that he was relieved of his responsibilities of that office long before the initiation of the present departmental proceedings against him. If the appellant had any doubt about the senior position of the Inquiry officer, he could challenge the same while submitting his reply to the charge-sheet to the Inquiry Officer. At the same time, it was for the appellant to prove it or the file that under Efficiency and Discipline Rules, Malik Muhammad Iqbal Electricity Inspector was lacking the qualification of being appointed as an Inquiry Officer in his case. But there is nothing on the file to support this objection of the appellant.
10. We accept this argument that in case of certain witnesses appearing against the appellant, the procedure prescribed by the law was not strictly followed by the Inquiry Officer. But it is pertinent to note here that there is ample evidence ocular as well as documentary on the file which connect the appellant with the commission of forgery and defalcations and which is considered g sufficient to supply a strong proof in support of the charges levelled against him. It was not the sole responsibility of the Inquiry Officer to bring all the witnesses before him as were cited to be examined by the appellant in his defence. The appellant was equally responsible to exert his efforts also for the production of his witnesses before the Inquiry Officer. In our opinion there was nothing on the file in support of this contention that the appellant was anywhere prejudiced in the course of departmental proceedings against him. It was the duty of the appellant to present himself before the Inquiry Officer after he was properly served with a notice about the holding of the inquiry against him at a particular place and when he had the notice of it, he should not have absented himself during the inquiry proceedings. So, the evidence recorded in his absence cannot be excluded altogether from being taken into consideration especially when it is duly; corroborated by other evidence on the file.
11. The Inquiry Officer has examined the record of purchases made by the appellant in respect of which the charges have been framed. He has also examined the Stock-Register and the Accounts statement of the Accounts Branch and has also made inquiries with respect to the receipt of the copies of the notices for quotations in the office of Deputy Chief Engineer. But as per report at page 95 made by the Inspector Electricity Department deputed by the Inquiry Officer vide his letter at page 94, no- copy of quotation notice shown to have been endorsed to the office of the Deputy Chief Engineer Electricity Department was ever received in his office.
12. There is a long list of the charges but the major among them are charges No. 1 and 2. The rest of the charges are the offshoots of the major charges and some of them supply the details of the main charges. With a view to having our careful examination and scrutiny of the evidence brought on the file in support of the charges, it seems expedient that the main charges Nos. 1 and 2 be produced below:--
CHARLIE NO 1 :
(a) This charge relates to the opening and operation of Account No.158 which is shown to have been fraudulently maintained and operated in the name of Sultan Room, by the appellant and his staff. This account is purported to have been opened on 10-12-1980 by contractor Sultan Room who has denied the opening or having operated that account. We have examined the Account opening Form, Specimen Signature Card, payments slips and the cheques, drawn on the Bank as well as the security deposit receipt which was sought to be encashed through that account. All these documents relating to Account No. 158, bear the signatures of Sultan Room in English and arc found illegible. The record of the Electricity Department consisting of tenders/quotations, bills receipt on the. counterfoil, the applications made to the Inquiry Officer for adjournments was also examined and we find that all the documents of the department and papers of inquiry file bear the signatures of Sultan Room in Urdu which are quite legible. Even on an application, typed in English made to the Inquiry Officer, Sultan Room has signed in Urdu. This shows that papers relating to Account No. 158 were never signed by Sultan Room. On the Specimen Signature Card and Account opening Form in respect of Account No.132, at National Bank of Pakistan, Sultan Room has signed legibly in Urdu and during the proceedings before the Inquiry Officer, he has also signed his statements in Urdu. The cheques bearing No. 940581, dated 8-12-1980 and No. 940595, dated 7-1-1981 drawn in favour of Sultan Room which were presented for being credited in Account No. 158 were delivered without obtaining signatures of the beneficiary on the counterfoils whereas cheque No. 94339, dated 13-2-1981 for the amount of Rs.45,990 to be deposited in Account No.i32 was delivered to Sultan Room after obtaining his proper receipt on the counterfoil. As a result of procedure the cheques are generally delivered t6 the beneficiaries after obtaining their signatures on the counterfoil but the cheques presented for encashment out of Account No. 158, at the United Bank Limited, Koili are found exception to that practice. The Cashier of the Division has stated that cheques were delivered to the Contractor in presence of the Executive Engineer, i.e. the appellant. It is not the case of the appellant that cheques were sent by post and for that reason the signatures were not obtained.
(b) Malik Muhammad Ibrahim is stated to have introduced Sultan Room before the United Bank Limited for opening the Account No. 158. This Malik Ibrahim is said to be a former employee of the Electricity Department. At present he is doing a hardware, shop in Kotli Town and mostly supplies the electric goods to the Department and for that reason he keeps himself affiliated with the business of the department. His testimony has been rightly discarded for being a partisan witness. This witness has played a very dirty role in the whole affair of defalcations of public funds by having abetted the commission of a serious offence like introducing Javed Akhtar as Sultan Room Contractor at the United Bank Kotli. But it is unfortunate that no action seems to have been taken against. him. Abdul Shakoor, Second Officer, United Bank Limited has categorically stated it that in fact Javed Akhtar had opened the Account No. 158, and he was operating that account in the name of Sultan Room. He was specifically asked that question on oath. The question and his answer on page 153 of the file read as under:--
Abdul Shakoor is an officer of the Bank and is an independent witness. He has no motive to implicate Mr. Javed Akhtar in Bank transaction falsely and he has been rightly believed by the Inquiry Officer. He is supported by Muhammad Ali Cashier of the Bank also. In his statement Javed Akhtar has admitted it that he made purchases and received the amount of cheques, out of which he has paid a sum of Rs. 4,0(H) as profit to Sultan Room, and that he had received a sum of Rs.15,000 out of the amount of cheque for Rs. 45,990 which was deposited in Account No. 132. His admission of having made purchases on behalf of Sultan Room, shows that he prepared fictitious documents, in the name of Sultan Room.
The evidence of Abdul Shakoor, thus also gets support from the factum of ficititious purchases by Javed Akhtar.
CHARGE NO. 2:
(a) This charge relates to the payment of 7 bills, which were shown to have been made to Sultan Room. Sultan Room has denied to have made supply of any of the items and having received any amount against the fictitious supplies shown on his name.
(b) While going through the Inquiry report, we find that in case. of every item, the quotations purported to have been filed by Sultan Room Contractor were accepted for being the lowest rates for the supplies of Electric goods. It has been properly verified from the record that the quotations were fictitiously prepared and no copy of the quotations was ever sent to the office of Deputy Chief Engineer. The persons who submitted quotations were nowhere traceable excepting Sultan Room who has denied having submitted any quotations for the supply of goods and having received any amount out of the forged Account No. 158. In case of item No. 4 a sum of Rs.45,990 being the cost of barbed wire was deposited in Account No. 132. This amount included the final payment of Rs.26,490 of item No. 5 but Sultan Room denied having supplied any material for that amount and there was some confrontation between the parties for the return of money to the office of the appellant. Similarly in respect of item No. 6 a sum of Rs.28,980 was deposited in Account No.132 of Sultan Room despite the -fact that he had not supplied any goods to the operation Division Kotli and a sum of Rs. 21,()00 had to be refunded to the Line Superintendent Muhammad Yaqoob Bhatti by Sultan Room Contractor.
13. The argument is that the appellant could prepare fictitious record and bills with the help of his Head Clerk and the Divisional Accountant and since they have been absolved of the charges levelled against them the appellant being the senior Officer in his office could not be blamed for corruption and defalcations in his office. In case of Divisional Accountant, it is available on the record that an inquiry was also conducted against him by the office of the Accountant-General and since all the vouchers and invoices submitted to him along with the bills were duly attested by the appellant. He held no power to question the payments and the charges against him having not been proved he was absolved of them. The Head Clerk of the office is reported having no business with account matters, therefore, the charges brought against him were rightly struck down. Hence, this objection of the appellant is also repelled.
14. There is no quarrel with the law laid down in the cases referred to but it has no, application so far as the facts of the present case are considered. We cannot contribute to this view also that under Rule 7, Efficiency and Discipline Rules, 1977, the authorised officer or the inquiry officer was bound to supply a copy of inquiry report along with his recommendation for the action proposed to be taken against him to the delinquent. We are sorry no such provision exits in I the aforesaid Rules and the procedure followed in the inquiry is not suffering from any legal defect. It is pertinent to note here that in certain cases where the procedure laid down in relevant rules prescribed a charge and a reply at the outset and the official concerned has had, at the inquiry stage, the choice of being heard in person, it was held an excessive requirement that a personal hearing should also in every case be given in relation to show-cause notice (PLD 1967 Supreme Court 62). In case of the appellant, besides being heard at the inquiry stage, he was afforded an opportunity of being heard in relation to show-cause notice and almost every item of the charges proved in the inquiry against him was put to him and his explanation thereto was also recorded on the file. Apart from that there is sufficient evidence (oral as well documentary) on the file that b the appellant was responsible for allowing payments after preparation of false record of quotations and issuance of fabricated cheques for being deposited in the forged Account No. 158, fictitiously got opened in the name of Sultan Room in United Bank of Pakistan Kotli.
15. In view of the evidence discussed above, we are of the view that even the charges B, C, D and E brought against the appellant are also proved on the file and there are no mitigating circumstances justifying any interference in the I impugned order which has been made after thorough inquiry by the competent authority. Appeal fails and the same is hereby dismissed. No order as to the cost.
M.Y.H./90/Sr.A Appeal dismissed.