ZALQARNAIN AND 2 OTHERS Versus THE ADDITIONAL SECRETARY BANKING MINISTRY OF FINANCE Riazul Hasan
CH. HASAN NAWAZ (MEMBER).‑‑ ‑This judgment purports to dispose of three appeals, with identical questions of law and facts, under section 4 of the Service Tribunal Act, 1973 filed in the background of following material facts, by Messrs Zulqarnain, Abdul Shakoor and Qasim Ali Shah, who have respectively been serving as National Savings Officer, Deputy National Savings Officer and Upper Division Clerk in the Directorate of National Savings, Multan Region, Multan.
2. One Mr. Sharafat Ali, an account‑holder of National Savings Bank made a complaint in writing to the Joint Director of the Directorate of National Savings, Multan to the following effect:
3. On this complaint, preliminary investigation was held by Mr. Shaukat Hussain Bokhari, National Savings Officer (Admn.), Multan who submitted a preliminary report to the Joint Director. The relevant portion of his findings makes the following reading:
"The complaint of Mr. Sharafat Ali is correct. The misappropriation of Rs.18,200 by the staff of the centre working on 23‑12‑1990 is established. I hold M/s. Zulqarnain, Officer Incharge, Abdul Shakoor, DNSO, Mr. Muhammad Ghous, UDC, Qasim Ali Shah, UDC, directly responsible for the said misappropriation. The sum of Rs.18,200 misappropriated by the staff was recovered by Ch. Liaquat Ali, Assistant Director (Insp.) and Mr. Muhammad Abdullah, National Savings Officer (Insp.) at the time of their surprise visit of the centre on 6‑1‑1991 and handed over to Mr. Sharafat Ali account holder KDA‑456. Recovery of Rs.18,200 from the Officer Incharge of the Centre itself is crystal clear proof that Mr. Sharafat Ali was deprived of his legitimate profit on KDA‑456 on 23‑12‑1990. Besides, Zakat of Rs.2,600 was also not accounted for in the relevant record of the centre by managing false declaration as Ahmadi on signed plain paper."
4. This report resulted in the initiation of disciplinary proceedings under the Government Servants (Efficiency and Discipline) Rules, 1973. Messrs Zulqarnain and Qasim Ali Shah were served with identical charge‑sheets on 10‑3‑1991. The same charge‑sheet was served on Mr. Abdul Shakoor ‑on 12‑3‑1991. The charge‑sheets in all the three cases were accompanied by the following statement of allegations:
"Statement of Allegations
He while posted as Incharge, NSC‑VIII, Multan misappropriated an amount of Rs.15,600 being an amount of profit accrued on KDA‑456 for the period from 10‑10‑1989 to 9‑4‑1990 and 10‑4‑1990 to 9‑10‑1990 with the collusion of other members of the staff viz. Mr. Abdul Shakoor, DNSO, Muhammad Ghous, UDC and Qasim Ali Shah, UDC.
He with the collaboration of other members of the staff defalcated Zakat amounting to Rs.2,600 from KDA‑456 on 23‑12‑1990 showing Mr. Sharafat Ali, account‑holder of KDA‑456 as Ahmadi. The defalcated amount of Zakat was distributed among all the accused viz. M/s. Zulqurnain, NSO, Abdul Shakoor, DNSO, Muhammad Ghous, UDC, Qasim Ali Shah, UDC and Muhammad Shabbir, Gunman.
He prepared false affirmation regarding apostasy of a true Muslim viz. Mr. Sharafat Ali obtaining cunningly his signature for exemption of Zakat on plain paper. He showed Mr. Sharafat Ali as Ahmadi and deprived the Government of the amount of Zakat levied on his KDA 456 with the abetment of some other members of the staff.
(S. RAZA HUSSAIN ZAIDI),
JOINT DIRECTOR,
AUTHORISED OFFICER:
5. After the appellants submitted their explanations in writing, separate inquiries were held by different Inquiry Officers against the appellants. The inquiry reports are also obviously separate in each of the cases, albeit with the common feature that each of the appellants was found guilty of the charges levelled against him. They were then served with final show‑cause notices on 9‑7‑1991, 10‑9‑1991 and 22‑10‑1991 and were also given an opportunity to be heard in person. They were called upon to show cause as to why penalty of dismissal from service should not be imposed against them. Copies of the reports of Inquiry Officers were also furnished to enable them to prepare their explanations.
6. After the explanations rendered by them failed to find favour with the competent authority, they were dismissed from service by different orders passed on 14‑3‑1992, 24‑3‑1992 and 8‑4‑1992. In the case of Zulqarnain and Abdul Shakoor appellants, the orders of dismissal purport to have been passed by the Director‑General, National Savings, Islamabad in his capacity as Authority; whereas in the case of Qasim Ali Shah, appellant, the order f dismissal was passed by the Joint Director, National Savings, Multan acting as Authority.
7. After their departmental appeals to the appellate authority failed to produce any result, the appellants were obliged to have recourse to the Tribunal with the present appeals where it is prayed that the impugned orders of dismissal from service may be set aside as illegal.
8. It may be stated that in the case of Mr. Zulqarnain, the Inquiry officer's finding in respect of the first charge was that "the recovery of Rs.18,200 from Mr. Zulqarnain Bhatti is established beyond any doubt". He also found that the accused while posted as National Savings Officer misappropriated an amount of Rs.15,600 which had accrued as profit to the complainant on KDA‑456 for the period from 10‑10‑1989 to 9‑4‑1990 and 10‑4‑1990 to 9‑10‑1990, with the collusion of some other members of the staff. Finding on charge‑2 was that an amount of Rs.2,600 due as Zakat was equally distributed ;among the staff including Mr. Bhatti appellant who defalcated the amount in collusion with others concerned. Another finding was that a fake declaration was prepared by the appellant, in collusion with one another for misappropriation of the amount of Zakat, falsely showing the account‑holder as an Ahmadi. In the cases of other two appellants, similar findings of guilt were recorded by the Inquiry Officer. The gist of those findings is that they misappropriated an amount of Rs.15,600 in collusion with one another and that they also prepared a fake declaration purporting to have been made by the complainant that he is an Ahmadi by faith and, therefore, exempt from payment of Zakat. It was found that by contriving this declaration, a sum of Rs.2,600 was misappropriated and distributed among themselves by the appellants. The amount was deducted from the complainant's money as Zakat, but he was made to understand that it was not due from him because of his religion and that it has not been so deducted.
9. One thing is evident from statement of facts. It is that disciplinary proceedings in these cases do not offend against any provision of the Rules. Although lengthy arguments were addressed on certain points in respect of the inquiry proceedings, nothing has been said either in the pleadings or at the Bar during the course of arguments to allege that there has been any mistake or irregularity in so far as the conduct of proceedings is concerned. The record shows that after the preliminary investigation was over, the explanations of appellants were obtained. Separate inquiry was conducted in each case and they were found guilty of the charge by the Inquiry Officers. They were served with final show‑cause notices and also given an opportunity to appear in person and defend themselves. Final show‑cause notices were also served with copies of the Inquiry Officers' Reports in each case and they were called upon to show cause why they should not be dismissed from service. They submitted their explanations in writing to the final show‑cause notices. The proceedings ultimately resulted in the orders of their dismissal from service. It is abundantly clear that all formalities laid down in the rules were observed and it cannot by any means be said that they have been deprived of the opportunity to defend themselves against the action proposed to be taken against them.
10. As already pointed out before, arguments were addressed by the appellants' learned counsel in respect of the manner of inquiry proceedings. The main thrust of the arguments was that the Inquiry Officers put questions in the nature of cross‑examination and that the inquiry proceedings were not fair. It was contended by the appellants' learned counsel in each case that this aspect of the matter apart, there was no sufficient material on the record to warrant a finding of guilt and that the reports of the Inquiry Officers are without a basis whatsoever. Reference was made to the statements of certain witnesses recorded by the Inquiry Officers, in an attempt to show that they are not sufficient to implicate the appellants.
11. Before dealing with these arguments, we feel like saying that the inquiry proceedings are altogether different in nature and character, from other proceedings conducted under the Civil and Criminal Procedure Codes, with strict rules of evidence. The import and purpose of these proceedings bear no similarity with the other proceedings. The main concern of the competent authority in disciplinary matters is to determine whether a particular employee is fit to be retained in service. For a proper decision of such matters, therefore, all that is required is to ensure that the procedure laid down in the Efficiency and Discipline Rules is properly observed; that an accused person is given an adequate opportunity of showing cause against the action proposed to be taken against him and that no miscarriage of justice comes about. The amount of moral conviction required for a just determination of the matter in criminal cases, is not applicable to disciplinary matters, where the approach of the competent authority is basically different in point of view. It is precisely for this reason that a person exonerated of the charge in criminal proceedings, may still be found unfit for retention in service in consequence of disciplinary proceedings. Therefore, the proceedings of Inquiry Officers in disciplinary cases have to be seen and appreciated in the light of these considerations. If this be so, the fact that questions in the nature of cross‑examination were asked by the Inquiry Officer and that discrepancies in the statements of witnesses were not duly taken into account in coming to a conclusion, becomes wholly immaterial and irrelevant. The peculiar feature of disciplinary proceedings is that no mincing of matters is required, as is ordinarily done in other criminal proceedings for a judgment of conviction.
12. It is in the backdrop of these considerations, that we proceed to examine some of the points raised by the appellants' learned counsel. The first was that the names of the appellants have not been mentioned by the complainant in his complaint filed before the Joint Director. It may be so, but then merely the circumstance of absence of their names from the complaint can by no means be regarded as fatal or conclusive. In actual fact, it rather shows that the complaint was genuine and that the complainant had no particular grouse against any of them. The complaint is based on facts which actually happened and it does not lead to any inference of motive or malice against them. A complaint was made, in order that proceedings are set afoot to find out the factual position. It was during the course of investigation that the part played by the appellants came to light. Therefore, the mere fact that their names had not been mentioned in the complaint, does not provide us with any proof in support of their innocence in the matter.
13. Another argument was that no memo was prepared by the investigating Officer to evidence the recovery of Rs.2,600 and Rs.15,600. All we can say is that this is a strange argument. In the first place, as we have already pointed out, the rules of procedure in the investigation of criminal cases are not applicable to the preliminary inquiries into disciplinary matters. Even if they be so applicable, the mere fact that no recovery memo was prepared would not necessarily suggest that the amounts in question were not recovered. Where any recovery is made in a particular case, whether it be criminal or disciplinary, is only a question of fact which has to be proved by evidence and the question as to what kind of evidence is required in a particular case, would depend upon its circumstances. There can be cases where recovery is established by the statements of reliable witnesses regardless of the Investigating Officers' failure to prepare a recovery memo.
14. Yet another argument was that the evidence of Mr. Shaukat Hussain has been relied upon by the Inquiry Officers in coming to the conclusion that the appellants are guilty. It was contended that finding of guilt in each case is inherently unsound because the statement of Mr. Shaukat Hussain is based on the result of preliminary investigation, with which the appellants had not been associated. It must be conceded that the argument is not without substance. But then it is not correct to say that the statement of Mr. Shaukat Hussain is the only piece of evidence relied upon by the Inquiry Officers in coming to the conclusion that the allegations made against the appellants are correct. Other evidence is also there for reliance and there is no legal obstacle in the Inquiry Officers' way to make that evidence a basis for their findings.
15. It was also pointed out by the appellants' learned counsel that the amounts alleged to have been misappropriated were duly paid to the complainant by the appellants and that the penalty awarded against them was not justified. True that the amounts alleged to have been appropriated were paid back by the appellants; but this is not sufficient to exonerate them of the charge. It was rather an indirect proof of the fact that a defalcation had come about.
16. It was next contended that in the case of Zulqarnain and Abdul Shakoor appellants, the impugned order had not been passed by the competent authority. Relevant portion of the impugned order in these cases says that the. "Director‑General, National Savings, Islamabad in his capacity as "Authority" after considering all aspects of the case and recommendations made by the Authorised Officer has awarded major penalty of dismissal from service in terms of rule 4(1)(b)(iv) of Government Servants (Efficiency and Discipline) Rules, 1973". Although the order passed by the Director‑General is not there on the record, the departmental representatives stated at the Bar that it had in fact been passed on the file. We have no reason to disbelieve their statement, particularly when the impugned order also bears out that dismissal from service was ordered by the Director‑General who is the competent authority.
17. We might as well deal with another important aspect of the matter. It is that although the charge‑sheet in all the three cases was the same, different Inquiry Officers were appointed. It was contended by the appellants' learned counsel that this was in violation of the rules resulting in miscarriage of justice. The explanation rendered by the respondents' representatives was that different Inquiry Officers were appointed because the Authorised Officers were different in each case. Irrespective of this explanation, however, we are constrained to say that it would have been better to appoint one Inquiry Officer in all the three cases in view of identical charge‑sheets. But we find it difficult to agree with the appellants' counsel that the circumstance of different inquiry Officers in each case has resulted in any miscarriage of justice. It is worthwhile to notice that findings of the Inquiry Officers in all the cases are that the appellants are guilty of the charge. Had any of the Inquiry Officers recorded a finding of innocence in respect of any of the appellants, the decision would have been different, for in that case an argument would have become available to the other appellants to the effect that they have been deprived of the assessment of that Inquiry Officer. Since it has not happened, we hold that the circumstance of different Inquiry Officers in these cases, if at all it is to be regarded as material, would not necessarily lead us to the conclusion that any injustice has been done.
18. The only other contention worth notice is that the statement of co -accused Mr. Shabbir Ahmed has mainly been relied upon by each of the Inquiry Officers in support of his findings. It was argued that this involved a violation of the principle of natural justice. It was contended that the statement of co‑accused could not provide the Inquiry Officer with a basis to arrive at a correct conclusion regarding the guilt or otherwise of the appellants, particularly in the context of the fact that summary procedure was adopted in his case and that he was let off only with a penalty of stoppage of two increments. Here again it must be conceded in all fairness that the contention is not without substance either. But we are still in favour of disregarding it. Our first reason is that the statement of Mr. Shabbir Ahmed co‑accused was not the only piece of evidence for reliance before the Inquiry Officer. They had other evidence borne out by the statements of different witnesses in support of their conclusions. The second is that if a mistake has been made by the competent authority in adopting summary procedure in the case of Mr. Shabbir Ahmed Gunman, this circumstance cannot be pressed into service in support of the view that similar course or procedure should have been adopted in the case of the appellants; especially in view of the gravity of the allegations against them. They are alleged to have defrauded the complainant by forging a false declaration and depriving him of the amount due to him. They also are alleged to have committed criminal misappropriation of Zakat due from the complainant. Nothing can be worse and the conduct of the appellants has rightly been visited with penalty of dismissal from service.
19. For these reasons, we hold that there is nothing wrong with the order of dismissal and that the appeals are without any force. They are accordingly dismissed. The costs shall not, however, follow the event.
H.B.T./804/Sr.F Appeals dismissed.