1988 PLC(CS) 499
IHSANUL HAQ CHAUDHRY (CHAIRMAN).-- The relevant facts for the decision of the present appeal are that the appellant was serving as Food Inspector and in the year 1982 he was posted at Chak Kouriana, District Jhang. It came to the notice of the authorities that a shortage of 47.681 M. Tons of wheat has occurred in godown Nos.40 and 41. The appellant was accordingly served with a show-cause notice dated 19-7-1984. The appellant submitted reply and took up the position that since the godowns were newly constructed and still incomplete, therefore, the stocks were damaged by the dampness and due to unsatisfactory fumigation, which resulted in infestation. It was further pleaded that the stocks were held for a long period. The appellant accordingly requested for writing off of shortage to the extent of 1% and offered to pay for the remaining shortage together with Abdul Qadir. Tariq, Food Grain Supervisor.
2. The Respondent No.l heard the appellant and his co-accused, went through the reply to the show-cause notice and examined the record. The Deputy Director concluded that the percentage of loss was heavy. He accordingly ordered that an amount of 10,000 be written off in respect of each of the parties and imposed the recovery of the balance on the appellant and his co-accused in the ratio of 2:1. The appellant assailed the order of the Respondent No.l through a departmental appeal before the Respondent No.2 while his co-accused Mr. Abdul Qadir Tariq paid the amount of penalty imposed on him i.e. Rs.28,384.34.
3. The Respondent No.2 did not decide the appeal within statutory period. Therefore, the present appellant decided to invoke the jurisdiction of this Tribunal through the present appeal under Section 4 of the Punjab Service Tribunals Act 1974. The appeal was admitted to regular hearing on 17-6-1987 and notices were issued to the respondents, who have filed the written objections and contested the appeal. We have heard the learned counsel for the appellant as well as learned DA and gone through the paper-book of this appeal as well as the record of the department. The learned counsel for the appellant in support of this appeal has raised the following points: -
(1) Firstly, that the shortage was not result of any carelessness or negligence on the part of the appellant and his co-accused. The same occurred on account of godowns having been recently constructed and there was a lot of moisture in the floors as well as in walls. The godowns were incomplete as a result of which the rain water also adversely affected the stocks and above all fumigation could not be done effectively. In this behalf he has referred to inspection notes of DFC as well as his own letters;
(2) Secondly, that the appellant was transferred from this post on 26-4-1983 in spite of his protests while the godowns were cleared on 4-1-1984;
(3) Thirdly, that the Respondents have admitted averments in the memorandum of the appeal, therefore, his case stands proved;
(4) Fourthly, the respondents did not deal with the defence plea of the appellant; and
(5) Fifthly, the report of the Enquiry Officer was not supplied and this lapse is fatal and in this behalf reliance is placed on P L D 1981 SC 176.
4. On the other hand the learned District Attorney has argued that no part of the stock was damaged as is clear from the outturn reports. It was a clear case of shortage and not of damage. It is added that allowance for normal loss has already been given. It is argued that the minor defects in the godowns were removed forthwith. The hue and cry appellant was raising put the department on alert. It was apprehended that the appellant has misappropriated stocks to great extent and he is trying to justify the shortage.
5. In the last it is submitted that the appellant was duly supplied report of the Enquiry Officer and this plea is proved by the fact the learned counsel was referring to portions of the Enquiry Report in arguments. It is maintained that in any case neither appellant complained as to the non-receipt of the report nor asked for it. It, also, adds to the presumption that he had received the report or in any case he was fully aware of its contents. The learned counsel for the appellant in reply to the arguments of the learned District Attorney on the last issue has stated that the copy was secured by the appellant unofficially.
6. We have given our anxious considerations to the entire matter. The admitted position, as it emerged from facts on record, is that there was a shortage simpliciter. It was not a case of damage to stock as none was shown in the stock clearance reports. Therefore, the issue as to the godown being newly constructed, incomplete and failure of fumigation are all irrelevant. These facts were only relevant if there was damage to the stock. It was further pointed out by the learned District Attorney that these were not the only godowns but there were as many as 65 godowns at this centre. This was colossai shortage as compared to the remaining godowns. The Respondent No.2 had worked out the shortage and the liability. The relevant para reads as under: -
"It is, therefore, decided to write off the loss to the extent of 0.05$ in each of the two units, being natural in exercise of the powers vested in me under Sr. No.2 part II (Food Department) of the West Pakistan Delegation of Powers and the Powers of Re-appropriation Rules, 1962 (amended uptodate and adopted by the Punjab Government). The remaining loss viz Rs.85,045.03 as per details below is hereby ordered to be recovered from the officials in lump sum in the ratio of 2:1.
S. No. Go- Quantity Value Loss Amount downs found written to be
No. short off covered.
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1. 40 21.591.00 Rs.40537.10 Rs.2026.85 Rs.38510.25
2. 41 56.090.00 Rs.48983.98 Rs.2449.20 Rs,46534.78
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77.681.00 Rs.89521.08 Rs.4476.05 Rs.85045.03
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Mr.Zaheer Haider Fl. Rs.56696.69
Mr.Abdul Qadir Tariq. Rs.29384.34."
7. It is worthwhile to mention here that the appellant requested for writing off to the extent of 1% and was prepared to pay the balance. On the other hand Mr. Abdul Qadir Tariq has paid his share of the penalty as worked out by the Respondent No.2. These facts, also, heavily weigh against the appellant.
8. The learned counsel for the appellant argued that all the averments in paras 1 to 6 of the memorandum of the appeals were admitted by the respondents. We have referred to the parawise comments/ written objections. The argument is fallacious. We find that the respondents have controverted the material facts.
9. This brings us to the last issue as to the non-supply of the copy of report of the Enquiry Officer. The learned counsel in this behalf has relied on Amir Muhammad case. When the case of the appellant is considered in the light of the dictum of the Honourable Supreme Court, we find that the case of the appellant is not covered. The learned counsel for the appellant has failed to show any prejudice caused to the appellant by the non-supply of the copy. Secondly the appellant himself did not ask for the same at any stage. The, natural presumption is that he was not feeling handicapped otherwise he would have insisted for the supply of the report of Enquiry Officer. It is admitted position that the appellant never asked for the same. Above all the learned District Attorney rightly pointed out that the learned counsel during the arguments of this appeal read out paras of the report which according to him was secured by the appellant unofficially. We, keeping all these factors in view, conclude that this plea has no merit.
10. We would like to emphasise before parting with judgment on the Authorities and Authorised Officers, taking proceedings under Efficiency and Discipline Rules that the copy of the Enquiry Report should be supplied to the accused civil servant and this fact should be clearly recorded in the proceedings and it is advisible that his signature in token of receipt of the copy should be obtained in the margin of the interim orders.
11. The appeal is, also, liable to be dismissed on the ground of non-impleading Mr. Abdul Qadir Tariq, Food Grain Inspector his co-accused. The appellant on the one hand contended that he was transferred from the centre on 26-4-1983 and godowns were cleared in his absence. On the other hand anxiety of the appellant is that his co-accused Mr. Abdul Qadir Tariq should not suffer. Once it is held that it was simply a case of shortage and not damage then question arises who is responsible for the loss? It could be either appellant or his co-accused, who became the incharge thereafter or both as held by the Respondent No.l. The determination of the extent to which the appellant is liable cannot be undertaken in the absence of his co-accused because liability has to be fixed on either of the two. The appellant is only interested to get himself absolved of the liability. He was not at all interested that his co-accused should be made to pay instead of him. We cannot avoid the impression that the appellant was affording full protection to his co-accused and watching his interest even in this appeal.
12. The result is that we find no merit in the appeal and dismiss the same with costs.
S. Q. /195/Sr.P.
Appeal dismissed.