1988 PLC(CS) 926

1. MUNAWAR ALI KHAN (CHAIRMAN).‑‑ This case has a long chequered history. It started its arduous journey from 15‑2‑1979 when the appellant, who was then holding the post of Apprenticeship Officer, Regional Directorate of Apprenticeship Training, Karachi was served with a charge‑sheet wherein as many as 11 charges were made against him. The appellant submitted his reply to the charge‑sheet on 28‑2‑1979. Again on 29‑4‑1979 another charge- sheet containing two charges was served on him. As a result of the enquiry into the charges of both the charge‑sheets, the appellant was dismissed from service by the order of Secretary to Government of Sind, Labour and Cooperation Department dated 19th August, 1979. The appellant filed departmental appeal against his dismissal whereupon the appellate authority namely, the Chief Secretary set aside the impugned order directing further that enquiry be held against the appellant de novo. However, no detailed enquiry was held. Instead a show‑cause notice was issued to the appellant in which all the 13 charges contained in the earlier two charge‑sheets were repeated. The appellant submitted his reply to the said show‑cause notice. Once again he was dismissed from service vide order dated 9‑10‑1982. This time departmental appeal dated 2 11‑1982 preferred by the appellant also did not succeed. Accordingly he came to this Tribunal in services Appeal No. 47 of 1983. The said appeal was accepted by the Tribunal vide its judgment dated 5th December, 1984, whereby not only the appellant was ordered to be re‑instated in service but also fresh enquiry, as envisaged by rule 5(2) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, was directed to be initiated against him. However, the judgment of the Tribunal was challenged in appeal to the Supreme Court but the same was dismissed vide judgment of the Supreme Court dated 19‑2‑1986.

2. Following the decision of the Supreme Court the appellant was re instated in service with effect from 20‑3‑1986 and was simultaneously placed under suspension. Thereafter a new charge‑sheet dated 12‑4‑1986 was served on the appellant, containing 10 charges. He submitted his reply to the said charges. After the Enquiry Officer submitted his findings holding the appellant guilty of all the 10 charges, the Secretary to Government of Sind vide his order dated 21‑9 1986 dismissed the appellant from service. The appellant filed usual departmental appeal but as no decision was taken thereon during the statutory period of 90 days, the appellant has filed the present appeal praying therein that the impugned order dated 21‑9‑1986 be set aside and he may be ordered to be re‑instated in service with all back benefits.

3. We heard the appellant himself, as he was not represented by any advocate, as well as the learned Government counsel elaborately. We also went through each document relevant for disposal of the appeal carefully.

4. All the charges made against the appellant would be discussed in seriatim. The first charge reads as under:‑

5. "That you in wilful contravention of the purpose and scheme for which the R.1.C. Fund has been established gave loans from this fund as under:

(i) Rs.l,500 (Rupees one thousand five hundred) vide National Bank Cheque No.112359, dated 6‑8‑1978 to Mr. Abdul Rasheed son of Mr. Abdul Majeed, Senior Clerk, Regional Directorate of Apprenticeship Training;

(ii) Another amount of Rs.1,500 (Rupees one thousand five hundred) to Mr. Athar Hussain Siddique, Senior Clerk, Regional Directorate of Apprenticeship Training vide National Bank of Pakistan Cheque No.112358, dated the 6th August, 1978.

(iii) That after issuing Cheque No.112358 dated 6th August, 1978 in the name of Mr. Athar Hussain Siddique, Senior Clerk, Regional Directorate of Apprenticeship, Training, Karachi for Rs.1,500 (Rupees one thousand five hundred only) granted as loan from R.I.C. Fund being operated by you en cashed the cheque in question under your own signatures from National Bank of Pakistan, Al‑Haidry Branch, and did not pay the said amount to the said official as alleged by him. You have, therefore, fraudulently misappropriated the R.1.C.Fund.

6. You have thus acted without any lawful authority and thereby misappropriated the R.I.C. Fund and mis-utilised them.

7. From the above charge it appears that in contravention of the purpose and scheme of R.I.C. Fund the appellant advanced loan of Rs.1,500 each to Abdul Rasheed and Athar Hussain, the two Senior Clerks and thereby misappropriated the said amount. In his reply to the above charge the appellant has admitted having made the payment to the said Senior Clerks, but has added that in absence of rules and regulations for operation of the R.I.C. Funds he was guided by the prevalent practice/precedents available in the office. Now the question for our consideration is whether the appellant was competent to authorise the loans on the basis of the practice /precedents. The stand taken by the official respondents in the written statement is that as per Resolution of National Apprenticeship Council the appellant had no power to grant loans from the R.I.C. Fund which was only meant to pay honorarium to the Instructional and other staff and meet the contingent expenditure. We have glanced through the said Resolution. At page 3 of the Resolution Financial Implications of Apprenticeship Training Scheme are described as under:‑‑

8. " Financial Implications :

9. For organising such courses, the following items of expenditure:

(a) Remuneration to instructors.

(b) Allowances to the incharge of the course;

(c) Contingencies Expenditure on the abovementioned items would be met by the institution from the training fee to be paid by the industry, which would be settled upon in consultation with the industry and the N.D.A."

10. Obviously grant of loans to the staff of the institute does not find mention in items of the expenditure, which are incurred in connection with the scheme. However, the appellant drew our attention to extracts from various files in order to show that he had the requisite power to advance loans to the members of staff. On examination of these extracts we found that they were of no help to the appellant. First of all the necessary authentication that the extracts were from the relevant files was missing. Secondly nowhere thought out the extracts we came across any specific power given to the appellant for advancing loans to the staff Even precedents mentioned by him in his reply have not been proved by him it,' course of the enquiry. Who knows if the so‑called precedents too had no leggy,; backing? We are therefore, convinced that the appellant held advanced the above two loans without any lawful authority. However, it is not denied that the loan amounts had been repaid by the aforesaid Senior Clerks. Accordingly further charge of misappropriation is not established, particularly when the mense rea (mind's inclination) necessary to constitute the offence of misappropriation was conspicuously absent. Accordingly we held the appellant guilty only of having exceeded his powers and authority by granting loans to the aforesaid two Senior Clerks. The second charge against the appellant is in the following words:‑‑ "that on 22‑10‑1978 you issued a letter No. DL‑M‑AT‑3(3)/77‑78‑S.T.R.‑

11. 6260 to the Manager Workshop, National Shipping Corporation, West Wharf, Karachi purporting to have been issued by the Competent Authority i.e. Director Labour, duly endorsed under your signatures permitting relaxation of over age of apprentice Mr, Ahmad Ali by 3 year and 10 days for which you neither were empowered nor competent to do so, as such by issuing this letter at your own wit hoot obtaining any order from Competent Authority/Director Labour Sind you have committed an act of forgery and criminal misconduct which calls for severe disciplinary action against you."

12. The appellant has refuted the above charge. His reply is as under:‑‑

13. "I did neither issue any letter regarding relaxation of age of Mr. Ahmad Ali nor made any endorsement on any such letter. The Joint Director (Manpower) had himself admitted m his letter No. DL‑MA&C-D (38)/Pt/74/2351, dated 18‑4‑1979 that no such letter was available in the Directorate, the allegation is, therefore, baseless,"

14. Elaborating his reply, the appellant contended that the letter purported to have been forged has not been produced in original and a photo stat copy of the same was not admissible. He further challenged the existence of such letter. In support of this contention he referred to letter of the Joint Director, Incharge (Manpower), dated 18‑4‑1979 wherein it is admitted that no such letter (with regard to relaxation of age) was available in the Directorate Accordingly the appellant's argument was that the second charge was totally baseless. On the other hand the learned Government Counsel was of the view that photo stat copy of the letter duly attested by the officer concerned not only was admissible but also furnished the necessary proof of the charge.

15. We have considered the arguments of both sides. Without going into the controversy as to whether photo stat copy would be acceptable as proof of the forged document, we must insist on evidence seeking to establish that the said document was forged by the appellant or any such forged document was endorsed by him. Even if the photo stat copy was accepted as proof on the existence of the forged document, that would not automatically prove that the appellant was the author of the alleged forgery. In view of the appellant's denial, it had to be proved by positive evidence that the appellant had not only forged the said document but also the endorsement by which the document was sent to the Shipping Corporation carried his signature. But no such evidence was forth‑coming. The only evidence relied upon by the Department in proof of the charge of the forgery is the photo stat copy of the alleged forged document which is clearly no proof of the fact that the appellant had forged that document with regard to relaxation of the age of Mr. Ahmad Ali. Nor can it be accepted as proof of the fact that the appellant had endorsed any such document to the National Shipping Corporation. Accordingly we held that the second charge was not proved against the appellant. The third charge against the appellant reads as under:

16. "3. That with mala fide intentions, you have fraudulently withdrawn amounts from the R.I.C. Fund deposited in the National Bank of Pakistan, North Nazimabad Branch through the following cheques:

17. Cheque No.

18. Date

19. Amount

20. 112316

21. 9‑3‑1978

22. Rs.258.50

23. 112351

24. 26‑7‑1978

25. Rs.151.00

26. 018141

27. 24‑12‑1977

28. Rs.6, 000.00

29. 018142

30. 29‑12‑1977

31. Rs.567.00

32. The counterfoils of the above‑numbered cheques show that the cheques were issued as Cross Cheques' in the name of M/s. Abdul Qayum & Co., Karachi, whereas the. National Bank Branch, North Nazimabad has stated that the said cheques as above were cashed at the counter as `Bearer Cheques' by one of the members of Regional Directorate of Apprenticeship Training Staff on your directions. You have thus misappropriated funds with ulterior motives criminally."

33. As for the above charge the appellant admits having issued at least three of the cheques specified in the charge. According to him these cheques were issued to M/s. Abdul Qayum & Co. as bearer cheques and not as crossed cheques, at the request of the Suppliers themselves. He also admits that the Manager National Bank Al‑Haidery North Nazimabad Branch by his letter NOAH/Misc: dated 1‑3‑1979 had confirmed that the said cheques were en cashed as bearer cheques at the counter of the Bank. According to the appellant the receipt of these cheques was also acknowledged. He, however, denies that he gave direction to any of the staff members for the encashment of the cheques. Consequently he disowns the liability of misappropriation of the amount of the cheques. As for the fourth cheque bearing No.112316 dated 9‑3‑197E the appellant's explanation is that it was issued by the Assistant Director Mr. Shamsul Hassan. .

34. In the written statement filed on behalf of the respondents the existence of the Firm M/s. Abdul Qayum & Co. has been denied. Therefore, heavy burden was cast on the appellant to prove that not only the said Firm did exist but also the amount of the cheques issued by him, was due to that Firm. Admittedly no witness was examined by the appellant on this point in course of the enquiry. There is also no other evidence to prove the said point. As stated above the appellant's claim is that even the receipt of the cheques issued by him was acknowledged. Obviously such acknowledgment could be exacted by someone from the Firm. But no such person has been produced in evidence. There is absolutely no material before us to draw a conclusion that the receipt of the cheques issued by appellant was duly acknowledged. On the other hand it is not denied by the appellant that the cheques were got cashed as bearer cheques by some employee of the Regional Directorate of Apprenticeship and not by people of the Firm. This clearly shows that the cheques had never reached the hands of the said Firm and as such there could be no acknowledgment receipt issued by the said Firm. Assuming that the firm with the above nomenclature did exist, still there was no satisfactory explanation as to why departure was made from the usual practice of issuing crossed cheques in the name of the above Firm and instead bearer cheques were issued to that Firm. According to the appellant this was done at the request of the Firm itself. There is no evidence to believe the appellant in this respect. On the contrary as pointed out above the existence of the said Firm has not been proved. We cannot accept the explanation of the appellant that he had issued bearer cheques instead of crossed cheques on the Firm's own motion.

35. Of course there was no direct evidence to show that the persons who got the cheques, issued by the appellant, cashed at the Bank's counter had the mandate from the appellant. However, from the circumstances of the case we are convinced that since the appellant had issued the cheques in the name of some fictitious firm and further that instead of following the usual practice of issuing crossed cheques he issued bearer cheques which too were got cashed through employees of the Regional Directorate and not those of the Firm, the appellant must have shared, if not whole, some portion of the money received on encashment of the three cheques. So far fourth cheque was concerned it was not proved that the said cheque too was issued by the appellant. Even the Enquiry Officer has exonerated the appellant from the liability of that cheque. Accordingly the third charge in respect of the three cheques was proved against the appellant:

36. The fourth charge is as follows:‑‑

37. "That you had contracted for the supply of Petrol/POL from M/s. Federal Refuelling Station Nazimabad, Karachi for the Regional Directorate of Apprenticeship Training Staff car and the said supplier had issued to you bill No.2 dated 24th December, 1978 amounting to Rs.987 (Rupees nine hundred and eighty seven) on account of supply of Petrol for payment, but the staff car of the Regional Directorate of Apprenticeship Training remained at Manpower Wing from 1‑11‑1978 till your proceeding on forced leave. During this period you were required to issue a petrol slip for 30 litres only under the orders of Joint Director, but you issued/obtained petrol from said Petrol Pump at the instance of slips issued by you for the period 1‑11‑1978 to 18‑12‑1978 when the car actually did not remain in your use. You have thereby criminally misappropriated the cost of petrol and put financial loss to the R.I.C. Fund by fraud and with wilful purpose."

38. The appellant has vehemently refuted this charge, stating further in his reply that except for the slip for 30 litres issued by him on 19‑11‑1978 no other petrol slip was issued by him. According to appellant no payment was made for the month of November, 1978 and therefore the question of misappropriation dig' not arise. As against this, the respondent's case as contained m the written statement is that on checking of the record, it was noticed that M/s. Fed ca Refuelling Station, Nazimabad, Karachi had issued a Bill No. 2, dated 24 th December, 1978 (ExhA‑16) amounting to Rs.1,870 which included Rs.987 as previous dues for the petrol supplied during the month of November, 1978.

39. It would appear that all that the respondents have stated in the written statement is that the bill dated 24th December, 1978 received from Petrol Station, Nazimabad included Rs.987 as previous dues, obviously relating to the month of November, 1978. Certainly such bold assertion made by the respondents cannot be held as proof of the fourth charge. The question arose if the petrol worth Rs.987 was supplied on the slips issued by the appellant and further whether the said amount was drawn by the appellant from the R.I.C. Fund but was not paid to the Petrol Station. At page 7 of the memo of Appeal under charge 4, the appellant claimed that the aforesaid Bill No. 2, dated 24th December, 1978 was subsequently cancelled by owner of the petrol pump by his letter No. ED/2/79, dated 26‑2‑1979 and as such no payment had been made to the petrol pump on account of alleged arrears. The written statement is conspicuously silent in this regard. The same argument was raised also before the Enquiry Officer. It is revealed from the enquiry report that one Mr. Ahtram Mazhar Siddique who was examined as witness m course of the enquiry admitted in his cross‑examination that by the letter No.FED/2/79, dated 26th February, 1978 relied upon by the appellant the owner of the petrol pump intimated that the Bill No.2 relating to Rs.1,870.29 for petrol supply for months of November and December, 1978 had been settled and as such no entry was made in the cash book. The said witness however added that he was informed by the owner of the petrol station that the amount of the Bill was adjusted towards the advance of Rs.1,000 deposited with him and the balance was paid by the appellant.

40. Despite the above position the Enquiry Officer gave his finding that the appellant was guilty of the charge No.4. His main reasoning in support of his finding is that the fixed deposit of Rs.1,000 held by the owner of the petrol pump was not accounted for anywhere in the cash book. We regret we cannot accept this solitary argument as proof of the appellant being guilty of the said charge. The admitted position is that the Bill No. 2 relating to POL charges for November and December, 1978 was subsequently cancelled by the onwer. There is nothing in writing from the owner, to show that Rs.1,000 deposited with him was adjusted towards that bill. The onwer of the petrol pump was not examined in course of the enquiry to prove the alleged adjustment of the fixed deposit. Merely because the amount of fixed deposit is not accounted for in the cash book the appellant cannot be held to have misappropriated the amount. It is not clear to us as to who the cashier was and whose responsibility it was to account for the fixed deposit of Rs.1,000 in the cash book. Besides, the slips for supply of petrol allegedly issued by the appellant during the month of November were also not produced and proved in course of the enquiry. There is also no evidence that the amount of Rs.987 being the alleged arrears for November 1978 was drawn by the appellant from the R.I.C. Fund but had not accounted for the same. for these reasons we cannot support the finding of the Enquiry Officer that the charge No.4 was proved against the appellant.

41. With this we come to charge No.5 which is in the following words:

42. "5. That staff car further remained with the Manpower Wing and petrol slips only for 4th, 9th and 23rd December, 1978 were obtained from you. But you continued to issue Petrol slips in the name of M/s. Federal Refuelling station Nazimabad for the a total of 249.0 litres and litre oil as detailed here under.

43. Slip No.

44. Date

45. Quantity

46. 1817

47. 2‑12‑1978

48. 20 litres

49. 1812

50. 4‑12‑1978

51. 20 litres

52. 1818

53. 5‑12‑1978

54. 15 litres

55. 1814

56. 7‑12‑1978

57. 20 litres

58. 1815

59. 9‑12‑1978

60. 20 litres

61. 1813

62. 6‑12‑1978

63. 27.4 litres

64. 1827

65. 18‑12‑1978

66. 20 litres

67. 1819

68. 19‑12‑1978

69. 20 litres

70. 1820

71. 20‑12‑1978

72. 201itres

73. 1825

74. 23‑12‑1978

75. 20 litres

76. 1826

77. 24‑12‑1978

78. 27.5 litres

79. 0you have thus with mala fide intentions and criminal motives misappropriated the cost of 189.9 litres of petrol and put a financial loss ' to the RIC Fund."

80. In reply to this charge the appellant has stated that the slips for petrol were issued by him as and when required and that the staff car remained at the disposal of the Head Quarter during the month of December except for 4 to 6 days when it was with him. Like his argument on charge No. 4 he contended that this charge which also speaks of misappropriation of the amount due on POL was not, proved.

81. It seems both sides have made more or less same arguments as they made on charge No.4. It is admitted on both hands that the bill as regards the supply of petrol preferred by the; petrol pump was subsequently cancelled and as such no payment was made on that account by the Directorate. As stated in the discussion on charge No.4 it was not proved by oral or written evidence of the owner of the petrol pump that the amount of the cancelled Bill was partly adjusted towards the fixed amount of Rs.1000 deposited with him. We have also held that the appellant cannot be held liable for misappropriation of the amount in question only because the fixed deposit of Rs.1,000 said to have been held by the onwer of the petrol pump was not accounted for in the cash book. We have also held that there was no proof that it was the duty of the appellant to have accounted for Rs.1,000 in the cash book. Moreover the appellant's pica that the entries in this regard arose after he handed over the charge of his office has gone unchallenged. After considering the material on record and the arguments of both the parties, of course, we have some mental reservations with regard to appellant's attitude vis‑a‑vis his dealings with the petrol pump owner but the benefit of doubt will still be given to the accused official. Accordingly we hold that charge No.5 has not been proved. The sixth charge is as under:‑‑

82. "6. You handed over the charge of the post of Assistant Director (Apprenticeship 'Training) on 23‑12‑1978 but unauthorisedly issued a petrol slip No.1826, for 27.5 litres of petrol on 24‑12‑1978 the day on which you were on leave on account of sickness. Your action exhibited an ulterior motive to misappropriate the cost of above quantity of petrol."

83. It is submitted by the appellant that he had issued the petrol slip in question (No.1826 for 27.5 litres) on 24‑12‑1978 though he had handed over the charge of the Assistant Director a day earlier i.e. on 23‑12‑1978. However, his explanation was that he still retained the charge of officer Incharge of R.I.C. which he handed over only on 28‑12‑1978 as was evident from the cash book. Thus his argument was that he was within his authority to issue petrol slip for the staff car, on 24‑12‑1978. As disclosed in the written statement filed by the respondents, the appellant was authorised to operate the R.I.C. Fund only m the capacity of Assistant Director and since he had ceased to hold the latter office on 23‑12‑1978, the petrol slip issued by him on 11,k, following day i.e. 24‑12‑1978 was unauthorised. We are inclined to agree with the respondents' view on this charge.

84. The Officer Incharge R.I.C. was not a separate office. The appellant could 1 exercise the powers with regard to R.I.C. Fund while holding the post of Assistant Director. 14avincr delivered his charge as the said Officer, he had no power to g authorise any expenditure from the R.I.C. Fund. Accordingly we hold that the appellant had issued the petrol slip on 24‑12‑1978 unauthorisedly and as such this charge was proved against him.

85. The: seventh charge is worded as follows:‑

86. "7. You indulged in irregular purchases of items of stores and printing work taken from the R.I.C. Fund in respect of‑‑

(1) Printing of 10,000 Index Cards for Rs.2,150 from M/s. Oriental Stationers, Karachi vide cheque No.C18083, dated 16‑5‑1977 without proper sanction of the competent Authority.

(ii) Stationery of the value of Rs.672 from M/s. Abdul Qayum & Co., Karachi vide Cheque No. 118109, dated 5‑8‑1977 without proper sanction of the competent Authority and without inviting quotations.

(iii) Stationery for Rs.730 from M/s. Abdul Qayum & Co. Karachi vide cheque No.018110, dated 9‑8‑1977 without proper sanction of the competent authority and without inviting quotations.

(iv) Stationery for Rs.818.75 from M/s. Abdul Qayum & Co. Karachi vide cheque No.018138, dated 1‑12‑1977 without proper sanction of the competent Authority and without inviting quotations.

(v) Attendance ‑ Time Recorder Machine was purchased for Rs.10,147.50 through M/s. Oriental Stationers (General Order Suppliers) Karachi vide cheque; No.0181411, dated 6‑12‑1977 when M/s. Limton Watch Co. Karachi were the sole Agents for the supply of this particular item in Karachi.

87. No proper sanction was obtained for purchase of the Time Recorder Machine from the competent Authority.

(vi) Stationery for Rs.567 from M/s. Abdul Qayum & Co., Karachi vide cheque No.018142, dated 27‑12‑1977 without proper sanction or inviting quotations.

(vii) Printing of 5000 R.I.C. Certificates for Rs.6,000 from M/s. Abdul Qayum & Co., Karachi vide cheque No. 018141, dated 24‑12‑1977 without proper sanction of the competent Authority and without inviting quotations.

(viii) Purchase of 3 office Durries of Rs.2,268 from M/s. Abdul Oayum & Co., Karachi vide cheque No.018149, dated 7‑1‑1978 without proper sanction of the competent Authority and without inviting quotations.

(ix) Stationery for Rs.258 from M/sAbdul Oayum & Co., Karachi vide cheque No.112316 dated 9‑3‑1978 without inviting quotations.

(x) That you have made fraudulent purchases from only one supplier viz. M/s. Abdul Qayum & Co., Karachi who have no address and without obtaining proper Cash Memo.

88. You have thus adopted corrupt methods for purchase of stores and stationery items without obtaining proper sanction from the competent Authority and without inviting quotations to make purchases economically and on competitive prices thereby deliberately and with criminal purpose caused financial loss to the R.I.C. Fund."

89. Refuting the charge emphatically the appellant has stated in his reply that not only quotations were invited but also the supply orders were placed with those suppliers whose quotations were lowest. As for obtaining sanction of the competent Authority his explanation is that all purchases were made in accordance with prevalent practice/precedents. According to the appellant there existed no precedent case m which any sanction was obtained by the Assistant Director for such purchases. Of course we were not shown any rules/instructions by the learned Government Counsel which prescribed any particular authority for making the purchases of the type mentioned in the charge. On the other hand it is common ground that the Assistant Director was authorised to operate the R.I.C. Fund. Moreover the appellant has referred to the precedent purchases made by his predecessor, Mr. S.H. Siddique who too had made purchases up to Rs.33,900 without sanction of any other authority. Therefore, we are of the view that it was not proved that the appellant was not competent to make the specified purchases. However, it was totally a different issue whether he made the said purchases at competitive rates. No doubt the appellant himself claims that he had not only invited pre‑purchase quotations but had also purchased the goods at the lowest rates. But in support of his claim the appellant has produced no evidence oral or documentary. On the contrary almost all the purchases are shown to have been made from the M/s. Abdul Qayum & Co. whose existence was challenged by the respondents. We have also held in the earlier paragraphs that the existence of the said Firm was doubtful. Accordingly the above charge stood proved to the above extent.

90. The eighth charge reads as under:

91. "You managed to terminate and transfer 3 Apprentices as named below from M/s. Eastern Automobiles to other notified undertakings without the sanction of the competent Authority as required under Rule 36 of the Apprenticeship Rules, 1966.

(1) Mr. Muhammad Atharullah from Eastern Autos to Modern Motors.

(2) Mr. Anwar Hayat from Eastern Autos to Awami Autos.

(3) Mr. Azad Hussain from Eastern Autos to Awami Autos.

92. You have therefore, exercised the powers of the competent Authority when you were not in any way authorised to assume powers as such. Thus you have committed criminal breach of service discipline and the confidence exposed in you in contravention of the mandatory provision of the Ordinance."

93. The allegation against the appellant is that he managed not only to terminate the contracts of three apprentices specified in the above charge but also to transfer them from M/s. Eastern Automobiles to other notified undertaking without sanction of the competent authority. No doubt he has vehemently denial the charge of termination of the contract of the above apprentices. But as regard the charge of transfer of the said apprentices his reply is:

94. The transferability of two apprentices namely Mr. Atharullah and Mr. Azad Hussain was arranged with M/s. Modern Motors Ltd., Karachi on their own request, the apprentices were sent to the undertaking to continue their training and their case for approval of competent authority was under process when Mr. Azad Hussain left his training of his own accord and without any information to employer and R.D.A.T. The case of Mr. Atharullah was being sent to the competent authority when the undersigned was sent on forced leave "

95. From the appellant's above reply we are clear in our mind that at least he had managed for transfer of the Apprentices, namely Mr. Muhammad Atharullah and Mr. Azad Hussain from M/s. Eastern Automobiles to other undertakings. According to rule 36 of Apprenticeship Rules, 1906, "no apprentices shall be transferred from one employer to another employer except with approval of competent authority .. "."Competent Authority" is defined in section 2(d) of apprenticeship Ordinance, 1962 to mean such officer as is notified by the Provincial Government. Certainly it is not the claim of the appellant that he w&. notified as competent authority. On the contrary his reply further shows that the cases of transfers of above two Apprentices were being sent for post fact. sanction of the competent Authority when one of them left his training and before forwarding of the case of the other, the appellant himself left the scene as he was sent on forced leave. From the above, the irresistible conclusion can be drawn that the appellant had arranged the transfer of two apprentices from one undertaking to the other in clear violation of the rules. The Enquiry Officer in his report has also reached the same conclusion. There is however, no proof that the appellant had also managed the termination of contract of any of the three specified apprentices. Accordingly we hold that the charge No.8 is partly proved against the appellant. Now we come to the charge No. 9 which reads as follows:‑‑

96. "9. That you with ulterior motives and in conjunction with Mr. Saeed Akhtar, Officer Incharge Related Instruction Course, Dawood Cotton Mills, Landhi, fraudulently paid the following amount as Honouraria to the staff engaged for Related Instruction Course being run at Dawood Cotton Mills, Landhi, Karachi when no classes for Related Instructions Course were held physically during August, 1978 to November, 1978.

97. S.No.

98. Month

99. Amount

100. Cheque No.

101. Date

102. 1.

103. August 1978

104. Rs.2,330

105. 112364

106. 27‑8‑1978

107. 2.

108. September, 1978

109. Rs.2,330

110. 112372

111. 28‑9‑1978

112. 3

113. October 1978

114. Rs.2,330

115. 112381

116. 1‑11‑1978

117. 4.

118. November 1978

119. Rs.2,330

120. 112389

121. 2‑12‑1978

122. On this charge we have noted the reply given by the appellant and also the findings recorded by the Enquiry Officer. There is absolutely no indication the enquiry report that the amount of honorarium for the months of August, September, October and November, 1978 payable to the staff engaged for giving, instructions was not paid to them but was pocketed by appellant himself Further, as is clear from the charge the amount had been admittedly paid to the said staff. Therefore, the only allegation that remains against the appellant under this charge is that he made payment to them in spite of the fact that they gave no instructions during the said period. In this connection the appellant reply is to that no complaint whatsoever from the employers, apprentices, teaching staff was ever received by him regarding discontinuation of classes at D.C.M Lid. Landhi, Karachi till his proceeding on forced leave .' However, as is disclosed in the enquiry report the other side has placed reliance on written complete from M/s Niaz Khan, Muhammad Mustafa and Naeem Akhtar Apprentices regarding non conduction of theory classes to the Assistant Director, Apprenticeship Training who physically visited and checked Dawood Cotton Mills and found that actually classes were not being held since August, 1978. It seems neither the Assistant Director to whom written complaint was made nor the applicants who made such complaint to him were examined in course of the enquiry and as such no opportunity was given to the appellant to rebut them 5y cross‑examination or by examining his own witnesses. Moreover, proper enquiry had to be made on the written complaint as regards the discontinuance of the theory classes and if the fact of discontinuance was proved even then the teaching staff could not be made to suffer by non‑payment of their honourarrurn without hearing them. After making such thorough enquiry, it was only the authority having power to engage them for instructions which had to pass appropriate order prohibiting payment of honorarium to them for the disputed months. The appellant was not supposed to stop the payment on his own volition. Keeping all these factors in view we hold that charge No.9 was not proved against the appellant.

123. The tenth and last charge is in the following words:

124. "10. You have incurred expenditure as detailed below for entertainment beyond the prescribed limit and without sanction of the competent authority.

125. (1)

126. 8‑6‑1977

127. Rs.119.40

128. (2)

129. 2‑8‑1977

130. Rs. 94.80

131. (3)

132. 6‑10‑1977

133. Rs.127.75

134. (4)

135. 1‑11‑1977

136. Rs. 91.50

137. (5)

138. 4‑12‑1977

139. Rs.121.40

140. (6)

141. 2‑1‑1978

142. Rs. 91.00

143. (7)

144. 4‑11‑1978

145. Rs. 87.00

146. (8)

147. 2‑12‑1978

148. Rs.124.70

149. You have with criminal intention and fraudulently misappropriated the above amounts from R.I.C. Fund. For the above reasons you appear. to be guilty of gross misconduct corruption and criminal misappropriaton of funds and have rendered yourself liable to all or any of the major penalties described in the Sind Civil Servants (Efficiency and Discipline) Rules, 1973."

150. The appellant's explanation with regard to the above charge was that since no limit was fixed on entertainment expenditure he could not be said to have exceeded his power in incurring the expenditure listed in the charge. In support of his explanation he has placed reliance on precedent expenditure for the same purpose. However, the enquiry report shows that the competent authority had fixed the limit of Rs.80 (EXh.A‑33 of the enquiry record) per month. Mr. Ahtram Mazhar Siddique of the Directorate who was produced in evidence in course of the Enquiry had also stated before the Enquiry Officer and in reply to question put to him by the appellant that the limit of entertainment expenditure per month was Rs.80. Accordingly we have no reason to doubt the finding of the Enquiry Officer in this regard. The Enquiry Officer has rightly observed that the appellant could not take shelter of the precedent expenditure. May be the expenditure incurred previously was in violation of the prescribed limit. For these reasons we hold that this charge was also proved against the appellant.

151. From above discussion it is clear that majority of the charges have been proved whereas some charges have been partly proved or not proved. Keeping this in view we feel that the appellant deserves some concession in the penalty. G Consequently the penalty of dismissal imposed upon the appellant is converted into removal from service. Subject to this modification in penalty, appeal is dismissed with no order as to costs.

152. AA./166/Sr.S

153. Appeal dismissed.