1988 PLC(CS) 939

1. MUNAWAR ALI KHAN (CHAIRMAN) ‑ The facts leading to this appeal may be summarised as follows.

2. Appellant Habibullah Abro entered Education Department as a clerk and ultimately reached the position of Assistant Accounts Officer. He was appointed in that capacity, first on ad hoc basis and subsequently his appointment was regularised through Public Service Commission. On 1‑6‑1985 by the order Director School Education, Hyderabad, the appellant was sent on forced leave. This order was followed by charge‑sheet dated 14‑7‑1985 served on him, containing the charges of: demanding illegal gratification, misuse of powers and mis‑behaving with the District Education Officer. On the same date Mr. Sultan Ahmad Shaikh, Sub‑Divisional Education Officer, Dadu was appointed as Enquiry Officer for conducting a detailed enquiry into the allegations against the appellant. The appellant submitted his reply to the allegations contained in the charge‑sheet on 8‑8‑1985. However, the Enquiry Officer proceeded with the enquiry on 28‑7‑1985 and recorded some statements on the same day. After completing the enquiry, the Enquiry Officer submitted his report on 20‑8‑1985 wherein he found the appellant guilty and recommended punishment to be imposed on him as per rules. On receipt of the report, the Director School Education issued a final show‑cause notice to appellant on 16‑9‑1985, requiring him to show cause why he should not be compulsorily retired from Government service. In reply to the said notice the appellant once again denied the charges and disputed the findings of the Enquiry Officer. He was also given personal hearing by the said Director. The appellant was ultimately punished by the impugned order dated 26‑6‑1986 whereby he was compulsorily retired from service. Although, the appellant preferred departmental appeal against the order of his compulsory retirement, yet he did not wait for decision of appellate Authority but he chose to approach this Tribunal in the present appeal after expiry of the statutory period of 90 days.

3. As the appellant was not represented by any counsel, he submitted his arguments personally. On behalf of the official respondents, Mr. Zawar Hussain Shah, A.A.‑G. was heard. We also went through the relevant documents available on record.

4. The statement of allegations served on the appellant discloses the following charges against the appellant;

5. "While serving as an Assistant Accounts Officer in the office of the District Education Officer (B) Dadu, Mr. Habibullah Abro, by abusing his official position had demanded illegal gratification in cash and kind from the Clerk/Head Master, Government High School Kakar. By going quite out of way Mr. Abro had given them a threat for dire consequences in case his illegal demand is not fulfilled.

(2) Mr. Habibullah Abro, had mala fide asked Mr. Abdul Latif, Assistant, Office of the District Education Officer (B) Dadu, to hand over the purchase order of science material placed with the scientific store, Sukkur, for handing over the same to the dealer concerned on personal level, solely with vested interest. On his (Clerk's) refusal to obey his orders Mr. Abro became infuriated and by transgressing his powers he had called for explanation of the clerk concerned under his own signature, caring a little for the District Education Officer (B) Dadu, who was the head of the office.

(3) Mr. Habibullah Abro, being a subordinate misbehaved with the District Education Officer (B), Dadu, who was his immediate boss, by challenging his (District Education Officer's (authority) This amounts to gross misconduct. As such Mr. Habibullah Abro did not justify his post and position, as a public servant:'

6. Taking up the first charge, it goes without saying that usual audit of Government High School, Kakar for the year 1983‑84 was made by a team including the appellant who was then holding the post of Assistant Accounts Officer. It was on that occasion that appellant had allegedly demanded illegal gratification from the Clerk/Head Master of the said school. The charge has been vehemently denied by the appellant. As disclosed in the Enquiry Report, as per statements made by Muhammad Yousuf, Head Master and Ali Sher, Junior clerk, Government High School, Kakar recorded in course of the enquiry, the appellant had demanded one bottle of scent. One Thermos Flask, one Tea‑set and 12 packets of Gold Leaf Cigarettes. The report further shows that according to the said witnesses the appellant had even threatened that in case above articles were not supplied to him, both the Head Master and the clerk Ali Sher would have to face consequences of the Audit Report. It is also clear from the enquiry report that appellant was given a chance to cross‑examine the witnesses and produce documentary evidence, if any, in his defence, but he did avail the opportunity. Accordingly the Enquiry Officer was of the view that the charge of bribery was accepted by the appellant.

7. We have gone through the statements of the Head Master Muhammad Yousuf and clerk Ali Sher in the light of the observations of the Enquiry Officer. No doubt their statements support the charge of demanding illegal gratification. They also indicate that the appellant did not cross‑examine the witnesses even though he was given such opportunity. However, the appellant desired us to disbelieve the evidence of the above two witnesses for three reasons; namely first that although he submitted his explanation to the charge‑sheet within the requisite 10 days' period, on 8‑8‑1985, yet the Enquiry Officer started the enquiry proceedings before submission of his explanation on 5‑8‑1985; second is hat the complaint of illegal gratification made against him was too much belated it was made about five months after he had done the Audit of the aforesaid hoof and moreover both the Head Master and the Clerk had given statements aunts him only at the behest of the then District Education Officer who was hostile to him, and third that he was not afforded opportunity to cross‑examine the witnesses examined in the enquiry.

8. We have given our due thought to these submissions but we find no substance in them. The charge‑sheet is dated 14‑7‑1985 and, therefore, the 10 days period specified therein for the appellant to furnish his explanation expired on 24th July, 1985 and not on 5‑8‑1985 as contended by the appellant. Accordingly the enquiry commenced on 28‑7‑1985 cannot be held to leave been prematurely started. Even if the enquiry began before submission of the appellant's reply to the charge‑sheet that by itself would not render the enquiry proceedings illegal. All that is required by clause (b) of sub‑rule (1) of rule 6 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973. hereinafter referred to as the said Rules, is that while framing charge against the accused official he shall be required to put in his written defence within a reasonable time not less than seven days or more than fourteen days. This requirement an our opinion, does not prohibit the Enquiry Officer from starting the enquiry before furnishing of the accused official's written statement. The appellant's next allegation that the Head Master and the Clerk of Kakar High School had given evidence at the instance of the District Education Officer is negatived by his own admission. In this connection his reply to the charge‑sheet is significant. While replying to allegation 3 he states:

9. "I had passed by time at Dadu with my boss (D.E.O.) with smiling face. The fact can be confirmed at any time. During my stay (October 1984‑May 1985). 1 do not remember any occasion, on which my boss had showed his dissatisfaction to my behaviour and usual working but on the contrary he was too much pleased with me to such an extent that he did not hesitate to have a katchery with me at my own room in the evening/night too and discussed the secret matters like enquiry assigned to him against other officers (S.D.E.O. Mirpur Mathelo):"

10. Obviously the appellant had good relations with his boss and as such there was no reason for the latter to have induced the Head Master and the Clerk of Kakar High School to make adverse statements against the appellant, nor could it be expected of the officer of his status that he would take the risk of asking his above two subordinates to give false statements against his third subordinate namely the appellant. Moreover, their statements have gone absolutely unchallenged. Although appellant was given opportunity to cross examine the said witnesses yet he had not put a single question to them, I suggesting either their own bias or their liaison with District Education Officer.' Merely because their complaint of bribery against the appellant was belated as it was made several months after the audit in question, their evidence cannot be ignored. The delay could be explained by the fact that the audit report was sent late and as soon as it was received in the school concerned, the aforementioned officials of the school lost no time to lodge complaint against the appellant. It seems to us that in the beginning the school officials perhaps tried to avoid bringing the demand of illegal gratification made by the appellant to the notice of District Authorities. But when they received the audit report containing the adverse observations against them, they were convinced that the appellant had not given them empty threats. This explains the delay in making the complaint of corruption against the appellant. Despite such delay, the appellant has not attributed the allegations of corruption to the Head Master and the Clerk of the School. According to him the District Education Officer was behind that charge. Thus it was not the case of the appellant that the Head Master and the Clerk of the Kakar High School were annoyed by the entries in the audit report and it was on account of that annoyance that they made false statements of corruption against him. As for the District Education Officer, we have already noted that the officer of his rank and position could not have prompted the above school officials to give false statements against the appellant. He was the appellant's boss. If he had any grievance against him, he could have straight away taken suitable action against him. He was not in the need of obtaining false complaint against the appellant from his subordinate staff.

11. The appellant's contention that he was not given opportunity to cross examine the witnesses is also untrue. No doubt the statements of these witnesses were recorded on different dates, the statement of Muhammad Yousuf Head Master on 28‑7‑1985 and that of Ali Sher on 5‑8‑1985. However, it is clear from the endorsements made on the statements that the appellant was asked to cross examine the above witnesses but he refused to do so.

12. From above discussion we are of the view that the Enquiry Officer has come to right conclusion that the charge of appellant's demand of illegal gratification was proved.

13. As regards the second charge it is partially admitted by the appellant. He has admitted that he had called for the explanation of Abdul Latif Assistant of the office of the District Education Officer on his refusal to deliver to him the purchase order of science material placed with the Scientific Store, Sukkur. The appellant's explanation is that he needed the said purchase order as he was verbally asked by the District Education Officer to arrange for the agreement with the contractor who generally did not respond to the letters, issued by the office. Prima facie the above explanation on the appellant's part does not tear any truth. The text of the charge clearly shows that the appellant had mala fide asked Abdul Latif, Assistant to hand over the purchase order of science material to him. This means that he was never required by the District Education Officer to collect the said order from Abdul Latif. It is true that the District Education Officer was not examined in the enquiry. In fact to prove the scone curare was not necessary to examine him. The burden was on the appellant to prove that he was actually directed by the District Education Officer to arrange for the alleged agreement and collect the purchase order from Abdul Latif for that purpose. There is nothing in black and white to show that any such direction was given to the appellant. His own case is that the direction given to him was verbal. But he has not produced any evidence, oral or documentary to prove the direction. On the contrary in his reply to the charge he wonders; "why I was entrusted this task is best known to my boss and the dealing Assistant". In these circumstances his solitary word cannot be accepted as proof that he was required by the District Education Officer not only to arrange for the agreement but also to collect the purchase order from the above Assistant. Consequently we endorse the finding of the Enquiry Officer that the second charge was also proved against the appellant.

14. The third and last charge against the appellant is that he misbehaved with his immediate boss namely the District Education Officer by challenging his authority. In proof of this charge our attention has been drawn to the two letters one written by the District Education Officer to the appellant and second written by the appellant to the said officer in reply. The letter written by the District Education Officer is dated 20‑5‑1985 and it reads as under:‑

15. " Confidential

16. No. 14390

17. Dated 20‑5‑1985

18. To

19. The Assistant Accounts Officer,

20. District Education Office,

21. Dadu.

22. Subject; MISCHIEF AND BLACK MAILING

23. Reference: Your No.1 dated 20‑5‑1985.

24. Mr. A. Lateef, Assistant has not yet furnished his first explanation called by the undersigned and you have called another one directly.

25. Please don't harass the poor clerk. He is lo and reliable. He has committed a mistake as he will explain his position and try to rectify it.

26. Please don't create problems in the office. Don't usurp the powers of the undersigned and call explanations from the clerks directly.

27. Sd/‑

28. Dated: 20‑5‑1985:"

29. In reply to above letter the Appellant's letter which is dated 22‑5‑1985 is in the following words:

30. "To,

31. The District Education Officer,

32. Dadu.

33. Subject;‑ACTUAL RIGHTS AND DUTIES OF THE AA.O. IN THE OFFICE OF THE D.E.O.

34. I am highly thankful for your kind instructions received under your Letter No.14390, dated 20‑5‑1985 in which your honour is kind enough to encourage a clerk by disgracing a Commissioned Officer and incharge of the section. It has further been directed that the undersigned has got no power to issue a simple memo to any clerk of this office to get the work done as per rules and regulations.

35. Under the above circumstances your honour is earnestly requested to let me know the actual rights and duties of an AA.O. working in your office, so as to enable him to act accordingly.

36. Thanks.

37. Sd/‑

38. (HABIBULLAH ABRO)

39. ASSISTANT ACCOUNTS OFFICER,

40. DISTRICT EDUCATION OFFICE (BOYS)

41. DADU."

42. The contents and authorship of above two letters are not denied. We have considered the said letters carefully. We are of the view that the Ratter written by appellant who was admittedly subordinate to the District Education Officer was rather insolent and as such it amounted to misbehaviour on the part of the appellant. Accordingly we uphold the finding of the Enquiry Officer that F even the third charge stood proved against the appellant.

43. For above reasons we see no merit in the appeal, which is, therefore, dismissed with no order as to costs.

44. A.A./172/Sr.C.

45. Appeal dismissed.