ABDUL JABBAR Versus GOVERNMENT OF SINDH

JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).--- Appellant Abdul Jabbar Rahoojo, serving as Junior Clerk, Government High School, Jamshoro Colony, District Dadu was served with a show-cause notice, dated 29-11-1999 issued by Additional Director, Directorate of Secondary Education, Hyderabad Region/Authorized Officer, alleging therein that during appellant's posting at Govt. (Boys), High School, Jamshoro Colony, from 3-8-1993 to 29-5-1996 he deposited amount of Rs.8,128 as tuition fee at National Bank of Pakistan, Kotri Branch, and mis-appropriated an amount of Rs.17,757. Mr. Muhammad Sadique Qureshi, Officer on Special Duty of the Directorate of Secondary Education, Hyderabad was appointed as Inquiry Officer to conduct inquiry and appellant was required to furnish his reply to the inquiry officer. Initially, appellant furnished preliminary/interim reply on 6-12-1999 with a request to supply certain documents to enable him to furnish proper reply. Again he submitted another preliminary reply on 18-1-2000. His reply was not found satisfactory. As such, he was served with a final show-cause notice, dated 8-7-2000 which too was replied by appellant. Ultimately, by an order, dated 22-7-2000 appellant was awarded major penalty of 'Compulsory Retirement' by the Director Secondary Education, Hyderabad Region, Hyderabad. Feeling aggrieved, appellant preferred departmental appeal to the Secretary, Government of Sindh, Education Department, Karachi, under postal certificate, dated 21-8-2000, which despite lapse of 90 days statutory period remained unresponded. Hence, this appeal.

2. In support of appeal, it has been contended that out of 13 challans deposited in National Bank of Pakistan, Kotri Branch, 6 challans were deposited during the period from 30-8-1993 to 29-2-1994 and at that time appellant was not even posted at the said school, therefore, question of less credit or mis-approriation does not arise. Further, it has been submitted that school teachers used to collect tuition fees from the concerned students and then hand over to the Incharge of tuition fees who used to deposit the same in the concerned Bank and that appellant had no concern whatsoever with the said affair. Next, it has been stated that although an inquiry officer was appointed but as a matter of fact no inquiry was held, therefore, the penalty imposed upon appellant is neither maintainable nor sustainable.

3. In rebuttal, learned Asstt. A.-G. fully supported the impugned order. She stated that all the codal formalities as required under the provisions of the Sindh Civil Servants (E&D) Rules, 1973, were complied with and that appellant was rightly penalized. She further contended that appellant has already received the pensionary benefits, therefore, he is not entitled to reinstatement.

4. We have considered the arguments advanced before us and have perused the material placed on the record. On perusal of the show-cause notice it transpires that at its first para. it has been stated that Authorized Officer has decided that it is not necessary to have an inquiry conducted through inquiry officer/community but at its fourth para. one Mr. Muhammad Sadique Qureshi was appointed as Inquiry Officer. This single ambiguity leads us to the only conclusion that while initiating disciplinary proceedings, the judicial mind was not applied and he same were initiated in a cursory manner. Admittedly, no inquiry was conducted which in view of appellant's vehement denial of the allegation and the circumstances of the case was very much necessary. Appellant's contention that for the period from 30-8-1993 to 29-2-1994 he was not posted at that school and that class teachers used to collect tuition fees from the students and that he had nothing to do with recovery of tuition fee and its ultimate deposit at the National Bank of Pakistan, needed thorough probe, but no such exercise was undertaken. In these circumstances, the penalty awarded to the appellant is not sustainable. Contention that appellant had already received his pensionary benefits after compulsory retirement, therefore, he ceased to become civil servant and thus not entitled to reinstatement, has no force. Mere fact that appellant has received pensionary benefits in no way disentitles him to seek remedy from this Tribunal. Even after imposition of major penalty of Compulsory Retirement ' , he in view of section 2(a) of the Sindh Service Tribunals Act, 1973 remains 'Civil Servant ' to invoke the jurisdiction of this Tribunal. Section 2(a) of Sindh Service Tribunal Act, reads as under:

"S. 2(a) Civil Servant means a person who, is or has been a member of the Civil Service of the Province or, holds or has held post in connection with affairs of the Province, and for the purpose of any proceeding under this act includes a person who is or has been, dismissed, discharged, removed or retired from such service or post as a consequence of the order of the departmental authority, but does not include:

(i) ...............

(ii) ...............

(iii) ...............

5. For what has been stated above and without touching the merits of the case, the impugned order, dated 22-7-2000 is set aside and the matter is remanded to respondent No.2 for conducting regular inquiry purely in accordance with law after providing every opportunity to the appellant. The enquiry so commenced shall be concluded within 120 days from the date of receipt of copy of this judgment. Meanwhile, appellant is directed to be reinstated in service. The intervening period would follow the outcome of fresh proceedings. No order as to costs.

6. Announced in open Court.

H.B.T./l/KST Order accordingly.