1888 PLP (C (PLC(CS))

4. Deputy Director Food, Lahore Region passed order dated 11-2-1974 whereby shortage to the extent of 4733-0-4 Mds. valuing Rs.86,898.14 was written off. However, he issued another order dated 9-4-1974 through which recovery of Rs.57,125.61 being the cost of the balance quantity of 3,111-16-11 Mds. was imposed upon the appellant on the ground that it was abnormal and unnatural. The same order provided as follows:- "It has therefore been decided to effect recovery of Rs.57,125.61(Rupees fifty seven thousand one hundred twenty-five & paisas sixty-one) being the cost of 3,111-16-11 Mds. indig: wheat found short at PR Centre, Nankana Sahib during 1968-69 scheme from monthly salary of the above named official in instalments of 1/3rd of his pay. The recovery should be effected from the pay of the official regularly and a receipted copy of the Treasury challan sent to this office so as to reach the Superintendent Storage by 5th of each month positively." Under the above order an amount of Rs.11,630 was recovered from appellant's monthly pay till 3-1-1982 when he stood retired from service. After two years i.e. on 22-7-1984 District Food Controller, Jhang and Tehsildar (Recovery) issued notices to the Appellant for the recovery of the said amount as arrears of land revenue. Appellant filed departmental appeal dated 27-8-1984 which was rejected by order dated 29-6-1985 which was conveyed to the appellant by letter dated 20-8-1985.

5. We have heard the parties and have also perused the record of the case. The learned counsel for the appellant has raised the following points:- (1) Deputy Director Food, Lahore Region was not competent to take up disciplinary proceedings and to impose punishment of recovery upon the appellant. While elaborating this point he has argued that by virtue of order dated 26-6-1953 (Annexure: 'A' with appeal) appellant had been appointed by the Director of Food and as such under the old Efficiency and Discipline Rules, 1960 read with the Food Department Delegation of Powers Rules, 1958 only his Appointing Authority was competent to impose the said punishment upon the appellant. He has relied upon 1977 P L C (CS) 131. (2) Appellant retired from service on 3-1-1982 and was not getting any pay after that date. Therefore, no recovery could be effected from him because the impugned order restricted the recovery from the pay of the appellant. Moreover, Efficiency and Discipline Rules, 1960 did not permit recovery from a source other than pay of a Government servant. (3) Damage/loss was not due to any negligence on the part of the appellant but it was due to natural causes, which were not under the control of appellant. So far as appellant was concerned he took all the possible precautions to save the wheat stocks but it was not humanly possible to save as no proper storage facilities had been provided by the Government. (4) Serious discrimination has been observed in the matter of awarding the punishment because in the case of adjoining Centre at Mandi Dhaban Singh the same Authority had written off shortage to the extent of 14.04$.

6. The learned District Attorney on the other hand has relied upon parawise comments filed by the Department and has stated that the order of recovery is quite justified because the appellant had committed grave negligence and carelessness in protecting the Government stores under his charge as a result of which Government have suffered huge loss. He has also pointed out that appeal is grossly barred by time because the order of Deputy Director Food was passed on 9-4-1974 whereas the Departmental appeal was filed by the appellant on 27-8-1984. He has therefore contended that the appeal be dismissed both on merits as well as on the ground of limitation.

7. We have given our anxious thought to the contentions raised by both the parties. As regards the competency of proceedings taken by the Deputy Director of Food, Lahore Region, Lahore we have gone into our earlier decision in the case of Safdar Hussain Shah and others v. Province of Punjab reported as 1977 P L C (CS)

131. The main issue in that case was as to which was the competent authority in respect of the subordinate staff of the Food Department under the Punjab Food Department Delegation of Powers Rules, 1958. After thoroughly examining the rules as well as the relevant files of the S.G.A.D. it was held that the said rules were ambiguous and only appointing authorities were competent to punish such staff. Our A said decision is fully applicable in the present case as the proceedings were taken against the appellant under the old rules. Therefore, the entire proceedings and the final order passed by the Deputy Director Food, Lahore who was not appellant's Appointing Authority were without jurisdiction and void ab initio.

8. As far as merits of the case are concerned we notice that the respondents have not denied the contents of Paras 2 to 8 of the appeal in which appellant has taken up the position that due to non-availability of covered accommodation the wheat was stored in open and in private house-type godowns which were not fit for storage. It has therefore been stated that the grain was infested by 'Khapra' and 'Susri' which resulted in deterioration of quality and quantity of the wheat. It has further been averred that though appellant had been bringing the poor condition of stocks to the notice of authorities concerned from time to time but no timely steps were taken by them to despatch stocks to the destination. He also relied upon press cutting dated 13-4-1969 in which the condition of wheat lying at this Centre was highlighted but the authority failed to take any notice. In view of the admission of the Government about all these facts there remains little doubt that the appellant was not responsible for the shortage of the wheat which had occurred but it was due to H natural causes, lack of attention by the relevant higher authorities as well as the long period of storage.

9. We have also taken notice of the fact that in the case of P.RI Centre Mandi Dhaban Singh of the same District and in the same C Scheme year shortage to the extent of 14.04%. was written off. Appellant had brought the above noted fact on record through his application dated 28-5-1986 and notice of which was given to the Respondents vide our short letter dated 29-5-1986 with a direction to produce the record on the next date of hearing. Neither any reply to the said application was filed nor the record was produced on subsequent dates of hearing. Accordingly legal presumption is that Government had intentionally not produced the record because if the same had been produced it would have gone against the Government and in favour of the appellant. We are therefore of the considered view that Respondents observed serious discrimination in the matter while deciding appellant's case. If shortage to the extent of 14.04$. was written off in the case of adjoining PR Centre in the same District and in the same circumstances then there was no justification on the part of the Department not to write off shortage to the extent of 4% in the case of the stocks of PR Centre, Nankana Sahib which was under the charge of the appellant.

10. We have also gone through the Judgment delivered by the High Court in P L D 1978 Lahore 972 and respectfully follow the. E interpretation of E & D Rules, 1960 made in that judgment as under:-1 "In the list of penalties that can be imposed on a Government servant enumerated in rule 4 the penalty relevant in the present context that can lawfully be imposed is: 'Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of order.' Rule 4(1)(c). Under the terms of the above rule, recovery was limited to recovery of 'loss from the pay of the petitioner and the respondent had, no jurisdiction to effect recovery from the person of the petitioner or his property. The direction that the alleged loss should be recovered from the petitioner as 'arrears of land revenue'; therefore, is without jurisdiction."

11. Keeping in view the merits of the case as well as the legal position that the impugned order dated 9-4-1974 was void ab initio we condone the delay in the filing of the present appeal.

12. We, therefore, proceed to accept the appeal, set aside the impugned orders dated 9-4-1974 and 20-8-1985 as well as the recoveries imposed upon the appellant in these orders. There will be no orders as to costs. A.E./66/SR.P. Appeal accepted.