1993 PLP (C (PLC(CS))

SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).‑‑‑This appeal is directed against Order No. Admin./(40)/DF/90/2665‑73, dated 13‑5‑1990 of Director, Food Department by which the appellant was compulsorily retired from service and was ordered to pay a sum of Rs.1,22,327 being the cost of the wheat stock burnt in the arson of Noseari Bazar in addition. Further, through this appeal the appellant has also impugned the Order No. 599‑606/91, dated 8‑5‑1991 of Secretary, Food Department by which the departmental appeal brought by the appellant before him was rejected. The appellant has impleaded Secretary and Director, Food Department as respondents for seeking his relief against them.

2. The relevant facts of the appeal as are contained in the memo of appeal are that the appellant was in the service of the Food Department and at the relevant date of incident, he had put in about 24 years service in that Department. On the fateful night between 10 and 11‑8‑1983 he was posted as Incharge of Supply Depot at Noseari. The Food Department had no godown of its own at that station and the appellant had kept the commodities with the various Dealers of that Bazar. As a result of arson, a large number of shops were burnt and 794 bags containing 67,490 kilograms wheat kept with the Dealers of the Bazar were also burnt to ashes. An inquiry was held on the next day by the District Food Controller, Muzaffarbad and he had found the appellant not guilty of any dereliction of his duty. But the Director of Food Department, respondent No. 2 did not agree with the report of D.F.C., Muzaffarabad and ordered the appellant to be proceeded against under Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977 for the loss of Government stock of wheat. The appellant was supplied with a charge‑sheet by the Authorised Officer and Sh. Ali Akbar, D.F.C. was appointed as an Inquiry Officer in the matter. The inquiry was held but despite the fact that no charge was proved against the appellant, he was held responsible for the loss of wheat stock. On the basis of the report of Authorised Officer (Deputy Director, Food) which he had submitted quite different to the findings of the Inquiry Officer, the appellant was compulsorily retired from service and he was also ordered to make good the loss in addition. Feeling himself aggrieved, the appellant brought an appeal before respondent No. 1 but the same was also dismissed under the impugned order dated 8‑5‑1991. The appellant claims that the impugned orders noted above are not maintainable on the following grounds and are liable to be set aside:‑‑ (a) That according to the report of D.F.C. dated 9‑2‑1986, the appellant is not responsible for the loss of 794 bags of wheat and that the findings of Director, Food Department to that effect are not supported by any record; (b) That the inquiry was conducted under the order dated 25‑1‑1986 of respondent No. 2 and the finding of Inquiry Officer was in favour of the appellant. The finding of the Inquiry Officer to the effect that the appellant had not given any report to the Police with regard to the loss of Government stock of wheat is not correct. As a matter of fact, the stock of wheat was kept with various Dealers in trust and the Dealers had themselves made a report to the Police about the incident and the loss of Government stock. Apart from that the Dealers had given detailed report of the loss of the Government property to the high officers of the Government who had reached the spot immediately on the following day i.e. 11‑8‑1983; (c) That the appellant is not responsible for the loss of wheat and Atta at Chikkar and Hattian Depots. In his reports dated 11‑1‑1987 and 5‑4‑1988 D.F.C. had recommended that the loss of wheat and Atta at Hattian and Chikkar Depots should be written off because none among the staff members was found responsible by him for that loss. Hence a reference of that loss in the impugned order is irrelevant and not supported by any evidence. (d) That the inspection note dated 26‑1‑1980 of D.F.C., Muzaffarabad is sufficient proof of the fact that no shortage of grain had taken place in respect of Hattian Supply Depot during posting of appellant on that station. The appellant has not been charged for any shortage of wheat stocks. Therefore, a reference give in the impugned order about the so‑called loss at Hattian station is baseless and unfounded; (e) That the appellant is not responsible for any loss of wheat or Atta and the respondents have made the impugned orders with mala fide intention.

3. It is claimed by the appellant that for the above reasons the impugned orders may be set aside and he may be reinstated in service with all service benefits.

4. By a short order of this Tribunal dated 23‑5‑1991, the above appeal was admitted for regular hearing in this Tribunal. The respondents were called upon for their written objections. Their objections are that, the Government was necessary party in this case and without having impleaded the Government as respondent, the present appeal was not maintainable in law. It is further submitted by them that the appeal is not drafted in accordance with the relevant rules of procedure prescribed by Azad Jammu and Kashmir Service Tribunal. Apart from that some points relating to the past service career of the appellant were placed in the written statement and some other points not relevant to the case were also submitted.

5. We have considered the arguments as were addressed by the learned counsel of each party. We have also examined the record placed on the appeal file and the file of inquiry proceedings attached to it. Before we deal with the case on merits, we find it essential to resolve the objections taken in appeal by the respondents. It is true that the Government is not impleaded as a party by the appellant but it shall be noted here that the impugned orders have been made against the appellant by Director and Secretary of the Department and under such circumstances the Government is not a necessary party in the present case because the appellant can seek his remedy against the present respondents Nos. 1 and

2. It suffices to say that no material irregularity of rule of procedure is pointed out by the learned counsel for the respondents and the allegations of general nature do not call for a verdict by this Tribunal. In fact, the written statement is not properly drafted and some vague questions not relevant to the points at issue have been introduced unnecessarily.

6. Adverting to the merits of the case, we would like to examine the charge-sheet supplied to the appellant in the first instance. The charge-sheet reads as under:--

7. Under the orders of the Authority (Director, Food Department), the proceedings were initiated against the appellant under Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977 and Sh. Ali Akbar, District Food Controller was appointed as an inquiry Officer to probe into the charges brought against the appellant. The charge‑sheet was supplied to the appellant by the Deputy Director, Food Department and the appellant was ordered to submit his explanation before the Inquiry Officer within the period of ten days. In his reply to the charge‑sheet, it was submitted by the appellant that at Noseari no godown for accommodating the huge stock of Atta was provided and the assertion of the Department that it had Government godown at Noseari with its capacity for accommodating one hundred tons wheat or Atta is absolutely incorrect. In fact, the Department had rented a private house owned by Muhammad Bashir for stocking wheat and Atta in that house. It was a `Kachha house' and was profusely leaking in the rainy season in addition to the fact that numerous holes of rats had rendered it quite unsafe and unfit for storing the stocks of wheat and Atta. It was this reason that the stock of what and Atta was distributed and kept in trust with the Dealers available at the Noseari station and this practice was followed even long before the joining of the appellant as Food Inspector at Noseari station. It is further submitted by the appellant that the keeping of Government stocks in trust with the Dealers was in the knowledge of senior officers of the Department and the stocks were checked by them with the Dealers from time to time. It is next submitted by the appellant that F.I.R. was submitted to the police station by the Chowkidar of the Bazar and on demand by S.H.O. the appellant had also submitted detail of the Government stock of Atta as was available with the Dealers and was burnt in the arson. Apart from that the D.F.C. Headquarter, Muzaffarabad had also reached the spot in the early hours of next following day and he had submitted him the full account of loss. The D.F.C. had himself made the inquiry and he was fully satisfied that the loss of stock occurred due to unforeseen calamity and the appellant or any other member of staff was not guilty of any dereliction of his duty. The appellant has denied the charges of defalcations of Government stock etc. and has pleaded not guilty. The inquiry report by the Inquiry Officer Sh. Ali Akbar, D.F.C. is placed on the file. This Officer has exonerated the appellant of all the charges brought against him. It is pertinent to note here that a similar report was made by Sh. Ghulam Qadir and Mr. Gul Zaman Qasid, District Food Controllers, Muzaffarabad long before the submission of the present inquiry report which is made by the Inquiry Officer after having conducted the proceedings under Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977. However, the report of the Inquiry Officer was not acceptable to the Authorised Officer (Deputy Director, Food) and he submitted his own report to the Authority quite different to the findings arrived at by the Inquiry Officer. In his report, the Authorised Officer held the appellant responsible for causing loss of Government stores and stocks of wheat etc. worth Rs.1,23,327 despite the fact that there was nothing on the file to support his contention and three reports of D.F.Cs. favourable to the appellant were available on the record.

8. The unfortunate aspect of the case is that the appellant was held responsible for the loss of Government stock and the charges of inefficiency and misconduct were also stated to have been proved against him by the Senior Officers of the Department notwithstanding the fact that he was declared white by a set of the Officers employed as D.F.C. and entrusted with the inquiry. At this moment, we feel ourselves advised to refer the order of the Director, Food (respondent No.2) under which the proceedings under Azad Jammu and Kashmir Efficiency and Discipline Rules were initiated against the appellant. A perusal of this order shows it that the Director of Food Department was not much aware about the functioning of Noseari Supply Depot under his control and he had no knowledge of it that no building for keeping the Government stocks was available at this station and that the Government stock was kept with the Dealers in trust. As a matter of fact there was no material on the file to justify the proceedings under the Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977 against the appellant and the Director, Food Department initiated these proceedings without applying his mind. If he had any reason to believe like that the appellant was guilty of misconduct and defalcations and that he was illegally protected by his senior Officers and the Inquiry Officer than the Authorised Officer should have recommended fresh inquiry against all of them. But under no circumstances, the responsibility can be fixed up on a low‑paid member of staff who is absolved of the charges by his Senior Officers. We have checked the record and have examined the reports of District Food Controllers and find no force in this argument that these reports of District Food Controllers are suffering from any discrepancies in them rather they are supporting each other's views. We feel sorry to place it on the record that a substantial quantity of Atta was burnt to ashes in the arson because of the mismanagement and lack of administrative control by the Department concerned.

9. For the above reasons, we allow this appeal and set aside the impugned orders. The appellant shall be reinstated with all service benefits. No order as to the costs. A.A./198/SrA Appeal accepted.