2006 PLP (C (PLC(CS))

QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).

Having joined the Agricultural Development Bank of Pakistan now Zarai Taraqiati Bank Limited as Senior Assistant in 1989, the appellant was lastly posted as Extra-Assistant Director, posted at Kashmore Branch in 1999, one Ghulam Asghar Sohu was transferred vice the appellant. He joined his duty of Kashmore Branch on 10-5-1999, but he did not take over charge from the appellant of his desk till 12-5-1999. The appellant proceeded on leave for three days and got the same extended further for 26 days. When he returned from leave, he sorted out the record and found that during his absence, when charge of his post was with Ghulam Asghar Sohu, 139 important files of loan cases were missing. He reported the matter to the higher authorities. In consequence whereof Ghulam Asghar Sohu and others physically assaulted him for which he had lodged a report with the local police. Thereafter, his explanation was called and he was transferred to Dadu Region. He had informed the authorities about the misplacement of heavy loan cases, but having not received any response from them, he, through his Advocate, served two notices upon the respondents for holding independent inquiry for ascertaining the real facts of the misplacement of heavy loan cases, but he received a charge-sheet dated 4-5-2000, which is reproduced as under: CHARGE SHEET "You, Mr. Javed Iqbal Awan, (PP No.091207) EAD, ADBP Jacobabad Branch while posted as Credit Officer, ADBP, Kashmore Branch are alleged to have committed the serious irregularities which amount to inefficiency, negligence, and misconduct, I, designated as "Authorized Officer" in terms of ADBP Officers Service (E&D) Regulations, 1975 read with Circular No.PD/31/99, dated 15-7-1999 and Circular No.PD/12/98, dated 18-4-1998 have framed the attached statement of allegations which forms a part of this Charge-Sheet against you. You are, therefore , challenged upon under the said Regulations to render your written defence within 10- days of receipt of this Charge-Sheet to Mr. Iqbal Ahmed Abbasi, JD/Regional Manager, ADBP, Khairpur who has been appointed Enquiry Officer in this case stating at the same time whether you desire to be heard in person and lead evidence. The charges, if proved, may call for a major penalty of dismissal from service. (Riaz Mehmood Qureshi) Director (E&D) Authorized Officer Mr. Javed Iqbal Awan, (PP No.091207) EAD, ?ADBP Jacobabad Branch." STATEMENT OF ALLEGATIONS (1) On joining of Mr. Ghulam Asghar Sohu, incoming Credit Officer in ADBP Kashmore Branch, he Mr. Javed Iqbal Awan deliberately proceeded on leave to avoid handing over the complete charge of safe files and other security documents to incoming Credit Officer with mala tide intention. (2) He was directed by the Manager Kashmore Branch vide Telegram, dated 25-5-1999 followed by registered A.D. letter for joining immediately, but he failed to join his duties till 11-6-1999. (3) He failed to hand over the charge of safe files etc, upto 17-6-1999. Therefore, the explanation was called by the Manager, ADBP Kashmore Branch vide O.M. No. KSM/P.F/091207/99-4314, dated 17-6-1999 on failure to hand over the complete charge. He has taken away some safe files, dispatch and attendance register for photocopy with mala fide intention. Thus he has violated the standing instructions contained in para No.29.10(A) 2 and 7 (B) 2, 9 and 12 of Personnel Manual. (4) He registered false N.C. at Police Station, Kashmore on 18-6-1999 against the officials of ADBP, Kashmore Branch, for alleged embezzlement of Banks funds/record. He failed to obtain prior permission from the competent authority as per Personnel Manual para. No. 9.38. (5) He hold press release on 5-7-1999 in the ADBP, Kashmore premises regarding 1329 missing safe files without the prior permission of the authority. Thus he has violated the instructions contained in para No.9.33 and 9.38 of Personnel Manual. (6) He used the safe file register, the most important document of the branch of rough work and wrote note in his favour under mala fide intention only to conceal the facts and to save his own skin. (7) He put footnote while taking over charge of safe files on 23-9-1998 that "he shall check safe files and reports anything short within 90 days." Thereafter he could not manage it for 190 days. Thus he shirks the responsibility being a Credit Officer. (8) He misplaced 139 safe files deliberately during his posting as. Credit Officer. Out of 139- files 121 were searched out by the Enquiry Team from the bundles of closed files. He put on stake the Bank's fund with mala fide intention. (9) He used abusive language with M/s. Munawar Ali Soomro the then Sub-Manager and other staff members, on 18-6-1999 and catch the collar of Mr. Soomro in the office during business hours. (10)He got issued 2 legal notices through Mr. Abdul Sattar Mughal, lawyer against his superiors instead- of adopting the procedure laid down in Personnel Manual of ADBP. Hence, the statement of allegations is against him. (Sd.) 4-5-2000 ?AUTHORIZED OFFICER." In reply to the charge-sheet, the appellant denied the allegations levelled against him. His reply did not satisfy the concerned authorities; hence, an inquiry into the charges was held wherein all the charges, except charge No.5, was held to have been proved. Consequently, a show-cause notice along with copy of inquiry report was served upon the appellant. As per inquiry report, during the inquiry proceedings all the tiles were traced out by the Enquiry. Team including the 27 other safe files. The appellant was heard in person by the competent authority and, thereafter vide order dated 22-3-2001 penalty of reduction by one stage in his own scale for a period of two years was imposed upon him. He filed departmental appeal dated 4-7-2001 against such penalty, but to no avail, as the respondents had not replied the departmental appeal. The appellant, therefore, filed this appeal before the Tribunal on 14-11-2001 under section 4 of the Service Tribunals Act of 1973 praying to set aside the impugned order of his punishment and to restore him to his original position with all back-benefits.

2. The respondents filed the written comments wherein it was stated that after holding the disciplinary proceedings against the appellant in accordance with Service Regulations of the respondent-Bank in accordance with law, he was rightly held guilty of the charges, proved against him for which he has been penalized in accordance with law.

3. We have heard the learned counsel for the parties and perused the record.

4. The learned counsel for the appellant vehemently argued that the disciplinary proceedings and the penalty imposed upon the appellant are illegal and bad in law for the reason that the appellant had denied the serious allegations of facts against him, which needed to be proved by independent inquiry, giving full chance to the appellant to cross-examine the witness against him and to put up his defence properly, but no witness was examined in the inquiry by the respondents in the presence of appellant and the appellant was not given any chance to cross-examine the witnesses. The learned counsel for the appellant relied on 1989 SCMR 551, 1993 SCMR 1440 and 1997 SCMR 1543.

5. The learned counsel for the respondents stated that the witnesses had been examined in the inquiry proceedings, but the appellant had not availed the chance of cross-examining the witnesses. The learned counsel for the respondents was, however, not able to show or satisfy us, if witnesses were examined by the respondents in the inquiry in presence of the appellant.

6. We have carefully considered the above arguments of the learned counsel for the parties. We find that copy of the inquiry proceedings whereby we could examine, if witnesses had been examined in presence of the appellant or that the appellant had been given any chance of cross-examination, had not been filed. It has also not been stated in the inquiry report that witnesses had been examined in the inquiry and when and at what place their statements were recorded, as such, the irresistible conclusion is that the appellant was definitely prejudiced in his defence by not giving him a chance of cross-examining the witnesses. In our opinion, the truth of the allegations against the appellant could not have been established without giving the appellant a fair chance of cross-examining the witnesses of the respondents. That having not been done, we hold that the appellant could not have been punished on the basis of one-sided inquiry. The whole cases against the appellant is a rumpus amounting to storm in teacup as the files which? have been alleged to have been misplaced were said to have been traced out and it is not known who had misplaced these files and how these files were traced out in the absence of the appellant, who was during the inquiry posted somewhere else. 7.? We, therefore, allowed this appeal, set aside the impugned order and remand the case to the respondents to hold de novo proceedings on the same charges, giving the appellant full and fair opportunity of cross-examining the witnesses of the respondents and to allow him to put up his defence. The de novo proceedings shall be initiated and completed within a period of four months from the date of receipt of a copy of this judgment. The question of back-benefits shall depend upon the result of de novo proceedings.

8. No order as to costs.

9. Copies of judgment be sent to the parties under registered cover and to the relevant quarters under Rule 21 Service Tribunal (Procedure) Rules, 1974. H.B.T./20/FST???????????????????????????????????????????????????????????????????????? Appeal allowed.