1988 PLP (C (PLC(CS))

MUHAMMAD IRSHAD KHAN (MEMBER).‑‑The facts of the case, briefly speaking, are that the appellant while posted as Accountant in the Treasury Office of Authmuqam (AJK) was placed under suspension vide order dated 27‑11‑1983 which reads as under:‑ As reported in the Audit and Inspection report on the accounts of Treasury Officer Authmuqam for the period from July, 1978 to June, 1979 an amount of Rs.64,090/17 on account of cost of Judicial and Non‑Judicial stamps has been embezzled by Mr. Amirullah Qureshi, Treasury Accountant. The Accountant General has, therefore, ordered to place him under suspension with immediate effect. Mr. Amirullah Qureshi shall remain attached in the Central Audit Office, Muzaffarabad." Thereafter a charge‑sheet dated 20‑5‑1984 accompanied by the following statement of allegations was served on the appellant:‑ "(a) According to Audit and Inspection report on account of Authmuqam Treasury for the period 7/78 to 6/83, issued by Local Audit Department under No.10.43‑47/AG‑LAD/83 dated 23‑11‑1983 you embezzled Rs.64,090/17 cost of sale proceeds of Judicial and Non‑Judicial stamps as per detail given below:‑ (i) Opening balance on the date the Treasury Accountant (Mr. Amirullah) took over. Rs.2,78,585.41 (ii) Transfer of stamps from Stamps Commissioner. 78,250.00 ____________ Total Rs.3,56,835.41 (iii) Sales verified from Stamps ____________ Register. Rs .71, 231.09 (iv) Closing balance (as per details enclosed.) Rs.2,83,603.42 (v) Balance found on physical verification. Rs.2, 21, 513.25 ___________ (vi) Difference Total Rs.64,090.17 ___________ (b) You after the detection of embezzlement remitted an amount of Rs.24,021/25 out of total embezzled amount into Government Treasury vide Challans Nos.2, 3, 4, dated 1‑11‑1983 Nos.4, 3, dated 22‑11‑1983, No. 3, dated 26‑7‑1983, Nos. 3, 4, dated 1‑12‑1983 and No.l dated 4‑12‑1983 respectively, thereby admitting the committal of embezzlement. An amount of Rs.40,068/92 still stands embezzled." The appellant submitted an elaborate reply to the charge‑sheet wherein he refuted every charge and explained his position in detail. Thereafter without holding any enquiry a show‑cause notice dated 5‑9‑1984 followed by a final show‑cause notice dated 19‑9‑1985 was served on the appellant which are reproduced below:‑ "Dated 5‑9‑1984 Whereas the undersigned as Authorised Officer in your case has been directed by the authority to proceed against you under the Govt. Servants (E&D) Rules, 1973 on the following allegations: ‑ (i) You embezzled an amount of Rs.64,090/17 on account of cost of Judicial and Non‑Judicial stamps during the period you were working as Treasury Accountant (under suspension) from 23‑6‑1981 to 3‑10‑1983 the date of conducting Audit by Audit party. By the reason of the above you appear to be:‑ (a) Inefficient within the meaning of rule 3(a) of the Government Servants (E&D) Rules, 1973, and (b) Guilty of misconduct within the meaning of rule 3(b) of the E&D Rules. (c) Corrupt within the meaning of rule 3(c) of the Government Servants (E&D) Rules, 1973. A charge‑sheet was served upon you vide No. Admin.I/3655/8 dated 20‑5‑1984 but your reply was considered unsatisfactory. Now it is not necessary to have an inquiry conducted in proof thereof and it is proposed to proceed against you under sub‑rule (3) of rule 5 of the Govt. Servants (E&D) Rules, 1973. Now, therefore, you are hereby called upon to show cause in writing within 15 days of the receipt of this communication as to why one or more of the penalties as prescribed in rule 4(b) of the Government Servants (E&D) Rules, 1973, should not be imposed on you. In case you may desire to consult any record on which the aforesaid charges are based or is relevant to the aforesaid charges, you may do so with prior arrangement with the undersigned within 7 days of the receipt of this notice. Sd/‑(K.S.BHATTI), Deputy Accountant General (Sr.) (Authorised Officer)" Dated 19‑9‑1985 Whereas, the Authority, on the basis of Audit and Inspection Report on the Accounts of Authmuqam Treasury for the period from 5/78 to 6/83 issued by the Local Audit Section under No:1043‑47 dated 23‑11‑1983 and on the basis of your reply to the show‑cause notice issued to you earlier under this office No.5064/AG‑Admn. 1/84 dated 5‑9‑1984 and examination of record thereon, is satisfied that following charges stand proved against you: (i) That during your posting as Treasury Accountant Authmuqam Treasury (23‑6‑1981 to 3‑10‑1983) you embezzled an amount of Rs.64,090/17 on account of sale proceeds of Judicial and Non -Judicial Stamps. (ii) On detection of fraud by the Local Audit party you deposited an amount of Rs.22,121/25 out of total embezzled amount of Rs.64,

090. An amount of Rs.41,617 (41,968.92 (‑) 351/05) still stands recoverable from you.

2. By the reason of above you have been found to be:‑ (a) inefficient within the meaning of rule 3(a) of Government Servants (E&D) Rules, 1973. (b) guilty of misconduct within the meaning of rule 3(b) of the Government Servants (E&D) Rules, 1973. (c) corrupt within the meaning of rule 3(c) of the Government Servants (E&D) Rules, 1973.

3. Accordingly it has been decided to impose upon you the following penalties for the defaults enumerated above. (i) Dismissal from service. (ii) Recovery of Rs.41,617/87 (the remaining amount) representing the loss caused to the Government under the appropriate law.

4. Now, therefore, you are finally required to show cause in writing within 30 days of the receipt of this communication as to why the penalties mentioned above may not be imposed upon you.

5. Your explanation in duplicate should reach the undersigned within 30 days period failing which it will be presumed that you have no defence to offer, to this final show‑cause notice. You should also state whether you desire to be heard in person. If you so desire you may appear before the Accountant‑General (Authority) on any working day convenient to you. Sd/‑ (GHULAM RABBANI KHAN) Deputy Accountant‑General, (Authorised Officer)" The appellant again submitted detailed replies to both the above show -cause notices refuting the allegations. The appellant also requested for a personal hearing which was not allowed and the following order was straightaway passed on 19‑4‑1986:‑ "OFFICE ORDER In exercise of power as Authority under rule 4(i) (b) (iv) of the Government Servants (E&D) Rules, 1973 as adopted by the Azad Jammu and Kashmir Council the Accountant‑General Azad Jammu and Kashmir, Muzaffarabad, has dismissed Mr. Amirullah Qureshi, Treasury Accountant, Authmuqam (presently under suspension w.e.f. 27‑11‑1983) from the service on account of embezzlement of sale proceeds of Judicial and Non‑Judicial stamps amounting to Rs.64,090 while posted in Authmuqam Treasury. Recovery of Rs.41,fi17 outstanding out of the total embezzled amount will be made from him.", The appellant submitted a departmental appeal‑which too was rejected vide letter dated 11‑12‑1986 received by him on 18‑12‑1986, hence this appeal.

2. The learned counsel for the appellant assailed the impugned order on a number of grounds. His main emphasis was on the submission that although the appellant was charge‑sheeted for embezzlement amounting to gross misconduct yet no enquiry as contemplated by the Government Servants (Efficiency and Discipline) Rules, 1973, (hereinafter referred to as the said Rules) was conducted although repeatedly requested by the appellant, instead, the Authority without any valid reason adopted the summary procedure of rule 5 and thereby a reasonable opportunity to defend himself was denied to the appellant and the impugned order was passed without bringing any evidence on record which materially prejudiced the case of the appellant and vitiated the impugned order. In reply, it was contended by the learned counsel for the Respondent‑Department, that although initially a charge‑sheet was served on the appellant with a view to hold an enquiry as envisaged in rule 6 of the said Rules yet subsequently it was not considered necessary to hold such an enquiry and, therefore, the appellant was served with a show‑cause notice under rule 5(iii) of the said Rules; and although the appellant had also demanded an enquiry to be conducted in the case, it was in the discretion of the Authorised Officer to proceed with the matter .adopting the summary procedure as contained in rule 5(iii) of the said Rules.

3. I have given my anxious thought to the submissions made on behalf of the parties and to the facts of the case. It is true that the law has left it at the discretion of the Authorised Officer to adopt either a shorter procedure of show‑cause notice or a detailed procedure of holding a regular enquiry through an Enquiry Officer. According to the well‑settled legal position, however, a decision in this respect, is to be taken in the interest of justice and taking into account the facts and circumstances of the case. Indeed, no discretion vested in an executive authority is an absolute or an arbitrary discretion because it is vested in him for a public purpose and must be exercised to secure the ends of justice. In other words, an executive authority, while passing an order in the matter of his discretion, must act justly, fairly reasonably, and for good reasons to be recorded but if he does otherwise, he exceeds his jurisdiction. As persistently held by this Tribunal although it has not been specifically provided in the said Rules that the Authorised Officer is bound to give reasons for exercise of his discretion to adopt a shorter procedure, he can exercise such discretion only for valid reasons to be recorded and while doing so the nature of the allegation against an accused official and the available evidence in the case have to be taken into account. In the instant case, the appellant in his reply to the charge‑sheet, has categorically denied the charges mentioned in the charge‑sheet. In my humble view, the nature of the charges and its denial by the appellant could not be considered such a matter as could be decided without holding a regular enquiry as envisaged in rule 6 of the said Rules. Indeed, mere affording of an opportunity to submit an explanation cannot be considered a reasonable opportunity for showing cause but the Authorised Officer should have also given an adequate opportunity to the appellant to produce evidence in support of his contention and refute the charges in the permissible way of examining and cross‑examining witnesses and submitting his arguments before the authorities concerned, which could only be done if a proper procedure of holding a regular enquiry under rule 6 of the said Rules would have been adopted. I am, therefore, of the opinion that in the circumstances of the instant case the ends of justice would have served only if a proper enquiry prescribed in rule 6 of the said Rules had been adopted. I am also not impressed by the suggestion of the learned counsel for the Respondent‑Department that the act of the appellant depositing a part of the embezzled money amounted to confession of his guilt by him and was sufficient to hold the appellant guilty of the charge without any further enquiry. For, the appellant had categorically stated in reply to the charge‑sheet that his act of depositing the partial amount could not be taken as confession because he did so under the pressure and fear of the police and with a view to save his honour. This explanation of the appellant is acceptable to me and, in any case, by no stretch of imagination, the aforesaid act of the appellant can be treated as a confession of guilt by him and could not be made a base for penalizing him without holding an enquiry and without giving an opportunity to defend himself. To conclude, I hold that the a facts of this case called for a decision to hold a regular enquiry through an Enquiry Officer and consequently the decision to adopt a shorter procedure was wholly unjustified and unsustainable. As held in the judicial decisions, justice should not only be done, but should manifestly be seen to be done. I have, therefore, no hesitation in holding that the discretion exercised to proceed summarily in this case has resulted in denial of reasonable opportunity to the appellant to defend himself which rendered the impugned order unlawful and ultra vires. The impugned order suffers from another fatal lacuna in that the opportunity of personal hearing, though demanded by the appellant, was not allowed.

4. It was also submitted by the learned counsel for the appellant that the appellant was suspended from service on 27‑11‑1983 and remained under suspension till the impugned order was passed on 19‑4‑1986 but no order for continuation of the suspension after every three months, as required under the Rules was obtained from the competent authority and as such his suspension was illegal and incompetent. The learned counsel for the respondent‑Department, on the other hand, submitted that a case against the appellant was registered in Anti‑Corruption Police and, therefore, approval of the authority for continuation of suspension of the appellant beyond three months was not required as provided in OM No.4/12/74‑DI, dated 10‑3‑1980. To appreciate the contention it may be advantageous to reproduce the relevant portion of the said OM as hereunder:‑ "

3. In the context of the points mentioned in paragraph I, the position that emerges from Articles 194 and 194‑A of CSR is explained below:‑ (a) a Government servant committed to prison either for debt or on a criminal charge should be considered as under suspension from the date of his arrest ant until the termination of the proceedings against him, i.e. his suspension is automatic from the date of arrest till termination of proceedings against him; (b) a Government servant against whom a criminal charge or proceeding for arrest for debt is pending should also be placed under suspension by the issue of specific orders to this effect during periods when he is not actually detained in custody or imprisoned (e.g. whilst released on bail) if the charge made or proceedings taken against him is connected with his position as a Government servant or is likely to embarass him in discharge Of his duties as such or involves moral turpitude; and (c) the requirement of obtaining approval of authority for extension of suspension period after every 3 months laid down in Government Servants (Efficiency and Discipline) Rules, 1973 applies to suspensions ordered under these rules. Article 194 or 194‑A do not mention any such requirement.

4. In view of the position stated above, the answers to the queries mentioned in para I are as follows seriatim:‑ (i) suspension under Article 194 is automatic. Suspension under Article 194‑A requires specific approval of the competent authority; (ii) in the light of what is stated in the preceding paragraph, the competent 'authority can, in case the accused official is no longer detained in custody, re‑instate him in service unless it likes him to continue to be under suspension on the consideration that the charges against him are connected with his position as a Government servant or is likely to embarass him in the discharge of his duties as such or involve moral turpitude. From the date of re‑instatement onwards, the Government servant will no doubt be paid full pay. However, adjustment of allowances for the period he remained under suspension will be made as Articles 194 and 194‑A envisage after the termination of the proceedings; and (iii) approval of competent authority for suspension under Article 194 or 194‑A is not required every 3 months."

5. A bare perusal of the above would show that the approval of the competent authority for suspension after every three months not required if the Government servant concerned is considered to be under suspension on account of his being committed to prison but such approval after 3 months is required if the suspension is ordered under the said Rules. A plain reading of the suspension order has made it manifestly evident that the suspension of the appellant was ordered under the said Rules and not because he was committed to prison. The contention of the learned counsel for the Respondent-Department, therefore, is without any substance and I hold that as the suspension of the appellant was for the reason of pendency of disciplinary proceedings against him, it required approval of the authority after every three months. This view finds further support by the official interpretation of the provision as given in the Office Memo of the Establishment Division dated 22‑2‑1975 printed at page 337 of the Estacode (1983 edition). The relevant portion whereof may be reproduced with advantage:‑ "(a) ............................... (b) Since continuation of forced leave or suspension beyond a period of three months again requires the approval of the /'authority" it would appear that on expiry of the said period of three months the Government servant who has been placed under suspension or forced to proceed on leave would be deemed to have been re‑instated unless before the ex of the said period the approval o the "authority" to the Government servant continuing to be under suspension or on leave has been obtained." (Underlining is mine.) There is, therefore, no escape from holding that the appellant stood automatically re‑instated into service on expiry of three months (if his suspension as it is an admitted position that no approval of the competent authority for extension of suspension of the appellant beyond three months was obtained and notified. I would accordingly declare that the suspension of the appellant beyond three months was incompetent, unlawful and of no legal effect and he automatically stood re‑instated into service with effect from 27‑2‑1984.

6. In the result the appeal is accepted, the impugned order is set aside and it is directed that the appellant shall be re‑instated into service with effect from 27‑2‑1984 with full back benefits. It may, however, be clarified that since the appeal is being accepted for technical reasons it shall be open for the relevant authorities, so wish, to proceed afresh against the appellant for the charges in accordance with law and in conformity with the prescribed procedure./

7. No order as to costs.

8. Parties to be informed accordingly. S.Q. /393/Sr.F Appeal accepted (b)