2005 PLP (C (PLC(CS))

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7. Whether the acts of the accused Officer were violative of Rule 157(1)(2) of the Federal Treasury Rules, Vol‑I? Affirmative.

8. Whether the Federal Treasury Rules, Vol‑I apply to NIPA Karachi in the absence of a resolution of formal adoption? Negative

9. Whether the Articles of Memorandum of Association of NIPA Karachi have legal force? Affirmative

10. Whether the accused officer acted in good faith without any mala fide intent, and trusted Mr. M., Safeer Rana, who had Misrepresented. Facts to him for His own ulterior motives?." Affirmative The appellant submitted reply to the charge sheet to the inquiry officer on 19‑2‑1998 wherein he again dented the allegations against him stating that he did not commit any embezzlement or fraud; that he did not exceed his powers and that no irregularity or illegality had been committed by him in affixing his signatures on the cheques as these had already been opened by the 1st signatory. After such reply, show‑cause notice, dated 4‑4‑1998 was issued to the Appellant by the authorized officer observing that the Appellant had acceded to the request of Safeer Rana without verifying the reasons for which such a request (for opening the cheques) was being made; that he did not exercise due care and caution in the course of his official duties and as a co‑signatory opened all the 12 crossed cheques without approval of the Director in violation of established practice and rules, which resulted in unauthorized eneashment of these 12 cheques, amounting to over Rs.4,17,000 by Mr. Safeer Rana, for which acts of omission and commission, he (the Appellant) was liable for award of penalties laid down in Government Servants (Efficiency and Discipline) Rules, 1973.

4. In his reply to the show‑cause notice the Appellant again denied violation of any rules or established practice at NIPA, pointing out that it had come in evidence in the inquiry proceedings that the rent ceiling cheques were opened by the authorized signatories and converted as cash cheques without approval of the Director. That, in the Memorandum of Association and Regulation of the Society, mode of payment is cited to be through cheque", but no binding existed as to whether they were to be issued as bearer or crossed cheques. Finally that the Appellant had acted in good faith and there was no embezzlement as all the Book Sellers had received the payments.

5. The above reply to the show‑cause notice did not find favour with the authorized officer Consequently, vide order, dated 5‑5‑1998, the authorized officer/Director, NIPA imposed a penalty on the Appellant of stoppage of increment for one year with immediate effect, observing, had the Appellant refused to open the cheques, or referred tile matter to the Director, all the subsequent irregular acts committed by his co‑signatory could have been pre‑empted.

6. The Appellant submitted his representation/appeal against the penalty, imposed upon him, but the same was turned down hence, he filed this appeal, as already mentioned above.

7. In the written comments, filed on behalf of the respondents, it has been stated that the authorized officer had not found the explanation of the accused officer satisfactory as the opening of the cross cheques was an unprecedented step, which was not expected of senior officer who should have exercised care as the 12 cheques were of a substantial amount (Rs. 4,17,000) that before resorting to the, opening of the cheques, he should have consulted the Director or sent the cheques back to the Accounts Branch at the time when request was made to him by Safeer Rana for opening the cheques; that disciplinary proceedings against the Appellant had been drawn strictly in accordance with law whereby the charge against the Appellant of unauthorizedly opening of 12 cheques stood established and he was awarded a minor penalty of stoppage of increment for one year.

8. We have heard the learned counsel for, the parties and have carefully gone through the entire record of the case including the authorities cited at the bar.

9. The Learned counsel for the Appellant argued that there was no mala fide on the part of Appellant in opening the cross, cheques as he had in good faith, at the instance of a responsible co‑employee like Safeer Rana, put his signatures on the 12 cheques in question for opening the same for cash payment to the parties; that in doing so he had not, violated any rules, as alleged by the respondents, nor did he act against the prevailing practice of payment to the parties through cheques. The learned counsel for the Appellant vehemently argued that as per findings of the inquiry officer, the acts of the accused were neither violative of Rule 157(1) of the Federal Treasury 'Rules, Vol‑I, as the same did not apply to NIPA, Karachi, nor did the Articles of Memorandum and Association of NIPA Karachi have any legal force. He pointed out that in the cross examination during the inquiry, the Accountant of NIPA Zulfiqar Jaferi, on a question by Safeer Rana, had stated. "In case where rent ceiling cheques were issued as cross cheques and they were opened by the authorized signatories and converted as cash cheques" as such, it could not be said that, the Appellant had acted against the established practice of the respondents organization; that the entire proceedings against the Appellant were mala fide which was evident from the fact that right from the initiation of tile proceedings till the end thereof, the punishment to be awarded to the Appellant was not specified in any document; that the authorized officer imposed the punishment on the Appellant inspite of no findings in the inquiry report against the Appellant warranting any punishment for his acts in good faith. Finally, the mala fide of the authorized officer was evident from the tact that for no reason, plausible or otherwise, she lead held back the appeal of the Appellant and did not send it to the appellate authority for about 2 years, lastly, the respondents had not given any reasons to discard the explanation reply to the show‑cause notice, charge‑sheet and the appeal and in absence of proper reasoning of the respondents the disciplinary proceedings against the Appellant and. the impugned orders were liable to be set‑aside, as such, in view of such grave discrepancies the illegal orders of the Respondents were liable to be set‑aside. In support of his above contentions, the learned counsel for the Appellant relied on the authorities reported in 1998 PLC (CS) 87, 1997 SCMR 1160. PLD 1981 Supreme Court 176 and 1991 SCMR 2330.

10. The learned counsel for the Respondents relied on the written comments for arguments on behalf of the Respondents.

11. Reverting to the arguments of the learned counsel for the Appellant we agree with him that there was no malafide on the part of the Appellant in opening the crossed cheques but we do not find ourselves persuaded to accept the contention of the learned counsel that the action of the Appellant was bona fide. As per settled law nothing shall be deemed to be done in good faith which is not done with due care and attention or due care and caution. To us the Appellant does not seem to have acted with due care, caution or attention in resorting to opening the cheques on implausible plea of Safeer Rana.

12. Rule 157(1)(2) of the Federal Treasury Rules Vol‑I may not be applicable to the payments made by Respondents NIPA through crossed cheques and/or the Articles and Memorandum of Association of NIPA Karachi may not have restricted the payment of crossed cheques only, but as per common, established and accepted practice in all Government and semi‑Government departments, autonomous bodies and corporations etc., except in cases of petty amount of Rs.50 or so, payment is made by crossed cheques. Where there is no statutory requirement of payment through crossed cheques, such practice is resorted to under the rule of prudence to ensure payment to right person and to prevent any fraud. However, situation can arise where payment may be made through bearer cheque or in cash where there is urgency, impelling need or any justified demand by the payee. But deviation from the rule of prudence or otherwise for changing the mode of payment has to be done with the approval or concurrence of the competent authority. This is admitted by the Appellant himself soon after initiation of the disciplinary proceedings against him. His words in his explanation, dated 11‑11‑1997 are reproduced as under:" "....The ‑prevailing practice is that on demand of the recipients, in the circumstances considered genuine by the Competent Authority, cheques are opened for cash payment."

13. The above admission of the Appellant shows that he was fully aware of prevailing practice in the NIPA for opening a cross cheque, which could be done only in the circumstances considered genuine by the competent authority. Needless to say that the Appellant and co‑signatory Safeer Rana had acted against the prevailing practice in Respondent NIPA. It is also obvious that they had never referred the matter for that purpose to the competent authority. It is also not their case that they had earlier also opened any crossed cheque for cash payment as against the prevailing practice and no exception was taken to it by the competent authority or anyone else. Merely saying that the above practice was not strictly followed cannot justify the unauthorized opening of the crossed cheque.

14. To justify his unauthorized act and to demolish the case of the Respondents, the Appellant, it appears, as an afterthought relied on the cross examination of Zulfiqar H. Jafery, already referred to above in para. 9, to the effect that rent ceiling cheques were opened by authorized signatory and converted as cash cheques, but in our view no reliance can be placed on the reply of said Accountant in the cross examination done by Safeer Rana for the reasons that the witness had not given any particulars of the cheques or the persons, who had indulged in opening such crossed cheques. The Appellant (and for that matter Safeer Rana) had not stated that they were the persons or who were the persons, who had opened such cheques unauthorizedly. The reply of Zulfiqar H. Jafery appears to be no more than on an obliging statement, made in favour of a senior colleague like Safeer Rana. Even if somebody had resorted to such practice, as stated by Zulfiqar H. Jafery that could not be a justification for the Appellant to act likewise. We, therefore, do not consider the said reply of Zulfiqar H. Jafery of any help to the Appellant and we discard it as a piece of evidence in support of the Appellant.

15. Admittedly, the 12 crossed cheques in question had beer, prepared by the Accounts Department of NIPA. The Appellant and Safeer Rana were only required/authorized to sign these cheques, which were meant for payment of a huge amount to various booksellers. On being asked by Safeer Rana to open these cheques, apparently on an unplausible plea, the Appellant should have got startled or become cautious on an unprecluded demand. He should have paused for a moment to see whether the payees were present and demanding the cash payment for any reason, or there was any urgency or impelling need for cash payment and as to what difference, it would have made if the payment was made through crossed cheques or even through order cheques. The Appellant should have also thought what advantage or disadvantage to the payees would have been in case payment by means of open or crossed cheques was made. If he had any advantage for opening the crossed cheques and demanded the payment in cash necessary, he could have referred back these cheques to the concerned Accountant and asked him to obtain the approval of the Director then and there discontinuing the circumstances for doing so. We failed to understand what valid objection Safeer Rana could have to the referring of the cheques in question to the Director of, NIPA for her approval, if she were advised to do so. All this shows that without any valid or justifiable reasons the Appellant opened the cheques in question, which, as is evident from inquiry proceedings, resulted in temporary embezzlement of the official money amounting to Rs.8523 and Rs.8320 respectively by Safeer Rana. The Appellant facilitated such embezzlement by unwittingly opening the said cheques. Such an eventuality could be prevented if the Appellant had acted with care and caution, but he failed to do so. The acts of omission (to obtain approval of the Director) and commission (opening the cross cheques) were definitely violative of the prevalent practice at NIPA. Such acts of his without any plausible justification depicted his careless, casual and irresponsible attitude, which resulted in the complaint by Messrs Oasis Books and Gifts, Karachi on which the Respondents Director was obliged to initiate the disciplinary proceeding against him.

16. Coming to the objections of the learned counsel for the Appellant, his objection was that the punishment proposed or to be awarded to the Appellant, was not specifically mentioned in the show -cause notice or charge‑sheet which violated the relevant provisions of Government Servants (Efficiency and Discipline) Rules, 1973. The objection appears to be valid, but it is an objection of trivial and no prejudice has been caused to the Appellant since minor penalty was imposed upon him.

17. The objection of the learned counsel for the Appellant about the delay in sending the departmental appeal of the Appellant to the appellate authority with inordinate delay has some force in it, but for that reason alone no malice can be attributed to Director Masuma Hasan as she was succeeded by two other persons as acting Director and Director respectively. There is nothing on record to show that she had any ill will or hostility towards the Appellant prior or subsequent to the incident of unauthorized opening of the crossed cheques by the Appellant and Safeer Rana. We may observe here, if the Appellant was aggrieved on account of non‑forwarding of his appeal to the appellate authority, instead of alleging malafide to Dr. Masuma Hasan, he should have filed the appeal before the Tribunal after waiting for the lapse of statutory period of 90 days. There is, as such, no substance in the allegation of malice levelled by the Appellant against Director Dr. Masuma Hasan. Nor do we find any substance of abuse of power by her. It was the Appellant and Safeer Rana who had given the cause of action to her to proceed against them and if she did proceed against them strictly in accordance with the provisions of law and awarded the Appellant a minor penalty, how she could be said to have exceeded or abused her power as a Director of Respondents NIPA. She had not initiated any suo‑motu disciplinary proceedings, but she had proceeded against the Appellant and his co‑signatory Safeer Rana on the complaint of Messrs Oasis Books and Gifts, Karachi.

18. Lastly, the learned counsel for the Appellant contended that the Respondents had not given any reasons to discard the explanation, reply to the show‑cause notice, charge‑sheet and appeal. Relying on the authority reported in 1991 SCMR 2330, the learned counsel for the Appellant argued that in absence of proper reasons of the Respondents, the disciplinary proceedings against the Appellant and the impugned orders were liable to be set‑aside. The relevant portion of the said judgment is reproduced as under:‑‑ "In this case it cannot be said that no reason is mentioned in the rejection of respondent's representation in the orders, dated 6/9‑10‑1988. But in many other cases we have seen that the rejection is a simple ritualistic rejection. Even if it is not a mandate by any law that the officer concerned should be informed about the reasons which prevailed with the authority concerned, it would not be illegal either to give reasons; at least, for now onward. It being the judgment of this Court on this legal question, the same would be observed as declared law. " Having all respects for the above dictum of the Hon'ble Supreme Court, in our opinion, there is hardly any force in the contention of the learned counsel for the Appellant, as all the communication of the Appellant had been properly replied to with plausible reasons and the impugned orders, passed by the Respondents Director Dr. Masuma Hasan has been fully justified with appropriate reasons. However, the order of the appellate authority (which has been conveyed to the Appellant) vide letter, dated 13-6-2001, is not before us; hence, we cannot say whether the rejection order was based on proper reasons or not.

19. The upshot of the above discussion is that the act of the Appellant in opening the crossed cheques unauthorizedly is not so innocuous action or a mere faux pas as it appears to be, but it was deliberate and conscious act of violation of the established practice of Respondent-NIPA. It is not a question of violation of this law or that law only, but the act of the Appellant itself amounts to misconduct being conduct prejudicial to good order of service, discipline and also an act unbecoming of an officer and a prudent gentleman. We are, therefore, persuaded not to interfere with the impugned orders. We maintain these orders and dismiss the appeal accordingly as having no merit in it. There shall be no order as to costs.

20. A copy of this judgment be sent to the Secretary Establishment to bring to the notice of the concerned authorities (if already not done so) the above mentioned dictum of the Hon ble Supreme Court for strict compliance as quite often it has been found that the orders of the concerned authorities are not supported by reasons, which may result in throwing out such orders.

21. Copies of the judgment be sent to the parties and to the relevant quarters. H.B.T./131/FST Appeal dismissed.