2003 PLP (C (PLC(CS))

Secretary Communication arid Works initiated departmental action against the appellant Jamshed Khan and his co‑accused Ch. Muhammad Anwar when they were posted as S. D.O. and XEN, Provincial Buildings Division, Rawalpindi respectively. They were issued a show‑cause notice on account of the following allegations:‑‑ "Misclassified the amount of Rs.1,55,000 which teas available for Construction of First Women Police Station at Rawalpindi and utilized it against construction of Information and Culture Complex at Rawalpindi." The appellant submitted his reply denying the charge. Authority afforded the appellant .any opportunity of, personal hearing and thereafter passed the impugned order dated 3‑9‑2001 whereby Muhammad Anwar, XEN aforesaid was penalized by way of reduction in time scale by two stages and the appellant was awarded the penalty of reduction in time scale by one stage. The appellant preferred a review petition before Secretary C & W which be rejected by communication letter dated 8‑1‑2002. Hence the present service appeal.

2. Respondents have filed written objections. Arguments have been heard and record perused.

3. Counsel for the appellant has mainly argued that the accusation of misclassification was factually incorrect and the appellant had denied it. But still no regular enquiry was held which had seriously prejudiced the appellant. It has further been contended that sufficient funds were available or ADP Scheme "Information and Cultural Complex Rawalpindi" and as Such there was no occassion to utilize the funds allocated for First Women Police Station against the construction of "Information and Cultural Complex" Divisional Office Pre‑audits bills and if there had been any misclassification of amount the Account and Audit officials would have rectified it.

4. Departmental Authority has defended the impugned order contending that the appellants had committed financial irregularity of serious nature and therefore, he had been rightly punished. It has further been contended that in the presence of documentary evidence no regular enquiry was needed.

5. The appellant was charged with the allegations of misclassification of funds. The case of the respondent‑department is that since the charge was based on documents, there was no occasion to hold a regular enquiry. However the respondent‑department has failed to show the documents on the basis, of which the charge was levelled against the appellant. In his reply to the show‑cause notice, the appellant had categorically taken the stand that sufficient funds were available for the Scheme "Information and Culture Complex "Rawalpindi during the Financial Year 1997‑98 and so there was no necessity for arty misclassification. The department has not denied it. The appellant had also made a categorically statement that during his incumbency no voucher for Rs.1,55,000 had been paid and as such the allegation regarding the misclassification of this amount was factually incorrect. The respondent‑department was again failed to rebut it.

6. The counsel for the appellant has also rightly pointed out that the Account and Audit Officials had a duty to notice any misclassification and to rectify it at the proper time. But no evidence has been brought on the file to prove the misclassification.

7. The fact of the matter is that the appellant was accused of misclassification of funds and he denied it. The Authority has still held him guilty merely "on the careful examination of the replies and additional defence" tiled by the appellant and his co‑accused Ch. Muhammad Anwar EXN. It is not understandable as to how the Authority extracted any evidence or proof from their replies to conclude that they were guilty of misclassification. Apparently they had denied the charge and this could not be construed any kind of confession. Viewed in this context, I hold that the impugned order is not sustainable.

8. For the above reasons, the appeal is allowed and the impugned order is set aside. Parties are left to bear their own costs. Announced. Q.M.H./M.A.K./92/PST Appeal allowed.