2004 PLP (C (PLC(CS))

(a) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑ ‑‑‑‑Rr.3(b), 4(1)(b)(iv), 5 & 7‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Misconduct‑‑‑Dismissal from service on allegation of misconduct‑‑‑Holding of inquiry‑‑‑Civil servants were dismissed from service after issuing them show‑cause notices, but without holding inquiry against them on allegation of misconduct‑‑‑Allegation against civil servants was that they sold Government wheat in open market without authorization‑‑‑Contention of civil servants was that in view of nature of allegation against them, Authority was not justified to dispense with regular inquiry in their case and that awarding major penalty to them by adopting a summary procedure was not warranted by law and same was liable to be set aside‑‑‑Validity‑‑‑Question as to whether a regular enquiry was to be held in a case of misconduct against an accused civil servant or not, would depend on facts of each case‑‑ Authorized Officer had discretion to decide whether in a disciplinary proceedings against a civil servant in response to his reply to the charge sheet, a regular inquiry should be held or not‑‑‑Such discretion was not controlled by any precondition or guideline, but was to be exercised fairly and reasonably and not arbitrarily or capriciously‑‑‑If charge against civil servant was based on disputed question of fact, a civil servant could not be denied a regular inquiry as same could not be resolved without recording evidence and providing opportunity to parties to, cross‑examine witnesses‑‑‑Civil servants had admitted in clear terms that they ‑had sold wheat in an open market due to some compelling circumstances but the same was not believable‑‑‑Authorised Officer, in circumstances, had committed no illegality or irregularity in dispensing with regular inquiry. 1989 PLC (C.S.) 414; 1995 PLC (C.S.) 795; 1997 SCMR 1543; 2002 SCMR 71; 2003 PLC (C.S.) 7 and Nawab Khan and another v. Government of Pakistan through Ministry of Defence, Rawalpindi and others PLD 1994 SC 22 ref. (b) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑ ‑‑‑‑Rr.3(b), 4(1)(h)(iv), 5 & 7‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Major penalty of dismissal from service‑‑‑Conversion into reduction in rank‑‑‑Major penalty of dismissal from service was awarded to civil servants on allegation that they had sold Government wheat without obtaining 'prior permission from Higher Authorities‑‑‑Civil servants though sold the wheat without permission, but had not misappropriated amount so received by them, but same was deposited in Government Treasury‑‑‑Present case was not of fraud, forgery, embezzlement or misappropriation as total cost of wheat sold by civil servants had been deposited by them in Government Treasury‑‑‑No ulterior motive was behind sale of said wheat in the open market; of the most it was case of inefficiency and negligence‑‑‑Punishment should always be commensurate with the guilt established against accused‑‑‑No charge of embezzlement having been ‑proved against civil servants penalty of dismissal from service was too harsh especially when their co- civil servants charged with similar allegation was treated differently‑‑ Order of dismissal from service passed against civil servants being discriminatory, penalty of dismissal from service was converted into "reduction in rank for period of two years" which would meet the ends of justice. Through this common judgment, we intend to dispose of these three appeals as common questions of facts and law are involved.

2. Facts forming the background of these appeals, briefly stated, are that appellants Muhammad Ali Channar, Assistant Food Controller/Incharge Kandiaro P.R. Centre. Shahmir Solongi and Ghazanfar Gli Pathan, Food Inspector/Incharge Moro and Mellrabpur P.R. Centres, respectively, were served with show‑cause notice dated 21‑4‑2001 issued by the Additional Director Food/Authorized Officer, alleging therein that they without authorization sold Government wheat in open Market and after knowing constitution of Committee they deposited its cost in Government Treasury and that they have put the Government in great financial loss. In their respective replies, appellants explained their position, which were not found satisfactory. They were served with final show‑cause notice dated 22‑5‑2001, which too they replied. Ultimately, by separate orders dated 11/12‑7‑2001, they were awarded major penalty of 'Dismissal from Service' by the Deputy l Director Food, Sukkur Region, Sukkur. Feeling aggrieved, they preferred departmental appeal (s) to the Director Food. Government of Sindh, Karachi. On getting no response within stipulated period of 90 days, they have preferred the instant appeals before this Tribunal.

3. In support of appeals, learned counsel for the appellants mainly contended that wheat was sold in the open market by the appellants at prescribed Government rate with the verbal permission of the Deputy Director 'Food as the wheat stock lying in the stores was being weevilzed. Its entire cost was deposited in Government Treasury, thus the question of misappropriation or even temporary misappropriation does not arise. He submitted that Inspecting Officers time and 'again reported to the high‑ups to dispose off the wheat lying at the Godowns to avoid further loss but no timely action was taken. Further, he' stated that although the members of the Enquiry Committee constituted by the Government in their report dated 14‑4‑2001 reported that there was no shortage of wheat stock in the Godowns and that Centre Incharges 'sold Government wheat in open market and credited total costs in Government, Treasury on the basis of permits and challans issued by the District Food Controller, Nausharo Feroze, yet instead of dropping the matter on the basis of enquiry report, appellants were proceeded with departmentally under the Efficiency and Discipline Rules. He forcefully argued that in view of the nature of allegation, which the appellants denied vehemently, the department was not justified to dispense with the regular enquiry. He urged that awarding major penalty to the appellants by adopting a summary procedure was not warranted by law and is liable to be set aside. In support of his contentions, he relied upon, 1) 1989‑PLC (C.S.)‑414, ii) 1995‑PLC (C. S.) 795, iii) 1997 SCMR 1543 iv) 2002 SCMR 71, and v) 2003 PLC C.S.) 7), Lastty, he contended that the impugned orders dismissing appellants from service are discriminatory as their co‑civil servant Haji rayaz Ahmed Memon charged with similar allegations has been reverted while the appellants have been awarded major penalty of dismissal from service.

4. In rebuttal, learned Assistant Advocate‑General argued that appellants in their statements before Enquiry Committee so also in their replies to the show‑cause notice(s) have admitted the sale of Government wheat in open Market. Therefore, in view of admitted facts there was no necessity of ordering/conducting regular enquiry. Next, he submitted that their act of selling Government wheat without permission of Authorities concerned was against the law and the, policy of the Food Department which amounts to misconduct, they were rightly awarded major penalty and the same in the circumstances of the case calls for no interference by this Tribunal.

5. We have considered the above submissions, perused the material/documents placed on the record and have gone through the case- law cited at the bar. There is no denial of the. fact that appellants had sold the Government wheat in open market. In this regard, the explanation offered by the appellants that a huge stock of Government wheat lying in the procurement centres was being weevilzed and such intimations were given to the higher authorities time and again and that the Inspecting Officers after physical verification of the stock lying in the godowns supported the appellants plea and they in their reports remarked that if the wheat stocks are not cleared, the Government would sustain heavy financial loss. Therefore, in order to save the Government from financial loss some wheat bags were sold by them in an open market at the Government rate of Rs.850 and deposited the entire amount in the Treasury through challans duly signed by the District Food Controller, Naushahro Feroze. 13e that as it may, the fact remains that why the' appellants had not obtained the permission from the concerned authorities and for what reasons they did not inform the concerned quarters about selling of Government wheat in an open market. Their contention that verbal permission was obtained by them from the Deputy Director Food, has no substances. In official matters, verbal permission in such‑like cases, has no legal sanctity. Besides, explanation so offered in the absence of any convicting proof is hardly believable. Contention that no regular enquiry was conducted and the appellants were not afforded opportunity to rebut the allegations, therefore, major penalty awarded to them is not sustainable, has no substance. In view of the material on the record coupled with appellants admission, no regular enquiry was necessary. It is well‑settled principle of law that the question, as to whether a regular enquiry is to be held in a case of misconduct against and accused civil servant/employee or not, will depend on the facts of each case. In the case of Nawab Khan and another v. Government of Pakistan through Ministry of Defence Rawalpindi and others, PLD 1994 SC 22, the Honourable Supreme Court after 'referring/relying number of reported cases on the subject, observed that; an authorized officer bas discretion to decide, whether in a disciplinary proceeding against a civil servant in response to his reply to the charge sheet, a regular enquiry should be held or not. The above discretion is' not controlled by any precondition or guideline but nevertheless this discretion like all other discretions is to be exercised fairly and reasonably and not arbitrarily or capriciously with the object not to deny the civil servant the right of fair defence. So, if the charge is founded on admitted documents/facts, no full‑fledged enquiry is required but if the charge is based on disputed questions of fact, a civil servant cannot be denied a regular inquiry, as the same cannot be resolved without recording evidence and providing opportunity to the parties to cross examine the witnesses. In the instant case, as observed earlier, the appellants in their statements before the Enquiry Committee as well as in their replies to the show‑cause notice so also in their memo. of appeals have admitted in clear terms that they had sold the Government wheat in an open Market. Their explanation that it was due to some compelling circumstances, is not believable. In these circumstances, the Authorized Officer had committed no illegality or irregularity in dispensing with the regular enquiry.

6. It appears that during tenure of appellants service, it was the first charge of inefficiency and negligence proved against them. It is not a case of fraud, forgery or permanent embezzlement/misappropriation, as the total cost of wheat has already been deposited with Government Treasury. It also appears that there was no ulterior motive behind the sale of Government wheat in an open Market. On the contrary, it is case of inefficiency and negligence. Punishment shall always be commensurate to the guilt established. Taking all the aspects of the three appeals into consideration, we are of the considered opinion that except the fact that appellant had sold Government wheat without obtaining prior permission from the higher authorities and had acted in negligent manner, no other charge of embezzlement has been proved against them. Viewed in this context, the penalty of dismissal from service would seem to be a bit too harsh, coupled with the fact that their co‑civil servant Haji Fayyaz Ahmed Memon charged with similar allegations was treated differently. It is absolutely discrimination. The impugned order (s) being discriminatory are not good in the eye of law and justice.

7. For the aforesaid reasons, we are of the considered view that the penalty imposed upon the appellants is too harsh. Accordingly, the penalty in the shape of dismissal from service is converted to that of "Reduction in Rank for a period of two years". Which will meet the ends of justice. With the above modification in the penalty, the appeals stand disposed off. There will be no order as to costs. Announced in open Court. Given under our hands and seal of the Tribunal, this 15th day of July, 2003. H.B.T./131/KST Order accordingly: