1989 PLP 273 (SCMR)

SHAD SAOOD JAN, J.‑‑This is an appeal by special leave from the judgment of the Federal Service Tribunal whereby it set aside the order of dismissal from service passed against the respondent.

2. The respondent was serving as Assistant Registrar, Joint Stock Companies, a post in grade 18, and was stationed at Multan. By a letter dated 21‑5‑1979 the Registrar, Joint Stock Companies, directed all the Assistant Registrars to adopt effective measures to stop registration of companies formed with the object of conducting financial operations. This letter was followed by telephone calls by an officer posted in the office of the Registrar to all the Assistant Registrars including the respondent wherein the above direction was reiterated. On 26‑5‑1979, the respondent registered and issued a certificate of corporation to a company by the name of United Industrial and Commercial Finance Limited which had amongst its objects the carrying on of financial operations.

3. Consequent upon the registration of the said company, departmental proceedings were taken against the respondent. Mr. H.U. Beg who was Secretary in the Ministry of Finance was appointed as authorised officer. He framed five charges against the respondent and appointed Mr. Zulftqar Ali, a Deputy Secretary in the Ministry of Finance, as Inquiry Officer. The charges related to violation of departmental instructions, tampering with the offcial record, charging short fee, failing to keep the record in personal custody and making mis statement. The respondent denied all the charges and inter alia alleged that the letter of 21‑5‑1979 and the telephone call from the office of the Registrar with regard to the prohibition of registration of financial companies were received by him after he had already registered the company in question and that when he received the call he had informed the officer concerned that he had already registered a company on that very day.

4. The Inquiry Officer did not specifically find the respondent guilty of registering the company in violation of the departmental instructions, but observed that after he had been informed of the prohibition he should have held back the certificate: of incorporation. He found that the official record had been tampered with in order to show that the company had been registered prior to the receipt of the instructions in the office. He held that the registration fee was short charged but this was not a deliberate action. He also found the respondent guilty of disregarding the head office instruction with regard to keeping the record of financial companies in his custody and of having made mis‑statements. The report of the inquiry officer was placed before the authorised officer who after giving a personal hearing to the respondent came to the conclusion that the respondent had no satisfactory explanation to offer for his conduct. It is to be mentioned that from the note recorded by him on the occasion it does not appear that la;: took notice of the charge relating to the registration of financial company in this regard of the departmental instruction. However that may be, he recommended to the Establishment Division that the respondent should be reduced in rank.

5. The Establishment Division took a more serious view of tire conduct of the respondent. In its summary to the President it recommended his dismissal from service. The ground advanced in support of this recommendation was: "There is every reason to believe that the accused officer had, in fact, received telephonic instructions on 24‑5‑1979 . The action of the accused officer in registering a finance company on 26-5-1979 is thus an act of clear misconduct and casts definite reflections on his integrity." The recommendation of the Establishment Division was accepted by the President and an order of the respondent's dismissal from service was made. The respondent filed a departmental representation but it failed. He then filed an appeal before the Federal Service Tribunal. The learned Tribunal re‑examined the evidence and found that the charges levelled against the respondent had not been established. Accordingly, it set aside the order of dismissal and directed the reinstatement of the respondent with all the attending benefits.

6. It will be noticed that the order of respondent's dismissal from service was passed by the President on the basis of the summary submitted by the Establishment Division. As already mentioned, the ground given by the said Division in support of its recommendation was the alleged defiance of the respondent in registering a finance company in the face of the clear instructions of the department to the contrary. Now, it was a question of fact whether the respondent knew of the instructions of the department on the subject at the time he registered the company. The Inquiry Officer was himself not sure whether the respondent was guilty of defiance arid contented himself by saying that the respondent should have at least withheld the certificate. of incorporation after becoming aware of the departmental instructions. In making these observations he assumed that the certificate of incorporation had not yet been issued before' the departmental instructions were made known to the respondent. There is no basis for any such assumption. However that may be, the learned Tribunal re-examined the evidence and observed:‑‑ "A bare reading of the above‑ would show that charge No. 1, as framed, could not be proved in this enquiry. In spite of this, the Enquiry Officer held the appellant guilty of disregarding Head Office instructions by not making any positive efforts to atop issuance of incorporation certificate of UI & CF. This finding is irrelevant and uncalled for. Firstly, because the charge clearly was registering the company in defiance of departmental instructions and not 'issuance' of the incorporation certificate and, secondly, the Head Office never instructed the stoppage of incorporation certificate of already registered company. As the instruction was quite clear that no finance company should be registered in future, the accused appellant was not required to withhold the issuance of incorporation certificate in pursuance of the said direction. He, therefore, committed no default. Indeed there is sufficient material on record to prove that the accused‑respondent had already registered the company before he, for the first time,. received telephonic instructions of Head Office that no finance company should be registered. We are thus clearly of the view that the prosecution has failed to establish this charge and the above‑quoted finding of the Enquiry Officer is based on his misunderstanding of the matter." This being a finding of fact, we find no justification to interfere with it.

7. As the respondent was dismissed from service on the basis of a charge which was found not to have been established, the learned Tribunal was justified in directing his reinstatement. We find no merit in this appeal which is hereby I dismissed. There will be no order as to costs. M.Y.H./P‑63/S Appeal dismissed.