1988 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).--This appeal was allowed by short order, dated 2-5-1988 which reads as under:-- "Appellant and his counsel Mr. Manzoor Ali Khan present. Mr., Abdul Sayeed Khan Ghori present on behalf of the official respondents. Heard arguments of the learned counsel for the parties. The appellant has made a statement in writing which -is also signed by his learned counsel stating therein that he does not press the appeal on merits and requests for reduction in punishment. For reasons to be recorded later, the punishment of dismissal awarded to the appellant is modified as reducing his pay, for five years, to initial stage in the time scale admissible to the appellant at the time of passing the impugned order. Subject to this modification in the punishment the appeal is partly allowed. There is no order as to costs. Following are the reasons in support of the above order. The appellant was appointed as Food Supervisor in 1976. Prior to that appointment he was working as a Junior Clerk since 1-1-1970 in the same Food Department. While he was posted at Diplo as Food Supervisor, he received a* telephonic- message on 5-7-1981 to the effect that his maternal grandmother had seriously - fallen sick at Hyderabad. As he looked after the lady as her sole guardian, he rushed to Hyderabad leaving the keys of the godowns in his charge with Ahmad Bajir, the Chowkidar of the godowns. His grandmother, however, died on 6-7-1981 and the appellant returned to his duties on 9-7-1981. During the period of his absence the aforementioned Chowkidar allegedly misappropriated about 192 bags of sugar stored in the godowns with connivance and collaboration of labourers. However, the shortage of sugar was made the basis for initiating the departmental action against the appellant. He was served with two charge-sheets, first on 3-9-1981 and second on 5-12-1981. In his separate replies to the said charge-sheets, one dated 1-10-1981 and another, dated 27-12-1981, he refuted the allegations of misappropriation of sugar. Mr. M.H. Awan, Assistant Director, Food Hyderabad, who was appointed as an Inquiry Officer held enquiry into the allegations contained in both the charge-sheets and submitted his report on 1-3-1982 to the Deputy Director Food Department, Hyderabad. On the basis of his report show-cause notice was issued to the appellant on 6-4-1982 to which he replied in May, 1.982. He once again denied the charges made against him. Thereafter, the Deputy Director, Food, by his order, dated 20-6-1982 removed the appellant from service. He preferred usual departmental appeal, dated 17-7-1982 to tile Director Food. Meanwhile on 18th October, 1981 Military Team inspected the Sugar Godowns at Diplo when shortage of 1,882 Kgs. of Sugar worth Rs.7,500 was detected: A case was registered against the appellant who was ultimately tried and convicted by Summary Military Court, Mirpurkhas. By the judgment, dated 28-2-1983 he was sentenced to R.I. for one year and 10 lashes. As a result of the decision of the Summary Military Court, the punishment of removal awarded to the appellant in the departmental case was converted into that of his dismissal from service vide order of Deputy Director, Food Department, Hyderabad, dated 9th/10th February, 1985. However, on petition made by the appellant to the Martial Law Administrator, Zone 'C' Karachi, he was not only pardoned in respect of his conviction, but also he was ordered to be reinstated in service vide Memo. No. 146/36/ML/A-J, dated 23rd December, 1985 issued by the Headquarters of Martial Law Administrator, Zone 'C'. It was further directed in the same memo. that the intervening period between the appellant's conviction .arid his ultimate resumption' of his duty would be regularised .as permissible under the rules and regulations applicable to him. Pursuant, to the above order of Martial Law Administrator, the appellant approached the departmental authorities for his reinstatement whereupon he was intimated by Food Department's Memo. dated 12th January, 1987 which according to the appellant was received by him on 17th January, 1987 that his request for reinstatement was duly considered but was rejected. Against the said order appellant- preferred Appeal No. 10 of 1987 before this Tribunal on 11-2-1987. On the same date as a measure of abundant caution, the appellant also went in departmental appeal before the Chief Minister under section 23 of the Sind Civil Servants Act, 1973 read with the Sind Civil Servants (Appeal) Rules, 1.980. As apprehended by the appellant his Appeal No. 10 of 1987 was dismissed by the Tribunal as being premature. Accordingly the appellant waited for statutory period of 90 days from the date on which he made appeal to the Chief Minister but as no order was made by the said appellate authority within the statutory period, the appellant once again filed the present appeal before this Tribunal. We heard the elaborate arguments of the learned counsel for the parties and also went through all the documents necessary for disposal of the appeal. As stated in the short order reproduced above, the learned counsel for the appellant did not press the appeal on merits. Therefore, it would be useless to go into the detailed discussion of the merits of the case. However, prayer was made on behalf of the appellant that penalty of dismissal awarded to him may be modified as it was not commensurate with the gravity of charges nor is it called for in the circumstances of the case. We have carefully considered tile arguments made at the Bar in this regard. It is an admitted position that the specified quantity of sugar disappeared from the godowns m appellant's absence from the place of his duty. II is also admitted that during the period of his absence the keys of the godowns were left with Ahmad Bajir, the Chowkidar. This is borne out from the Enquiry Report the relevant portion of which reads as follows:-- .......that the foul was played with the stocks (sugar) during the said period of absence of the accused official (Appellant)." There is no evidence oil record that the sugar in question was removed with collusion or connivance of the appellant. Accordingly the appellant could not be held responsible for tire alleged misappropriation of the Sugar. He could at the worst be liable for gross negligence. As for this, it is not denied that the appellant has made good the entire loss resulting from his negligence. This is confirmed by the enquiry report which reads as follows:-- "That on 5-8-1981 Kazi Abdullah came to him and gave him in writing that he was prepared to make payment towards the shortage and accordingly a challan was prepared by his office and an amount of Rs.1,42,000 was credited by Kazi Abdullah towards cost of 142 bags of sugar (14,200 Kgs) at the rate of Rs.10 per Kilo and again on 23-8-1981. Kazi Abdullah requested for a challan of Rs:50,000 towards cost of remaining 50 bags (5,000 Kgs. sugar) which was got prepared and given to him and Kazi Abdullah credited the said amount also. The next point worthy of mention is that the appellant served out the full sentence of one year's imprisonment awarded to him by the Summary Military Court, for the same charge and thereby suffered punishment, notwithstanding his payment for the entire loss caused due to lapses on his part. The other factor which merits our consideration is that the Martial Law Administrator Zone 'C' by his order dated 23rd December, 1985 not only granted pardon to the, appellant in respect of his conviction by the Summary Military Court but also directed for his reinstatement. Although the Martial Law Administrator's order for reinstatement of the appellant was not binding on the authorities concerned on technical grounds. Yet it could be accepted as recommendation of the Governor, as then the Martial Law Administrator was acting in that capacity also. Apart from above the appellant has suffered the agony of being dragged in this case for nearly eight years at the very cost both in terms of moral setback and financial loss. We also cannot ignore tire fact that the appellant is still a young man in thirties with a family to support particularly in these hard days when it is difficult to gel a job. From above discussion we are inclined to feel that the appellant has already been adequately punished for his lapses as has been discussed above, and therefore, his dismissal or removal from service would not be justified in the circumstances of the case. Some lenient punishment would meet the ends of justice. Accordingly while maintaining the order with regard to appellant's being guilty of the charges, we modify the penalty imposed on him and order that he would get his pay for next five years (to be reckoned from the date of his resumption of duty) at tire minimum of the time-scale admissible to him on the date of the impugned order passed against him. The intervening period from the date of his exit from service to resumption of duties would be treated as leave without pay. Subject to modification of the penalty as stated above, the appeal is partly allowed to the extent of such modification. However, there will be no order as regards the costs. S.Q./ 155/Sr.S Appeal partly allowed.