1988 PLP (C (PLC(CS))

19‑12‑1978 20 litres 1820 20‑12‑1978 201itres 1825 23‑12‑1978 20 litres 1826 24‑12‑1978 27.5 litres 0you have thus with mala fide intentions and criminal motives misappropriated the cost of 189.9 litres of petrol and put a financial loss ' to the RIC Fund." In reply to this charge the appellant has stated that the slips for petrol were issued by him as and when required and that the staff car remained at the disposal of the Head Quarter during the month of December except for 4 to 6 days when it was with him. Like his argument on charge No. 4 he contended that this charge which also speaks of misappropriation of the amount due on POL was not, proved. It seems both sides have made more or less same arguments as they made on charge No.4. It is admitted on both hands that the bill as regards the supply of petrol preferred by the; petrol pump was subsequently cancelled and as such no payment was made on that account by the Directorate. As stated in the discussion on charge No.4 it was not proved by oral or written evidence of the owner of the petrol pump that the amount of the cancelled Bill was partly adjusted towards the fixed amount of Rs.1000 deposited with him. We have also held that the appellant cannot be held liable for misappropriation of the amount in question only because the fixed deposit of Rs.1,000 said to have been held by the onwer of the petrol pump was not accounted for in the cash book. We have also held that there was no proof that it was the duty of the appellant to have accounted for Rs.1,000 in the cash book. Moreover the appellant's pica that the entries in this regard arose after he handed over the charge of his office has gone unchallenged. After considering the material on record and the arguments of both the parties, of course, we have some mental reservations with regard to appellant's attitude vis‑a‑vis his dealings with the petrol pump owner but the benefit of doubt will still be given to the accused official. Accordingly we hold that charge No.5 has not been proved. The sixth charge is as under:‑‑ "

6. You handed over the charge of the post of Assistant Director (Apprenticeship 'Training) on 23‑12‑1978 but unauthorisedly issued a petrol slip No.1826, for 27.5 litres of petrol on 24‑12‑1978 the day on which you were on leave on account of sickness. Your action exhibited an ulterior motive to misappropriate the cost of above quantity of petrol." It is submitted by the appellant that he had issued the petrol slip in question (No.1826 for 27.5 litres) on 24‑12‑1978 though he had handed over the charge of the Assistant Director a day earlier i.e. on 23‑12‑1978. However, his explanation was that he still retained the charge of officer Incharge of R.I.C. which he handed over only on 28‑12‑1978 as was evident from the cash book. Thus his argument was that he was within his authority to issue petrol slip for the staff car, on 24‑12‑1978. As disclosed in the written statement filed by the respondents, the appellant was authorised to operate the R.I.C. Fund only m the capacity of Assistant Director and since he had ceased to hold the latter office on 23‑12‑1978, the petrol slip issued by him on 11,k, following day i.e. 24‑12‑1978 was unauthorised. We are inclined to agree with the respondents' view on this charge. The Officer Incharge R.I.C. was not a separate office. The appellant could 1 exercise the powers with regard to R.I.C. Fund while holding the post of Assistant Director. 14avincr delivered his charge as the said Officer, he had no power to g authorise any expenditure from the R.I.C. Fund. Accordingly we hold that the appellant had issued the petrol slip on 24‑12‑1978 unauthorisedly and as such this charge was proved against him. The: seventh charge is worded as follows:‑ "

7. You indulged in irregular purchases of items of stores and printing work taken from the R.I.C. Fund in respect of‑‑ (1) Printing of 10,000 Index Cards for Rs.2,150 from M/s. Oriental Stationers, Karachi vide cheque No.C18083, dated 16‑5‑1977 without proper sanction of the competent Authority. (ii) Stationery of the value of Rs.672 from M/s. Abdul Qayum & Co., Karachi vide Cheque No. 118109, dated 5‑8‑1977 without proper sanction of the competent Authority and without inviting quotations. (iii) Stationery for Rs.730 from M/s. Abdul Qayum & Co. Karachi vide cheque No.018110, dated 9‑8‑1977 without proper sanction of the competent authority and without inviting quotations. (iv) Stationery for Rs.818.75 from M/s. Abdul Qayum & Co. Karachi vide cheque No.018138, dated 1‑12‑1977 without proper sanction of the competent Authority and without inviting quotations. (v) Attendance ‑ Time Recorder Machine was purchased for Rs.10,147.50 through M/s. Oriental Stationers (General Order Suppliers) Karachi vide cheque; No.0181411, dated 6‑12‑1977 when M/s. Limton Watch Co. Karachi were the sole Agents for the supply of this particular item in Karachi. No proper sanction was obtained for purchase of the Time Recorder Machine from the competent Authority. (vi) Stationery for Rs.567 from M/s. Abdul Qayum & Co., Karachi vide cheque No.018142, dated 27‑12‑1977 without proper sanction or inviting quotations. (vii) Printing of 5000 R.I.C. Certificates for Rs.6,000 from M/s. Abdul Qayum & Co., Karachi vide cheque No. 018141, dated 24‑12‑1977 without proper sanction of the competent Authority and without inviting quotations. (viii) Purchase of 3 office Durries of Rs.2,268 from M/s. Abdul Oayum & Co., Karachi vide cheque No.018149, dated 7‑1‑1978 without proper sanction of the competent Authority and without inviting quotations. (ix) Stationery for Rs.258 from M/sAbdul Oayum & Co., Karachi vide cheque No.112316 dated 9‑3‑1978 without inviting quotations. (x) That you have made fraudulent purchases from only one supplier viz. M/s. Abdul Qayum & Co., Karachi who have no address and without obtaining proper Cash Memo. You have thus adopted corrupt methods for purchase of stores and stationery items without obtaining proper sanction from the competent Authority and without inviting quotations to make purchases economically and on competitive prices thereby deliberately and with criminal purpose caused financial loss to the R.I.C. Fund." Refuting the charge emphatically the appellant has stated in his reply that not only quotations were invited but also the supply orders were placed with those suppliers whose quotations were lowest. As for obtaining sanction of the competent Authority his explanation is that all purchases were made in accordance with prevalent practice/precedents. According to the appellant there existed no precedent case m which any sanction was obtained by the Assistant Director for such purchases. Of course we were not shown any rules/instructions by the learned Government Counsel which prescribed any particular authority for making the purchases of the type mentioned in the charge. On the other hand it is common ground that the Assistant Director was authorised to operate the R.I.C. Fund. Moreover the appellant has referred to the precedent purchases made by his predecessor, Mr. S.H. Siddique who too had made purchases up to Rs.33,900 without sanction of any other authority. Therefore, we are of the view that it was not proved that the appellant was not competent to make the specified purchases. However, it was totally a different issue whether he made the said purchases at competitive rates. No doubt the appellant himself claims that he had not only invited pre‑purchase quotations but had also purchased the goods at the lowest rates. But in support of his claim the appellant has produced no evidence oral or documentary. On the contrary almost all the purchases are shown to have been made from the M/s. Abdul Qayum & Co. whose existence was challenged by the respondents. We have also held in the earlier paragraphs that the existence of the said Firm was doubtful. Accordingly the above charge stood proved to the above extent. The eighth charge reads as under: "You managed to terminate and transfer 3 Apprentices as named below from M/s. Eastern Automobiles to other notified undertakings without the sanction of the competent Authority as required under Rule 36 of the Apprenticeship Rules, 1966. (1) Mr. Muhammad Atharullah from Eastern Autos to Modern Motors. (2) Mr. Anwar Hayat from Eastern Autos to Awami Autos. (3) Mr. Azad Hussain from Eastern Autos to Awami Autos. You have therefore, exercised the powers of the competent Authority when you were not in any way authorised to assume powers as such. Thus you have committed criminal breach of service discipline and the confidence exposed in you in contravention of the mandatory provision of the Ordinance." The allegation against the appellant is that he managed not only to terminate the contracts of three apprentices specified in the above charge but also to transfer them from M/s. Eastern Automobiles to other notified undertaking without sanction of the competent authority. No doubt he has vehemently denial the charge of termination of the contract of the above apprentices. But as regard the charge of transfer of the said apprentices his reply is: The transferability of two apprentices namely Mr. Atharullah and Mr. Azad Hussain was arranged with M/s. Modern Motors Ltd., Karachi on their own request, the apprentices were sent to the undertaking to continue their training and their case for approval of competent authority was under process when Mr. Azad Hussain left his training of his own accord and without any information to employer and R.D.A.T. The case of Mr. Atharullah was being sent to the competent authority when the undersigned was sent on forced leave " From the appellant's above reply we are clear in our mind that at least he had managed for transfer of the Apprentices, namely Mr. Muhammad Atharullah and Mr. Azad Hussain from M/s. Eastern Automobiles to other undertakings. According to rule 36 of Apprenticeship Rules, 1906, "no apprentices shall be transferred from one employer to another employer except with approval of competent authority .. "."Competent Authority" is defined in section 2(d) of apprenticeship Ordinance, 1962 to mean such officer as is notified by the Provincial Government. Certainly it is not the claim of the appellant that he w&. notified as competent authority. On the contrary his reply further shows that the cases of transfers of above two Apprentices were being sent for post fact. sanction of the competent Authority when one of them left his training and before forwarding of the case of the other, the appellant himself left the scene as he was sent on forced leave. From the above, the irresistible conclusion can be drawn that the appellant had arranged the transfer of two apprentices from one undertaking to the other in clear violation of the rules. The Enquiry Officer in his report has also reached the same conclusion. There is however, no proof that the appellant had also managed the termination of contract of any of the three specified apprentices. Accordingly we hold that the charge No.8 is partly proved against the appellant. Now we come to the charge No. 9 which reads as follows:‑‑ "

9. That you with ulterior motives and in conjunction with Mr. Saeed Akhtar, Officer Incharge Related Instruction Course, Dawood Cotton Mills, Landhi, fraudulently paid the following amount as Honouraria to the staff engaged for Related Instruction Course being run at Dawood Cotton Mills, Landhi, Karachi when no classes for Related Instructions Course were held physically during August, 1978 to November, 1978. S.No. Month Amount Cheque No. Date

1. August 1978 Rs.2,330 112364 27‑8‑1978

2. September, 1978 Rs.2,330 112372 28‑9‑1978 3 October 1978 Rs.2,330 112381 1‑11‑1978

4. November 1978 Rs.2,330 112389 2‑12‑1978 On this charge we have noted the reply given by the appellant and also the findings recorded by the Enquiry Officer. There is absolutely no indication the enquiry report that the amount of honorarium for the months of August, September, October and November, 1978 payable to the staff engaged for giving, instructions was not paid to them but was pocketed by appellant himself Further, as is clear from the charge the amount had been admittedly paid to the said staff. Therefore, the only allegation that remains against the appellant under this charge is that he made payment to them in spite of the fact that they gave no instructions during the said period. In this connection the appellant reply is to that no complaint whatsoever from the employers, apprentices, teaching staff was ever received by him regarding discontinuation of classes at D.C.M Lid. Landhi, Karachi till his proceeding on forced leave .' However, as is disclosed in the enquiry report the other side has placed reliance on written complete from M/s Niaz Khan, Muhammad Mustafa and Naeem Akhtar Apprentices regarding non conduction of theory classes to the Assistant Director, Apprenticeship Training who physically visited and checked Dawood Cotton Mills and found that actually classes were not being held since August, 1978. It seems neither the Assistant Director to whom written complaint was made nor the applicants who made such complaint to him were examined in course of the enquiry and as such no opportunity was given to the appellant to rebut them 5y cross‑examination or by examining his own witnesses. Moreover, proper enquiry had to be made on the written complaint as regards the discontinuance of the theory classes and if the fact of discontinuance was proved even then the teaching staff could not be made to suffer by non‑payment of their honourarrurn without hearing them. After making such thorough enquiry, it was only the authority having power to engage them for instructions which had to pass appropriate order prohibiting payment of honorarium to them for the disputed months. The appellant was not supposed to stop the payment on his own volition. Keeping all these factors in view we hold that charge No.9 was not proved against the appellant. The tenth and last charge is in the following words: "

10. You have incurred expenditure as detailed below for entertainment beyond the prescribed limit and without sanction of the competent authority. (1) 8‑6‑1977 Rs.119.40 (2) 2‑8‑1977 Rs. 94.80 (3) 6‑10‑1977 Rs.127.75 (4) 1‑11‑1977 Rs. 91.50 (5) 4‑12‑1977 Rs.121.40 (6) 2‑1‑1978 Rs. 91.00 (7) 4‑11‑1978 Rs. 87.00 (8) 2‑12‑1978 Rs.124.70 You have with criminal intention and fraudulently misappropriated the above amounts from R.I.C. Fund. For the above reasons you appear. to be guilty of gross misconduct corruption and criminal misappropriaton of funds and have rendered yourself liable to all or any of the major penalties described in the Sind Civil Servants (Efficiency and Discipline) Rules, 1973." The appellant's explanation with regard to the above charge was that since no limit was fixed on entertainment expenditure he could not be said to have exceeded his power in incurring the expenditure listed in the charge. In support of his explanation he has placed reliance on precedent expenditure for the same purpose. However, the enquiry report shows that the competent authority had fixed the limit of Rs.80 (EXh.A‑33 of the enquiry record) per month. Mr. Ahtram Mazhar Siddique of the Directorate who was produced in evidence in course of the Enquiry had also stated before the Enquiry Officer and in reply to question put to him by the appellant that the limit of entertainment expenditure per month was Rs.80. Accordingly we have no reason to doubt the finding of the Enquiry Officer in this regard. The Enquiry Officer has rightly observed that the appellant could not take shelter of the precedent expenditure. May be the expenditure incurred previously was in violation of the prescribed limit. For these reasons we hold that this charge was also proved against the appellant. From above discussion it is clear that majority of the charges have been proved whereas some charges have been partly proved or not proved. Keeping this in view we feel that the appellant deserves some concession in the penalty. G Consequently the penalty of dismissal imposed upon the appellant is converted into removal from service. Subject to this modification in penalty, appeal is dismissed with no order as to costs. AA./166/Sr.S Appeal dismissed.