2004 PLP (C (PLC(CS))

FARIQ MUHAMMAD KHOKHAR, J.‑‑‑This appeal; by leave of the Court is directed against the judgment dated 3‑11‑2000 passed by the Federal Service Tribunal, Lahore in Appeal No.669(L) of 1998.

2. The appellant was issued a shore‑cause notice dated 12‑12‑1997 by the respondents in that during his posting as Zonal Head, PASSCO, Layyah, he utilized 95 Kgs. capacity bardana for filling of 100 Kgs wheat without the approval/permission of Competent Authority and continued that practice for months together. He was issued another show cause notice dated 15‑12‑1997 on the allegations inter alia, that while posted as Zonal Head, PASSCO, Khanpur, he internationally managed to dispatch 5260, M. Tons wheat to the Food Department of Balochistan, over and above the allocation of 12632 M. Tons without any authorized allocation by deliberately concealing from the department the excess dispatches. The appellant denied the charge in his reply. By order dated 20‑2‑1998, the Competent Authority awarded' him the penalty of compulsory retirement from service. The departmental appeal of the appellant remained undecided. Therefore, ‑he preferred an appeal before the Federal Service Tribunal, Lahore, (hereinafter referred to as the Tribunal but the same was dismissed by the impugned judgment dated 3‑11‑2000.

3. The learned counsel for the appellant argued that the excess dispatch of the wheat to the Food Department of Balochistan had been made by the appellant in good faith so that the stock‑should not get damaged and that Khanpur Zone being an open zone was of under serious threat of deterioration of stocks due to reasons beyond control. The appellant had also fin understanding .that further allocation to the Food Department of Balochistan from Khanpur Zone was in the offing. The PASSCO had claimed the total bill from Khanpur Zone and was in receipt of sale proceed from the Government of Balochistan. No financial loss whatsoever was sustained by the respondents. The learned counsel pointed out that in another similar case of Multan Zone, the excess dispatches had been covered tip by subsequent allocations. He brought to our notice the judgment dated 30‑5‑2001, passed by the Tribunal in Appeal No.1093(L) of 1998, in order to show that compulsory retirement of one Ch. Rashid Ahmed, an officer of PASSCO from service was set aside in similar circumstances and he was reinstated in service but subject to initiation of fresh disciplinary proceedings in accordance with law. The learned counsel submitted that without regular inquiry the charges against the appellant could not be said to have been proved. According to the learned counsel, the appellant had been discriminated against as one Asghar Ali Bajwa, Deputy General‑Manager, Head Officer, PASSCO, had been awarded a minor penalty of stoppage of one annual increment for a period of one year on somewhat similar charges.

4. On the other hand the learned counsel for the respondents submitted that the appellant had admitted the allegations in his reply to the charges. Therefore, the departmental authorities had not considered it appropriate to hold the regular inquiry in the case. However the Inquiry Board constituted for the purpose had found the appellant as guilty of the charges.

5. We have heard the learned counsel for the parties at length. The appellant had admitted factual position of filling 100 Kgs. wheat in the gunny bags each with 95 Kgs. capacity. Similarly, there was no denial on his part of excess dispatch of the wheat to the Government of Balochistan. However, there is nothing on record to show that, before passing the order dated 20‑12‑1998 of the compulsory retirement of the appellant, the respondents had at all considered or dealt with his explanation to the show‑cause notice wherein he had pleaded good faith in dispatching the excess wheat to Balochistan on the ground that the wheat stocks were in serious threat of being deteriorated as Khanpur Zone was an open Zone. The said order suffers from non‑application of mind. The impugned judgment of the Tribunal is also silent on this aspect of the case and, therefore, is not sustainable in law

6. For the foregoing reasons, this appeal is accepted and the impugned judgment dated 3‑11‑2000, passed by the Tribunal is set aside. The appellant shall be reinstated in service by treating the intervening period as leave of the kind due. The respondents may conduct a regular inquiry into the charges against the appellant, if so desired but without being prejudice by any observations of this Court made above No order as to costs S.A.K./-50/S Appeal accepted.