2007 PLC (C (PLP)

MUHAMMAD NAWAZ ABBASI, J.

This appeal by leave of the Court has been directed against the judgment dated 10-2-2001 passed by N.-W.F.P. Service Tribunal, Peshawar, whereby the appeal filed by Muhammad Ziaul Haq, respondent herein, against the order, dated 27-2-1998 passed by the departmental authority of his compulsory retirement from service, was allowed and he was reinstated in service.

2. The relevant facts in the background are that the respondent, a Sub-Engineer in Local Government and Rural Development Department (LG&RDD), Mansehra while posted at Haripur, in connivance with the Project Incharge, embezzled Government funds to the tune of Rs.1.5 million by showing the construction of 12 additional class rooms by LG&RDD in different primary schools of District Haripur in 1992, whereas these rooms were actually constructed by C&W Department during the relevant period. The Scheme of construction of additional class rooms in various schools of District Haripur was sanctioned by the Government of N.-W.F.P. Local Government and Rural Development Department under Community Uplift Programme 1991-92 and construction was to be carried out under the supervision of Project Committee, but, the funds allocated were misappropriated without the construction at the relevant sites. The appellant denied the charge and in consequence thereto, an inquiry was conducted by the Divisional Director, LG&RDD, who having made inspection of the sites with the assistance of technical staff, found that no such additional rooms were constructed rather the rooms shown to have been LG&RDD were already constructed by C&W Department. The Inquiry Officer thus, recommended appropriate action against the appellant and in the light thereof the respondent was awarded the major penalty of compulsory retirement from service. However, in appeal Tribunal reinstated him in service vide impugned judgment with the following conclusion: "In this connection the relevant record was summoned which was perused, according to which, these 12 additional rooms were constructed by the Local Government and Rural Development Department and not by the C&W Department in District Haripur during the year, 1991-92. Similarly no such alleged rooms were constructed by the C&W Department during the said period in District Haripur as is evident from Letter No.1702/6-M, dated 16-1-2001. Apart from this, the representatives of the respondent-Department namely Haji Banat Khan (A.E.), Abdur Rashid, P.O. and Sajid Gul, A.D. who attended the Court, have candidly admitted that the rooms in question have been constructed by the Local Government and RDD under the supervision of the present appellants and these were not constructed at all by the C&W Department."

3. Leave was granted by this Court vide order, dated 22-6-2001 as under:-- "This order will govern C.P. 123-P and 124-P of 2001 as they are against the common impugned judgment and involve identical questions of law and facts. (2) We have heard the learned Additional Advocate-General and the respondents in person. The impugned judgment appears to be a bit indistinct as it has not clarified as to which were the documents which favoured the stance of the respondents and which was the letter on the basis whereof the respondents were found entitled to the relief sought for. Moreover, it is also to be examined as to whether the learned Tribunal was justified in believing whatever was stated from the department, where the respondents were employed, as gospel truth. Leave is granted to consider as to whether the documents/letters etc. relied on by the Service Tribunal justify the impugned order of reinstatement of the respondents. Moreover, it would also be determined as to whether the appeal before the Tribunal was time-barred or not. We are not inclined to suspend the operation of the impugned order, however, we direct that since these appeals are relating to service, therefore, the same should be fixed for hearing within this year."

4. The record shows that a detail inquiry was conducted by the Senior Officer with the assistance of technical staff and inspection of sites revealed that funds were shown to have utilized in the construction of additional rooms of schools under the scheme of LG&RDD Department whereas the construction was actually raised by C&W Department and the funds of LG&RDD were misappropriated. Learned Additional Advocate-General has submitted that the Tribunal without appreciating the correct factual and legal position in the light of record gave verdict in favour of respondent on the basis of concession made by the departmental representative.

5. Learned counsel for the respondent, on the other hand, has argued that the departmental authority passed the order on the basis of preliminary inquiry conducted behind the back of respondent and neither he was supplied copy of inquiry report nor was provided proper opportunity of hearing and was condemned unheard. Learned counsel submitted that no evidence was brought on record to show that the additional rooms were constructed by C&W Department whereas the departmental representatives have categorically stated before the Tribunal that the rooms in question were constructed by the LG&RDD during the year 1991-92.

6. Having considered the contentions raised by the learned counsel for the parties in the light of record we have found that in addition to the preliminary inquiry, a proper inquiry was also conducted in the matter by the Division Direction, LG&RD Department, Malakand Division. The Inquiry Officer having considered the reply of the respondent to the charge held him guilty and the contention of the learned counsel for the respondent that in view of the position explained by the departmental representatives before the Tribunal, the finding of Inquiry Officer and the order passed on the basis of inquiry report would have no legal value, has no substance. It may be seen that the Tribunal instead of appreciating the factual position on the record, decided the matter on the basis of concessional statement made by the departmental representatives and thereby failed to decide the appeal in proper exercise of jurisdiction.

7. The controversial question relating to the construction of the rooms in question was decided in the light of evidence brought on record of the concerned department, on the basis of which, the finding of the Inquiry Officer was that the rooms in question were constructed by C&W Department and respondent has not been able to satisfy us that the findings were contrary to record and the competent authority proceeded against the respondent without any basis. 7-A. Having heard the learned counsel for the parties and scrutinized the record with their assistance, we have found that the finding of the Tribunal being not based on the record, was suffering from the defect of misreading and non-reading of evidence brought on record in support of charge.

8. In the light of foregoing discussion, we allow this appeal, set aside the judgment of the Tribunal and restore the order of compulsory retirement of respondent passed by the departmental authority. There will be no order as to costs. M.H./C-8/SC Appeal allowed.