1988 PLP (C (PLC(CS))

5. It has been submitted by the learned counsel for the appellant that the appellant has been punished arbitrarily, unlawfully and without any fault. He has also pointed out that the appellant has been imposed the penalty on surmises, conjectures and on the whims of the Departmental Authorities. He has taken the following stands: - (i) The stock was actually in the physical custody of the Food Inspector, Mirza Shuja Baig and the appellant was only performing the duties of supervisory nature. (ii) The appellant was also incharge of P.'R. Wheat Centre. In addition, he was given the duties of Sugar Godowns. Thus, he was burdened with dual duties, which he tried to carry out according to best of his ability and perfection. (iii) 21,000 bags of sugar were stored in 3 Godowns as against the capacity of 15000 bags. The stocks were in uncountable position and scattered. This discrepancy was also noticed by the District Food Controller at the time of his detailed inspection (Annexure A/1). Mirza Shuja Baig, inspector, who was holding the physical charge of the Godowns was asked to tally the total account of receipts and issues with the physical position of the stock. In the meanwhile it came to the notice that some quantity of sugar had been stolen from the godowns by the night Chowkidars and the case had been registered by the Incharge Police Station, Nawankot. He immediately reported the matter to the higher authorities. (iv) The appellant was not found responsible or even suspected for the shortage so attributed to him at any stage during the investigation of this theft case by the police and even when the challan was put before the trial Magistrate as the criminal case is pending trial in the Court of Sardar Muhammad Gorasi, the learned Magistrate, 1st Class, Lahore. (v) The learned counsel for the appellant has relied upon the enquiry report dated 21-8-1984 (Annexure A/11) of the Enquiry Officer, Mr. Riaz-ul-Hassan, AFC (in the case of Chowkidars) wherein clear cut findings are to the effect that the accused Chowkidars had committed theft of sugar during the nights when they were on guard duty with the connivance of Asghar Masih and Salamat Masih. In the said enquiry the appellant was also associated and produced by the prosecution as P.W.II and not as an accused. It was further submitted that on the basis of independent evidence recorded by the said Enquiry Officer and detailed examination of the case, the appellant was not held responsible for the alleged shortage of the sugar as this misconduct was proved against the Chowkidars by the Enquiry Officer who held the Chowkidars alone responsible for the said theft and none else. (vi) The learned counsel for the appellant pointed out that the appellant was served with a show-cause notice with a specific charge of misappropriation of 899 bags of sugar wherein it was also alleged that this misappropriation was done with ulterior motives and personal benefits. Also a statement of allegations was attached with the show-cause notice. But, the appellant was proceeded under Rule 6(3) of Punjab Civil Servants (E & D) Rules, 1975 and no regular enquiry was held. This is against the settled law, as in a number of cases it has been held by this Tribunal that where there is a charge of misappropriation and corruption, regular enquiry is a must. He has also relied on the judgment of the Supreme Court of Pakistan reported as P L D 1974 SC 393 in case of Muhammad Siddique Javed Chaudhry v. Government of West Pakistan, wherein a law has been settled by the Honourable Supreme Court of Pakistan that in a case involving charge of corruption a regular enquiry is a must. The learned counsel for the appellant contended that if a regular enquiry would have been ordered in this case it would have been brought to the notice of the Authority by the Authorised Officer that already fullfledged regular enquiry had been conducted in this particular case, wherein only the concerned Chowkidars were found guilty of theft of the same sugar so attributed to the appellant. (vii) The learned counsel for the appellant also pointed out that in this case, proper mind had not been applied by the Authorised Officer, as he was the same authority who had already punished the Chowkidars on this score as an 'Authority' but without applying his mind judiciously, he made recommendations against the appellant for punishing him on the same issue which had already been decided by him. It was in the knowledge of the Authorised Officer that on the same charge he had held the Chowkidars guilty for the said shortage and punished them. They were challaned and their case is presently under trial with the learned Trial Magistrate and the appellant is appearing as a prosecution witness in the trial case. (viii) It has been further pointed out by the learned counsel for the appellant, that under para II) of the parawise comments submitted by the respondent No.2, it has been mentioned wrongly that necessary departmental enquiry was held. Actually no departmental enquiry was held as mentioned above and the respondent has not stated the correct facts. Also the appellant was not supplied a copy of the Enquiry Report but actually was only supplied the copy of the recommendations of the Authorised Officer (Annexure A/18).

6. Concluding his arguments the learned counsel for the appellant has submitted that keeping the above facts in view, the appellant has been arbitrarily punished, hence the impugned order is illegal and nulity in the eyes of law. Thus, he has prayed that the impugned order be quashed.

7. On the other hand the learned District Attorney Assisted by the representatives of the respondents and relying on the parawise comments of the respondents has submitted that the appellant is estopped by his own conduct because of his written undertaking dated 10-5-1984 given by him voluntarily to the Secretary Food, Punjab, Lahore in which he accepted his liability to refund the entire amount of loss. It has, therefore, been submitted that the appellant has accepted the liability etc. of the loss and he cannot approbate and reprobate by denying the charge in the presence of said undertaking. As regards the contention of the appellant's counsel that regular enquiry was necessary, it has been argued that in view of the appellant's own admission in his undertaking mentioned above it was not necessary to hold an enquiry. It was also submitted that the shortage of 899 bags of sugar was detected in the presence of the appellant when the sugar stock was physically checked in his presence, as details given in the show-cause notice dated 16-9-1984 (also mentioned in para 3 of this Judgment). This shortage occurred due to negligence of the appellant. Hence, he was held responsible for the same and the recovery was validly ordered. Thus, the impugned order is a valid and lawful order and no exception can be taken against the same.

8. However, the learned counsel for the appellant contested the above contention of the learned District Attorney regarding the undertaking. He referred to the undertaking (Annexure A/15) and submitted that it was not tendered voluntarily but it had been obtained under undue influence, duress and coercion. In this undertaking as well as in his explanation submitted to the show-cause notice, the appellant had not accepted liability of the shortage. He argued that the appellant had made it clear that the bags in question had been stolen by the Chowkidars and at the time when the stocks were physically in the charge of Foodgrain Inspector. He particularly referred to the following wording of this undertaking (Annexure A/15) "this undertaking is without prejudice to any action, for the time being under process and intended to be........."and meantime department 'will not take any action in any form against me and if possible the Departmental Police will offer full cooperation and help in the process of recovery of stolen property. This instrument will not be taken as an admission in any form, in any way etc. Time to time the department will afford cooperation in the deposit of recovery into Government Treasury under proper head of account". In support of the above proposition, the learned counsel for the appellant has relied upon the Judgments of the High Courts reported as P L D 1962 (W.P.) Karachi 409 and P L D 1965 (W.P) Lahore

729. He had submitted that since the undertaking was obtained from the appellant by the respondents under undue influence, the same stands vitiated and is a void document which cannot be used against him.

9. I have given my anxious thought to the arguments of the parties and have consulted the complete record of this case i.e. personal files of Chowkidars involved in this case, stocks register and other relevant files etc. etc with the assistance of the representatives of the respondents. From the perusal of the record, this fact is admitted that the theft had taken place in the sugar stores of the Food Department, Punjab, situated in Gulberg. Accordingly the Chowkidars are held guilty of theft and a departmental action of removal from service/reduction in stages of pay was taken by the competent authority. Similarly the theft has also been established during the police investigations and the case is pending trial before the learned Trial Magistrate. I have carefully gone through the regular enquiry report dated 21-8-1984 (Annexure A/11) submitted by Mr. Riaz-ul-Hassan Assistant Food Controller. The enquiry was conducted by the Enquiry Officer against the 7 Chowkidars involved in the theft of the sugar, wherein the appellant had appeared as P.W.II. After thorough enquiry the enquiry officer gave the following findings.- "In the end after applying my own mind judicially to all aspects of the case as well as the circumstances, documents and statements of PWs 1 to 6 and recovery of 535 bags empties and 12 bags of sugar, key and seal from them, I am of the opinion that all the accused chowkidars were committing, theft of sugar during night when they were on guard duties with the connivance of Asghar Masih and Salamat Masih. It is what a fate of irony that the custodians/ Chowkidars of stocks committed the theft themselves in such a organized manner that uptill 22-4-1984 it could not be detected by anyone. The recovery of 524 empties and 12 filled bags goes to prove that these accused were indulged in the evil designs for much longer period. Hence I recommend that such a detergent punishment may kindly be awarded to them which will not only be an eye opener, but also no one dare to follow their foot prints in future. So far as the extent of theft is concerned it is for the police Authorities to decide where the case is under investigation." The perusal of the above findings of the Enquiry Officer clearly established the fact that the Chowkidars alone were guilty of the theft in connivance of Asghar Masih and Salamat Masih and there is no mention or any suggestion in the enquiry report that the appellant was also involved in the alleged theft/shortage of the sugar so attributed to him at later stage. After receipt of the enquiry report, the District Food Controller (R) Lahore who was the competent authority for Chowkidars punished the 4 Chowkidars M/s. Ahsas Ali, Muhammad Abdullah, Ghulam Mustafa and Abdul Ghani vide order dated 22-9-1984 passed individually in each case. The relevant portion of this order from the file of Ahsas Ali which is similar in the other above 3 cases is reproduced as below:- "

3. However, the accused Chowkidar was served with show cause/ personal hearing notice under Rule of 8 of the (E&D) Rules, 1975, vide memo. No.FC-E-84/12409 Dated 23-8-1984 as to why he should not be dismissed from service, he was heard in person on 3-9-1984. As regards charge No.(i), the accused Chowkidar pleaded that he submitted leave application on 16-4-1984 at Gulberg P.R. Centre for grant of leave from 11-4-1984 to 18-4-1984 (whereas he was absent from duty from 10-4-1984) and remained absent till 9-6-1984. No other leave application was submitted by him to the Incharge Centre or the District Office although he was granted interim bail before arrest on 12-5-1984, which was later on confirmed. So, he could submit the leave application to the Incharge Centre or the District Office. He submitted a Medical Certificate from the private medical practitioner to the Enquiry Officer during the course of Enquiry on 10-7-1984 regarding his illness from 10-4-1984 to 8-6-1984. It is, strange that he was sick but he was attending the Court for his bail and Police Station and could not submit leave application. This shows that the Medical Certificate furnished by him is bogus. So, the charge of wilful absence from duty is proved against him. It is a fact that a case was registered against him with the police station Nawan Kot, under F.I.R. No.195/157 dated 21-4-1984 regarding theft of sugar from Gulberg Centre alongwith other accused and his name is mentioned in the said F.I.R. so the charge No.(ii) regarding involvement in the theft case of sugar is also proved.

4. I have examined the enquiry report, written, reply of the accused and the explanation tendered by him during the course of personal hearing, both the written and oral explanations furnished by him are unsatisfactory. There is no reason to differ with the findings of the Enquiry Officer." In case of other three Chowkidars involved in this case i.e., M/s. Khadim Hussain, Muhammad Afzal and Rahim Bux, the orders dated 23-10-1984 were also passed individually. The order from the file of Muhammad Afzal, Chowkidar which is similar to the above 2 other cases is reproduced below:- "

3. The accused Chowkidar was served with show cause/personal hearing notice under rule 8 of the (E&D) Rules, 1975, vide memo: No. EQ-R-84/ 12409, dated 28-8-1984 as to why he should not be dismissed from service. He was heard in person on 3-9-1984. The oral statement given by the accused during the course of personal hearing was considered alongwith the relevant record. He could not give any satisfactory explanation to rebut the charge of absence from duty which clearly stands proved against him. As regards charge No. (ii) the copy of F.I.R. No.195/157, dated 21-4-1984 has been examined it does not contain his name. I do not agree with the findings of Enquiry Officer that the investigation from him as the accused Chowkidar was not arrested and police cleared him from the theft case. No person can be penalized simply on doubt unless the charge is established.

4. In view of the circumstances explained above Muhammad Afzal s/o Nabi Bux, Chowkidar is hereby reinstated in service with immediate effect with minor penalty as under:- (i) His pay is reduced by two stages in the time scale with immediate effect. (ii) The period of absence from duty w.e.f. 17-4-1984 to 10-6-1984 is treated as leave without pay. (iii) The period of suspension w.e.f. 11-6-1984 onward is treated as not spent on duty and he will not be entitled to any remuneration except that he has already drawn as subsistence allowance. (iv) His work and conduct will be kept under observation for one year."

10. The above facts detailed in para 9 above, make it clear that the appellant was not involved at all in the theft case/shortage of sugar so attributed to him. It is worth mentioning that the Enquiry Officer has mentioned in his findings as mentioned above that the recovery of 524 empties and 12 filled bags from the Chowkidars goes to prove that these accused indulged in the evil designs. As such he recommended a deterrent punishment for them.

11. On receipt of the recommendations of the Enquiry Officer, District Food Controller (R), Lahore, the Authority punished the Chowkidars on the basis of this enquiry due to their involvement in the theft case of sugar. These orders have been reproduced in the earlier parts of this judgment. On receipt of the detailed enquiry report of the Enquiry Officer, wherein the appellant had participated as a Prosecution Witness II, the appellant was not held responsible for theft of sugar/shortage and neither the above authority considered him guilty for the same. The same authority i.e., District Food Controller (R), Lahore served a show-cause notice to the appellant as an 'Authorised Officer' on 16-9-1984 for the shortage of 899 bags of sugar. There was no logic for the show-cause notice to be issued by the Authorised Officer as he himself as Authority had decided the same issue, wherein he had himself held the Chowkidars only guilty for the same loss/shortage and the case is under trial with the learned Trial Magistrate, wherein the appellant has been also cited as a prosecution witness against the Chowkidars. This Tribunal has already held in so many cases that the authorities in the Food Department do not proceed properly under the provisions of Efficiency and Discipline Rules by applying proper mind. In a recent case No.960/85 of Qazi Muhammad Amir, A.F.C. and Mian Ullah Bakhsh, Foodgrain Inspector v. Deputy Director, Food, Bahawalpur Region, Bahawalpur which came for hearing on 30-12-1985, the following order at para 4 has been passed by this Tribunal admitting the case for regular hearing and also suspending the recovery of Rs.16,62,504.40 till the next date of hearing:- "

4. It is not the first case of the nature, which has come before this Tribunal and as the Tribunal has been dealing since long cases of identical nature with this case and feel that this state of affairs be brought to the notice of the Secretary, Food who is Head of the Department. Learned District Attorney has been directed to contact the said Secretary and explain to him the philosophy of working of the Efficiency and Discipline Rules and to impress upon him that certain directions should be issued to all the Officers under his supervision in Punjab to follow the Efficiency and Discipline Rules strictly both in letter and spirit." Similarly in Appeal No.391/324 of 1985, in case of Malik Muhammad Akram v. Deputy Director Food, Bahawalpur and Director Food, Punjab, Lahore decided by this Tribunal on 28-12-1985 wherein imposition of penalty of recovery of Rs.9,07,147.20 has been set aside, it has been observed by this Tribunal that "this sort of casual treatment with the rights of the civil servants, results into unnecessary litigation, as the only alternative with the civil servants left is to knock at the doors of the Punjab Service Tribunal. "In the aforesaid judgment we have specifically made the observation that such matter be brought to the notice of the higher authorities that 'this Tribunal is of the considered opinion that this case be brought to the notice of the Chief Minister, Minister for Food and Secretary Food, Punjab so that they could know what is happening in the Department and how this Tribunal is faced to solve these problems both in accordance with the law and equity as well as facts of the case so come before it".

12. The learned counsel for the appellant has also taken a stand that a regular enquiry should have been held in this case and show-cause notice under Rule 6(3) of the Punjab civil Servants (E & D) Rules, 1975 should have not been issued to the appellant as it is a settled law that an enquiry in corruption charges is a must. I would like to make it clear at a regular enquiry was held in the same matter by Mr. Riaz-ul-Hassan, Assistant Food Controller, Enquiry Officer, against the Chowkidars and the appellant was cited as a prosecution witness in the same case wherein the issue involved was same i.e., theft/loss of sugar for which the appellant was served with a show-cause notice. Hence this regular enquiry (Annexure A/11) should have been relied upon in the case of the appellant as well. I consider that in the presence of this Enquiry report, even a show-cause notice should have not been issued to the appellant as this was an exercise in futility as District Food Controller (R), Lahore the Authorised Officer who issued -this show-cause notice had not held' the appellant responsible for this loss after perusal of the regular enquiry report and had held only the Chowkidars guilty of this misconduct as an Authority.

13. I have gone through the register of the stores from where this theft had taken place. Page 75 of this register shows the following remarks:- "Short 899 bags as per check report dated 23-4-1984. Sd/- D.F.C.(R) 23-4-1984. There is another note on the same page of Shuja Beg, Food Inspector. "The balance of 18-4-1984 is less by 899 bags of sugar which have been stolen by Chowkidars of night duty vide F.I.R. No.195 dated 21-4-1984 P.S. Nawan Kot. Sd/ Shuja Beg." The above certificate recorded on the register makes it clear that the shortage of 899 bags was shown as a result of theft by the Chowkidars and it appears that the mind had not been properly applied to this important fact by the Authorised Officer and the Authority while concluding the case of the appellant.

14. The main stand of the respondents is that the appellant had given his written undertaking on 19-5-1984 in which he accepted his liability to refund the shortage of sugar/loss and as such he had accepted the liability etc. to make good the shortage. Thus, he has been held responsible for the same as per recommendations of the Authorised Officer. The position of this case had altogether changed after the result of the regular enquiry conducted by Mr. Riaz-ul-Hassan, A.F.C. was available to the Authorised Officer in the case of the appellant, who as an Authority had got enquired the same matter. On the basis of this enquiry he had himself held the Chowkidars alone as guilty of this misconduct i.e., theft/shortage of sugar. Hence, the earlier undertaking obtained from the appellant on 10-5-1984, should have been ignored by him when he had himself punished the Chowkidars on 22-9-1984/23-10-84 after thorough perusal of the enquiry report dated 21-8-1984 of the Enquiry Officer.

15. There is also weight in the arguments of the learned counsel for the appellant who has relied on judgment of the Karachi High Court reported as P L D 1962 (W.P.) Karachi 409 and Lahore High Court reported as P L D 1965 (W.P.) Lahore

729. I agree that keeping in view above judgments, the undertaking was obtained from the appellant under the peculiar circumstances of the case, under undue influence and as such it stands vitiated and is a void document which should have not been used against the appellant.

16. Keeping in view the above detailed analysis of the case, have no hesitation in holding that the appellant is not at all responsible for the shortage/loss of sugar so attributed to him as this loss has not been proved and established against the appellant; rather it has been established and proved against the Chowkidars alone who were involved in the theft case of this sugar and have ultimately been punished by the competent authority i.e., District Food Controller (R), Lahore also the Authorised Officer in the case of the appellant.

17. However, I cannot remain oblivious of fact that the appellant has been delinquent and slack in performance of his duties and effecting proper control over his subordinates. He should have been more vigilant.

18. The upset of the above detailed discussion and elaborate analysis of the case is that the appellant has been imposed penalty of recovery of loss of sugar arbitrarily, against facts of the case, without his fault, as this shortage/loss has not been proved and established against the appellant. Hence, the appeal is partially accepted and the impugned order dated 10-4-1985/20-4-1985 of respondent No.2, is modified to the extent that the appellant being not responsible for the loss so attributed to him, the recovery of an amount of Rs.3,48,562/Ps.50 (50$ of the total loss) imposed upon the appellant is set aside. Keeping in view my finding in para 17 above regarding lacy of supervision by the appellant, the punishment of stoppage of annual increment for a period of two years without cumulative effect, imposed by the respondent No.2, through the above impugned order, shall stand. A.E./75/Sr.P Appeal partly accepted.