1998 PLP (C (PLC(CS))

AJMAL MIAN, C.J.

This is an appeal with the leave of this Court against the judgment dated 26-1-1994 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, in Appeal No.368(R) of 1994 (which was heard with Appeal No.393(R) of 1994 filed by one Imtiazuddin) against the imposition of minor penalty of censure, dismissing the same.

2. The brief facts are that at the relevant time the appellant was posted as an Assistant Director in the National Training Bureau, Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan. The aforesaid Imtiazuddin was the Administrative Officer. The appellant was served with a charge-sheet dated 6-6-1993 containing the following charges:- "(i) F.No.NTB-2(73)/91-92/GA regarding 'Procurement of Plain Paper Copier' was misplaced in between Mr. Juma Khan, Assistant Director, National Training Bureau (Chairman, Purchase Committee) and Mr. Imtiazuddin, Assistant Director (then Admn. Officer). , (ii) Mr. Imtiazuddin emphasised that file was handed over to Mr.Juma Khan by hand, whereas he (Mr. Juma Khan denied of taking over the file by hand. (iii) The system laid down by the Government for submission/receipt of files has not been observed. (iv) Misplacement of file indicates lack of coordination and working relation between the officers. (v) Misplacement of file indicates the irresponsible attitude. " The appellant resisted the above charges inasmuch as he submitted a reply dated 20-6-1993. However, the above reply was not found satisfactory. Consequently, an Inquiry Officer was appointed who submitted his inquiry report on 25-9-1993 by holding that the following charges were proved:-- (i) The file No.NTB-2(73)/91-92/GA relating to 'Procurement of Plain Paper Copier was misplaced. (ii) The laid down procedure by the Government for submission/receipt of files was not observed. (iii) Lack of coordination and working relation between the officers of Purchase Committee. (iv) The officers involved in this case showed irresponsible attitude." The aforesaid inquiry report was followed by a show-cause notice dated 18-1-1994, which was replied to by the appellant on 8-2-1994. However, on 2-4-1994 the above minor penalty of censure was imposed on the appellant. Against the imposition of above penalty the appellant filed a departmental appeal to the Prime Minister of Pakistan through the Secretary, Establishment Division, Islamabad, on 30-4-1994. Since no reply was received within the statutory period. the appellant filed aforementioned appeal, which was dismissed by the Tribunal through the impugned judgment. Thereupon, he filed a petition for leave to appeal which was granted to consider, whether the inquiry was held in accordance with law and proper opportunity was afforded to the appellant to lead his evidence and to cross-examine the witnesses.

3. In support of the above appeal Mr. Fazal Ellahi Siddiqi, learned Advocate Supreme Court for the appellant, has vehemently contended that besides the irregularities in the appeal, factually there was no evidence recorded against the appellant on the basis of which it could have been concluded that the charge of misplacement of file against the appellant stood proved. He has invited our attention to para. 14 of the inquiry report, which reads as follows:-- "

14. I am of the opinion that although the file No.NTB-2(73) 91-92/GA, is no more a precious document as it looked before finalizing the purchase of machine it is, however, still somewhere (possibly) in Mr.3umma Khan's custody but has lost its real worth " On the basis of the above para. 14 he has urged that the finding is based on surmises and conjectures as the words "(possibly) in Mr. Jumma Khan's custody" have been used. He has further submitted that the responsibility to maintain the record was that of aforesaid co-accused Imtiazuddin, who was the Administrative Officer. In this behalf he has relied upon Rule 34 of the Secretariat Instructions, 1983 (Reprint), which reads as under:-- "

34. The movement of files should be noted by the Assistant under the direction and supervision of the Section Officer in column 4 of the File Register. These entries should be crossed out in pencil on return of the file. The Inquiry Officer recorded his finding against the appellant on the basis of his statement to co-accused Imtiazuddin, who was himself charged with the above misconduct. On the other hand, Mian Tariq Mehmood, learned Deputy Attorney- General, has vehemently urged that since the appellant was incharge of the department concerned, the responsibility was his.

4. We have gone through the record and we find that the Inquiry Officer himself was not sure, whether the appellant had received the file in question or not, which is evident from the aforequoted para 14 of the inquiry report. Additionally, we have also noticed that contrary to the rules/practice that when a file is delivered, a receipt is obtained, there is no such receipt from the office of the appellant produced by the Department before the Inquiry Officer. It may be pointed out that the abovequoted Rule 34 of the aforesaid Secretariat Instructions provided that the movement of files should be noted by the Assistant under the direction and supervision of the Section Officer in column 4 of the File Register and that these entries should be crossed out in pencil on return of the files. This has not been followed. The responsibility to maintain the files was that of the Administrative Officer, Mr. Imtiazuddin. The oral statement of the aforesaid co-accused, Imtiezuddin, that he handed over the file to the appellant, which statement was denied by the appellant, has been relied upon for recording the above finding against the appellant. In our view, in such a situation it would have been in keeping of the dictates of justice if the benefit of doubt would have been extended to the appellant. Though the impugned penalty of censure is minor but this may mar the future career of the appellant. We, therefore, allow the above appeal; set aside the impugned judgment of the Tribunal and the impugned penalty of censure. However, there will be no order as to costs. A.A./J-7/S Appeal accepted.