1989 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).‑‑In the present appeal under section 4 of the Service Tribunals Act. 1973, the appellant who had been serving as L.D.C. under respondent No. 1, challenged the validity of order dated 15‑5‑1980 (Annex. D) regarding termination of his services passed under rule 5(iv) of the WAPDA Employees (Efficiency and Discipline) Rules, 1978.

2. The disciplinary proceedings against him were initiated with the passage of order dated 29‑1‑1980 (Annex. A) which placed him under suspension with immediate effect "on account of bogus, false posting, bogus and incorrect entries m Col. No. 24 making in the ledger of Civil Line Sub Division against Account No. 2/2938/02‑1, consequently loss of Rs.2,000 and Rs.1,100 respectively to the Authority". The order further said that during the period of suspension, his entry in the office was totally banned.

3. The order of suspension was followed by service of charge‑sheet, dated 25‑2‑1980 (Annex. B) wherein it was alleged that while he was posted as L.D.C. in the Revenue Office No. 2, Electricity (WAPDA), Gujranwala during the months of July and December, 1979, he made bogus posting in the consumption ledger showing less assessment in a large number of cases causing a loss of Rs.29,436.13 to the Authority and that he embezzled this amount with the help of forged entries. A detailed account of forgery in the ledger has been given in the charge -sheet. It was further alleged that he made bogus, fictitious, inflated and excess postings in the consumption ledgers with the intention of embezzlement, irrespective of the entries of bank scroll which told a different story.

4. As example, we may mention only the entries in respect of Account Nos.2/4013 and 2/4012. In the first case, an amount of Rs.166.72 mentioned in the scroll was converted into Rs.l,l06.72 on 27‑7‑1979, thereby making excess posting of Rs.1,

000. In the second case a sum of Rs.189.32 was converted into Rs.1,189.32 and posted in the ledger on the same day, causing an excess posting of Rs.1,000.

5. Certain documents have been filed with the written statement which make it appear that the aforementioned charge‑sheet dated 25‑2‑1980 could not be delivered to the appellant because he had not been attending the office. Therefore, another charge‑sheet was despatched to him by post alongwith covering letter dated 2‑3‑1980. It says that two officials of the office approached him on various occasions for delivery of charge‑sheet dated 25‑2‑1980 but this could not be done because he was not available at his residence. In any case, the fact of service is not now denied, and it should rather be mentioned that the statement of allegations despatched by post was in quite some detail. It contained very serious charges of forgery, fraud and criminal misappropriation of amounts belonging to the Authority. A detail of bogus postings, tampering with the entries of original bank scroll, incorrect assessment and other serious irregularities was given in this charge‑sheet and the statement of allegations.

6. In his explanation submitted on 11‑3‑1980, the appellant pleaded that entries from serial Nos. 1 to 9 of the month of July, 1979 showing charging of less amount from the consumption was the result of misreading of the tariff chart, which happened on account of pressure of work. He further pleaded that incorrect entries, though causing loss to the Authority were not the result of am, criminal intention and that they were made by mistake. He made specific reference to certain entries in the charge‑sheet in support of the contention that they could not possibly be made the subject of a charge. He further said that certain other entries based on readings received from the office of S.D.O., Civil Line and that the difference shown, in the charge‑sheet. could be the result of rush of work.

7. About tampering with the entries of bank scroll, it was stated in the explanation that he carried entries of scroll to the ledger as he received. The defence is that the scrolls are brought either by the Bank Cashier or Peon, which can possibly cause some difference m the entries. It is also in the explanation that some times larger amounts were recorded at the time of preparation of scrolls. It should be mentioned here at this stage that the explanation does not disclose any plausible reason for incorrect entries, particularly with reference to the charge of tampering with the entries of bank scrolls. The explanation is clearly evasive, to an extent, as would give rise to a genuine impression that the appellant has been guilty of forgery and embezzlement. As already pointed out, it is in his statement that some times the bank scrolls were brought by the Peon or the Bank Cashier. It is noticeable that he does not however make a clear allegation of fact that either of them could be responsible for tampering with the entries. He was responsible for posting the entries of the scroll in the ledger and on no account can he be exonerated of the responsibility of ensuring that no loss is caused to the Authority. Had he not been involved in criminal misappropriation, it would not have been difficult for him to notice the presence of forgery in the scroll.

8. A detailed account of the allegations was considered necessary, for just and equitable determination of the question regarding the competency of the appeal for want of statutory formalities of section 4(1) of the Service Tribunals Act, 1973. There is no denial of the fact that the departmental appeal against the impugned order dated 15‑5‑1980 had not been filed till 20‑4‑1983 the date on which the present appeal was preferred. Although the appellant has been unsuccessfully trying to seek relief from the Labour Court, the fact remains that no departmental appeal in terms of rule 11(1) of the Rules was made till 20th April, 1983, which was evidently hopelessly time‑barred. The question of condonation of delay in preferring the departmental appeal has to be seen and determined with reference to the nature of allegations levelled against the appellant and the explanation submitted by him. As already pointed out, the allegations are in respect of embezzlement which are all the more serious in view of the fact that similar allegations were made against him in the past in October, 1978 and May, 1979. An offence is an offence, but nothing can be more serious than charge of forgery and criminal misappropriation of money and we can ill- afford to close our eyes to the fact of appellant's explanation being evasive and listless. There is no escape from the fact that it is far from being plausible, which should have been so, at least from the appellant's point of view.

9. Before an address is made to the respondents' objection regarding competency of the appeal, we might say a few words about the contention that no second show‑cause notice was served on the appellant in compliance with the requirement of rule 5(v)(b) of the Rules. It was argued that the competent authority failed to form a tentative opinion regarding imposition of penalty and determination of its nature, before passing the impugned order. The appellant's learned counsel asserted that he was not given. proper opportunity to defend himself and that the order regarding termination of services was unjustified.

10. The record shows that after he had submitted his explanation in writing, notice dated 1‑4‑1980 was sent to him for personal hearing on 5‑4‑1980 at 11 a.m. Then again, notice dated 10‑4‑1980 was despatched calling upon him to appear for personal hearing at 11.00 a.m. on 19‑4‑1980, failing which his services will be terminated. These notices did not appear to have been received by him, presumably because of the fact that he had gone out of station. Then, notice dated 17‑4‑1980 was despatched to him, where again he was asked to appear before the competent authority within seven days of its issuance. It was mentioned in the notice that in case he failed to appear, it will be presumed that he was not interested in defending his explanation. It was also mentioned in the notice that in case he failed to appear, his services will be terminated without service of any other notice under the Efficiency and Discipline Rules. The documents very clearly show that the requirement of service of second show -cause notice in terms of rule 5(v)(b) of the Rules was duly fulfilled. Notice dated 17‑4‑1980 is a clear indication of tentative opinion formed by the Authority that a penalty has to be imposed. It also shows that the nature of that penalty had also been determined. We are of the view that the appellant was given adequate opportunity under the rules to defend himself against the proposed action and there was no miscarriage of justice.

11. It is in the background of these facts that the question regarding competency or otherwise of the appeal under proviso to section 4(1) of the Act is to be determined. Under rule 11(1)(2)(d) of the Rules, the departmental appeal against the impugned order had to be preferred within two months of the date of its passage. This was not done in the present case and the departmental appeal was ultimately filed on 20‑4‑1983, the date on which the present appeal was instituted. These facts spell out a situation which would attract the Supreme Court's ruling in the case of Muhammad Latif Bhatti v. Chairman, AEB, Gujranwala 1987 S C M R 1936. Therein that case while upholding the Full Bench decision of the Tribunal in 1986 P L C (C.S.) 111, the Supreme Court refused to treat the grievance notice under section 25‑A of the I.R.O. as a substantial compliance with the law requiring a departmental appeal before approaching the Service Tribunal. It was held that if in certain cases, the Service Tribunal has been, after examining the facts, condoning such or similar lapses, condonation cannot be claimed as a general rule in all cases where the requirement of first proviso to section 4(1) of the Service Tribunals Act is not satisfied. It was further observed that it was within the discretion of the Service Tribunal and we find that the Tribunal has in fact attended to all aspects of the case involving facts as well as the law before exercising the discretion against the appellant'.

12. As already pointed out in earlier part of this judgment, facts of the case play a very material role in determining whether delay in filing the departmental appeal or an appeal to the Tribunal should be condoned. The discretion vesting in the Tribunal, according to the Supreme Court's ruling, should be exercised to promote the ends of justice. In the present case, the circumstances are as such as would not allow us to lean in favour of exercising this discretion to the appellant's advantage. The allegations of embezzlement and forgery constitute a grave charge against him, which incidentally explains the extent of the Authority's disdain against him, so as to impose a total ban on his entry into the office.

13. For these reasons, we hold that the departmental appeal filed in this case is hopelessly time‑barred, with the result that the present appeal under section 4 of the Act was filed without complying with the statutory requirement of proviso to section 4(1) of the Act. It is accordingly dismissed as being incompetent. But, under the circumstances, we leave the parties to bear their own costs. A.A./442/Sr. F Appeal dismissed.