2006 PLP (C (PLC(CS))

HASAN RAZA PASHA (MEMBER).

This is an appeal against the order dated 17-6-2002 whereby the appellant was removed from service. The appellant submitted a departmental appeal on 19-6-2002 which according to him did not receive any response and on the expiry of the statutory period of sixty days he has approached the Federal Service Tribunal (FST) in appeal under section 4, Service Tribunals Act, 1973.

2. The facts in brief are that the appellant has been working as Inspector in the respondent-Organization when a charge-sheet was served on him on 8-11-2001 alleging that the appellant stole three blank prescription slips from the residence of one Dr. Capt. Shahid Aziz Mian on 29-7-2001, one of the authorized medical attendants of the NESPAK, when he visited his residence along with his wife. His reply to the charge-sheet was not found satisfactory. The respondents constituted three Members Inquiry Committee to look into the charges. The Committee submitted its report on 24-5-2002 holding that the charge was proved against him. A final show-cause notice was issued on 28-5-2002 which, besides proposing imposition of major penalty of dismissal from service also asked the appellant if he wished to be heard in person. The appellant submitted his reply to the show-cause notice on 12-6-2002 in which he did not demand personal hearing. The respondents proceeded to issue the order of removal from service on 17-6-2002. The appellant has maintained that he submitted his departmental appeal on 19-6-2002 but did not .receive any response whereas the respondents have maintained that the departmental appeal was rejected and the order was conveyed to the appellant on 17-7-2002. The appellant submitted his appeal to the FST on 18-9-2002.

3. The learned counsel for the appellant argued that the appellant was not supplied copy of the inquiry report nor of the preliminary inquiry report. He further argued that the preliminary report did not squarely hold him responsible for the loss of prescription slips, and, therefore, the charge-sheet was without any basis. He next argued that the Inquiry Committee recorded the statement of the witnesses on the appellant's back, that the appellant's statement was recorded in question-answer form, and that he was not given any personal hearing. The learned counsel next argued that the proceedings against the appellant were based on mala fides because the appellant had filed a Civil Suit against the Medical Cell of the respondent-Organization which annoyed the respondents. The learned counsel argued that the legal infirmities in the conduct of the inquiry have caused serious prejudice to his defence, that the entire proceedings are motivated by mala fides and, therefore, the appellant's appeal be accepted and the impugned order be set aside.

4. The learned counsel for the respondents controverted the arguments advanced on behalf of the appellant. At the very outset he argued that the appeal was time-barred, that the order on the departmental appeal was passed on 10-7-2002 and the appellant submitted his appeal to the FST on 18-9-2002. He added that the copy of the order dated 10-7-2002 was communicated to the appellant through post which fact raises presumption that the appellant did receive the said order soon after 10-7-2002. The learned counsel conceded that the copy of the Inquiry Report was not given to the appellant but he averred that the appellant was given copy of his statement by the Inquiry Committee and that the appellant was present when the statement of Dr. Capt. Shahid Aziz Mian, the complainant and Mr. Fateh Sher, one of the witnesses was recorded. He next argued that the appellant was offered the opportunity for personal hearing but he chose to disregard it. He next argued in both the preliminary inquiry and the regular formal inquiry the Inquiry Committee held the appellant guilty as charged, therefore, there was no ground to interfere with the impugned order.

5. We have considered the arguments advanced by the learned counsel for the parties, examined the record produced before us along with written comments on the memo. of appeal, and the additional documents including the proceedings and copies of the preliminary and formal inquiry reports submitted by the learned counsel for the respondents on the direction of FST. The charge-sheet against the appellant read as follows:- "National Engineering Services Pakistan (PVT) Limited Nespak House 1-C, Model Town Extension, Lahore 54700 Pakistan ....6212/1201/APS/E/6120,????? November 8-2001 Mr. Ghulam Hyder, Inspector Grade-5, NESPAK H&TE Division. Charge-Sheet/Show-Cause Notice Dear Sir, It is alleged that you along with your family visited residence of Dr. Capt. Shahid Aziz Mian on July 29,2001 and took away 3 NESPAK medical prescription slips bearing Nos.1198, 1199 and 1200. In this context preliminary investigations were conducted by an enquiry committee, during the proceedings of which you were also called. The committee has suspected on the statement of Dr. Capt. Shahid Aziz Mian that you might have been involved in taking away the above quoted prescription slips from his residence. According to the doctor nobody except you along with your family had visited his residence. By doing so you have committed an offence which amounts to misconduct under clause-3(b) read with clause-2(b) of Removal from Service (Special Powers) Ordinance, 2000. You are, therefore, required to explain your position within 7 days of issuance of this charge-sheet/show-cause notice as to why disciplinary action may not be taken against you under the aforesaid law. Yours faithfully. (Sd). (Shahzad Pervez Shaikh) Vice President/Coordination/Overseas Competent Authority" Apparently, it is based on the recommendations of the Committee which conducted preliminary inquiry. We have carefully examined the report of this Committee. The findings of the Committee and its conclusions are reproduced hereunder:-PP 22&23 of the Booklet. Findings In the light of the foregoing, the Inquiry Committee after investigations arrived at the following findings on the subject case: (i) Missing of the three prescription slips and its subsequent events ., appear to have linkages with those of two suspicious slips for which inquiry has been ordered vide NESPAK Letter No. 14/1201/APS/3022-28 dated September 3, 2001 and also with few similar cases noticed during the investigation. (ii) Dr. Capt. Shahid Aziz Mian is responsible for the loss of the three slips from his custody. He admitted that sometimes he issues prescriptions to the Employees who have not even opted for him. (iii) Zaka Pharmacy, although recently brought to the NESPAK panel, has acted responsibly to inform the Medical Cell and tried to safeguard NESPAK's interest. (iv) The mistry of the whole case of misappropriations lies with the `Lady' who went to Zaka Pharmacy to collect medicine on two prescriptions and who escaped. The Lady appears to be in league with some NESPAK employees and also known to somebody in the Medical Cell. (v) As alleged by Dr. Capt. Shahid Aziz Mian, it appears that Mr. Ghulam Haider Malik, may have been involved in the subject case. (vi) The present NESPAK Medical Cell procedure, inefficient working of the staff and their probable involvement in pilferage is a source of such incidents until appropriate remedial measures in this regard are undertaken. Conclusion Due to the time constraints and more importantly lack of necessary resources to make result oriented , conclusive investigation for such case involving external elements, the Investigation Committee places the findings as appeared upto the last date of investigation which the NESPAK managements may pursue further if they deem appropriate. However, the Inquiry Committee is of the view that without waiting for convulsive decision of the subject case, NESPAK Competent Authority should take immediate remedial measures, which may, inter alia, include replacement of staff in the Medical Cell having management capabilities, development, enforcement and monitoring of an effective medical facility procedure/process plan. The Inquiry Committee also suggests that pending drastic policy revision of the medical facility, the NESPAK Competent Authority should immediately delist all individual pharmacies which are to be replaced by chain of reputable pharmacies like. Fazal-ud-Din & Sons, Zaka etc. Panel of Medical Officers for NESPAK should preferably be engaged from reputable and credible Hospitals only. 1.???????? Engr. M. Mazhar-ul-lslam ??????????????????? (Sd.)??? ??? . 14-9-2001 2.???????? Engr. Kamran Imtiaz ??????????????????????????? (Sd.)??? ??? . 14-9-2001 3.???????? Lt. Col. (Retd) Ghulam Abbas Gill ?????? (Sd.)??? ??? . 14-9-2001 This report. very clearly and unambiguously held Dr. Capt. Shahid Aziz Mian responsible for the loss of the prescription slips and expressed only suspicion that the appellant may have been involved in c the loss of these slips. However, in the regular inquiry the conclusions and the findings of the Inquiry Committee are more specific and read as follows:-Page 48 of the Booklet. Conclusions/Findings Keeping in view the above statements/discussions and reports of earlier committee members, it is concluded that:-

1. Although there is no eye-witness when the medical prescription slips were stolen from Dr. Shahid's place but from the statement of Mr. Ghulam Hyder that the woman who went to Zaka Pharmacy to collect the medicine on the stolen prescriptions was sent by Mr. Fateh Sher Khan which he denied, shows that Mr. Ghulam Hyder had the knowledge of these missing prescription slips which proves that he is involved in this case. His involvement is also supported by the report submitted by Dr. Capt. Shahid Aziz.

2. All the circumstantial evidence collected through initial enquiries including this enquiry goes against him and supports the charge of misconduct against him.

3. Mr. Ghulam Hyder's reputation is questionable as is supported by the following. Adverse reports of his reporting officers. Opinions expressed by his colleagues. On the whole Mr. Ghulam Hyder has a bad reputation, lacks work ethics and is not trusted by his superiors. Stern Management action is warranted in his case to discourage misuse of medical facility by other employees.

4. He appears to be a regular misuser of medical facility which is also evident from the record available with Medical Cell.

5. The involvement of Mr. Samdani of Medical Cell is obvious, because he was the only person who was aware of the telephone call from Zaka Pharmacy which has been confirmed by Incharge of Medical Cell. Mr. Tanveer Hassan Farooqi. He should be immediately transferred to another Section.

6. The Committee feels that Mr. Fateh Sher Khan may be involved in this case, however, his involvement could not be proved due to lack of evidence against him.

7. Needless to say that responsibility of safe custody of prescription slips lies with Dr. Capt. Shahid Aziz in all circumstances. This Committee evidently has presumed certain facts such as the appellant's knowledge as to who visited the Zaka Pharmacy with missing prescription slips. It has also referred to the reputation of the appellant, though no evidence has been placed on record to support this assertion. The Committee also hold that Mr. Samdani of Medical Cell was ,involved in the matter. It also fixed the responsibility on Dr. Capt. Shahid Aziz and recommended that he be warned to be careful in future.

6. We have very carefully examined the record of proceedings of both the enquiries. The Investigation Committee comprised the following:- (i) Mr. M. Mazhar-ul-Islam, Engineer, Grade-12 P&M Division (ii) Mr. Kamran lmtiaz, Engineer Grade-11, BD Division (iii) Lt. Col. (Retd) Ghulam Abbas Gill, Manager Personnel, Coordination Division.

7. The? following witnesses were examined by this Committee: (i) Dr. Capt. Shahid Aziz Mian-NESPAK Medical Officer. (ii) Mian Mahmood Zaka-ur-Rehman-Director, Zaka Pharmacy. (iii) Muhammad Asghar-Head Salesman, Zaka Pharmacy. (iv) Mr. Flitch Sher Khan, Surveyor, Grade-06, NESPAK (v) Mr. Ghulam Haider Malik, Inspector Grade-05, NESPAK (vi) Mr. N. Walter, A/C Operator, Grade-05, NESPAK. Their statements were recorded between 7-9-2001 and 12-9-2001. Dr. Capt.? Shahid Aziz Mian was examined by the Committee on 10-9-2001 in the presence of the appellant as well as Fateh Sher Khan but his examination consists of question and answers. The Committee subsequently obtained written statement of Dr. Shahid Aziz Mian on 13-9-2001. It also obtained a written statement from Mr. Muhammad Asghar son of Fateh Muhammad, Head Salesman, Zaka Pharmacy on 11-9-2001. The latter was not examined as such by the Committee. The Committee also did not include in their report the statement of Mr. N. Walter A/c Operator, and Head Salesman Zaka Pharmacy considering that their statements not relevant. The Committee also interviewed the following employees of the NESPAK working in the Medical Cell:- (i) Mr. Tanveer Hassan Farooqi-Secretary MPRC. (ii) Mr. Shahid Jameel-Accountant (iii) Mr. Ghulam Samdani-Accountant. The record of their statements is not a part of the inquiry report and obviously the appellant was not present v .lien these were recorded. The statement of Dr. Capt. Shahid Aziz Mian submitted to the Medical Review Committee on 31-7-2001 and the Inquiry Committee on 13-9-2001 show that Mr. N. Walter visited Dr. Shahid and was given a prescription at 11:30A.M. on 29-7-2001 and that he saw the wife and daughter of the appellant at 1:30P.M,when he also noticed that the prescription slips were missing and advised Mrs. Ghulam Haider to visit him at his Clinic in the evening. It shows that the appellant did not go inside his house along with his wife and daughter. Dr. Shahid has also stated in his written statement that soon after the wife and daughter of the appellant left he called Zaka Pharmacy and Ittefaq Pharmacy advising them not to issue any medicines on the missing prescription slips. The said doctor also stated that he received telephone from Zaka and Ittefaq Pharmacies that some people came with the missing vouchers and that he refused to give them medicine. This part of his statement is in conflict with the statement of Head Salesman of the Zaka Pharmacy which we reproduce below:

This statements shows that two of the three vouchers were presented by an unknown woman, that the slips carried the stamps of Mr. Khalid Hussain Abbasi, that on the advice of Mian Mahmood Zaka?ur-Rehman M.D.Zaka Pharmacy who was present at the premises, he called Mr. Tanveer Farooqui of the Medical Cell who advised him to wait and that while Mr. Muhammad Asghar was waiting the woman started creating noise and Muhammad Asghar called the NESPAK Office again when he was advised by some unknown person on the line, who was not Mr. Tanveer Farooqui, to let the woman go and retain the prescription slips. This happened on 30-7-2001 whereas Dr. Shahid has maintained that he called Zaka Pharmacy immediately on 29-7-2001. In the regular inquiry the Committee did not examine Dr. Shahid Aziz but only informally discussed the case with him at his clinic. It recorded the statement of Ghulam Haider and Fateh Sher Khan on 9-5-2002 and the remaining statements were recorded and collected subsequently in the absence of the appellant. It is surprising that the Inquiry Committee did not record the statement of M/s. N. Walter and Dr. Khalid Hussain Abbasi. The Inquiry Committee reached the conclusion that Mr. Samdani of Medical Cell was involved in the case but chose to examine him in question-answer form in the absence of the appellant. The appellant was obviously placed at serious disadvantage because he could not hear the statements of or to cross-examine the witnesses or to receive the reports of inquiries. No doubt the appellant is responsible for not availing the opportunity of personal hearing, the proceedings before the Inquiry Committee and the Investigation Committee leave much to be desired and it has seriously affected the defence of the appellant.

8. Considering the manner in which the proceedings took place and that the Inquiry Committee arrived at a conclusion about the appellant on the basis of very weak evidence which has not directly related the appellant and his wife to the loss of prescription slips, and the fact that the respondents have not taken examination-in-chief come to the irresistible conclusion that the appellant's right to personal defence has been seriously prejudiced and that the respondents have not been able to conclusively establish the charges against him. We, therefore, give the benefit of doubt to the appellant, accept the appeal, set aside the impugned order and direct that the appellant be reinstated in service with effect from the date the order of removal from service was passed.

9. There is no order as to costs.

10. Parties be informed. H.B.T./73/FST???????????????????????????????????????????????????????????????????????? Appeal accepted.