2001 PLP 1909 (SCMR)

JAVED IQBAL, J.‑‑‑This petition for leave to appeal is directed against judgment dated 19th April. 2001 passed by the learned Federal Service Tribunal, Islamabad, at Quetta, whereby the appeal preferred on behalf of petitioner has been dismissed and notification of even number dated 22‑8‑2000 whereby the petitioner has been retired compulsory from service was kept intact. Briefly stated the facts of the case are that the petitioner has been retired compulsory from service by means of notification of even number dated 22‑8‑2000 on account of corruption, negligence, misconduct and embezzlement of Rs.4,50,

000. Being aggrieved the petitioner preferred departmental appeal to the Chairman, PTCL Headquarters, Islamabad which was rejected vide order No.S.23‑9 of 2000, dated 19‑12‑2000 whereby the penalty as imposed upon the petitioner was upheld by the Departmental Appellate Authority, hence this petition. We have heard Mr. H. Shakil Ahmad, learned Advocate Supreme Court on behalf of petitioner at length who mainly 'contended that the impugned judgment is contrary to facts, law and justice and the inquiry report has not been considered in its true perspective which resulted in serious miscarriage of justice and the flagrant violation of the prescribed procedure as enumerated in the Civil Servants Act, 1973 without any rhyme and reason and thus the impugned judgment being nullity in the eyes of law is liable to be set aside. It is urged with vehemence that no opportunity whatsoever was given to produce defence witnesses and more so, proper opportunity of cross‑examining the witnesses was never afforded which resulted in serious prejudice and accordingly the conclusion as drawn by the Inquiry Officer has absolutely no legal value at all which aspect of the matter escaped notice from the learned Federal Service Tribunal. It is contended emphatically that no embezzlement whatsoever was made but on the contrary the amount in question has been spent in accordance with the prescribed procedure through the Divisional Accountant but the relevant record was never perused with diligent application of mind by the learned Federal Service Tribunal and the appeal was dismissed in limine which could not have been done as no provision of law is available empowering the learned Federal Service Tribunal to dismiss the appeal in limine. We have carefully examined the respective contentions as agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case. A careful scrutiny of the entire record would reveal that proper opportunity of hearing has been afforded but never availed of by the petitioner to get the matter lingered on for the reasons best known to him. An extract of inquiry report reproduced hereinbelow would reflect that proper opportunity of hearing has been afforded:‑‑ "The accused officer failed to submit his defence reply availing fullest opportunity on various pretexts and once for the last time he was directed under receipt by the General Manager to furnish reply to the Inquiry Officer within 14 days latest 14th August, 1999 positively (C.M. No.WRP.701/KW/99/13, dated 31‑7‑1999 refers) and even then he didn't turn up for personal hearing and a telegraphic reminder XXT/XX‑MEMO, dated 20‑08‑1999 bearing No.WRP/701/KW/99/15 had been issued with the directive to appear on 24‑08‑1999. This time he also failed to appear for personal hearing. Consequently the General Manager had to call/direct to appear before him for personal hearing on 06‑11‑1999 at 10‑00 hours in his office' (C.M. No.WRP.701/KW, dated 25‑10‑1999 refers copy endorsed to the undersigned (Inquiry Officer). Herein it is added that he again applied on dated 06‑11‑1999 for extension up to 10‑11‑1999 and submitted a report on the said date i.e. 10‑11‑1999 raising some points as narrated in seriatim 1 to

10. On the basis of this report the contents were referred to alongwith Necessary others in a questionnaire handed over by calling him on 18th December, 1999 at 10‑00 hours in the Office of the Inquiry Officer (C.M. No.WRP.701/ KW/99/22, dated 17‑12‑1999 refers). This questionnaire replied back dated 7‑1‑2000 after issue of further reminders (C.M. No.WRP/701/KW/99/24 dated 3‑1‑2000 and 7‑1‑2000). " After having gone through the entire record we are of the view that an amount of Rs.4,50,000 was drawn by the petitioner and after retaining the same for a considerable long period without any lawful justification the same was misappropriated. In this regard the statements of Mr. Awaz Ali Sheikh, A.E. Office of the D.E. Dig‑111, W.T.R., Quetta, Mr. Abdul Zahir Achakzai, A.D.E. Development‑II, Quetta, Mr. Zahoor Ahmed, Cashier Regional Office, Quetta and Mr. Muhammad Ashfaq, Divisional Accounts Officer, Quetta Telegraphs are indicative of the fact that the said amount was neither released nor spent as claimed by the petitioner. The Cashier of Regional Office has made it abundant clear that an amount of Rs.50,000 was received to cash by the petitioner under his signatures vide Voucher No.71, dated 6‑4‑1998 and Rs.4,00,000 vide Voucher No.138, dated 21‑5‑1998 through open cheque bearing No.32224 was also drawn by him after signing the cheque and sanction memo. Once it was proved that the amount in question was drawn by the petitioner the burden shifted upon him to prove as to how and where the same was spent but it could not be discharged. The petitioner failed miserably to substantiate that the amount in question was spent through Divisional Accountant for official purposes. We have not persuaded to agree with Mr. H. Shakil Ahmad, learned Advocate Supreme Court that proper opportunity of hearing was not afforded as there is nothing on record to show that any application for summoning any of the witnesses was ever moved by the petitioner. Mr. H. Shakil Ahmad, learned Advocate Supreme Court also failed to point out any serious irregularity committed by the Inquiry Officer, authorized officer or the competent authority and an indepth scrutiny of record would reveal that a fair chance was given to the petitioner for showing as to how the amount in question was spent. In this regard Letter Nos.WR/GM‑PF(06)/98, dated 19‑11‑1998, WR/GM? PF(06)/98, dated 2‑12‑1998, A.2/AROA/92, dated 7‑12‑1998 and WR/Dir.P.A.‑4/DE OSP/99, dated 9‑1‑1999 can be cited as examples which depict that every possible effort has been made by the PTCL to persuade the petitioner for depositing the amount in question which was retained illegally and subsequently We have not observed any illegality or irregularity the prescribed procedure has been followed in letter and spirit. The learned Federal Service Tribunal has also examined the entire record and was competent to dismiss the appeal being devoid of merit in limine and relevant portion of the impugned judgment is reproduced hereinbelow for ready reference:‑‑ "We have heard the learned counsel for the appellant and perused the entire record of the case of the appeal alongwith the necessary documents. We are of the considered view that no irregularity or impropriety has been shown to occur during the entire inquiry proceedings conducted against the appellant. We also find that there is no flaw in the procedure of inquiry having been conducted against the appellant in detailed manner. There is thus, no reason to take r exception to the inquiry and its conclusions alongwith result of the inquiry whereby the appellant has been retired compulsorily and also ordered to make the payment of Rs.4,50,000 which have been embezzled by the appellant as already pointed out above. The appellant as a result of aforesaid inquiry has been so punished on the grounds of 'Corruption, Negligence and Misconduct'. " A bare perusal would reveal that after having an indepth scrutiny of the entire record including charge‑sheet, statements of allegations, show?cause notice and inquiry report the learned Federal Service Tribunal has rightly dismissed the appeal and its findings being unexceptionable does not warrant any interference. It is worth mentioning that leave to appeal can only be granted by this Court if the case involved a substantial point of law and public importance. In this regard we are fortified by the dictum laid down in Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1, Karamat Hussain v. Province of the Punjab 1982 SCMR 897, Miss Razia Sultana v. Government of Punjab 1981 SCMR 715, M. Yamin Qureshi v. Islamic Republic of Pakistan PLD ' 1980 SC 22, Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722, Dilbar Hussain v. Province of Punjab 1980 SCMR 118, Yousaf Hussain Siddiqi v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268, Muhammad Azhar Khan v. The Service Tribunal, Islamabad 1976 SCMR 262, M.A. Majid v: Government of Pakistan (1976 SCMR 311). It is well‑entrenched legal principle that "Supreme Court does not ordinarily interfere with a concurrent finding of fact given by Departmental Authority and Service Tribunal. Where Service Tribunal based its decision on report of Enquiry Officer after considering defence of petitioner at length, case being not fit to be interfered with, leave to appeal was refused and similarly where full‑fledged enquiry was conducted against civil servant and he was provided with ample opportunity to defend himself. His dismissal from service was upheld in departmental appeal and by the Service Tribunal, Supreme Court refused to undertake reappraisal of evidence". (Muhammad Binyamin v. WAPDA 1991 SCMR 383, Faiad v. Deputy Postmaster General, Lahore 1991 SCMR 368, Muhammad Munir Ahmad v. WAPDA 1990 SCMR 907, Munir Ahmad v. Punjab Service Tribunal 1990 SCMR 1005, Barkat Ali v. Punjab Service Tribunal 1990 SCMR 1469, Muhammad Jaffar Toor v. Superintending Engineer, Headquarters, Irrigation, Sargodha 1989 SCMR 1470, Munawar Tahir Hussain v. Government of the Punjab 1990 SCMR 1470, Najib Ullah v. Assistant Commissioner/Collector 1989 SCMR 679). 1 The findings of the Federal Service Tribunal being the findings of fact do not warrant any interference by this Court. If any authority is needed Muhammad Azim v. Chief Engineer, Irrigation 1991 SCMR 255 can be referred. In the light of foregoing discussion we find no scope for interference in the impugned judgment and accordingly the petition being devoid of merit is dismissed. M.B.A./M‑293/S ??????????????????????????????????????????????????????????????????????????????? Petition dismissed.