2006 PLP (C (PLC(CS))

QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).

The appellant, who had been serving as Entomologist in the Department of Plant Protection of Ministry of Food, Agriculture and Livestock, was dismissed from service under-5(I)(iv) of Government Servants (Efficiency and Discipline) Rules, 1973, vide Notification dated 15-12-2001. He preferred a departmental appeal against his dismissal on 10-1-2002, but it remained un-responded till expiry of statutory period of 90 days; hence, he filed this appeal before the Tribunal on 15-4-2002, praying to set aside the impugned order of his dismissal and to reinstate him in service with all back-benefits.

2. The disciplinary proceedings against the appellant had been initiated with the issuance of the following show-cause notice dated 24-11-1998: "Whereas, you, Syed' Khurshid Anwar, while employed as Entomologist (B-17), Department of Plant Protection, Karachi, committed the following acts prejudicial to good order and service discipline unbecoming of a civil servant namely: (i) You, in league with Mr. Muhammad Shamim, Assistant Director/the then Drawing and Disbursing Officer (HQs), Department of Plant Protection, Karachi, issued over your signatures as many as 11(eleven) fictitious sanction communication memos. on various dates and of various amounts on account of fictitious purchases of High Speed Diesel and M.T., spare parts from fake firms M/s. Kasama Petroleum Services. Alfalah Society, Karachi and Khan's International, Federal 'B' Area, Karachi, without obtaining sanction of expenditure from the Competent Authority and without delivery of the stores. (ii) On the basis of the afore-mentioned forged cash memos./bills/comparative statements and sanction communication memos., the then Drawing and Disbursing Officer (HQs) prepared as many as 11 fictitious bills on various dates and of different amounts and presented the same at the counter of DGPR, Karachi. All these bills were got passed and cheques received from the DGPR, Karachi, the details of cheques drawn fraudulently from State Bank of Pakistan are as under : -- S. No. Amount Cheques No. & Date Name of firm (I) High Speed Diesel

1. Rs.64,700 F581531 dated 25-9-97 M/s. Kasama Petroleum Services, Karachi.

2. Rs.79,200 F584728 dated 25-10-97 -do-

3. Rs.69,650 F585846 dated 13-11-97 -do-

4. Rs.58,800 F587503 dated 17-11-97 -do-

5. Rs.34,300 F592700 dated 8-1-98 -do-

6. Rs.52,500 F594464 dated 27-1-98 -do-

7. Rs.39,200 F593699 dated 27-1-98 -do-

8. Rs.44,800 F598826 dated 5-3-98 -do-

9. Rs.49,000 F600562 dated 24-3-98 -do- (2) M.T. Spare Parts

10. Rs.20,554/50 F599022 dated 10-3-98 M/s Khan's International Karachi.

11. Rs.18,500 F599566 dated 10-3-98 -do- Total Rs.531,2304/50 (iii) You got printed a bill/cash book in the name of fake firm i.e. PLC (Service)M/s. Kasama Petroleum Service, Alfalah Society, Karachi and the cheques issued in the name of this fake firm were issued/passed on to you by the then Drawing and Disbursing Officer. (iv) You have also operated a fictitious Account No.1219-4 in Muslim Commercial Bank in the name of bogus firm M/s Kasama Petroleum Services and all the cheques of this bogus firm were deposited in its account by you. (v) You issued expenditure sanction memos towards the purchase of M.T spare parts from file No.LW/4-4/97 while there was no, demand of such M.T. spare parts, no quotation was floated, but a fictitious comparative statement was prepared with forged signatures of Director (Adnm) and Mechanical Engineer which was submitted to then Drawing and Disbursing Officer (HQ) for claiming amount from the Director-General, Pakistan Revenues, Karachi. (vi) On detection of this fraud, you refunded the entire amount of your share vide Challan No. 14 dated 2-4-1998 and Challan No.19 dated 30-5-1998 in the National Bank of Pakistan, Malir City Branch, Karachi through Mr. Muhammad Shamim, Assistant Director/the then Drawing and Disbursing Officer (HQ).

2. Whereas, in the light of the facts and circumstances of the case, it has been decided by the undersigned (Authorized Officer) that it is not necessary to have an inquiry conducted through an Inquiry Officer in the case, in terms of Rule 5(1)(iii) of the Government Servants (E&D) Rules, 1973.

3. And Whereas, I am of the opinion that the aforesaid acts tantamount to misconduct and corruption on your part in terms of Rule 2(4) of the Government Servants (E&D) Rules, 1973 and call for imposition of major penalty of dismissal from service' as specified in rule 4(1) of the Rules ibid.

4. Now, therefore, you Syed Khursheed Anwar, Entomologist, Department of Plant Protection, Karachi, are hereby required under Rule 5(1)(iii) of the Rules ibid, to show cause within 14 (fourteen) days of receipt or this show-cause notice as to why the major penalty of 'dismissal from service' should not be imposed upon you in terms of the Government Servants (E&D) Rules, 1973. You may also indicate whether you wish to be heard in person by the Authorized Officer."

3. In his reply dated 7-12-1998 to the show-cause notice the appellant denied the allegations against him. He raised the objection that the show-cause notice was issued without any investigation/inquiry or the opportunity of personal hearing to him. However, in part-2(iv) of the said reply, he made the following admission:-- "The amount was deposited by me in good faith on the verbal orders of Mr. Abdul Mannan Khan, Director (Administration) and not as a result of detection of fraud as alleged. Money was arranged through borrowing from my friends and relatives." In para-3 of .the said reply of the show-cause notice, he stated as under: "

I am now on the last fag-end of my service career and in circumstances explained, dismissal would be too harsh a punishment. I would therefore request your goodself kindly to take a lenient view in the matter

" It appears that considering the objections, raised by the appellant in his reply to the show-cause notice, the respondents thought it advisable to issue a charge sheet to the appellant and to hold a departmental inquiry into the allegations against the appellant. Consequently, charge sheet dated 12-5-1999 containing the same allegations/charges, embodied in the show-cause notice, was issued to the appellant along with statement of allegations.

4. In his reply dated 24-5-1999 to the charge sheet, the appellant stated that the disciplinary proceedings against him stood finalized and there was no need to continue the same with the issuance of the charge sheet. In para-4 of the reply, he prayed to stay further proceedings in the matter. However, proceedings were not stayed and after holding a departmental inquiry, issuing show-cause notice and affording chance of personal hearing to him, the appellant was dismissed from service, as already mentioned above.

5. We have heard the learned counsel for the parties. We have also perused the record of the case carefully.

6. The learned Counsel for the appellant did not press the appeal on merit, but he urged the Tribunal to modify the punishment of dismissal of the appellant from service to his compulsory retirement, so that the appellant might be able to get pensionary benefits. In that connection, the learned counsel stated that two other persons namely M.H. Abbasi, Cashier and Muhammad Shamim, Assistant. Director were also involved with the appellant on charges of corruption and misappropriation etc., but Muhammad Shamin expired during the pendency of his appeal, whereas. M.H. Abbasi had been compulsorily retired by the respondents, leaving the appellant alone having been awarded harsher punishment that one awarded to M.H. Abbasi. He stated that the case against Muhammad Shamim abated due to his death, but pensionary benefits had been recommended by the Tribunal to his heirs, as such, to keep all the three persons at par and, in the interest of justice, punishment of the appellant of dismissal be converted to that of his compulsory retirement.

7. The learned standing counsel contended that the learned counsel for the appellant had since not pressed the appeal on merit, it was upto the Tribunal to consider the request of the counsel for the appellant for modification of the punishment of dismissal of the appellant to his compulsory retirement from service.

8. Since the learned counsel for the appellant has not pressed the appeal on merits, the precise question before us is, whether on the ground urged by the learned counsel for the appellant the penalty of dismissal of the appellant can be converted into his compulsory retirement. After thoughtful consideration of this question, our plain answer is in the negative for the following reasons.

9. A perusal of record shows that the appellant, deceased Muhammad Shamim and M.H Abbasi had been involved in extreme acts of misconduct, corruption and fraud. On detection of fraud, they refunded the embezzled money voluntarily without any coercion, which conclusively proved their guilt making any further inquiry into the matter redundant. It has transpired from the perusal of the inquiry report and the inquiry proceedings in which the appellant had been associated that the appellant played role in 'the fraud and misappropriation of the Government money, as he had misused his delegated power of sanctioning payment by communicating fictitious sanction on bogus bills prepared by DDO Muhammad Shamim for the payment whereof M.H. Abbasi was responsible. The Government money fraudulently obtained by the said three persons was distributed by them among themselves, but on the fraud having been detected, they deposited back the criminally misappropriated money into the Government account as per their share (Muhammad Shamim 40%, Appellant Khursheed Anwar 30%and M.H. Abbasi 30%).

10. This being a case of extreme dishonesty, all the three delinquents deserved the punishment of dismissal from service, Muhammad Shamim and appellant, Khursheed Anwar had been dismissed from service but M.H. Abbasi was compulsorily retired, perhaps, for the reason that he' had made clean breast by divulging the collusive fraud by all the three of them M.H Abbasi was awarded lesser punishment of compulsory retirement from service for role analogous to that of an approver. Lesser punishment on making clear breast was not enhanced in the case of (Water and Power Development Authority, WAPDA House, Lahore) and 2 others v. Muhammad Yousaf, Test Inspector, reported in 1997 PLC (C.S.)

424. M.H. Abbasi's case, therefore cannot help the appellant Khursheed Anwar for modification of B his punishment of dismissal from service. So far as the case of Muhammad Shamim (deceased) was concerned, the Tribunal had made no observation about the merits of his dismissal. After his death, in the order of abatement of his appeal dated 23-7-2003 the Tribunal did make recommendation as under:-- "

considering the fact that the appellant has expired during the pendency of the appeal, his case be also considered on compassionate grounds by the Department on the same lines as that of Mr. Khursheed Anwar so that his LRs be given certain benefits if it is legally admissible

" The above recommendation can, in no why, be treated as conversion of penalty of dismissal of Muhammad Shamim (deceased) to compulsory retirement. As such, this cannot serve as a ground of conversion of the penalty of dismissal of appellant Khursheed Anwar. As a matter of fact, the Apex Court had not approved leniency in case of dishonesty. In the case of Abdul Wahid v. The General Manager and others reported in 2004 PLC (C.S) 90, concerned authority, was directed to dismiss the accused, who had been awarded lesser punishment. Relevant placate are reproduced as under:-- "(a) Punjab Civil Servants (Efficiency and Discipline Rules, 1985

Rr. 4, 6 & 7

Punjab Service Tribunals Act (IX of 1974), S.4

Constitution of Pakistan (1973), Art. 212(3)

Recovery of amount of stolen medicines

Charge of theft of medicines from store

Authorized Officer on basis of report of Inquiry Committee recommended for major penalty, but Authority imposed penalty of recovery of amount as value of stolen medicines recoverable from salary of civil servant to the extent of one-third of his salary

Service Tribunal maintained such penalty in appeal filed by civil servant

Validity

Such penalty did not commensurate with guilt of civil servant, who had been found involved fully in pilferage of medicines by independent Inquiry Committee

Inquiry had been conducted by providing full opportunity to civil servant to put up his case and cross-examine witnesses

Authority after holding civil servant as guilty had retained him in service so as to enable him to repeat his illegal activities in paying back penalty

Even ordinary person of normal prudence would not retain such-like person in service after finding him implicated in theft

No justification was shown for leniency shown by the Authority in awarding such penalty

Conduct displayed by civil servant as custodian of public property did not deserve sympathy

Supreme Court dismissed petition and refused leave to appeal with direction to Authority to dismiss civil servant from service."

11. In the case of Fida Hussain Javed and 3 others v. Director Food, Punjab and others reported in 2004 SCMR 62, it was held as under:-- "

Charge of embezzlement had been proved as a result of departmental inquiry which otherwise was not possible without connivance of petitioners, who had signed documents concerning handing over stock of misappropriated wheat

Factum of embezzlement being question of fact, had been determined by competent authority after having comprehensive inquiry, which determination had been upheld by Service Tribunal

Sufficient incriminating material had come on record against other two officers, but absolving them of such charge would amount to sheer discrimination

Supreme Court dismissed petition filed by petitioners and refused to grant them leave to appeal with directions to other two officers to show cause as to why judgments of Service Tribunal passed in their favour, (not appearing to be in consonance with evidence as collected against them during inquiry on the basis of which such penalty had been imposed upon petitioners) be not set aside and major penalty imposed upon them by Department be kept intact."

12. M.H. Abbasi had been awarded comparatively lesser penalty of compulsory retirement from service. Far be if from us to have condoned his dishonesty, but for awarding him lesser penalty of compulsory retirement from service by the Authority, there did exist some justification, as he was helpful in unearthing the entire fraud, but on that account penalty of dismissal of appellant Khurshed Anwar cannot be converted into his compulsory retirement, as that would amount to paying premium for the fraud which, but for him, could not have taken place.

13. For all the reasons mentioned above, we find ourselves not able to accede to the request of the learned counsel for the appellant to modify appellant's penalty of dismissal and convert it to his compulsory retirement. As a matter of fact, the refunding of the huge embezzled money alone was sufficient to prove the charge of combined collusion of fraud and corruption against the appellant, deceased Muhammad Shamim and M.H. Abbasi. The appeal is devoid of any merit. It is dismissed accordingly with no order as to costs. The appellant shall, however, be at liberty to approach the Government, under section-19 (3) of the Civil Servants Act of 1973 for sanction of compassionate allowance to him.

14. Copies of this Judgment be sent to the parties under registered cover and to the relevant quarters as per Rule-21 of the Service Tribunal (Procedure) Rules 1974. H.B.T./67/FST Appeal dismissed.