2007 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).

Appellant Ejaz Ahmad was an Officer Grade-III and was posted at Dijkot Branch of the National Bank of Pakistan. He was served with a charge-sheet/show-cause notice dated 7-9-1999. Following charges were levelled against him:-- "(1) He with mala fide intention embezzled a huge amount of public funds including withholding tax. (2) In sheer violation of Bank's instructions, he unathorisedly transferred huge amount from PLS Accounts (Total 348 accounts) to Current Accounts just to escape from levy of Zakat in December, 1998. (3) He unauthorisedly issued/encashed undernoted four Call Deposits Receipts to other account Holders instead of those from whom he got cheques for the purpose just to escape levy of Zakat upon them:-- Sr. No. Date of issue CDR No. Name Amount Date of encashment 1. 16-12-1998 514004 Sher Muhammad 1,600,000 29-12-1998 2. 17-12-1998 514005 Zafar Iqbal 2,270,000 28-12-1998 3. 18-12-1998 514006 Iftikhar Ahmad 1,860,000 28-12-1998 4. 19-12-1998 514007 Abid Nazir 1,360,000 5-1-1999 (4) His afore-mentioned acts constitute misuse of his official position, breach of trust and gross misconduct."

2. Mr. Ehsanul Haq, Assistant Vice-President was appointed as an Inquiry Officer. The departmental proceedings culminated into appellant's removal from service vide order, dated 25-4-2000. His departmental appeal dated 20-7-2000 was rejected on 31-8-2000. Through present appeal filed under section 4 of Service Tribunals Act, 1973 he has prayed for setting aside of the removal order and the appellate order and has requested for reinstatement in service with back-benefits.

3. The appeal is time-barred, therefore, 'an application for condonation of delay has been filed.

4. The respondents have resisted the appeal as well as the application for condonation of delay. It is stated that there is no good ground for condonation of delay. On merits it is submitted that in the inquiry all the charges, which were very serious in nature, were proved against the appellant, therefore, he was awarded penalty which he deserved in the circumstances.

5. We have heard the appellant in person as well as the learned counsel for the respondents and have also perused the record.

6. It is stated in the application for condonation of delay that appeal could not be filed in time as the appellant was mentally upset and suffered an acute attack of anxiety and neurosis due to his removal from service and rejection of his departmental appeal, therefore, he could not file the appeal in this Tribunal within the stipulated period. This is not a good ground for condonation of delay. The application is not supported by any medical certificate. A ground of general nature has been pleaded in the application. We, therefore, agree with the learned counsel for the respondents that in the application itself no good ground has been mentioned for condoning the delay in filing the appeal.

7. Appellants Mr. Waris Aziz and Mr, Shahid Hussain Gill in connected Appeals Nos.564 and 571(L)(C.E.) of 2000 were Cashiers in National Bank of Pakistan serving under the appellant. They were charge-sheeted for not reporting the misconduct of the appellant to the authorities. The charges against these officials have a direct nexus with the charges levelled against the appellant. In tact the charges against the said officials, on the basis of which they have been awarded penalty of reduction in rank, flow from the charge framed against the appellant. Two independent Appeals Nos.564 and 571(L)(C.E.) of 2000 have been filed by these officials in this Tribunal in which arguments have been heard today. These appeals are not time-barred. The validity of the charges levelled against the appellants of these appeals has to be determined on merits. We shall not be able to decide these finally and conclusively without determining the alleged conduct of the present appellant since his this conduct is the very foundation of the charges levelled against the said employees. It shall be contradiction if the present appeal is dismissed as time-barred and in the connected appeals we hold that no misconduct had been committed by the appellant Ejaz Ahmad which could be reported by the said employees to the higher authorities. In the circumstances when the conduct of the .appellant, alleged to be misconduct, has to be decided then it is more appropriate that it is decided in the present appeal notwithstanding the objection of the respondents with regard to limitation. The appellant has tiled an application for condonation of delay. It is accepted in the circumstances. The delay in filing the appeal is condoned.

8. The first charge against the appellant was that he had with mala fide intention embezzled a huge amount of public funds including withholding tax. It is submitted by the learned counsel for the respondents that 'in the inquiry it was proved that the amount of withholding tax collected by the appellant was not embezzled by him but was kept in the sundry account of the Bank. It is conceded by him that ultimately this amount had been paid to the Government. If the withholding tax collected by the appellant -had not been used by him for his own gain it could not be alleged that he had committed any embezzlement with mala fide intention. The money had remained in the Bank. The charge levelled against the appellant was thus, without any basis. The maximum charge that could be levelled against the appellant could be of deviation from rules. He could be charge-sheeted for keeping the amount of withholding tax in the sundry account of the Bank instead of depositing it with the Government. In any event charge of embezzlement has not been proved.

9. The second charge against the appellant was that in violation of Bank's instructions he had unauthorizedly transferred huge amounts from 348 PLS Accounts to Current Accounts just to escape from levy of Zakat in December, 1998. It was not the appellant who was escaping from levy of Zakat. He was not paying the Zakat from his personal pocket. The Zakat was to be paid by the account-holders. The inquiry report is not before us but this contention of the appellant has not been denied by the, respondents that amounts from 348 Accounts had been transferred to Current Accounts on the cheques and vouchers issued by the accounts-holders, It means that the transfer of PLS Accounts to Current Accounts was made when cheques and vouchers were issued by the accounts- holders. Thus, it was the accounts-holders who had desired transfer of their money from PLS Accounts to Current Accounts. The alleged transfer had not been made by the appellant on his own. The transfer was authorised as no .complaint in that regard was made by any account-holder. When it was mentioned by the Inquiry Officer himself in his report, as disclosed by the learned counsel for the respondents during the hearing of the case, that the transfer of money had taken place as cheques and vouchers had been issued by the accounts-holders, he should not have held that the charge had been proved. We fail to understand as to why this charge was levied at all against the appellant when the amounts had been transferred on the instructions of the account-holders. Accordingly, we hold that the transfers were not unauthorised. The charge was not proved.

10. The last charge against the appellant was that he had unauthorisedly issued/encashed four call deposits receipt to other account-holders instead of those from whom he had received cheques for the purpose just to escape levy of Zakat upon them. The names of these account-holders were stated to be Sher Muhammad, Zafar Iqbal, Iftikhar Ahmad and Abid Naseer. The contention of the appellant is that the Inquiry officers had not recorded the statements of these account-holders. It is conceded by the respondents that the Inquiry officer dial not record the statements of these account-holders. Only the account-holders could make grievance for unauthorized issuance and encashment of their Zakat deposit receipts. When they did not come forward the respondents were not justified to frame this charge against the appellant.

11. From the above resume we are satisfied that all the charges levelled against the appellant were without any basis. He could thus, not be awarded any penalty by the respondents. He had not misused his official position nor had he committed any breach of trust. He was also not guilty of any misconduct.

12. The inquiry was held by an experienced officer of the respondent-Bank. The impugned order and the appeal rejection order were also passed by senior officers. It is not understood as to why all these officers could not appreciate the facts of the case and decide it on merits. Imparting justice is not a function of the Courts only. Every human being is required by whatever faith/religion he professes, to do justice. The competent authority passed a mechanical order and the Departmental Appellate Authority also passed a similar order without application of mind. Had both these authorities looked into the facts of the case deeply they would not have passed the orders which have been challenged in the present appeal. The litigation in Courts is increasing because the people are not getting justice from the Government functionaries: This is a very sad state of affairs and adversely reflects the conditions prevailing in our society. We hope that responsible and dedicated officers shall look into this aspect and take appropriate measures in this regard.

13. We have also noted with concern that for the punishment of reduction in rank or reduction in pay the term "degradation" is frequently used. There is no law providing for punishment of degradation. Though the word "degrading" means to lower in grade or rank but it is generally used to convey a message that a certain individual has been deprived of his dignity or he has been lowered in character having been disgraced. We expect that all the departments of the Government shall use such words as are provided in the relevant service laws. The penalty of reduction in rank shall be awarded as reduction in" rank and penalty of reduction in pay scale shall be awarded as penalty of reduction in pay scale. The term "degrade/degradation" has to be avoided.

14. In the above circumstances we accept the appeal notwithstanding the objection of the respondents that it is time-barred. The impugned order is set aside. The appellant is reinstated into service with back-benefit.

15. No order as to costs. Parties be informed. H.B.T./115/FST Appeal accepted.