1983PLC(C (PLP)

(Rais Ahmed) Cash Section, Custom House Karachi."

4. About the same time, one Muhammad Jamal addressed a letter to the Chief Accounts Officer, Custom House, Karachi, which is also reproduced below :‑ "The Chief Accounts Officer: Custom House, Karachi. Sub:‑Three Cheques of Refund of Car bearing. No. A‑252683 for Rs. 16,598,A 252684 for Rs. 16,598,A‑252685 for Rs. 8,650,70, dated 3-3‑1979 in the name of Mrs. Razia Begum, Mrs. Zabaida Khatoon. & Mrs. Jan Bibi. Sir, I had been away and on my return my employee told me that he had received three cheques which he delivered to my clients thinking that these cheques related to them who got them encashed. On my enquiries it revealed that these cheques did not relate to those persons to whom it were delivered. I am therefore submitting herewith one pay order No. 531605 dated 29‑4‑1979. Messrs National Bank of Pakistan, C. H. Br. for Rs. 41,846 ps. 70 the whole amount of above three cheques which may kindly be acknowledged and the amount remitted to the concerned persons accordingly. Thanking you. Yours faithfully, (Sd.) (Muhamman Jamal) 52/Dilkusha Chamber, Karachi." .

5. After examining the allegations and the explanation submitted by the appellant, the Deputy Collector of Customs Appraisement served on the appellant a notice on 21‑1‑1980, requiring him to show cause why a major penalty, as provided in the Efficiency and Discipline Rules, should not be inflicted on him, because of the deliberate fraud, amounting to misconduct, committed by him with the collusion of another party. In reply to this notice, the appellant submitted that the cheques mentioned in the show cause notice had originally been sent to the correct addresses of the parties but they had been received back from the Post Office as undelivered and that, after some time, one Muhammad Jamal "approached the Custom House and claimed that their cheques were not received and submitted the power of attornies for the change of addresses. On his submission of the said power of attornies, the cheque was again prepared and despatched to the addresses mentioned in the power of attornies." He further submitted as under:‑ "The procedure adopted by me was all according to the practice prevailing in the branch and there was nothing extraordinary which could inspire me that the claimant was not original one. After some time when the original owner approached the Custom House and claimed his ownership of the said cheques then it was revealed that 1st party had wrongly claimed the undelivered cheques and after realizing the mistake of this mishappen the first party was traced out and all the amount delivered to him was recovered and credited to the Government. The then to the correct owner of the cheques. Since payment has been regularised and there remains nothing which may involve any other complications, I hope that the matter will very kindly be dropped and I may be pardoned for any irregularity that might have been committed on my part due to rush of work or misunderstanding."

6. The reply to the show‑cause notice was considered by the Authori sed Officer, namely, the Deputy Collector of Customs Appraisement‑1, who asked the appellant to see him for a personal hearing. It appears that the appellant did not avail of the offer and the Deputy Collector put up the case to the Authority, with the recommendation that the punishment of removal from service may be inflicted on the appellant. Accordingly, the impugned order was issued on 29‑7‑1980.

7. The main grounds urged by the appellant in the Memo. of Appeal are that the proceedings under the provisions of rule 5 (1) (iii) of the Government Servants (E & D) Rules, 1973 had been taken against the appellant with the pre‑determined mind to punish him, since there were no circumstances justifying the ding of departmental proceedings under the said rules, that, in view of the nature of the allegations against the appellant, enquiry should have been ordered under rule 5 (1) (ft) and the procedure prescribed in rule 6 followed. It is further contended by the appellant that the mandatory provisions of clauses (a) and (b) of sub‑rule (1) (iii) of rule 5 had not been followed and the appellant had not been specifically informed of the action proposed to be taken against him, nor given a reasonable opportunity of showing cause against the action.

8. After hearing both the parties in detail and perusing the documents submitted by the appellant, as well as the original record of the disciplinary proceedings initiated against him, as contained in File. No. Con. 34/79‑CBA 547/16/79 of the Custom House, Karachi, we have come to the conclusion that neither on facts nor in law any case has been made out by the appellant for interference with the impugned order. Our reasons for reaching this conclusion are briefly stated below. 9., Considering the fact that unauthorised issuance of the cheques in question, at new addresses on the basis of a request by an unknown individual, on behalf of three persons belonging to three different places of the country, namely, Sialkot, Quetta and Rahimyar Khan and the collection of the cheques by the same individual, an obvious indication of collusion between the appellant and the said unknown individual, coupled with the fact that, soon after the appellant had been asked to explain the position, the same individual refunded the entire amount of three cheques by a pay order, there can be no doubt as to the guilt of the appellant. When we consider these facts, alongwith the admission of the appellant in his reply to the Memo. calling for his explanation, as well as in his reply to the show‑cause notice, we are fully satisfied that neither there was any pre determination in the mind of the authorised officer to punish the appellant nor was the case one calling for an enquiry under rule 5 (1) (ii) of the Government Servants (E & D) Rules, but that it was one falling under rule 5 (1) (iii). We, therefore, reject the argument that there was any prejudice or adoption of wrong procedure in the case.

10. There is also no force in the other two contentions. The record shows that the appellant was informed that a major penalty was proposed to be inflicted on him and he was also required to show cause against the same. Moreover, the allegations against him were fully brought home to him and he was not prejudiced in his defence in any manner whatsoever. What is more, the appellant was even asked by the Authorised Officer to see him for a personal hearing, even though he had not asked for it, but he did not avail of the offer.

11. So far as the facts are concerned, the circumstances of the case already mentioned clearly point to the fact that the appellant had committed fraud in collusion with certain individuals and that he had done so entirely on his own, without obtaining orders from the relevant authorities. It is also clear that, when he found that his offence had been detected, he arranged with the concerned individual for the refund of the misappropriated money. Further, knowing the weakness of his own position, he took the plea that he had made a mistake on account of rush of work and misunderstanding for which he wanted to be pardoned.

12. Considering the facts and circumstances of the case, the punish ment awarded to the appellant was not only fully justified but rather on the lenient side. For the gross misconduct committed by him, he deserved not only dismissal from service but also punishment under the criminal law. Therefore, the departmental authorities cannot at all be said to have dealt with him harshly.

13. Although, as' already observed, the appellant could have been more severely dealt with, we refrain from enhancing the punishment for the reason that, because he had served under Government for about 13 years and there was nothing on record to show that his previous conduct was not satisfactory, he need not be deprived of the prospects of future employment under Government. Also, considering the fact that he has been found to be repentant over his action, we feel, both on compassionate grounds and in the hope that he may improve his conduct and refrain from misbehaving in future, that allowing him an opportunity of serving Government in some other capacity elsewhere should not be denied to him.

14. In the result, the appeal is dismissed and the impugned order upheld. No order as to costs. Appeal dismissed.