1995 PLP (C (PLC(CS))

6. As regards charge No. 1(c), the appellant's plea before the Inquiry Officer (page 88) was that the M.S.D. Vouchers totalling to Rs.41,80,819.14 were all adjusted with the A.‑G's. Office directly through book adjustment and that this adjustment was approved later even in the Audit held by the team of D.D.H.S., D.H.S. and the A.G., Punjab. He added this plea (page 137) raised before the Authorised Officer, that the officials concerned with bringing those items on record were let off while he was held responsible in sheer discrimination.?

7. Counsel submitted that the finding of the Inquiry Officer on the point was quite clumsy inasmuch as he had no reason to ignore adjustment of the MSD Vouchers directly made in the Office of the A.G. and later approved by the Audit. The contention did not appear to be without force because insistence on the part of the learned Inquiry Officer to have produced before him those vouchers or their adjustment made in the A.G's. Office was inconsequential. The Audit approved those adjustments. No reason was advanced to have ignored those audits. In any event there was no pilferage of the stores. It also fell upon the Inquiry Officer to have called himself the record of the A.G's. Office and the Audit reports. Failure on his part to see to this aspect could not be allowed to operate as a reason to record a finding of guilt against the appellant. Nevertheless the appellant's own record should have reflected receipt and consumption of those stores. At the most it may be slackness on the part of the subordinate staff who surprisingly was exonerated of the liability. The finding was thus in a way mutually inconsistent, for, those who were actually at fault were let off while the appellant was held on somewhat vicarious liability.

8. The learned District Attorney tried to support the finding of the Inquiry Officer but the same was not adhered to by the Authorised Officer strangely enough. The Authority did not give any reason whatsoever to hold a contrary view. Ii did not even discuss the defence plea of getting those stores adjusted in the A.‑G's. Office and their approval in the Audit. The finding recorded by the latter appeared to be a ride‑over which cannot be sustained in law. The charge fails.

9. Charge No. 1(f) related to the appellant's failure to mention the requisite budgetary sanction (information) in the Contingent Bills submitted to the District Accounts Officer. It appears that copies of such Bills Ex. PW‑1/G were produced before the Inquiry Officer. The appellants' defence was that the requisite information was indicated in the original bills and that m the absence thereof; the DA.O would have not passed these at all. The fact remains that those bills were actually passed presumably because the budgetary sanction was disclosed therein. The D.A.O. did not raise any such objection. The appellant pleaded before the Authorised Officer (page 141) that his request to summon those original bills from the Treasury Office was not heeded to, nor was any reason given to turn it down. Counsel urged before me that refusal to summon such original evidence was arbitrary and that correspondingly placing reliance upon the copies Exh. P.W.1/G implicitly was uncalled for. There was considerable force in the argument. No doubt copies of the bill too should have been complete by including the budgetary sanction but then that omission was not much consequential. The original bills formed the basic evidence and those should have been called to dispel the impression that those were lacunic. The appellant had good reason to urge that the so‑called omission disclosed, at the most, negligence of the Cashier who incidentally was absolved and that holding him guilty instead was discriminatory. Above all, the charge did not include the element of misappropriation on the part of the appellant. The Authorised Officer very appropriately disagreed with the Inquiry Officer while the Authority made no discussion of the evidence including the appellant's request for summoning the original bills. It turns out to be a case of non‑reading of evidence. The charge fails.

10. The next charge was No. 2(b). It was based upon the fact that the appellant "did not record certificates regarding quantity and quality of medicines/drugs in the case of purchase vouchers listed in Exh. PW-l/H". The omission was spelt out from the non‑observance of Rule 15.4(a) of the P.F.R. (Vol. I), page 1981 lying down: ........"The passing and the receiving Government servants should see that the quantities are correct and their quality good and record a certificate to this effect" The appellant pleaded before the Inquiry Officer that those stores were "received and entered" as per "page marking" on each voucher meaning that the stores received were of the required quantity and quality and that that was the reason why he appended the certificate of "passed for payment" in accordance with the D.H.S. letter No. Audit/1846‑1925/A" dated 9‑7‑1984 (Copy Annex. `B'). His plea was that the above procedure, adopted by him, was enough compliance with Rule 15.4(a) ibid. The Inquiry Officer took the view that such, certificate should have been recorded on the Vouchers, but the rule, reproduced above, does not so read. Later the appellant made the point more clear before the Authorised Officer (page 142) when he added a copy of the Contingent Bill Form (Annex. `M') containing the required certificate which he claimed to have had signed invariably. The certificate reads: " .... Certified that all the articles detailed in the Vouchers attached to the bill and in those retained in my office have been accounted for in the Stock Register that the purchases have been received in good order: that the quantities are correct and their quality good and that the rates paid are not in excess of the accepted " (page 131) Relying upon this certificate, he contended that it fulfilled the requirements of the P.F.R. 15.4(a) which in turn contemplated its being recorded not on Vouchers but in the appropriate Stock Registers. He reiterated that in the absence of this certificate, the bill could not have been passed and that the formality was meticulously observed.

11. The learned District Attorney failed to show if the Form (Annex. `M') did not visualise the certificate found by the Inquiry Officer to have been missing. It clearly served the purpose. The Authority should have expressed some opinion about it, but ignored it altogether conveniently. It constituted a formidable piece of evidence in defence leading manifestly to the conclusion that the requirement was completely satisfied. The finding of guilty recorded or the charge was erroneous.

12. Charge No. 3 related to payments exceeding the limit of Rs.10,000 provided in Rule 4.49 of the Punjab Treasury Rules Exh. PW‑1/M. The appellant pleaded that those payments were made by the Purchase Committee and that there were no complaint against those from any quarter. Before the Authorised Officer, however, he added that there was no ulterior motive behind those payments. Those were made by the staff that is the Cashier and the Head Clerk who were absolved; and that the receipts issued by different firms had not been shown to him, nor did those bear his signatures as a mark of attesting them. He urged that he was discriminated against vis‑a‑vis the staff,

13. Since a reference was made to Rule 4.49 of the Punjab Treasury Rules? according to counsel the charge related only to making payment in cash rather than through cheque. The element of cheque was not incorporated in the charge. nor in the finding recorded by the‑ Inquiry Officer or the Authorised Officer or even the Authority. However, the plea that the purchases were authorised by the Purchase Committee would show that there was nothing colourable in making this payment whether by cash or cheque. In fact the idea involving the Purchase Committee in purchasing those stores was to make the transaction more transparent and if really All payments were made according to the cost of medicines settled by the Purchase Committee, there was no possibility of taking anything out of those for the appellant's 'ulterior motive. If the rule required such payments to be made through cheque, cash amount should not have been paid in place thereof, but that would have been an ideal situation. Since the payments were authorised by the Purchase Committee the element of doing something wrong was eliminated. The irregularity by itself was not that serious as to call for punishment and if indeed punishment was required, it should have been awarded also to the members of the Purchase Committee, besides the subordinate staff who were absolved of similar charges. The firm which sold out the drugs etc. made no complaint of any short payment. The appellant laid considerable stress on this fact supporting his bona fide. Since there was no finding of his mala fide (ulterior motive) the charge was reduced to a simple infraction of procedural provision. It did not justify a major penalty of reduction to lower grade. CHARGE NO. 4(a)

14. It is a composite charge involving four elements namely,(1) that the cat gut in question was purchased from a fake firm, (2) it was purchased at an exorbitant rate as compared to the rate of the M.S.D., (3) its quality was inferior, (4) and it was supplied to the Basic Health Units where it was not required.

15. The Inquiry Officer held the charge proved meaning thereby that all the four ingredients stood established against the appellant. However, the latter plea was that the firm M/s. Malik & Co. was registered with the health department; that the cat gut was of the standard specification; that it had been purchased after calling quotations and lastly that it was not supplied to the B.H.U s.. and that instead it was supplied to the. Tehsil Headquarters Hospitals and Rural Health Centres where it was needed due to operation conducted by the Surgeons.

16. As for the registration of firm, the appellant relied upon its letter pad, receipts and bills etc. containing a clear assertion that it stood registered with the Government. The learned Inquiry Officer in his own estimation did not accept the contents of the letter pad etc. and took the view that the appellant should have obtained a copy of the notification by which the aforesaid firm was registered with the Health Department. Before the authority the appellant claimed (page 170) that the aforesaid certificate of registration of the firm should have been called by the Inquiry Officer for his own satisfaction and that there was no reason to reject the assertion made by the firm in its letter pad Counsel contended that this was enough defence and that the burden shifted to the prosecution to have proved positively that the firm was making misstatement on his commercial letter pad and that the matter could not have been so lightly taken. 'Learned District Attorney in reply insisted that the appellant should have availed the opportunity by producing a copy of the notification and that if he failed in this behalf the conclusion was rightly drawn against him.

17. The other three allegations namely inferior quality exorbitant rates paid there for and its misuse in the Basic Health Units appeared to have been adequately explained away by the appellant. Its quality was tested in an official laboratory and was found of the required standard next, quotations were called from the open market and then alone the purchase was made. It was idle to compare the market rates with those of the M.S.D. because the stuff not being available with the Medical Store Department had to be purchased, from the market which obviously had its own rates. At the most the appellant was expected to have arranged a sort of competition among the prospective tenderers and that he had done quite cautiously. He called for the quotations and struck the bargain at the lowest rates. No objection could be raised to such a deal muchless on the ground that the rates tendered by the firm was higher as compared to the M.S.D. It was the lowest among the competitors and hence perhaps there was no choice to avoid it. Nothing turns upon this aspect of the charge. ???

18. The record revealed that no portion of the cat gut was at all issued to the Basic Health Units. Instead it was issued to the Tehsil Headquarters Hospital and Rural Health Centres where undoubtedly Surgeons were posted, and it was they who needed the stuff in conducting operations upon the patients. Besides, it could have been used even in B.H.Us. in case of emergency. This part of the charge equally fails.

19. Charge No.4(c) related to purchase of items for the Tibbi Dispensary worth Rs.16,361 at "exorbitant rates and without calling quotations" the appellant pleaded that he had not purchased those items. The Inquiry Officer did not give any pointed finding in regard to the defence plea and instead was influenced by production of those items from the dispensary much after finalisation of the inquiry report. He seemed to have been moved by the substandard nature of those items but the counsel‑claimed that the substandard nature of those items, did not form part of the charge. Consequently production thereof before the Inquiry Officer after finalization of the report and that too in the absence of the appellant, was practically of no effect. The Inquiry Officer failed to give a specific finding as to whether those items were purchased by the appellant. Introduction of their substandard nature was irrelevant, because it did not form part of the charge. Reiterating his innocence before the Authorised Officer at page 144, he claimed that he had stopped payment for those items and that despite his orders in the shape of cancelling the bills the Cashier had chosen at his own to pay for them. He further observed that he did not sign the cash book because of his earlier instructions directing the Cashier not to make payment.

20. The Authorised Officer appeared to have been convinced of this defence version. The cash book was indeed not signed by the appellant and the bill was cancelled by him. These two documents read together established the. appellant's innocence the cashier had disobeyed the orders inasmuch as cancellation of the bill was a clear indication of making no payment. If the Cashier still chose to pay the mount, obviously it was at his own risk. The learned D.A. could not show any document whereby the appellant might have involved himself in ordering payment of those sums on account of those items. The Authorised Officer was persuaded by the plea whereas the authority did not give reasons to differ with him. The charge could not be substantiated.

21. Lastly Charge No.9 found against the appellant was as well seriously assailed. It related to alleged wilful defiance of the Directorate's Order No.Market/893/925/Acctt., dated 4‑3‑1984 directing entrustment of duties relating to bills transaction and the account to tile Accountant resulting in irregularities, misappropriation and over budgeting etc. It was refuted by the appellant before the Inquiry Officer stating that the accountant worked in accordance with the prescribed duty chart shown to the D.H.S. on 24‑10‑1985. This explanation was not considered satisfactory by the Inquiry Officer as he thought that evidence should have been produced showing initials of the Accountant on the relevant bills/Vouchers. It will be appreciated that the prosecution did not produce the purchase bills having any initial of the Accountant. It heavily fell on the prosecution to have produced such evidence when the appellant pleaded specifically that the accountant was working in accordance with the duty chart such plea ostensibly was enough to absolve him the corresponding burden shifted on the prosecution to have brought forth some bills with the accountant's initials. Further the charge in regard to misappropriation was vague in that no particular amount was shown to have been misappropriated by the appellant nor did the Inquiry Officer give any finding in regard to any such amount. Next the appellant took a bit more elaborate defence before the Authorised Officer at page 145 by producing Annexures K/1, K/2, K/3 and K/4, which were the bills containing the Accountant's initials. These were hard examples dispelling the impression that the Accountant was rendered jobless or was presented from initialling those bills. Indeed it was he who detected the bogus vouchers of the POL whereupon the inquiry was instituted by the appellant. Still more the appellant informed the D.H.S. by letter dated 22‑10‑1985 that the Accountant was working in quite a normal way in the office and that he was not kept away from his duties.

22. Keeping in view the instance of the bills mentioned above, one would be loath in concluding that the Accountant was not permitted to initial the bills. He very much did it and this factum was affirmed by the appellant in his letter dated 22‑10‑1985 addressed to the D.H.S. The charge was flimsy and so were the findings.

23. The appeal is allowed. The ‑impugned order is set aside. The appellant is reinstated with back benefits. No orders as to costs. H.B.T./483/Sr.P?????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.