2007 PLP (C (PLC(CS))

QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).

While the appellant had been serving as Postmaster, Ghotki and subsequently attached as Clerk, Divisional Office, Sukkur, he was dismissed from service, inter alia, for misappropriation of Government money, vide order, dated 8-11-2005. His Appeal No.282(K)/(C.S.) of 2003 against his dismissal preferred before this Tribunal, was remanded vide judgment dated 7-7-2005 for want of proper de novo inquiry with directions, to respondents to give to the appellant proper chance to defend himself and also to hear him in person. The respondents reinstated the appellant in service, but after holding de novo proceedings under the orders of the Tribunal again dismissed him vide order, dated 8-11-2005. His departmental appeal dated 21-11-2005 against the order of his dismissal remained un-responded. Being aggrieved by his dismissal from service, he preferred the present appeal under section 4 of the Service Tribunals Act, 1973 read with section 10 of the Removal from Service (Special Powers) Ordinance, 2000, praying to set aside the order of his dismissal and to reinstate him in service with all back-benefits and continuity of service.

2. We have heard the learned counsel for the parties and perused the record.

3. The learned counsel for the appellant has strenuously argued before us that the respondent-Department had miserably failed to comply wish the judgment of the Tribunal dated 7-7-2005 whereby the appeal was remanded. He argued that in the fresh show-cause notice issued to the appellant, the allegation against the appellant of misappropriation was reduced from Rs.7,39,160 to Rs.6,

616. He argued that in the so-called inquiry claimed to be held by the respondent no witness was examined thereby depriving .the appellant the opportunity of cross-examining any witness; that there was absolutely no evidence against the appellant as the Inquiry Office relied on case papers/past work verification report issued by Messrs Hafeezullah Channa ASPOs Khairpur Sub-Division and Mr. Rehmatullah Malik, ASPOs, Ghotki Sub-Division. The learned counsel pointed out that the Inquiry Officer had stated in the inquiry report:-- "On the basis of photocopies of record without attesting by any officer available with Mr. Imran ASPOs, Sukkur Sub-Division-1 who has provided me the same record of photocopy instead of airy original receipt etc. and intimated that original record is not available and the record already reserved, the photostat copies which have been produced." The learned counsel for the appellant argued that the inquiry report clearly showed that no inquiry was held into the allegations against the appellant and by merely relying on unattested photocopies and earlier reports, without examining any witness, the Inquiry Officer held the appellant guilty of misappropriating the Government money and on such flimsy report, the appellant was again illegally dismissed, which was nothing less than mala fide act on the .part of the respondents. The learned counsel further stated that in spite of directions of the Tribunal, the appellant was not given chance to personal hearing.

4. The learning Standing Counsel did not deny the factual position of the inquiry, as stated by the learned counsel for the appellant, but contended that as per written comments of the respondents, the appellant was personally heard on 8-11-2005. The leaned counsel for the appellant rebuttal such arguments by stating that there was no evidence or letter, calling the appellant for personal hearing; hence, the version of the respondents in the written continents, could not be relied upon. He urged that it, being a case of no evidence, the impugned order be set aside and instead of remanding the appeal again, the appellant be reinstated in service with all back-benefits.

5. We have minutely scrutinized the record including the written comments and carefully considered the arguments of both sides.

6. The learned Standing Counsel could not face the criticism of the Advocate for the appellant with regard to the sketchy inquiry, which, we find out sufficient to prove any charge against the appellant. No witness was examined in the inquiry from the respondent's side and the appellant was found guilty by the Inquiry Officer, without any substantial evidence. However, the contention of the Advocate for the appellant about personal hearing was belied by ground the memo of appeal wherein it has been admitted that the petitioner was called for personal hearing by the Divisional Superintendent, Postal Services, Sukkur and questions were put to him, but then it was alleged that that was not personal hearing in accordance with law.

7. In our view, dismissing the appellant again, without any substantial evidence against him and only on the basis of personal hearing, evinced a mind set of the respondents to dispense with the service of the appellant come what may, even in disregard of the order of the Tribunal, as such, we cannot maintain the order of dismissal of the appellant from service nor we find it expedient to remand the matter again to the respondents to hold de novo proceedings for it shall be an exercise in futility in the absence of the authentic record the appellant was required to be faced with. Secondly, in spite of repeated chances the respondents failed to examine any witness against the appellant to bring home the charges to him. As such, we are constrained to allow this appeal. Consequently, we set aside the impugned order of dismissal of the appellant. Resultantly, the appellant shall be reinstated in service with all back-benefits. No order as to costs.

8. Copies of the judgment be sent to the parties under registered cover and to the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974. H.B.T./17/FST Appeal allowed.