2000 PLP (C (PLC(CS))

Brief facts of this case are that the appellant Muhammad Zafar Iqbal, who was District Accounts Officer, Bahawalpur at the relevant time, was proceeded against under the Disciplinary Rules, 1975 on the charges of inefficiency and misconduct relating to the tenure posting as District Accounts Officer III, Bahawalpur. It was on account of unauthorised payments on 23 bogus lapsed refund vouchers thereby facilitating fraudulent withdrawals of Government money to the tune of Rs.11,13,

875. The total amount fraudulently withdrawn through lapsed bogus vouchers was Rs.18 crore. ‑

2. The authorised officer held that no regular inquiry was necessary. On 27‑10‑1992, a show‑cause notice vide Annexure A/5 was served upon the appellant alongwith statement of allegations Annexure A/6. The appellant first asked for inspection of the record. He was shown the available record and ultimately he submitted his reply denying the. allegations. He asserted that in cases of 22 vouchers, the payments were never verified/passed by him. He remained posted as DAO‑III, Bahawalpur from 5‑3‑1987 to 23‑9‑1987. According to reply to the show‑cause notice, the appellant had only verified one voucher on 23‑5‑1987 against credit entry No. 1897/509‑APE, dated 21‑4‑1983 . payable at Sub‑Treasury, Ahmedpur. East. This payment was not made till 23‑9‑1987 whereafter the appellant was transferred from Bahawalpur.

3. The authorised officer (Mr. Riaz Ahmed, Additional Secretary, Finance (Expenditure) at the relevant time) submitted his report recommending major penalty against the appellant. The authority then dismissed the appellant by order, dated 9‑5‑1997 (Annexure A/14). This order of dismissal was successfully challenged before this Tribunal in Service Appeal No.2168 of 1997 where by judgment, dated 24‑6‑1999 passed by Mr. Ali Mohtesham the then learned Member‑II, the matter was remanded to the Authority pointing out that the recommendations made by the authorised officer were not examined in true perspective; that extreme penalty of dismissal was not commensurate with the charge of "negligence and inefficiency" particularly when seven other D.A.Os. arrayed in the inquiry like the appellant, had been exonerated by the Auditor‑General of Pakistan and the main accused Muhammad Bakhsh, Sub‑Accountant was found to have manipulated the record by erosion. Rs.13 crores were shown to have been recovered from him.

4. In remand, the respondent (Finance Secretary) by the impugned order, dated 11‑2‑2000 (Annexure A/4 to the Memo. of Appeal) again came to the conclusion that the appellant deserved the penalty of dismissal as the "negligence" exhibited by him was "serious".

5. On admission of the appeal, written objections were invited from the respondent which were submitted with the covering letter, dated 19‑5‑2000, under the signatures of Mr. Khalid Manmood, Section Officer (B&E‑1) supporting the impugned orders of dismissal.

6. The parties were heard on 8‑6‑2000 and 26‑6‑2000. On behalf of the appellant, written arguments were also filed on 24‑6‑2000.

7. I have gone through the record and examined the arguments of the parties with care.

8. There were allegations of verifying 23 lapsed vouchers which were emphatically denied by the appellant. According to the, appellant, he had verified only one voucher on 23‑5‑1987 which too was not paid and required revalidation. According to the Authorised Officer, revalidation was found to have been done on 20‑10‑1987 i.e. after the transfer of the appellant from Bahawalpur. The authorised officer also held that initials/signatures of the appellant against the relevant entries "did not appear... in the said documents due to erasure". The Authority in turn did not hold otherwise. That being so, the plea of the appellant that he had only verified one voucher as pointed in para.2 of this judgment, appeared to be not without, substance. In any case, it was the duty of the prosecution to have established a case against the appellant as per allegations contained in the show‑cause notice but it appears to have failed in that context as pet the findings of the authorised officer. In my humble opinion, the matter involved controversial questions which necessitated a regular and full‑fledged inquiry. My learned predecessor while remanding in the matter by judgment, dated 24‑6‑1999 in Service Appeal No.2168 of 1997 pointed out certain important features of the case in a way providing the prosecution a chance to fulfil the legal requirements. However, the respondent (Finance Secretary) did not attend to the observations recorded in the said judgment in correct perspective and again ordered dismissal of the appellant, holding that any "attenuation in the penalty" will have repercussions on the case against the other co‑accused. It may be noted that other co‑accused (seven D.A.Os.) had since been exonerated by the Auditor‑General of Pakistan and only Muhammad Bakhsh, Sub‑Accountant was facing both departmental as well as criminal action. Standard of evidence in disciplinary cases is altogether different from that in a criminal case. If acquittal of seven D.A,Os. was not felt to have any repercussions on the case against Muhammad Bakhsh, Ex‑Sub‑Accountant, how could any findings according to record arrived at for or against the appellant, have any adverse effect against the proceedings being taken against him (Muhammad Bakhsh) is a question hard to answer in the circumstances of this case. The respondent came to the conclusion that the appellant was negligent in his duties which facilitated the main accused to succeed in his designs. The appellant was separately proceeded against under the disciplinary Rules and any findings arrived at for or against him, in my humble opinion, would not have much bearing against the main accused, against whom the parameters of evidence would be certainly different. The authorised officer had, no doubt, recommended major penalty on account of "negligence" of the appellant but had qualified the same saying "though not very severe". It means that on consideration of the whole circumstances of the case, the authorised officer had considerable sympathy with the appellant. It appears that as big amounts were involved, the appellant was thought better to be made the scapegoat and the matter was left to be resolved elsewhere. The executive authorities were also bound to act justly and fairly at their own level. 8-ANo findings were recorded either by the authorised officer or the Authority if the appellant was guilty of culpable or active negligence that is tainted with mala fides. "Negligence" is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances, or failure to 4o what a person of ordinary prudence would have done under similar circumstances. The appellant here has a long unblemished service record extending over 36 years. The present was the first case of "negligence" against him. It was noted by the authorised officer that no mense rea was attributable to the appellant. Mere inadvertence in a given situation would not entail any punishment muchless extreme penalty of dismissal. The main accused Muhammad Bakhsh is facing criminal action vide F.I.R. No.473 of 1991 lodged on 17‑12‑1991 and recovery of crores of rupees was also effected from him. The fraud was committed during the period from 7‑12‑1984 to 17‑12‑1991 whereas the charges levelled against the appellant related to the period from 5‑3‑1987 to 23‑9‑1987. The responsibility of each and every officer had to be deeply probed into on the basis of concrete evidence. Controversial questions requiring evidence for and against were involved and consequently the matter necessitated regular inquiry. The prosecution was given a chance to prosecute the case according to the requirement of law when the case was earlier remanded by this Tribunal but they missed to do so. The authorised officer was of the view that the lapse, if any, was due to "overwork" on the part of the appellant. He also recorded a finding that there was no criminal involvement on the part of the appellant. These facts were not properly appreciated by the Authority who proceeded to impose major penalty of dismissal upon the appellant for the second time. An honest omission could not be construed to be a ground for penalty vide 1988 SCMR 691 and 1999 PLC (C.S.)

791. The dicta in 1988 SCMR 691 and M 1993 PLC (C.S.) 1443, would also be applicable which held that a solitary instance of inefficiency during a long period of service, would be excusable. Further, it was ruled in 1991 SCMR 1148 that pushing a civil servant, to go through the agony of seeking remedies in Courts, was by itself enough punishment. In the present case, the appellant was held by the departmental authorities only guilty of negligence. "Negligence" has not been provided by the Legislature in its wisdom, as a ground for penalty under Punjab Civil Servants (E&D) Rules, 1975. I am of the considered view that in the circumstance of this case, no "inefficiency" on the part of the appellant was proved on record pressed into service against him. 8‑B. As a sequel of the above discussions and observations, the appeal is accepted and the impugned orders; dated 9‑5‑1997 and 14‑6‑1997 as also of 11‑2‑2000 are set aside with the result that the appellant shall stand reinstated in service. There shall be no order as to costs. H.B.T./12/P(Sr. Trib.) Appeal accepted.