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--S, 4-- Disciplinary action-Quantum of punishment-Officer while working in Foreign Mission Office charged for various acts of omission and commission - Departmental enquiry held behind his back and evidence not recorded in his presence- Tribunal observing that such enquiry was a nullity in law and fraud on the statute and Tribunal itself going into each charge itself-Some of charges based upon old incidents previously dealt with and closed-Inclusion of such charges in fresh charge-sheet, in circumstances, held, malicious-None of the charges found established except one of forging signatures of competent officer on a passport-Accused himself admitting same and apologising for it on grounds of being new to such duty-Circum stances indicating that such act committed without any ulterior motive and being motivated by desire to help and deal expediti ously cases in compliance with Government Orders and that such act of accused coming to notice of competent officer who took responsibility for same by signing passport issuance register in token thereof-Penalty of dismissal from service, in circumstances, altered to that of reduction in time scale by three stages with cumulative effect and without back benefits on reinstatement.

Appellant in person.

S. M. Shahudul Haque and Ghulam Rasool for Respondents.

Date of hearing: 19th July, 1983.

.-The admitted and relevant facts in this case are that the appellant while posted as Cypher Assistant in Pakistan Embassy at Vienna, Austria, was charge-sheeted on l0th December, 1980. The charge-sheet together with the statement of allegations is reproduced.

Charge-sheet:----Mr. Niaz Hussain, Additional Assistant in the Embassy of Pakistan, Vienna, are hereby charged with the following acts of misconduct under clause (b) of Rule 3 of the Government Servants (Efficiency and Discipline) Rules, 1973

(1) Refusal to obey official orders.

(2) Obstructing official work.

(3) Discourtesy towards officers and members of the public.

(4) Forging the signature of an officer.

(5) Lack of security of the diplomatic bag and its papers.

(6) Unauthorized removal and encashment of an official cheque.

The statement of allegations, on which the above charges are based, is enclosed.

After careful consideration of the allegations, against you, it has been decided that a formal inquiry would be held against you. The allegations, if proved, would call for one of the major penalties Provided in Rule 4 of the Government Servants (Efficiency and I, Discipline) Rules, 1973.

Now, therefore, you are hereby required to submit written explana tion in your defence as to why penalty proposed above, may not be imposed upon you. In your explanation, you should also state whether you desire to be heard in person or produce, any witness or evidence in your defence.

Your explanation should be submitted within seven days of the date of receipt of this charge-sheet to Dr. Khalid M. Ibrahim, Attached (Atomic Energy Affairs) wh is hereby appointed Inquiry Officer under Rule 5 (1) (2) of the Government Servants (Efficiency and Discipline) Rules, 1973.

In view of the gravity of the charges against you and considering the sensitive nature of the work that you have to handle, I believe it to be in the Government interest that pending the outcome of the inquiry you should not be associated with this Embassy. You are, therefore, advised to proceed on leave immediately as provided under clause (1) of Rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973.

You are requested to hand over complete charge of Crypto Centre including cypher documents, safe keys etc. to the Second Secretary Mr. M. Ayaz Wazir The files, cash account etc. pertaining to consular work should be handed over to M. H. Zaidi, Stenotypist. The files, seals etc. relating diplomatic bag should be handed over to Mr. Nazir Hussain Shah, Stenographer.

Statement of allegations against Mr. Niaz Nussain, Assistant Additional

(1) On March, 4, 1980 you were disobedient to the Second Secretary and obstructed the despatch of an important cypher message to Islamabad.

(2) On April, 2, 1980 you misbehaved in the Office of Second Secretary regarding submission of bag paper to the Ambassador.

(3) On or about 23rd September, 1980 you forged the signatures of Mr. M. Ayaz Wazir, Second Secretary on Pakistan Passport No. AF-357595 of Mr. Muhammad Riaz Ahmad Khan son of Mr. Ghulam Haider Khan.

(4) On October, 1, 1980 you were rude to Mr. Abdul Farooq Chaudhry, Member, Pakistan Cultural Association and did not render him consular assistance in a courteous manner.

(5) Between the night of 24th/25th October, 1980 you left the outgoing diplomatic bag on the floor next to your desk.

(6) On November, 5, 1980 two secret papers from the previous diplomatic bag were found lying on a shelf near the bathroom. You had not distributed them properly to the concerned officers/ officials.

(7) On December, 4, 1980 you unauthorisedly removed Cheque No. 6061893 for Austrian Schillings 7,453.26 from Accountant's Office and had it en-cashed from Bank.

(8) On December, 5, 1980 you refused to carry out Second Secretary's orders concerning the typing and despatch of a letter to the Ministry of Foreign Affairs about Austrian Visa Policy for Pakistanis.

(9) Later again on December, 5, 1980 you refused to obey the orders of the Second Secretary concerning the submission of a file on mountaineering expeditions to Pakistan."

2. The appellant submitted his defence reply, dated 18th December, 1980 to the Ambassador through the enquiry officer denying all the charges except that of forging the signature of the Second Secretary M. Ayub Wazir on Passport No. AF-357595 issued to one Muhammad Riaz Ahmed Khan. The appellant's defence plea in this case was lack to experience in Consular work coupled with humanitarian grounds. According to the appellant he did bring this case to the notice of the Ambassador who advised the appellant not to do so in future.

3. The appellant on transfer from Austria rejoined Foreign Office on 9th March, 1981.

As a result of the "formal" enquiry dated 24th December, 1980, submitted to the Ambassador by the enquiry officer and which had been conducted at Vienna, the appellant was dismissed by the Foreign Secretary vide order, dated 13th May, 1981.

The appellant preferred a departmental appeal, on 27th May, 1981 to the President and C. M. L. A. against the impugned order of dismissal. Simultaneously, he preferred a similar appeal on the same date to the Secretary General Foreign Office. Getting no response, the appellant filed his present appeal before the Federal Service Tribunal, on 22nd September, 1981 against the impugned order of dismissal, dated 13th May, 1981.

6. We heard the appellant who pleaded his own case as well as the learned State counsel. We also perused the relevant record.

7. First of all we proceed to deal with the enquiry report which according to the removal order, dated 13th May, 1931 has been termed as formal and claiming to give the appellant full opportunity to defend himself. However, actually, nothing could be further from truth for the enquiry was a mere eye wash and it gave the appellant no opportunity, whatever, to defend himself.

8. The enquiry conducted by the Enquiry Officer nominated for the purpose has been placed on record. It is obvious that the Enquiry Officer had little knowledge as to how to proceed with the enquiry. There were no witnesses called in the presence of the appellant and he knew nothing about the said enquiry. The enquiry officer "interviewed" the witnesses. The enquiry captioned as observations" is the result of his interviews where after the worthy enquiry officer has proceeded to record his subjective viewpoint. According to the letter, dated 24th December, 1980, the Enquiry Officer did hear the appellant at 4-30 p. m. on 18th December, 1980 but this hearing was meaningless as it was in isolation.

9. The Enquiry Officer has held the appellant guilty of all the charges except charge 2 (as per statement of allegations reproduced above). As to charge 2, the Enquiry Officer says

"This charge has already been inquired into by a previous Enquiry Officer and Mr. Niaz Hussain has tendered his apology it is recommended that this matter be closed."

However, it is instructive to observe that even after exonerating the appellant of charge 2, the Enquiry Officer in his recommendations says

" it is my opinion that all the charges against him are correct. It is, therefore, recommended that major penalties as provided in the rules may be imposed upon him."

10. An enquiry of the said type, which is on record, is a nullity in the eye of law and is a fraud on the statute. It provided no opportunity of defence to the appellant and was recorded behind his back.

11. To avoid de novo proceedings, however, we went into each charge during the course of our hearing. We also perused the relevant '1ocuments where available. Our conclusions in respect of each charge are

(a) Charge 1: This charge for an incident, dated 4th March, 1980 was preferred after a period of over eight months on 10th December, 1980. The important message, the despatch of which was allegdly obstructed, was actually despatched. At the relevant time i.e. on or about 4th March, 1980 no explanation of the appellant was called for. The charge was, therefore malicious. It bas not been proved in any case.

(b) Charge 2: This charge was dropped by the Enquiry Officer himself on the ground that the appellant had already been dealt with and that fresh proceedings against him would amount to double jeopardy. But neither the Enquiry Officer in his recom mendations says so nor has the Competent Authority to exclude this charge from the dismissal order, dated 13th May, 1981. Lack of application of mind is apparent here.

(c) Charge 3: This charge is proved. However, the mitigating circumstance is that the appellant made a clean breast of it before the Ambassador. He admitted his guilt even before us. He pleaded that since he was new to the consular work, he made the mistake of appending the signature of Second Secretary. Of course this is an utterly untenable and childish line of defence for a responsible Assistant who bad put in nearly 16 years of service at the relevant time. We hold him guilty of this charge.

(d) Charge 4: Not proved. In addition, appellant's explanation had been called for and the matter closed more than two months before the charge was preferred on 10th December, 1980.

(e) Charge S: This charge had originated vide Ambassador's note, dated 25th October, 1980 the concluding sentence of which had warned the appellant even though he had denied the charge. However, the final warning had been administered to the appel lant on 8th December, 1980 and the matter closed. It is surpri sing that the same charge should have been included in the charge sheet, dated 10th December, 1980. This conduct of the respon dents smacks of malicious intent. We consider the charge to be frivolous and uncalled for and thus not proved.

(f) Charge 6: The explanation of the appellant was called for on 8th December, 1980. However, when he desired to see the two secret papers which were said to be lying on the shelf near the bathroom and had not been, allegedly, cared for the appellant, be was not shown the said letters. The charge being frivolous and vague is not proved. However, the observation of the Enquiry, Officer is worth recording. He says

"Keeping in mind appellant's attitude in responding to charge No. 5 I am of the opinion that this charge is correct."

(g) Charge 7: On 4th December, 1980, the appellant was called upon to explain his conduct. He explained that it was his pay cheque, which he had received after the Accountant had obtained his signature. The charge was denied. We have also reached the conclusion that the charge is not proved.

(h) Charge 8: The charge is not proved.

(i) Charge 9: According to the appellant he did carry out the orders though belatedly because he was engaged elsewhere. The charge is not proved.

12. From the above analysis it would be seen that except for charge 3, certain other charges had been either dealt with previously and should not have been levelled again while some others had not been proved in accordance with our conclusions. As to charge 3, we are, not prepared to accept the defence of the appellant as outlined at para11(c) above. During the course of the hearing and our questioning, we were also left in no doubt that though the appellant had been dealt with somewhat harshly he too, believed in his own infallibility and self-righteousness which traits have, palpably, made him somewhat arrogant or even tactless resulting in his downfall.

13. The above analysis leads us to the conclusion that the punish ment of dismissal was not warranted in this case. Consequently we convert the punishment of dismissal to that of compulsory retirement with all the consequential benefits.

14. No order as to costs.

15. Parties be informed.

A. O. RAZIUR RAHMAN (MEMBER).-Although, the offence for which the appellant has been departmentally punished has been proved, and admitted by him, there are some aspects of this case which appear to be deserving of consideration in determining the quantum of punishment considered appropriate.

17. There is no doubt that the appellant has been the victim of vindictiveness and malice on the part of the superior officers of the Embassy at Vienna, as so clearly borne out by the many charges that have been found to be either untrue, or baseless, or downright malicious. 1 view of this, the following statements made by the appellant in connection, with the forging of the signature of the Second Secretary on the passport to be taken into account.

(a) The Assistant had drawn a line over the designation of the Second Secretary, on the orders of the Second Secretary himself.

(b) The Second Secretary had taken the responsibility for the same by signing the register in token thereof.

(c) When the passport-holder came to get a new passport issued in place of the old one, the Second Secretary himself issued a new one to him, without issuing a warning to the appellant or calling for his explanation, which indicated that the action taken against him subsequently was based not on a genuine conviction of the guilt of the appellant, but on other considerations of a subjective nature.

(d) That the appellant had no motives of personal gain in commit tips the offence and that he was only motivated by the desire to help and deal expeditiously with cases in compliance with the orders of the Government.

18, Although the points made out by the appellant cannot be legitimate excuse for the lapse on his part, considering the circumstances of the case and the possible connivance or involvement of the Second Secretary himself, it may not be necessary in the overall interest of justice, to prematurely retire the official. He has uptill now put in 16 years of service under Government and it may not be easy for him to start another career afresh elsewhere, while, if given another chance, he may be have more carefully and correctly in future, after what he has al ready been through. Therefore, in my opinion, reduction in his time-scale g by three stages, with cumulative effect, may suffice. In addition, he may not be paid any arrears for the period he has remained out of service. He may be reinstated, with effect from the date of his dismissal and be paid all the legitimate dues to which be was entitled before the said dismissal.

.-This case has come up to me under section 3-A. (2) (b) of the Service Tribunals Act (LXX of 1973), on a difference of opinion between the two Members of this Tribunal.

2. The facts are given in detail in the orders of the two learned Members. It is only charge No. 3, which, according to both the Members, has been established. Normally for forgery, severe, punishment is called for, but for the facts stated in para.17 of Mr. A. O. Raziur Rahman's order, and further for the reason that by forging the signatures, the appellant did not get any pecuniary or other benefit, I am inclined to agree with Mr. A, O. Raziur Rahman with regard to the penalty proposed by him.

A. E. Appeal dismissed.

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