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Appeal No. 1 (L) of 1983, decided on 13th March, 1984.

‑‑ R. 4 (b) (ii)‑Punjab Financial Rules, Vol, I, rule 8.15‑Audit Code, Art. 44 (I)‑Manual of Department Audit Section, para. 223 Retirement‑Civil servant a District Accounts Officer without prior verifying genuineness of sanction as required under Rules, allegedly issued by Finance Department or bringing it to knowledge of Deputy Commissioner or Commissioner available, making payment of a huge amount to a fictitious body‑Show‑cause notice served on said civil servant containing adequate details and civil servant before imposing penalty of retirement afforded reasonable opportunity to defend Since charge of inefficiency established against civil servant, penalty of retirement, held, rightly imposed.

‑‑ Rule 5‑Evidence gathered during illegal enquiry proceedings-- Value‑Held, such evidence by itself does not become illegal.

Tufail Ahmad Qureshi for Appellant.

Hafrz Tariq Naseem, State Counsel for Respondent.

Date of hearing : 12th March, 1984.

The relevant facts leading to this appeal are that while the appellant was serving as District Accounts Officer at Bahawalpur, a sanction bearing No. S. O. (DEV) 2‑3/77, dated 3rd March, 1977 purported to have been issued by the Punjab Finance Depart ment was received in his office. The said sanction letter amounted to Its 11,49,79,645 and was in favour of the Director Divisional Development Authority Punjab, Lahore. Of this amount the sum allocated to Bahawalpur for Secheme No. 382/76, was to the tune of Rs. 2;76,95,377. As per instructions in the sanction letter, dated 3rd March, 1977 the District Accounts Officer Bahawalpur was required to make payment to the Divi sional Development Authority Bahawalpur through the National Bank of Pakistan Bahawalpur, Account No. D‑121.

2. On 12th March, 1977 the bill for Rs. 2,76,95,377 was received from the Director Development Authority, Bahawalpur, for payment. After scrutiny, the bill was passed for the said amount and a chequed issued in favour of Account No. D‑121, National Bank of Pakistan.

3. Another letter No. S.O. (DEV)‑2‑3/58, dated 19th March, 1977 again, purported to have been issued by the Punjab Finance ‑ Department, was received in. the office of the appellant The total sanction was to the tune of Rs. 18,41,70,846. Of this sum of money, the sanction apartment to Bahawalpur district was of the order of Rs. 3,45,83,950 for Scheme No. 1412/44 and was .to be paid in the same account of National Bank of Pakistan as the first sanction.

4. The appellant, instead of making payment against the second sanc tion, for which a bill for Rs. 3,45,83,950, dated 30th March, 1977 had already been received by him, went to Lahore to ascertain the bona fides of the transaction. It transpired that the so‑called Divisional Development Authority had been a fictitious body, which was non‑existent and to whom a huge sum of money had already been paid by the appellant as a result of the first sanction letter, dated 3rd March, 1977.

5. The appellant was suspended by the Auditor‑General vide his letter, dated 31st May, 1977. This was followed by a charge‑sheet, dated 15th October, 1977 which is reproduced, in so far as relevant

You are charged with the following offences, committed in your capacity as District Accounts Officer‑II, Bahawalpur.

(i) Admitting a fictitious sanction in favour of the so‑called Divisional Development Authority amounting to Rs. 2,76,95,377 and failing to apply the requisite checks, provided in the departmental Codes/ Manuals/Office orders relating to the audit of sanctions.

(ii) Authorising payment of the amount on the fraudulent bill, pre sented at the pre‑audit counter of the District Accounts Office, Bahawalpur against Token No. 76, dated 12th March, 1977 which being a third party claim, could not be entertained unless counter signed by the Deputy Commissioner as per requirement of para. I (iv) of this Office Order No. T . M. 1/ 144, dated 19th May, 1975.

(2) Your negligence having resulted in the fraudulent payment of a huge amount, you are hereby charged with "inefficiency" and "Misconduct" under rule 3(a) and (b) of Government Servants (Efficiency and Discipline) Rules, 1973 for which you are liable to the imposition of one or more of the penalties prescribed under 0 a‑y rule 4 (ibid).

(3) You are, therefore, required under rule 6 (2) of the aferesaid Rules, to put in your written defence as to why the above‑mention ed action should not be taken against you, stating simultaneously whether you would wish to be heard in person, or to lead evidence in your defence.

If so, you should appear before the Inquiry Officer Mr. M. Akram Khan (Deputy Director, Training Centre), Lahore, when summoned by him.

(4) Your written defence should reach the Accountant‑General, Punjab (for onward transmission to his office) within 14 days of the receipt of this charge‑sheet, failing which it would ‑be presumed that you had no defence to offer, and would thus render yourself liable to action ex pane."

6. The appellant furnished his defence reply on 31st October, 1977. Thereafter, the proceedings came to a stand still when a show‑cause notice, dated 21st May, 1981 was served on the appellant. This show‑cause notice running into five pages gave complete details of the charges. The appellant furnished his defence reply on 4th June, 1981 pleading for giveness and highlighting the fact that he had remained under suspension for the last four years.

7. On 19th September, 1981 the appellant filed a writ petition (4464‑S J 1981) in the Lahore High Court. The learned High Court vide order, dated 10th January, 1982 recorded: "Learned counsel of the petitioner wishes to withdraw the writ petition so as to approach the appropriate Services Tribunal for the redress of his grievance ."

8. On 16th August, 1982 a notification was issued whereby the appel lant stood retired compulsorily under the Government Servants (Efficiency and Discipline) Rules, 1973. From the order of compulsory retirement the appellant filed a review petition on 9th September 1982, which was rejected, vide letter, dated 18th December, 1982. Thereafter, he came up in appeal before the Federal Service Tribunal on Ist January, 1983.

9. The learned counsel for the appellant raised a number of technical issues, whereby the disciplinary proceedings, culminating in the compulsory retirement of the appellant, were, according to him, rendered void ab initio. Elaborating his objections, he said that the suspension had been ordered by the Auditor‑General and further that the suspension had not been extended regularly every three months as was required by mandatory provisions of the rules. Also, that the charge‑sheet had been served by the same officer and the enquiry conducted under his order. All this was done when the Auditor -General was not authorised officer.

10. The learned State counsel conceded that the Auditor‑General was not the authorised officer while the suspension was ordered, charge‑sheet issued and the inquiry instituted. He stated, however, that the Auditor- General had been designated as the authorised officer before the show cause, dated 21st May, 1981 was served. The show cause was, therefore, validly issued.

11. We have no doubt that the present is a simple and straightforward case in which the appellant released payment of a huge sum o Rs. 2,76,95,377 without the knowledge of the Deputy Commissioner, Bahawalpur who was his immediate superior. We are also not impressed by the action of the appellant in rushing to Lahore (Finance Department) to ascertain the genuineness of the payment and claiming credit for his dash to the provincial metropolis. In fact, all that he had to do was to apply his commonsense and to get in touch with the Deputy Commissioner o the Commissioner who were right there at Bahawalpur. We are also surprised that though the appellant was ignorant as to the existence or otherwise of the so‑called Bahawalpur Development Authority yet he was casual enough to take the unusual step of releasing such a massive sum of money.

12. In order to establish the inefficiency of the appellant in this case, the show cause, as was done, would be considered sufficient under rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973 That such a show cause with adequate details was served on appellant by the Auditor General, when he had been vested with the power of the authorised officer proved to our satisfaction, that the defence of the appellant had not been prejudiced and that he was afforded a reasonable opportunity to explain his conduct. However, the suspension of the appellant by the Auditor‑General before he became the authorised officer, was illegal and so were the enquiry proceedings. This fact notwithstanding, the evidence gathered as a result of the enquiry would be available and could be legitimately used meaning B thereby that the evidence, in itself, did not become illegal.

13. It is an admitted position that before making payment, it had t be verified as per rule 8.15 of P.F. R. Vol. I read with Article 44(i) of Audi Code and note below para. 223 of the Manual of Department Audit Section. Even if we presume, for the sake of argument, that no such instructions existed, we cannot imagine that such a big sum of money could be paid b someone, who held a responsible position like the appellant, in the off handed manner in which it was paid. We have, therefore, no double that the charge of inefficiency against the appellant stands established upto the hilt.

14. In view of the foregoing analysis, we uphold the penalty of com‑1 pulsory retirement and dismiss the appeal. However, the fact that we have held the entire period of appellant's suspension to be illegal, he would be paid full pay and allowances including increments, for the said period.

15. Ordered accordingly with no costs.

M. Y. M.

Appeal dismissed.

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