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Case No. 61/1075 of 1981, decided on 19th May, 1983.

‑‑ R. 4‑Penalty‑Quantum‑Foodgraing Supervisor charged for irregularities of excess stock issued to depot‑holders and some dis crepancies in accounts‑Full price of excess stock recovered from depot‑holders leaving no financial loss to Government‑‑Found to be guilty of negligence but of no ulterior motive‑Penalty of dismissal from service in circumstances, held, excessive and not in con sonance with guilt hence converted by Service Tribunal to that of censure and withholding of two years increments‑Intervening period treated as leave of kind due‑Punjab Service Tribunals Act (IX of 1974),

Masud Ahmad Riaz for Appellant.

A. G. Humayun District Attorney for Respondent.

‑Syed Shah Samad Alam, ex- Foodgrains, Supervisor has filed this appeal under section .4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Deputy Director Food, Lahore Region, Lahore and Director Food, Punjab, Lahore, as respondents.

2. By virtue of this appeal he has prayed that the order, dated 13th February, 1979 passed by the Deputy Director Food, Lahore Region, Lahore and order, dated 30th December, 1980 of Director of Food Punjab, be set aside and he may be reinstated in service with all back benefits.

3. Brief facts of the case are that the appellant was working as Foodgrains Supervisor and posted at Farooq Flour Mill, Lahore. He was charge‑sheeted by the District Food Controller(R) on 21st February, 1978, for irregularities and discrepancies in the mill account. The appel lant was suspended on 1st March, 1918. Mr. Abdullah Yusaf, Storage Officer was appointed as Enquiry Officer and he submitted report to the Deputy Director Food. Respondent No. 1 issued a show‑cause notice dated 17th January, 1979 and the appellant was dismissed from service, on 13th February, 1979. The appellant . filed appeal before respondent No. 2, who was placed to reject the same vide his order, dated 30th December, 1980. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Depart ment and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that the appel lant was appointed by the Deputy Director Food, therefore, he could not be charge‑sheeted by the District Food Controller(R), as the said officer was not empowered to do so. It has been vehemently argued that the District Food Controller was neither appointing authority nor an autho rity to remove or suspend the appellant, therefore, the dismissal of the appellant from service, was void ab initio. It was further submitted that the appellant had already been punished with minor penalty vide order dated 15th April, 1977 therefore, he could not be punished twice for the same charge as it was repugnant to the Constitution of the Islamic Republic of Pakistan. Learned counsel has assailed the inquiry report on the ground that the same is based on alleged confession of the appel lant whereas the appellant never confessed it.

6. With regard to the merits of the case, it has been submitted that what happened in this case was that entries mentioned in the charge -sheet, stood removed and rubbed from Registrar by the Depot‑holders wherein it was mentioned that they had taken quota. In this connec tion a criminal case had been registered against the said Depot‑holder. It has been further submitted that all the excesses of the Depot‑holder had been recovered and no loss had been done to the Food Department. It was further pointed out that the colleagues of the appellant who were also charge‑sheeted with these allegations are still working in the Food Department and no action has been taken against them.

7. On the other band the Department has taken a stand that the appellant did commit serious irregularities in the Mill account for which he was properly placed under suspension and charge‑sheeted and thereafter regular enquiry was conducted under the Efficiency and Discipline Rules, 1975, in which the appellant has admitted his guilt at the time of personal hearing, that he did issue 510 bags in excess, therefore, was awarded major penalty of dismissal from service. With regard to the legal objection, it has been submitted that the District Food Controller, only acted as Authorised Officer and recommended to the Deputy Director Food for major penalty. '

8. We have given our anxious thought to the arguments so advanced by the parties and after going minutely into the details, by summoning the Accountant of the Bank, in order to verify, whether the Government has suffered any loss on account of such excess issues of bags, and have satisfi ed ourselves that all the bage so issued, were issued against the payments and the money duly deposited in the account of the Government by the Depot‑holders. We have also examined the excess and have found that the appellant did issue excess quota to the Depot‑holders beyond their entitlement due to rush of work as he was looking after the work of other two officials viz. Mr. Abdul Bari who had been suspended and due to retirement of Rana Abdul Hamid. It is also on the record that when the appellant realised that he had issued excess quota to the Depot- holders beyond their entitlement; he adjusted the same from their turn and thus balanced the account. By going into the entire details of the case, we are fully satisfied that the appellant had no ulterior motive and had not sold the bags into black‑market as alleged in the charge‑sheet, but only issued more quota to Depot‑holders which was beyond their entitle ment. We have also taken care to satisfy ourselves that the entire money of 510 bags stood duly deposited in the account of Government vide statement recorded by us, of the Accountant of the said Bank. In these circumstances, the appellant can only be held guilty of negligence but not of any ulterior motive. We therefore, find that the major punishment of dismissal from service, awarded to him is excessive and not in consonance with the guilt of the appellant.

9. In view of the above analysis of the case, we proceed to accept the appeal, set aside the impugned orders and vary the punishment of dismissal from service to that of imposition of censure, withholding of two years increments without cumulative effect.

10. With regard to the period of absence from duty due to pro‑tracted proceedings both in the Court as well as before the authorities, we hereby order that this period will be counted as leave of the kind' due. There will be no order as to costs.

A. B. Appal accepted.

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