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Case No. 619/79 of 1982, decided on 2nd July, 1983.

‑‑‑R. 4(i)(b)(iv)‑‑Dismissal‑‑Order of dismissal passed by Departmental authority a detailed and comprehensive one and charge of embezzlement against civil servant proved beyond doubt‑‑Order of dismissal, held, rightly recorded.

‑‑‑R.4(i)(b)(iv)‑‑Compulsory retirement‑‑Civil servant having 32 years long service at his credit found committing embezzlement and amount so embezzled deposited by him in Government Treasury‑‑Penalty of dismissal imposed on him, held, not in consonance with his guilt and length of service‑‑Punishment modified as "compulsory retirement" instead of "dismissal".

M. Aslam Shahid for Appellant.

A.G. Humayun, District Attorney for Respondents.

Ghulam Qadir has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Commissioner, Gujranwala Division, Gujranwala and the Assistant Commissioner/Collector (Sadar) Sub‑Division, Gujranwala as respondents.

2. By virtue of this appeal the appellant has prayed that the orders, dated 25‑2‑1982 passed by the respondent No.2 and dated 21‑11‑1981 passed by respondent No. 1 be set aside and the appellant be ordered to be re‑instated retrospectively with all the benefits.

3. Brief facts of the case are that Bundo Khan Lamberdar of Village Gilgitti, Tehsil and District Gujranwala applied to the Tehsildar on 14‑9‑1980 to the effect that the appellant realized an amount of Rs.1,994 from Muhammad Yousaf son of Rahim Bakhsh as land revenue for Kharif 1979, through a receipt. He further mentioned that the appellant also realized Rs.1,700 from Nasiro son of Latif and also Rs. 500 from Bundo Khan complainant as land revenue. He requested that these amounts may be realized from Ghulam Qadir Patwari. The Tehsildar, Gujranwala, recorded the statement of Bundo Khan on 15‑9‑1980 and summoned the appellant to appear on 20‑9‑1980 to explain his position. The appellant avoided to appear. Tehsildar submitted his report on 22‑9‑1980 to the effect that Ghulam Qadir (the appellant) had realized the amount as land revenue but he did not deposit the amount into the Government treasury. The appellant was placed under suspension by the order of 4‑C./Collector, dated 25‑9‑1980. The matter was brought to the notice of the Deputy Commissioner and recommended for registration of case under section 409, P.P.C. As preliminary enquiry had already been held and documentary evidence was available, a show‑cause notice under section 6(3) of the Punjab Civil Servants (E&D) Rules, 1975 was issued on 30‑9‑1980. The appellant replied to this show‑cause notice. He was heard on 30‑4‑1981 and again on 1‑6‑1981 by the A. C./Collector. As the charge of misconduct stood proved against the appellant, he was dismissed from service vide impugned order, dated 25‑2‑1982 of the A.C./Collator (Sadar) Sub‑Division, Gujranwala. The appellant made an appeal to the Commissioner, Gujranwala Division, Gujranwala, which was rejected vide order, dated 21‑11‑1982. Hence this appeal.

4. I have heard the parties. It has been argued by the learned counsel for the appellant that the appellant has been punished for no fault of his. It was not the duty of the appellant to collect the land revenue and he has been punished for alleged embezzlement of the land revenue which was not actually collected by him and he has been falsely implicated in the case and as a result has been punished wrongly. It was further pointed out by the learned counsel of the appellant that the affidavits of Bun4o Khan, Lamberdar at Annexure 'G' and Muhammad Yousaf son of Ch. Rahim Bakhsh Annexure 'H', clearly certify that the appellant had no hand in collection or receiving of the land revenue from these persons. Relying on these affidavits, it has been submitted by the learned counsel for the appellant that the complainant, Bundo Khan, Lamberdar through his affidavit has even denied that he made any complaint against the appellant or he had presented any photo copy of receipt to the Tehsildar, showing payment made to the appellant and he did not have any such receipt in original with him.. On the face of this affidavit, the appellant is innocent and has been punished without charges having been proved against the appellant. It was also submitted by the learned counsel for the appellant that the appellant has been prejudiced in the matter. No regular enquiry was held against the appellant. He was not given opportunities to defend himself to his satisfaction. If this would have been done, the matter would have been quite clear and the appellant would have been declared as innocent. It has been also vehemently prayed by the appellant's counsel that the appellant has 32 years of service at his credit and while deciding his case, his length of service has not been kept in view. So, the punishment awarded under the above circumstances of the case is uncalled for, unjustified and harsh.

5. Controverting the above allegations of the appellant the learned District Attorney has relied on the parawise comments submitted by the respondents. It was pointed out by him that Ghulam Qadir Patwari, the appellant, had deposited an amount of Rs.4,194 (embezzlement amount) on 24‑9‑1980, in the Government treasury. The report of the Waasil Baqi Nawis, Tehsil Gujranwala, dated 24‑9‑1980, indicates that an amount of Rs.4,194 was deposited on 24‑9‑1980 through Ghulam Qadir, Patwari. Thus, this is clear that Ghulam Qadir, Patwari, the appellant, deposited the amount when he came to know that a case under section 409, P.P.C. was being registered against him for the embezzlement of the said amount. It was pointed out by the learned District Attorney, that this deposit into the Government treasury, by the appellant, clearly proves that he is guilty of misconduct, the embezzlement stood proved against him and he has been punished correctly and lawfully.

6. Rebutting the above plea of the learned District Attorney, the learned counsel for the appellant submitted that as the appellant was apprehending trouble from his superiors due to their mala fide intentions, hence, there was no alternative but to deposit Rs.4,194 in the Govern ment treasury, from his own pocket, to save himself from the high handedness of the police/departmental authorities; otherwise keeping in view his arguments the appellant is innocent and not guilty of any misconduct whatsoever.

7. I have given my anxious thought to the arguments of the parties and have also carefully perused the record of this case. Order of the Commissioner, Gujranwala Division, Gujranwala, dated 21‑11‑1982, is a detailed and comprehensive order which deals elaborately with the arguments so advanced by the appellant's counsel. I agree fully with the facts given in paras 4 to 6 of the order of Commissioner, Gujranwala Division, Gujranwala. These facts negate the arguments of the appellant's counsel. The deposit of amount of Rs.4,194 by the appellant in the treasury on 24‑9‑1980 clearly proves that the amount was earlier embezzled by the appellant and was deposited by him, when this came to the notice of his superiors, to save his skin. Thus, the charge of embezzlement is proved against the appellant. However, one fact of this case cannot be ignored, and is to be kept in view that the appellant had a long service of 32 years (from the year 1950 to 1982, as confirmed by the departmental representative at the time of hearing of this case) and I consider that the punishment awarded is not in consonance with the guilt of the appellant and length of his service.

8. Keeping the above analysis in view, I direct that the punishment awarded be modified as "compulsory retirement" instead of "dismissal from service". The impugned orders are directed to be modified to the above extent.

There will be no order as to costs.

M. Y. M. Order accordingly.

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