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Appeal No. 22 of 1983, decided on 12th June, 1985.

‑‑R. 5 (3)‑Summary procedure‑‑To be adopted only where it is clear and apparent from documents or other evidence that specific charge is proved ‑ Competent authority to 'record reasons for decision to adopt short procedure.

‑‑R. 5 (3) (b)‑‑Show‑cause notice‑Punishment proposed should be Specific‑Notice proposing imposition of "all or any of the penalties described in r. 4"‑Vague and bad in law.

P L C 1981 (C. S.) 700 ref.

Hussain Adil Khatri for Appellant.

A.A. Mohammedally, A.A.G. for the State

Date of hearing : 6th June, 1985.

Appellant Mr. Masood Ahmad Bhutto; an Agriculture Engineer has been awarded penalty of stoppage of two annual increments with cumula tive effect by an order dated 1st August, 1982. After exhausting remedies available to him departmentally, he has preferred this appeal under section 4 of the Sind Service Tribunal Act, 1973.

Facts, constituting background of the case, shortly stated are, that while appellant was serving as Superintendent, Agricultural Workshop, Tando Jam, he received an endorsement of a letter, addressed to the Agricultural Engineer, Tando Jam by the S.E. Agriculture Machinery, Hyderabad, requiring the appellant to deliver the drilling rig alongwith necessary accessories to Messrs Geo‑tech Corporation, Karachi. Appellant obeyed the orders and delivered the rig including, 8 items of the acces sories to Mr. M. A. Beg a representative of the Corporation under Gate Pass No. 88, dated 13th January, 1975. Compliance report alongwith the details of the accessories was conveyed to the Agricultural Engineer, Tando Jam vide letter, dated 27th January, 1975. Likewise Secretary Agriculture who had issued order for the delivery of the rig to the Geo‑tech Corporation; was also informed by the S.E. of the action taken.

On 29th September, 1979, appellant received a show‑cause notice to explain why "all or any of the penalties" may not be imposed upon him for not obtaining prior permission for the purchase of car and for over‑delivering items of accessories worth Rs. One lac which did not constitute part of the accessories of the rig. He furnished reply to the show‑cause notice and was also allowed personal hearing by the C. S. On 1st August, 1982 orders were passed stopping two increments accruing to the appellant on 1st December, 1982 and 1983 with cumulative effect. Aggrieved, the appellant has preferred this appeal on rejection of his prayer by the competent authority for restoration of increment to him.

Mr. Hussain Adil Khatri, counsel for the appellant initiated his arguments by pointing out the infirmities, the case suffered from. As far the first allegation of the purchase of car without proper permission is concerned, he recounted a series of acts which go forth to suggest that expost facto approval seems to have been impliedly conferred by the Government in the form of allowing the appellant to draw car advance/allowance, T. A. for tour etc. On the top of it, appellant, was allowed permission to sell the car in question and then purchase another one under letter, dated 19th November, 1981.

Referring to the subjective error committed in the construction of the show‑cause notice, dated 29th September, 1979, the learned counsel stated that the rig was delivered by the appellant while he stood posted at Tando Jam and not at Thatta as contained in the body of the show‑cause notice. He said that the notice smacked of some prejudice against the appellant as the same contained proposal "to impose all or any or the penalties described in rule 4 of the said Rules. He said that penalties in the said rule range from censure to dismissal, from service. Imposition of all penalties on one person, he stated is not practicable and renders the show‑cause notice ineffective and bad in law. In support of his con tention he cited 1981 P L C (C. S.) 700 wherein Sind Service Tribunal held that proposed penalty intended to be imposed must be specific and not vague.

As regards the second allegation concerning delivery of accessories in excess of the equipment meant for the rig, the counsel for the appellant argued that the notice was manifestly silent on the identification of the items/accessories given over and above the actual accessories of rig. He said that had there been such excessive deliveries with or without ulterior motives, it could have been detected conveniently by his duly qualified superiors including the S.E. who were all supplied copies of the deliveries in detail. He said that the formulation of allegations was purely an after thought action. On the other hand counsel for the appellant stated that all his superior officers including Secretary Agriculture and the Director were informed of the compliance. If there had been any discrepancy, it would have been detected by any of the officers being intimated of com pliance. In delivering the rig etc. the counsel pointed out that the appellant was merely functioning as an agent of his superiors who were his masters. He obeyed the orders as a dutiful subordinate unmindful of the terms agreement entered into between the representative of the Geotech and the Assistant Engineer.

Mr. A.A. Muhammadally. A.A.G. for the Government viewed that in view of the collateral material connected with the purchase of a car, charge No. 1 cannot be substantiated and as such made to stay. As far the other charge, he said that this Tribunal has already upheld decision of the competent authority to inflict penalty on Mr. Muhammad Yasin Khan of the Agriculture Department. In the same judgment, he said the Tribunal has also rightly, identified Mr. Naik Muhammad Bablani, Agriculture Engineer, Tando Jam whose hands cannot remain unsoiled in the deal resulting in heavy financial loss to the Government. A.A.G. has further contended that Mr. Masood Ahmad Bhutto, who was Super intendent Agriculture Workshop, Tando Jam does not warrant to be punished on the same count belatedly.

After hearing arguments on both sides, one comes to the conclusion that Mr. Masood Ahmad Bhutto was made the scape‑goat of the affair. After disclosure of the deal delivery of costly rig alongwith accessories to Geotech Corporation without incorporating built‑‑‑in safeguards in the agreement by the Daily 'Ibrat' Hyd., the Enquiry Officer had to name somebody as a scape‑goat for punishment. In this connection he chose Mr. Masood Ahmad Bhutto for no fault of his for punishment who at the time belonged to the lower most rung of the laddar of official hierarchy. In fact Mr. Masood Ahmad Bhutto was the agent of his master Mr. Naik Muhammad Bablani. In that capacity he merely carried out the orders issued at appropriate level. It was none of his business to enquire muchless interferes about the vires of the deal. The contents of the show -cause notice are also not based on factual position. It indicates posting of the appellant at Thatta instead of Tando Jam where cause of action arose. The punishment proposed was vague too. When the procedure of disciplinary proceedings is shortened, it is worthwhile for the com petent authority to record reasons for such decision. This summary procedure may be adopted only in cases where it is clear and apparent from documents or other evidence that specific charge is proved. Mentioning of all or any of the penalties is also not in order, the competent authority must be specific in proposing the penalty. Keeping in view the fact, there is no way except to allow the appeal and restore two increments with cumulative effect to the appellant. The parties will bear their own costs.

A. E.

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