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Appeal No. 121 of 1980, decided on 24th September, 1985.

‑‑‑S. 4‑‑Disciplinary action‑‑Quantum of punish ment‑‑S.D.O., charged for tampering with record/indent regarding issue of cement to Contractor from Government Store and misappropriation of excess quantity by putting same to his own use‑‑Indent authenticated by XEN admittedly altered by accused and such unauthorised tampering amounting to misconduct‑ Alleged misappropriation of cement by utilizing same for own use not established by evidence‑‑Penalty of dismissal from service, in circumstances, held, excessive and Tribunal altering same to that of stoppage of promotion for five years and appellant directed to be re‑instated with back benefits.

Kh. Muhammad Saeed for Appellant.

Additional Advocate‑General for the State.

‑The brief facts of this case are that the appellant was serving as S.D.O., P.W.D. when an application was made against him by some contractors which was marked by the authorities for enquiry to X.E.N., P.W.D. He submitted a preliminary report and thereafter, vide Government order No. 1049‑54 of 1979, dated 15‑3‑1979, the appellant was suspened and vide No. 1056‑58 of 1979, dated 15‑3‑1979, show‑cause notice was issued to the appellant and Sardar Hamidullah Khan, O.S.D., was appointed as Enquiry Officer to conduct enquiry into the allegation, levelled against the appellant. On the basis of the inquiries, the appellant was dismissed from service vide order No. Admn/5257‑64 of 1979, dated 1‑10‑1979 and his review petition was also dismissed vide No. S&GAD/743‑50/80, dated 11‑3‑1980. The present appeal is directed against the aforesaid orders.

For the correct appreciations of the case, first of all the show‑cause notice containing the charges is reproduced below:‑‑

We have heard the arguments of Kh Muhammad Saeed, learned Advocate for the appellant and the learned Additional Advocate‑General, who represents the State.

In order to find the facts, the Enquiry Officer proceeded with the enquiry and recorded the evidence of the following persons, in support of the allegations:‑

(1) Mir Abdul Rehman, Contractor.

(2) Muzaffar Khan, Contractor.

(3) Shah Zaman, Store Keeper.

(4) Muhammad Nasim, Overseer.

(5) Muhammad Suleman, Store Chowkidar.

(6) Mushtaque Butt, XEN.

(7) Mir Bashir Hussain, XEN.

(8) Muhammad Aslam, Contractor.

(9) Malik Bani Hussain, Contractor.

(10) Muhammad Arif, Contractor.

(11) Monabad, Contractor.

(12) Faqar Din.

(13) Ghulam Mustafa.

(14) Galab Din.

Apart from the above, on behalf of Sadiq Ali, appellant, the following witnesses were examined in defence:‑

(1) Zamreen Shah, Sub‑Divisional Clerk.

(2) Hadayatullah Khan, Senior Clerk.

(3) Ali Zaman, Senior Clerk.

(4) Mumtaz Ali Gillani, Contractor.

(5) Muhammad Arif son of Noor Din.

The charge against the appellant is two fold rather the show‑cause notice is indicative of two charges against the appellant.

(a) The appellant tempered with the quantity of the cement, shown in the indent, authenticated by the Executive Engineer and changed the figure of 100 bags to 200 bags, and

(b) Out of the quantity of 200 bags of cement, 100 bags were given to the contractor and 100 bags were misappropriated by the appellant, for his own use by fraud and dishonesty.

We have looked into the evidence produced in support of the allegation in respect of the tempering of the quantity of the cement in the disputed indent as well as regarding the misappropriation. Muzaffar Khan, Contractor, who is the complainant in the case, stated that he got prepered an indent for the drawl of 100 bags of cement from P.W.D. store and after completing the formalities for the drawl of cement, the indent was passed on by him to his clerk, (whom we call Munshi in the vernancular) Amirullah for the drawl of the cement from the store and he himself proceeded to Rawalpindi. On his return, he was told by the clerk that S. D. O., Sadiq Ali had tempered with the quantity of the cement, changing the same from 100 bags to 200 bags and that out. of this cement, the S.D.O. appellant had taken away 100 bags for himself. As per his statement it was his clerk before whom Sadiq All, S.D.O. stated, that he had talked to the contractor about 100 bags. The witness further stated that he contacted the S.D.O. to talk on the subject and he was told that the cement would be returned to him in instalment, but in spite of a lapse of 2 months, the cement was not returned to him. The witness during the cross‑examination, admitted that he had gone to Rawalpindi on 9th October, 1978 and came back after 5/7 days. As against this witness, Shah Zaman, Store Keeper stated that on 6‑10‑1978, Raja Muzaffar Khan produced before him an indent for 200 bags of cement, wherein there was a cutting, initialled by the Overseer, so he returned the indent to the contractor and told him that the cutting should be got signed by the S.D.O. After 15 minutes, the contractor re‑appeared with the indent, wherein previous cutting was struck‑off and in clear words, 200 bags of cement were written. He obtained the signatures of the contractor on the indent as a token of receipt and issued to the contractor a chit which was addressed to the Store Chowkider. The contractor had drawn the cement on 7‑10‑1978. The third witness, Muhammad Nasim, Overseer stated that he had prepared an indent for 100 bags of cement which was to be drawn by the contractor, Muzaffar Khan but the S.D.O. tempering with the quantity, made the indent for 200 bags. He signed the cutting and this witness also initialled. Thereafter, indent was passed on to Raja Muzaffar Khan. According to this witnesses, Sadiq Ali, appellant, told him that contractor was pressing for the issue of 200 bags of cement. In cross‑examination, this witness stated that at the time, of cutting/tempering was affecting in the indent, clerk of the contractor was there. Fourth witness, Muhammad Suleman, Chowkidar of the Store stated that 200 bags of cement were issued to Muzaffar Khan, contractor, who had brought a chit for him from the Store Keeper. He stated that the cement was handed over to the contractor. He also stated that during the earlier enquiry, conducted by Mir Bashir Hussain, X.E.N., the Overseer and the contractors were also present and questions were mostly posed by Raja Tanvir Akhtar, Office Superintendent. He also stated that he is illiterate and that his statement was not read over to him and he was required to affix his thumb‑impression. In reply to a question, the witness told that he did not recognise Chaudhry S.D.O. and also stated that he was asked to state that Sadiq Ali had taken away the cement but he told them that he could neither recognise the S.D.O. nor he ever came to him and cement was also not taken away from him by Sadiq Ali. Mushtaque Ahmad Butt, witness stated that in light of the statements of the witness, recorded by him during his enquiry, he submitted a report in the matter. There was no written proof of the allegations, therefore, he did not attach any importance to the allegations. This witness stated that when the disputed indent was submitted to him, it was not doubtful but on account of rush, he could not say whether there was any initial of the Overseer or over‑writing but he could say that signatures of S.D.O. were not on the indent. He stated that he was told this fact by the Store Keeper. Mir Bashir Hussain, X.E.N. stated that complaint was sent to him by the Chief Engineer for enquiry against Sadiq Ali and he recorded the statement of the witnesses. From the enquiry, it transpired that Sadiq Ali had taken some cement from the store but it was not clear whether it was the Government's own cement or otherwise. To the question posed to him, whether he had prepared the estimate of cement spent on the roof of the house of appellant, he replied that he had not inspected the house.

Apart from these six witnesses, five other witnesses, namely: Muhammad Arif, Contractor, Muhammad Aslam, Contractor, Mir Abdul Rehman, Contractor,. Malik Boni Hussain, Contractor and Manshad Khan, Contractor were also examined but their statements do not throw any light on the truth or otherwise of the allegation. They are speaking about something extroneous to the allegations against the appellant. The enquiry officer has mentioned about the only 11 witnesses in his report and he has not given any appreciation of evidence of Faqar Din, Ghulam Mustafa and Galab Din but their statements have been also found to have been recorded by him. We have also examined the statement of these three witnesses. Their evidence discloses that 50 bags of cement in three trips in Suzuki was delivered at the residence of Ch. Sadiq Ali, S.D.O. which was taken away from the store. These three loaders (whom we call qullies in our vernacular) do not disclose whether the cement taken to the residence of the appellant formed the part of the quantity of the cement issued to Muzaffar Khan, contractor. It was also not put to them, whether cement was issued to Muzaffar Khan on the day or near-about the day when this quantity of 50 bags was delivered at the residence of Ch. Sadiq Ali. The date of the delivery of the cement at the residence of Sadiq Ali was also not shown in these statements.

Out of the evidence produced by the appellant, accused officer in his defence, the statement of Sareen Shah, Hadayatullah Khan and Ali Zaman Khan is not very much relevant for the purpose of defence. The statement of these witnesses at the most deal with the strained relation of the contractor with the S.D.O. and partially these statements relate to the payment of cost of cement by contractor, through a recovery from him. Account of cement and iron issued to Muzaffar Khan, contractor, maintained by Clerk of Sub‑Division was also produced, wherein 200 bags of cement have been shown issued to Muzaffar Khan but this register is not signed by the contractor. Witness, Muhammad Arif has made the statement about the purchase of one Suzuki No. AJK‑9507, which met with an accident. Thus, the evidence of these 4 witnesses lends no support to the defence. Fifth witness Mumtaz Ali Gillani has stated that he had sold 200 bags of cement to Sadiq Ali appellant on the basis of permit No. 4090 issued by Deputy Commissioner's Office Muzaffarabad, in favour of the appellant.

Reverting to the charges, we are of the view that tempering of the indent, by Ch. Sadiq Ali, the appellant, is proved on the basis of the evidence and he has also admitted to have effected the cutting in the disputed indent and signed the same, although he has put forth the reasons that it was done on the pursuation of the contractor in view of the requirement of the cement, for the work in progress. It is very much clear that according to the practice, prevailing in the P.W.D. the final authority for permitting the drawl of the cement, from the Store was X.E.N. and practically he signed the indent, which was an authority for the Store Keeper to issue the quantity of the cement indicated in the indent to the contractor. Any over‑writing, cutting or interpolation after the signature of the competent authority was in fact, a forgery and clearly on unauthorised act of the appellant Sadiq Ali, then Sub‑Divisional Officer. Once any document is signed by any person. Officer or Authority, so change in the contents of the same can be made by anyone else and if done so, it will be an unauthorised act. The S.D.O. has produced an extract from Central P.W.D. Code to show that issuing of the Store stock, i.e. cement etc., was within the competence of S. D.O., therefore, tempering with the indent was according to him not an unauthorised act. We are afraid, we cannot accept this plea. If the indent would have been issued by the S.D.O., he could change the quantity of the cement but an indent signed and authenticated by the X.E.N. could not be changed by the S.D.O. The authority of the S.D.O. to issue a store item even if accepted, does not authorise him to change the document, prepared by an officer superior to him because the act of changing does not become attributable to S.D.O. on cutting, rather the indent remains a document authenticated by the X.E.N. Therefore, any change in such document could only be made by the X.E.N. himself. Even otherwise we feel that there was absolutely no necessity to change the quantity in an indent because a subsequent indent could be issued for the quantity which was sought to the be issued in addition to the quantity issued earlier. It has been also pleaded that cutting of indent is a practice in the department. We are not going to accept this plea. There are always complaints of corruption in this department. Such a practice of tempering with the documents by subordinates, which are originally signed by the superiors, prevails somewhere in this department, we can only say that this practice is unlawful and perhaps the same is allowed to facilitate the corrupt practices and at any date, such routine of tempering of documents cannot be in the interest of the Government.

There are two aspects of this action of the S.D.O. Whether his action is attributable to the routine practice or the same was for ulterior motive of getting of 100 bags of cement for himself by dishonesty, misappropriation of the same. He cannot be exenorated of the illegal act of tempering with the disputed indents. He is accordingly held guilty of the tempering of the indent though the question of punishment will depend on the intention of the culprit.

The second charge as to the misappropriation of the 100 bags of cement for his personal use is not established beyond doubt for the following reasons:‑

(i) Muhammad Nasim, Overseer, states that cutting tempering of the quantity of cement was done in the presence of clerk of the contractor to which the clerk had not objected.

(ii) According to Muhammad Nasim, witness, the S.D.O. had tempered with the quantity and signed the indent before he affixed his initials rather he showed that he initialled the indent in compliance to the desire of S.D.O. On other hand, the Store Keeper Shah Zaman, stated that when Muzaffar Khan presented the indent to him for the first time, it was bearing the initials of Overseer only and this indent, was returned and after sometime the indent was presented duly signed by the S.D.O.

(iii) Muushi Amirullah, who is stated to be present at the time of tempering end who according to Muzaffar Khan was ‑the witness of the fact that 100 bags of cement were taken away by Sadiq Ali, had not been produced in support of the allegation against appellant. This gives rise to a presumption in favour of the appellant.

(iv) The Store Keeper has categorically stated that indent was presented to him by Muzaffar Khan himself and this is also stated by the Store Keeper that he obtained the signatures of Muaffar Khan on the indent as token of the receipt of 200 bags of cement.

(v) Suleman, Chowkidar also stated that he delivered the cement to the contractor.

(vi) The cement is established to have been issued on 7‑10‑1978 and Muzaffar Khan admits that he left for Rawalpindi on 9‑10‑1978, therefore, Muzaffar Khan's plea, that he was not at Muzaffarabad and had assigned the work of drawl of cement to his clerk because he had left for Rawalpindi, appears to be a concocted story.

(vii) The statements of three loaders (qullies) that they delivered 50 bags of cement, are also oilent as to the date of delivery of this cement at the residence of Ch. Sadiq Ali and they also do not say that this cement was actually the part of that quantity which was issued to Muzaffar Khan. It has not been shown that Muzaffar Khan had drawn the cement on the same date when this cement was delivered at the residence of, Sadiq Ali.

(viii) The house constructed by Sadiq Ali has been described as QILLANAMA by contractors as well as by the enquiry officer but it has been shown that its covered area is only 1600 square feet. A copy of the judgment of Sub‑Judge Muzaffarabad has been placed on the file to show that walls of the house were constructed much earlier and according to the appellant, only the roof of the house was constructed during the period prior and after the date of complaint, for which according to the appellant he had purchased 200 bags of cement from Mumtaz Ali Gillani, who has testified this purchase by his evidence and by production of permit of Deputy Commissioner's Office Muzaffarabad.

(ix) The statements of contractors and their application also show that the relations of contractors with this S.D.O. were strained and false implication of the S.D.O. cannot be ruled out.

(x) Mir Bashir Hussain, X.E.N. who earlier conducted enquiry could not opine whether 50 bags of cement was out of Government Store or it was out of quantity issued to the contractor. In view of the above factors, the misappropriation of 100 bags is not established.

We have already held that the S.D.O. Sadiq Ali, was guilty of tempering with the indent which resulted in the accusation of dishonesty, misappropriation and fraud against him. Had he not illegally tempered with the indent, this situation would not have arisen. This act of the appellant speaks about his conduct while dealing with contractor, who came for dealing in official matter with him. So, we cannot overlook this unlawful act of the appellant,. His conduct, being unbecoming, of an officer, amounts to misconduct.

For the view, we have taken with respect to the proof of the charges, we feel that extreme penalty of dismissal from service of the accused S.D.O., appellant before us, is excessive and we feel that al punishment of stoppage of promotion for five years henceforth will meet the hands of justice.

We, therefore, accept this appeal, set aside the orders of the Government, passed on 01‑10‑1979 dismissing the appellant and the order, dated 11‑3‑1980 dismissing his review petition and alter the, punishment of dismissal to the stoppage of promotion for five years henceforth. It is directed that the appellant be re‑instated in service with back benefits. We make no order as to costs.

A.E.

Orders accordingly.

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