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Appeal No. 334(R) of 1984, decided on 1st March, 1987.

‑‑‑R.4‑‑Service Tribunals Act (LXX of 1973), S.4‑‑Compulsory retirement from service‑‑Enquiry conducted against civil servant not in accordance with legal requirement‑‑Effect‑‑Examination of docu mentary proof only against civil servant, held, was not enough‑‑Civil servant being in service at time of enquiry, he should have been compelled to attend enquiry against himself‑‑Enquiry Officer while conducting enquiry adopted line of least resistance of examining documentary evidence only which did not fulfil legal procedural requirement‑‑Major penalty of compulsory retirement was too severe against such civil servant‑‑Service Tribunal setting aside penalty of compulsory retirement, imposed instead penalty of stoppage of increments for three years‑‑Civil servant was re‑instated in service from date of compulsory retitement.

Abdul Hakeem Khan for Appellant.

Muhammad Amir Akbar Khan for the State.

Date of hearing: 17th February, 1987.

‑‑The appellant, Hakim Khan, Ex‑Chief Statistical Officer has come in appeal against his compulsory retirement from service vide impugned order dated 23‑2‑1984. The appellant preferred a departmental appeal to the President of Pakistan on 22‑3‑1984 but he has not received any reply so far.

2. The facts of the case are that the appellant was employed as Chief Statistical Officer in the Headquarters Office of the Federal Bureau of Statistics under the Secretary, Statistics Division. He was called upon to explain certain irregularities vide D.O. Letter No.SD‑AP‑55(15)/74‑81 (Part), dated 3rd November, 1981. The appellant denied the allegations mentioned in the above quoted letter vide hig‑ explanation, dated 20th December, 1981. However, he was then served with a charge‑sheet dated 22nd August, 1982 alongwith the statement of allegations which contained six different charges. The appellant submitted his reply to the charge‑sheet on 20‑9‑1982 denying the charges levelled against him and also requesting for a personal hearing. An enquiry was ordered to establish the bona fides of the charges and on the basis of this enquiry a show‑cause notice was served on the appellant which is reproduced below:

"Government of Pakistan

(Statistics Division)

Islamabad, the 18th March, 1983.

Reference this Division's No. SD.AP.P.55(15)/74‑81 SO(A‑I)‑766/82, dated August 22, 1982 to you from the undersigned.

2. Whereas on the basis of the enquiry report, the undersigned, after going through the Enquiry Report, has come to the conclusion that the serious charge No.1 levelled against you having been fully established and that other charges partly proved the major penalty of removal from service should be imposed on you.

3. Now, therefore, in terms of Establishment Division's O.M. No.4/20/82‑R.I. , dated July 20, 1982, you are called upon to show cause within a period of one month from the date of receipt of this notice why the said penalty of removal from service should not be imposed upon you.

4. A copy of the Report of the Enquiry Officer is enclosed for your perusal.

(S.d.)

(Syed Habeeb Husain),

Secretary.

3. The learned counsel for the appellant contended that the enquiry conducted by the respondent‑department was not according to the normal procedure laid down. The appellant was not given a chance to attend the proceedings of the enquiry. He was also not given a chance to cross‑examine any witness. As a matter of fact, the enquiry was conducted only on paper. No witnesses were called upon to give evidence either for the prosecution or for the defence. The entire proceedings of the enquiry were conducted at his back.

4. It was further submitted by the learned counsel for the appellant that it was evident from the show‑cause notice also that out of the six charges mentioned in the charge‑sheet only charge No.1 was alleged to have been established. As a result of this enquiry other five charges were either not established or merely partly proved. This procedure adopted by the Enquiry Officer to conduct enquiry is in flagrant violation of rule 6(3) of the Government Servants (Efficiency and Discipline) Rules, 1973. According to this procedure the accused has to be present when prosecution witnesses are examined and he has to be given a chance to cross‑examine the witnesses. The appellant was incharge of his office and there were other people of the staff who would be involved in the alleged payment to Mr. Liaquat Ali, A.F.C., Regional Office, Lahore. None of these staff members was examined. The facts of the case are that Mr. Liaquat Ali, A . F. C . was granted leave from 14‑9‑1980 to 25‑9‑1980. As far as the appellant was concerned he often saw the so‑called absconder in his office after the expiry of leave. As such the appellant always remained under the impression that Mr. Liaquat Ali was receiving his pay in a usual manner. However, Mr. Liaquat Ali, A.F.C. has since refunded the payment over‑paid to him. Besides Mr. Liaquat Ali, Assistant Field Coordinator was working in the field and he did not attend the office every day and so it was difficult to ascertain whether he was absent or otherwise.

5. Furthermore it was strongly contended by the learned counsel for the appellant that he was deprived of being heard in person when the appellant appeared before the Authorised Officer on 1st January, 1984 and handed over certain documents. The Authorised Officer disposed of the appellant by saying that these papers would be examined but did not give him a chance to explain his case. The appellant was retired compulsorily without personal hearing. In view of these circumtances, it was submitted that the entire proceedings of the enquiry stand conducted in violation of the relevant rules on the subject. The impugned order, therefore, is liable to be set aside being illegal, unjust and against the principle of fairplay and justice.

6. The learned counsel for the State contended that the enquiry conducted by the respondent‑department was based primarily on the documentary evidence. This was so because the record available in the office concerned alongwith the explanation submitted by the appellant were considered self‑explanatory and exhaustive. It was submitted that the appellant was asked to attend the proceedings but he failed to do so on one pretext or the other. Further, it was submitted that the appellant was categorically asked to stop payment to Mr. Liaquat Ali, A.F.C. absconder but still his salaries upto 30‑11‑1980 were paid as per the entry record in the Cash Book. Three signed but blank receipts attested by the appellant have been used for drawing the amount of salary. The signatures of Mr. Liaquat Ali on the receipts do not tally with his regular signatures available on the record. In the presence of such written proof, it was not considered necessary to examine any prosecution witness. Since there are no specific rules declaring a civil servant absent from duty without leave to be an absconder, the term has been used as a matter of convenience only. It was contended that the payment of pay and allowances for the period in question was made to Mr. Liaquat Ali without lawful authority. The mere fact that the amount has been repaid to the Government does not absolve the appellant from the responsibility of committing serious financial irregularity. The impugned order of compulsory retirement of the appellant, is, therefore, absolutely according to rules and has been approved by the competent authority. His review application to the President of Pakistan has since been rejected and he has been informed accordingly vide Statistical Division O.M. No. SD.SO(A‑IV) 21‑23/82‑246, dated 13th September, 1984.

7. In view of the above arguments, we are of the view that the enquiry conducted by the respondent‑department was not according to rule 6(3) of the Government Servants (Efficiency and Discipline) Rules, 1973. In this case, we do not think that it was enough to examine the documentary proof only since the payment could not have been made directly by the appellant to Mr. Liaquat Ali, A.F.C. The other staff members of the office should have been examined. The appellant should have been given a chance to cross‑examine such prosecution witnesses and also afforded an opportunity to produce his defence witnensses, if any. Since at the time of enquiry, the appellant was in service he could have been forced to attend the proceedings. We feel that the Enquiry Officer adopted the line of least resistence, of examining the documentary evidence only which does not fulfil the legal procedural requirement in this case. We are of the considered view that this is at worse, a case of gross negligence on the part of the appellant in the discharge of his duties. Also, the fact that the amount alleged to have been misappropriated has since been deposited by Mr. Liaquat Ali, A.F.C. goes to prove that the amount was duly disbursed to him. The total amount so alleged to have been embezzled is less than Rs. 2,000. The appellant is a responsible officer of Grade‑18 with a long service and good service record. There is no other case of this nature against the appellant which could be quoted as a precedent. We are, therefore, of the considered view that the major penalty of compulsory retirement of the appellant is rather too severe.

8. In exercise of the powers conferred on the Tribunal under section 5 of the Service Tribunals Act 1973, we set aside the impugned order and instead impose on the appellant the penalty of stoppage of increments for three years and direct that in terms of F.R.‑29, on restoration, it shall also operate to postpone future increments The appellant is re‑instated into service from the date of compulsory retirement. The period since his date of compulsory retirement i.e. from 23‑2‑1984 todate be treated as leave admissible under the existing leave rules, as amended.

9. No order as to costs.

10. Parties to be informed.

A.A. /369/Lb./S

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