Federal Service Tribunal's decision and upheld the dismissal and financial recovery penalty for Hameed-ud-Din.
 |
| The Supreme Court annulled the Federal Service Tribunal's decision and upheld the penalty of dismissal and recovery of the amount from Hameed-ud-Din. |
سپریم کورٹ نے فیصلہ سنایا کہ ہامی الدین کو ملازمت سے برخاستگی اور مالی ریکوری کی سزا بحال رکھی جائے کیونکہ فیڈرل سروس ٹربیونل نے سزا کو غیر مناسب طور پر نرم کر دیا تھا۔
یہ مقدمہ پاکستان کی سپریم کورٹ میں پیش کیا گیا، جس میں چیف پوسٹ ماسٹر جنرل، ملتان اور دیگر نے ایک فیصلے کے خلاف اپیل دائر کی تھی جو فیڈرل سروس ٹربیونل، لاہور بنچ نے 20 فروری 2019 کو جاری کیا تھا۔ اس مقدمے میں ہامی الدین نامی سرکاری ملازم کو پہلے ملازمت سے برخاست کیا گیا تھا اور ان پر الزام تھا کہ انہوں نے پوسٹل آرڈرز (PPOs) کے سلسلے میں سرکاری خزانے کو مالی نقصان پہنچایا ہے۔
فیڈرل سروس ٹربیونل نے ملازم کی سزا کو ملازمت سے برخاستگی سے بدل کر ایک سال کے لیے سالانہ انکریمنٹ کی روک تھام کر دی تھی، جس کے خلاف چیف پوسٹ ماسٹر جنرل نے نظر ثانی کی درخواست دائر کی تھی جو مسترد کر دی گئی۔
اس اپیل میں سپریم کورٹ نے مختلف نکات کا جائزہ لیا، جیسے:
1. کیا ملازم کو صفائی کا موقع دیا گیا؟
2. کیا انکوائری کے دوران مناسب طریقہ کار اختیار کیا گیا؟
3. کیا برخاستگی اور مالی ریکوری کی سزا مناسب تھی؟
عدالت نے یہ فیصلہ دیا کہ ملازم کو صفائی کا مناسب موقع دیا گیا تھا اور وہ اپنے دفاع میں ناکام رہا۔ عدالت نے فیڈرل سروس ٹربیونل کے فیصلے کو غلط قرار دیا اور ملازم کی برخاستگی اور مالی ریکوری کا حکم بحال کر دیا۔
C 4
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE GULZAR AHMED, HCJ
MR. JUSTICE IJAZ UL AHSAN
CIVIL APPEAL NO.10 10 OF 2020.
(Against the order dated 20.02,2019 passed by
the Federal Service Tribunal, Lahore Bench,
Lahore in Review Petition No. 03 of 2019).
The Chief Postmaster General, Post Office,
Multan and others.
Appellant(s)
Versus
Hameed-ud-Din.
For the Appellant(s):
For the Respondent(s):
Date of Hearing:
Respondent(s)
Mr. Ayyaz Shaukat, DAG.
Mr. Mehmood A. Sheikh, AOR.
Mian Mahmood Hussain, ASC.
25.06.2021.
JUDGMENT
IJAZ UL AHSAN, J. - . The Appellant through
this Appeal has challenged the judgment of the Federal
Service Tribunal, Lahore dated 20.02.20 19 passed in Review
Petition No.03 of 2019. Through the Review Petition, the
Appellant prayed that the judgment of the Federal Service
Tribunal, Lahore, dated 19.12.2018 passed in Service Appeal
No. 271(L) of 2017 be reviewed (hereinafter referred to as
"Impugned Judgments"). Through the Service Appeal, the
Respondent had challenged the order dated 24.02.2017
whereby his departmental appeal was rejected. The learned
Federal Service Tribunal (hereinafter referred to as "FST")
through the Impugned Judgment allowed the Service Appeal
of the Respondent thereby converting his penalty of dismissal
from service to that of stoppage of increment for one year
CIVIL APPEAL NO.OP 2021
2
without cumulative effect. Aggrieved, the Appellants filed a
Review Petition before the FST, Lahore, which was dismissed.
2. The necessary facts giving rise to this Us are that
the Respondent was posted in GPO, Multan as Postal Clerk,
Utility Bills Compilation and was further entrusted with the
additional duty of Assistant Chief Postmaster (Counter) GPO
("ACPM"), Multan w.e.f. 14.05.15 to 11.09.15. The
Respondent while working against the said post signed the
Postal Payment Order ("PPO") Paid Statement for July 2015 to
September 2015 and sent the same to the office of the
Director of Accounts. The said Accounts Office informed that
the PPO Paid Vouchers amounting to Rs. 11,09,500 which
ought to have been with the PPOs were missing, even after a
lapse of 04 months i.e. from July to September 2015. When
inquired, the Respondent stated that he had kept the said
vouchers in a bag, however, the said bag was lost. The
Respondent was placed under suspension on 25.11. 15 on the
allegation that he failed to submit PPOs for July, August, and
September 2015. The department served the Respondent with
a charge sheet and statement of allegations vide order dated
02.01.2016. After completion of the inquiry, the Respondent
was served with a Show Cause Notice dated 05.03.16 which
was responded to on 26.01.16. Vide order dated 28.04.2016
the Respondent was dismissed from service and recovery of
Rs. 10,39,500 was ordered by the competent authority. The
departmental appeal of the Respondent was dismissed vide
order dated 24.02.17. The Respondent preferred a service
N
CIVIL APPEAL NOM/dJF 2021
':1
appeal before the Service Tribunal which was partly allowed
and the penalty was modified. The Appellants are aggrieved of
the said order. Hence, this appeal.
3.
Leave to appeal was granted by this Court vide
order dated 25.11.2020 in the following terms:-
"Learned Counsel contends that the respondent was
entrusted for payment of PPOs in the sum of Rs.
11,09,500. The respondent was required to maintain the
paid vouchers of such PPOs and submit them along with
the monthly statement, but he did not do so and it was
found that the Post Office had incurred a loss of the said
amount. The charge was framed against the respondent,
who in response thereto, filed a letter mentioning that he
is depositing Rs. 40,000 towards the loss amount and
requested that this case may not be referred to the FIA. It
seems that the petitioner conducted an inquiry and in
such inquiry, the respondent was found responsible for
the commission of such loss and recommended dismissal
from service and recovery of the loss amount. Thus,
through the order dated 28.04.16 the respondent was
imposed with the penalty of dismissal from service and
recovery of the loss amount, against which the
respondent filed a service appeal before the Federal
Service Tribunal (Tribunal), which was decided by the
judgment dated 19.12.2018, converting the penalty of
dismissal from service and recovery to stoppage of
increment for one year without cumulative effect. The
petitioner filed a review petition before the Tribunal
stating that the Tribunal has wrongly exercised
jurisdiction in modifying the penalty, however, by the
impugned order dated 20.02.2019, the Tribunal
dismissed the review petition.
2. Learned Deputy Attorney General contends that the
loss amount could not be explained by the respondent
and even he did not place before the petitioner the record
pertaining to the loss amount and by depositing Rs,
40,000, the respondent has admitted that he was
responsible for causing loss to the government. He further
contends that the Tribunal has interfered with the
penalty imposed on the respondent on the ground that he
has not committed misappropriation or embezzlement but
the inquiry report shows that such was the case."
4.
Learned Deputy Attorney General appearing on behalf of
the Appellants contends that the Director of Accounts ("DA")
vide letter dated 05.08.2009 requested for the provision of
CIVIL APPEAL NO. /0/40? 2021
4
PPO Paid Vouchers or recovery of the lost paid vouchers
amounting to Rs. 11,09,500. The Respondent in his
application dated 26.01.2016 informed that he had returned
an amount of Rs. 40,000 and further promised to credit the
remaining amount of loss voluntarily which amounts to an
admission by the Respondent of his guilt. Further, that the
Respondent was allowed to provide the department with the
Serial Numbers of the lost PPOs, however, he failed to do so.
He further submitted that the Respondent signed the PPO
Paid Statement himself for July to September 2015 and
dispatched the same to the office of the DA ("DA") while the
regular ACPM was present on duty which is a violation of
Rule 402/27 of the Pakistan Post Office Manual Volume 6.
Thereafter, the Appellant Department informed that the
supporting vouchers (PPO Paid) amounting to Rs. 11, 09,500
were not supplied even after a lapse of four months and, this
act of the Respondent has caused the Appellant Department a
loss of Rs. 11,09,500. Further, that the Respondent when
asked stated that the vouchers were kept by him in a bag
which was lost, however, he failed to report this loss to his
superiors which at any stage was a violation of the relevant
rules of the Appellant -Department which the Respondent
was bound to follow.
S. Learned ASC appearing on behalf of the
Respondent submitted that it is only after the payment is
made that vouchers are issued. Just because the vouchers
were purportedly missing, it cannot be held that the
CIVIL APPEAL NO.148)P 2021
5
Respondent misappropriated or embezzled the amount when
the Respondent has stated that he placed the vouchers in a
bag which was lost due to no fault of his own. Further, that
the Respondent was condemned unheard and the
departmental order was passed without affording the
Respondent a fair opportunity to defend himself. Further, that
the charges levelled against the Respondent in the charge
sheet are different from those which are mentioned in the
Show Cause Notice issued to the Respondent. He further
added that parallel inquiries were conducted against the
Respondent in the shape of a preliminary inquiry and a final
inquiry. The result of these inquiries was that the preliminary
inquiry prejudiced the final inquiry and prompted the
Appellant Department to impose the penalty suggested in the
preliminary inquiry report. The Chief Postmaster conducted a
preliminary inquiry against the Respondent and recorded
adverse findings therein, which prejudiced the formal inquiry
which was to take place subsequently. After the formal
disciplinary proceedings concluded, the recommendations of
I
the Chief Postmaster were accepted, consequently, the
penalty of dismissal from service was imposed upon the
Respondent in a slipshod manner. Lastly, the learned ASC
submitted that no allegation of fraud or misappropriation was
levelled against the Respondent and a case of mere negligence
is different from a case of misappropriation and misconduct
and cannot be treated at par with it so as to warrant the
dismissal of the Respondent and recovery of loss (if any) from
him.
CIVIL APPEAL NO /6/40? 2021
6. We have heard the learned Deputy Attorney
General and the learned ASC appearing on behalf of the
parties. The issues which require adjudication by this Court
are as follows:-
I. Was the Respondent condemned unheard in
violation of the principles of natural justice and
the law?
II. Was the inquiry conducted against the
Respondent in violation of the prescribed
procedure?
III. Was the penalty of dismissal and recovery
commensurate with the seriousness of allegations
levelled against the Respondent?
WAS THE RESPONDENT CONDEMNED UNHEARD IN
VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE
AND THE LAW?
7.
It is an admitted fact that the Respondent was
granted a personal hearing. The Respondent in his appeal
before the FST has stated that he was called for a personal
hearing, however, the personal hearing was "meaningless".
The learned DAG has submitted that the Respondent was
heard twice. Once on 30.03.2016 and then on 28.04.2016
and that during the personal hearing on 28.04.2016, the
Respondent admitted the fact that he was negligent and he
failed to submit the PPO Paid Vouchers.
8.
We have examined the order of the PostmasterGeneral, Southern Punjab Circle, Multan. The said orde
CIVIL APPEAL NO$b OF 2021
7
states that the Respondent was called for a personal hearing
on 17.02.2017. The Respondent appeared in person and
stated that due to heavy workload, he could not submit the
statement of PPOs to the DA and he kept the same in a bag
that was stolen. He further stated that this was unintentional
and that he was a Hafiz-e-Quran who had an unblemished
service record. The fact that the Respondent was able to
explain his working conditions, his religious qualification, and
that he had an unblemished service record goes to establish
that the personal hearing granted to the Respondent was not
meaningless, however, the Respondent was unable to justify
his actions which prompted the Appellant-Department to take
action against him. This aspect of the case has been left
unconsidered by the FST. In the presence of these facts and
circumstances, it cannot by any stretch of imagination be
held that the Respondent was condemned unheard. The
Respondent has not brought anything on the record to
establish that he asked his superiors to change his duties so
that he could perform them more efficiently, owing to his
workload. He voluntarily performed the duties he was
assigned. He cannot blame the Appellant Department in this
regard and pin the blame of his negligence on his
circumstances.
9. We are, therefore, unable to agree with the learned
ASC for the Respondent to the effect that he was condemned
unheard. Even otherwise, sufficient material is available on
the record which establishes that the Respondent wa
CIVIL APPEAL N0J4$OF 2021
8
granted various opportunities to defend himself. The findings
of the FST in this regard are against the record and
unsustainable in law as well as fact. When confronted with
the aforesaid averments, the learned ASC replied by saying
that the charges against the Respondent were different in the
charge sheet and the show-cause notice. This, in our view,
does not address the question of whether or not the
Respondent was condemned unheard. When he has stated
that the personal hearing was in his opinion "meaningless", it
cannot be held that a hearing was not granted and the rule of
audi alterarn partem was violated. If the hearing was not up to
the satisfaction of the Respondent or he did not get the relief
that he was expecting, the Appellant Department cannot be
held to have condemned him unheard. The only grievance of
the Respondent is that he was not heard properly and the
Respondent has left this ground unsubstantiated. As such,
the findings of the FST in this regard are erroneous and
unsustainable.
WAS THE INQUIRY CONDUCTED AGAINST THE
RESPONDENT IN VIOLATION OF THE PRESCRIBED
PROCEDURE?
10. The learned ASC appearing on behalf of the
Respondent has stated that the inquiry proceedings against
the Respondent were conducted in a disorderly manner. The
learned DAG in this regard has drawn our attention to the
Show Cause Notice, Charge Sheet and Statement of
Allegations served upon the Respondent. A perusal of the said
documents reveals that the Respondent was issued a charge
CIVIL APPEAL NO1*DF 2021
9
sheet and was asked to submit his defence. He was issued a
Show Cause Notice to which he replied rebutting the
allegations against him. An inquiry was conducted in which
he participated and thereafter, the penalty of dismissal from
service along with recovery was imposed upon the
Respondent. The Respondent then preferred a departmental
appeal which was rejected. This prompted the Respondent to
approach the FST by filing a service appeal.
11. The Respondent was proceeded against under the
law. Nowhere has the Respondent during the pendency of the
aforesaid process stated that the proceedings against him
were biased or were being conducted improperly. He
participated in the proceedings and was able to give his
defence, which was left to the Appellant Department to accept
or not accept. Not only a regular inquiry but a preliminary
inquiry was also held against the Respondent. The contention
of the learned ASC for the Respondent that two parallel
inquiries were being conducted, one of which prejudiced the
final inquiry proceedings against the Respondent is not
supported by the record. We have perused the final inquiry
report and the preliminary inquiry report of the Chief
Postmaster. Both of these reports are comprehensive and
have analysed the Respondent's case thoroughly. The fact
that there are similarities in both the said reports is
inconsequential because the foundation of the charges
levelled against the Respondent which has been made the
basis of the preliminary inquiry and final inquiry is the same.
J
CIVIL APPEAL N0./8b0F 2021
10
The preliminary inquiry report merely recommended that the
Respondent be proceeded against on the charges which were
levelled against the Respondent. The Final Inquiry Report
investigated the charges levelled against the Respondent and
held him guilty of the allegations. It can be seen from the
preliminary inquiry report that disciplinary action along with
a recovery of Rs. 11,09,500 was recommended against the
Respondent, whereas, the final order of dismissal mentions
that he was dismissed from service and recovery of Rs.
10,39,500 was ordered to be effected by the Respondent. The
difference which exists in each of these inquiries and also the
order of dismissal sufficiently establishes that the said order
and inquiry reports were independent of each other and were
prepared after examining the record and due application of
mind. The Respondent has not been able to establish from
the record that any official of the Appellant-Department was
biased or had a grudge against the Respondent which
prompted them to proceed against the Respondent with
malice or ill will.
WAS THE PENALTY OF DISMISSAL AND RECOVERY
COMMENSURATE WITH THE SERIOUSNESS OF
ALLEGATIONS LEVELLED AGAINST THE RESPONDENT?
12. It is an admitted fact that the Appellant Department
suffered a financial loss of Rs. 11,09,500, which could have been
prevented but for the alleged loss of or inability of the Respondent
to account for the PPO Paid Vouchers. The Respondent signed the
PPO Paid Statement while the incumbent APCM was present on
duty. Furthermore, the Respondent in his application dated
26.01.2016 has stated that he will make up for the loss caused to
CIVIL APPEAL NO4IOOF2O2 I
11
the Appellant Department and has further requested that his case
may not be sent to the FIA. It is pertinent to mention that PPOs are
documents that were of fundamental importance and needed to be
proved or if they had been lost, independent evidence should have
been produced to show that the payments were made against
surrendered PPOs which had been cancelled, retained and relevant
particulars thereof had been entered in the relevant records. The
Respondent was also required to present the vouchers against
which PPO payments were made to authenticate such payments.
No such evidence/material/documents were placed on record. The
Appellant Department gave several opportunities to the
Respondent to prove his innocence. The Respondent in return
deposited an amount of Rs. 40,000, which in our view, amounts to
admission on his part of the misappropriation. This aspect of the
case has been ignored by the learned FST in the impugned
judgment.
13. The learned FST has taken the stance that all the
allegations against the Respondent stood proved, however, he
could not have been held responsible ipso facto for embezzlement
or misappropriation. We are unable to agree with this observation
for the reason that, when the FST, on one hand, held that the
Respondent was indeed responsible for the loss caused to the
Appellant-Department, it could not assume the role of the
competent authority and hold that embezzlement or
misappropriation was not proved without holding that there was a
defect in the inquiry proceedings which caused serious prejudice to
the Respondent.
14.
The Tribunal has recorded in its order that the
Respondent had deposited three amounts i.e. Rs. 4,13,400 and Rs.
I
CIVIL APPEAL NO.
2021
12
2,9 1,400, which totals Rs. 11,09,500 with the department towards
the settlement of his liability. The learned Counsel for the
Appellants states that this finding is factually incorrect. We have
asked the learned ASC for the Respondent to show us any material
on the record which establishes that the Respondent did make the
said payments. He has been unable to do so. Lastly, we asked the
learned ASC for the Respondent if there was a mistake in the
impugned judgment, and, he candidly admitted that there was
indeed a factual error in the impugned judgment insofar as
payment of the said amount is concerned. As such, given the said
facts and circumstances, the learned FST could not have
arbitrarily changed the impugned penalty into that of stoppage of
increment of one year without cumulative effect.
15.
The learned FST has incorrectly applied the relevant
law, misunderstood the facts and circumstances of the case, and
has misread the record which warrants interference by this Court.
As a result of this, the impugned judgment passed by the learned
FST is unsustainable and liable to be set aside.
16.
For the reasons noted above, this appeal is allowed
and the impugned judgments of the learned FST dated 19.12.2018
and 20.02.2019 are accordingly set aside.
SChie 4^atb e
ISLAMABAD.
25.06.2021.
HarisZC/ *
yZApproved For Repori
Excellent job keep it up bro
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