M. SALEEM CHAUDHARY (CHAIRMAN).-The appellant in this case assails the order dated 23-10- 1973 .Passed by the Governor of Punjab in consultation with the Public Service Commission by which he was removed from service as also the order dated 21-8-1975 whereby as a result of his revision petition the Governor was pleased to substitute the penalty of compulsory retirement for that of removal from service.
2. The appellant at the relevant time was S. D. O. In the Irrigation Department when he was charge- sheeted on 17th May, 1966, raising the charges of misconduct and corruption against him. In the first place he was accused of making over payment of Rs. 1,084 in respect of closing and strengthening the breach in the left bank of Upper Jhelum Canal at RD 337 to 338. It was alleged that he had shown the measurement of the length of breach as 125 whereas actually it was found at site to be 82, which consumed 55,480 of . Earth work for its repair whereas payment was made for an inflated quantity of 97,362 of . Of earth. In the second charge the appellant was accused of making over-payment of Rs. 13,032 in collaboration with two overseers, to the contractor in respect of work of repairing and strengthening of left bank of Upper Jhelum Canal at Rd 3 25403-RD 328200 which was damaged by floods. It was alleged that the appellant after exercising a check made a payment of Rs 18,959 for the purported execution of 4,81,832 of each work but actually at site only 1,83,940 of of Cth work costing Rs. 5,927 was found to have been done which resulted in the alleged over-payment. On 17-2-1969 the Governor of West Pakistan ordered a formal enquiry against the appellant and appointed the Special Judge-cum-Enquiry Officer, Anti-Corruption, Lahore as the Enquiry Officer who in his report dated 31-3-1970 found the appellant guilty on both, the counts.
Resultantly a show-cause notice dated 3-8-1970 for the proposed penalty of removal, from service was served upon the appellant. After considering reply of the appellant to the show-cause notice, the Governor of Punjab was pleased to pass the first impugned order dated 23-10-1973 removing the appellant from service. The appellant submitted review petition addressed to the Chief Minister which was- treated as Revision Petition under the proviso to Rule 14.1 of the Efficiency - & Discipline Rules, 1960 and the Governor of Punjab vide his order dated 21-8-1975 was pleased to substitute the penalty of compulsory retirement for that of removal from service. The appellant claims to have received the aforesaid orders on 10-1-1976 and has preferred the present appeal before us on 7-2-1976.
3. It is common ground that there was a cloud burst in the area causing sudden influx of flood water on 11112th July, 1960 which resulted in a breach and damage to the Upper Jhelum Canal on its left Bank at RD 337--338, and 325400 to 328299 respectively. The present appellant was incharge of that work as S.D.O. This damage to the canal had caused the disconti--nuation of irrigation water supplied to vast areas so that there was a great urgency of carrying out the repairs and restoration of water supply in the canal system. The appellant accordingly closed the breach, repaired the banks of the canal and restored the water supply.
4. During the probe by the Anti-Corruption Establishment into the alleged irregularities in the execution of the aforesaid work, Mr. G. M. Subhani, Executive Engineer Irrigation was associated with Ch. Noor Mohammad, Technical Officer of the Anti-Corruption Establishment for inspection of the site of work. The Inspecting Officer, Mr. Subbani, during his checking at site appears to have assessed the quantity of earth work done at site by various methods, such as, by digging the bank and as certaining by visual inspection the plane of cleavage between old and new work, by having recourse to linear measurements and by observation of the levels of the bank and the surrounding natural surface. He admittedly did not mark any centre or base line and also did not close the circuit of levelling or have recourse to double levelling during his checking.
5. Regarding charge No. 1, the Inspecting Officer observed that the length of the breach although shown as 125 feet in the estimate was actually 82 feet at site. According to him there was no mention of construction of any Ring Bank in the estimate, rather it was stated that the bank had been washed away in the length of 125 feet which clearly implied that this was expressed as the length of the breach and not of the Ring Bank. He also observed that the natural surface level was shown lower than the actual levels prevailing at site, thus inflating the estimated quantity of earth work. The Inspecting Officer also observed that whereas a lead of 800 feet was paid to the contractor, at site the lead actually involved was not more than 500 feet. All these factors resulted in an excess payment of Rs. 1,084 to the contractor.
6. Regarding charge No. 2, the Inspecting Officer observed that the natural surface level shown in the estimate was lower by ac much as 8 feet than the actual levels existing at site, the levels of existing bank was also shown lower than actual which resulted.- in highly inflated estimation of quantities of earth work required to be done to restore the bank. The lead paid was 1,600 feet which according to the Inspecting Officer should have been 1,400 feet as per site conditions. The Inspecting Officer concluded that the combined effect of these factors was that an excess payment of Rs. 11,133 was made to the contractor.
7. The appellant in the first place attacks 'the charge-sheet served upon him on the ground that it was issued by an incompetent authority, i.e. Secretary to Government of West Pakistan, Irrigation and Power Department. The appellant claims that at the time of service of the charge-sheet upon him, he was a Senior Class I Officer in the Punjab Service of Engineers Class I and that under the Rules of 1941 of that Service, his appointing authority was the Governor so that under the Efficiency and Discipline Rules he was the competent authority in his case to frame charge-sheet and to impose penalty. Thus it is claimed that the charge-sheet issued by the Secretary was a nullity.
According to the appellant the entire proceedings which followed the illegal charge-sheet are thus without lawful authority and liable to be struck down on that ground. The appellant has relied upon a number of rulings of superior Courts in support of this contention, which have been listed in Annexure 'H' to the grounds of appeal. An additional authority cited by him is PLD 1965 Kar. 100.
8. The appellant also assails the legality of the enquiry proceedings against him on the ground that it is in violation of rule 8 (1) of the Efficiency and Discipline Rules, 1960 inasmuch as under the said rule, the enquiry officer is required to be senior in rank to the accused (appellant) but in the instant case the enquiry officer was equal in rank to the appellant --both being Senior Class I officers. The appellant also points out that the charge-sheet, such as it was, was framed on 17-5-1966 but the enquiry was ordered by the Governor much later in time on 17-2-1969. According to the appellant since the charge-sheet had preceded the formal order of enquiry by the competent authority it is an additional ground for holding the charge---sheet and the subsequent enquiry as illegal.
9. The damage to the canal bank had taken place in July, 1960 and the repairs were effected in August 1962 but the inspection and checking by. Mr. Subhani, the Inspecting Officer, was carried out after a lapse of one year, i.e., in July, 1961. The appellant was neither summoned nor associated in the checking process, although he was still incharge of the area as SDO. According to the appellant, in the light of instructions contained in para. 2.12 of the Irrigation Manual of Orders and Departmental Instructions on the subject, such check measurement was required to be made promptly and switching six weeks of the execution of the work so that no reliance can be placed on the checking done after a lapse of one year particularly when apart from the normal wear and tear, a part of one Monsoon period had since gone over the work.
10. In support of his plea that the evidence against him of Mr. Subhani is unreliable, worthless and actuated by malice, the appellant relies upon a number of inconsistencies and discrepancies appearing in the evidence of Mr. Subbani in his statement before the enquiry officer which are enumerated by him in paragraphs 15-k (i) to (vii) and 15-1(a) to (h) of the grounds of appeal.
The appellant also imputes male fide to Mr. Subhani on the ground of an incident in which Mr. Subhani, then Incharge of Discharge Division experienced some inconvenience at the hands of night-chowkidar of the Rest House under the charge of the appellant as S.D.O. And blamed the appellant for it.
11. In the first case relied upon by the appellant. (Annex H), f.e.w PLD 1958 Pesh 53, the proceedings were quashed on the ground that a parti--cular officer was appointed as the formal enquiry officer not independently by the S. P.' (who was the competent authority) but at the behest of the I.G.
Police who was the S.P's superior. In the case reported in 1969 Law Notes Quetta 16and PLD 1966 SC 253, the irregularity on the ground of which the enquiry was held to be illegal consisted in the service of show-- cause notice by an authority other than the competent authority. In the Supreme Court case of 1966, the Commissioner who was originally competent authority but during the pendency of the proceedings, with the coming into force, with effect from 5-4-1962 of West Pakistan Basic Democracies Delegation of Power Rules, was replaced by the Provincial Government as the competent authority so that the show-cause notice issued by the Commissioner on 28-12- 1962 was held to be void and of no legal effect and from that point onward proceedings were also ruled to be without jurisdiction. In the case PLD 1968 SC 112, the appellant before the Supreme Court had declined in writing to join enquiry scheduled to be held against her on 23-1-1963 and the Enquiry Officer -had reported that on account of the aforesaid reasons "no further proceedings could be conducted" and that 'she in her request enclosed desired an enquiry to be held by the officers other than those belonging to Lahore Division'. Their Lordships held that in the circumstances subsequent show-cause notice purporting to convey to her the conclusion arrived at 'ex parse' consequent upon her refusal to attend the enquiry on 23-1-1963 was baseless and without any foundation as no enquiry in the eyes of law was held. In case PLD 1965 Kar. 100, the official concerned was dismissed from service by an order dated the 18th December 1952 by the 'Officer Incharge', rather than the Director-General who was the competent authority in this case. It was ruled by the learned Court that notwithstanding the plea that the order in question was passed at the behest of the Director-General or that the Director-General did have an opportunity to apply his mind at the appellate stage and had reduced the punishment to that of discharge from service, the basic invalidity of the proceedings arising out of the order having been passed by an incompetent authority was not cured by these events. From the aforesaid citation, it is sought to be established that the charge-sheet being served by an incompetent authority is illegal 'and incompetent and so are the entire enquiry proceedings culminating in the impugned orders and also that a point of glaring irregularity although not agitated in the early stage of the case can be agitated at any subsequent stage.
12. In rebuttal the learned Government Pleader has argued that the material steps in the process of the enquiry against the appellant, i.e. The appointment of a formal enquiry officer under the Efficiency and Discipline Rules, service of show-cause notice and the passing of final penal order, were taken by the Governor, and that service of charge-sheet by the Secretary to Government did not prejudice the appellant inasmuch as the crux of the matter was that the appellant was duly put on notice about the charges against which he had to defend himself. Accord--ingly to the learned Government Pleader the disciplinary action against the appellant springs from Article 177 of 1962 Constitution which did not make it mandatory for the competent authority to itself issue the show-cause notice. In support of his contention the learned Government Pleader relies upon the case reported as PLD 1977 SC 182, where the learned Court had laid down the rule that though the President was the competent authority in the case yet it was not mandatory for him to himself issue the show-cause notice to the accused official as it was neither practicable nor warranted by the provisions of Article 177 of the 1962 Constitution.
13. We have heard the parties at length. Adverting to the preliminary objections of the appellant that the charge-sheet was served by the Secretary and not the Governor who was the competent authority under the Efficiency and Discipline Rules, we may observe that the Supreme Court case cited as PLD 1977 SC 182 is attracted to the facts of this case. The point at issue in the said case was that the order of compulsory retirement as a punitive measure was tantamount to removal from service within the meaning of Article 177 of the 1962 Constitution and, therefore, only the President who was the appointing authority was competent to issue a show-cause notice to him and such notice having been issued by the Defence Secretary purporting to be the 'Authorised Authority' under rule 9 (4) of the Civilian Employees in defence Services (Classification, Control and Appeal) Rules, 1961 was invalid and therefore ultimate order of compulsory retirement passed on that basis by the President was also invalid. Earlier the learned High Court in the order appealed against had held that the petitioner in that case was entitled to the protection available under Article 181 of 1956 Constitution which did not provide for any delegation of power by the competent authority and therefore a show-cause notice could be issued only by the competent authority namely the President and to that extent rule 9(4) (e) of 1961 Rules must give way to the constitutional provisions. Their Lordships observed that 'even if technically there might be some force in the view taken by the High Court, in actual practice, the President could not conceivably be expected to personally examine all such matters and surely had to get the cases processed and examined through his Secretaries or other subordinate agency, in accordance with the rules of business'. It was further observed-- no serious exception could be taken to the course adopted in issuance of the final show-cause notice to the respondent particularly when no prejudice appears to have been caused to him which in fact is the crux of the matter". After examining the provisions of Article 177 of the 1962 Constitution, their Lordships observed that:- "From the plain reading of the Constitutional provision, it is not possible to spell out nor does it otherwise, appear to be reasonable to presume that the show-cause notice must necessarily be issued by the appoint--ing and dismissing authority himself. Article 32 of the 1962 Constitu--tion authorised the President to make rules for the exercise of the powers vesting in him and for regulating allocation and transactions of business of the Central Government."
14. In the instant case before us the controversy raised is regarding issuance of charge-sheet. We may observe that purpose of charge-sheet is to put the accused official on notice as to the charges he has to meet in the proceedings that have to follow. Thus no material prejudice is caused to the appellant as long as that purpose of the charge-sheet is fulfilled. It is none of the case of the appellant that the charge-sheet was deficient as far as the framing of the charges was concerned. The service of show-cause notice on the other hand comes at a crucial stage of the proceedings when an opinion has to be formed on the basis of the evidence sifted by the Enquiry Officer to provisionally determine the gravity of the charge and the proper penalty to bye imposed therefore. According to the rule laid down by their Lordships of the Supreme Court in the aforesaid 1917 case, no prejudice is caused even if the show-cause notice was not issued by the competent authority so that it is not difficult to hold that the same rule shall apply in the case of a charge- sheet which is a mere communication of the specific charges against which an accused official has all the opportunities to defend himself. There is no allegation that at the penultimate stage, the Governor did not apply his mind to the facts of the case. It may be observed that rather the Governor did not disown the action of the Secretary in issuing the charge-sheet when the case went up to him for ordering a formal enquiry against the appellant nor at any of the subsequent stages when the case went up to him for consideration. We respectfully follow the rule laid down by the Supreme Court in 1977, which is also the latest in point of time, and hold that there was no illegality in the charge-sheet served by the Secretary, Irrigation and Power Department and rebut the contention of the appellant to the contrary. We may also observe that the ruling of PLD 1968 SC 112, relied upon by the appellant is not attracted to the instant case as in that case illegality resulted from the fact that no enquiry was deemed to have been held, whereas there is no such assertion in the instant case before us. Thus none of the case cited by the appellant is of any avail to him in the face of the latest Supreme Court ruling of 1977. For the same reason we do not consider that any illegality resulted from the charge-sheet preceding the formal order o B enquiry by the competent authority, i.e. The Governor. As regards the objection to the status of the Enquiry Officer that he was not senior in rank-- to the appellant resulting in violation of rule 8.1 of the Efficiency and Discipline Rules, 1960, it may be observed that this point was never agitated by the appellant, before the Enquiry Officer in the course of lengthy proceed--ings before him or in his reply to the show-cause notice or during personal appearance before the Secretary, Irrigation and Power Department, or even in his review petition submitted by him to the Chief Minister after the award of punishment. Appellant's own conduct as aforesaid, detracts much from the force of this argument. There is no allegation of specific prejudice o mala fide against the Enquiry Officer. In the circumstances of the case an C in view of the conduct of the appellant himself and the fact that it cannot be considered a material irregularity or that it cuts at the very roots of the case, we do not consider that any material prejudice has been caused to the appellant which would warrant vitiation of the entire proceedings. Similarly the allegation of mala fide against Mr. Subhani remains unsupported by an documentary or oral evidence and is thus ignored. It may, however, b a observed that in the Supreme Court case relied upon by the respond nil PLD 1977 SC 182. It was observed by his Lordship Mr. Muhammad Gul, J., while agreeing with the judgment written by his Lordship Mr. Muhammad Afzal Cheema (as he then was)- "The fact that there was a certain amount of friction between Mr. Mirza and Director of Inspection would not per se establish mala fides of the final order, particularly, when the order for the initiation of disciplinary proceedings and the final orders were both by the President. On no discoverable principles can it be held that because of an, 'friction' between Mr. Mirza and his immediate superior, the order by President was not made on the merits of the case."
The facts of the instant case are on all fours with the case aforesaid and the plea of mala fide against the Inspecting Officer could be of no avail to the appellant even if established.
15. As regards the conduct of the Inspecting Officer, Mr. Subhani, it is apparent that he did not carry out the checking work in an organised and methodical manner. Obviously he limited his checking to the extent' of substantial satisfaction at site rather than placing on record in a systematic manner the data necessary for appraisal of evidence by a third party lie did not have recourse to double levelling or marking a central line at site or preparing record of check in an orderly manner.
However, one fact stands out in the entire proceedings that as alleged in charge No. 1 the length of the breach was 82' at site as against 125' shown by the appellant in the estimate for closing of the said breach. The fact is conceded even by the appellant. His plea was that ' 125' was the length along alignment of Ring Band which is usually resorted to in closing breaches in the canal. This contention is belied by the fact that in the estimate under controversy no mention of Ring Bank has been made rather length of breach is shown to be 125, and at site also no Ring Band is said to have been constructed rather the breach stood closed along straight alignment. This finding suffers no damage either from the alleged delay in carrying out the check nor by the non-association of the appellant during the process of checking at site by the inspecting officer.
Consequently the impugned orders appear to be well-founded and no interference is called for.
We accordingly reject this appeal with no adders as to costs.