' Briefly stated, the facts of the case are that Malik Ilyas Ahmad, the appellant, S.D.O., along .With others was proceeded against under Punjab Civil Servants (E&D) Rules, 1975 on the charge of not maintaining/strengthening of the banks of R.Q. Link in the area under his control. Consequently, due to his negligence and failure to properly strengthen the reach, on 3-12-1998 a breach occurred in the area of RD 65-RD75 link Canal and caused heavy damage to public and private property. The appellant was proceeded against under rule 6 (3) of Punjab Civil Servants (E&D) Rules, 1975 and he was served with show-cause notice. Considering his reply to show-cause notice, the Authorized Officer, on 20-3-1999 recommended that minor penalty of censure may be awarded to the appellant. The Authority served him a notice as to why punishment should not be enhanced and afterwards awarded him the major penalty of reduction to a lower grade. His review petition was rejected on 8-5-2000. Hence this appeal.
2. I have heard the learned counsel for the appellant, District Attorney, Departmental Representative and have perused the record and parawise comments submitted by the respondents.
3. In this case, two preliminary enquiries were conducted. According to the findings dated 19-1-1998 of Enquiry Committee consisting of Chief Engineer, Sargodha, Chief Engineer Development, Lahore, Superintending Engineer, UJC Circle, Jhelum and Deputy Commissioner, Mandi Bahauddin, the breach occurred due to excessive discharge of water which got an access through a porcupine hole. The access discharge was passed due to the negligence of the regulation staff, Sub-Engineer Barrage and Sub-Division Officer Head Works.
4. According to report dated 18-12-1999 of Enquiry Committee comprising of Member, Divisional Khidmat Committee, Gujranwala, Superintending Engineer, UJC, R.Q. Link Circle, Jhelum, Deputy Commissioner, Mandi Bahauddin and Superintending Engineering, Upper Jhelum Canal Circle Jhelum, the breach occurred due to:
(1) Excess water flowing through the canal above normal water line, due to negligence of Rasul Barrage Irrigation Staff.
(ii) Weakened right bank between R.D. 67 to 74 due to long neglect of maintenance staff where canal bank has been constructed by infilling and is higher than surrounding lands.
(iii) Lack of proper supervision of staff both at Rasul Barrage and R.Q. Link.
' Malik Ilyas Ahmad, the appellant along with staff posted in the reach where the breach occurred, were held responsible for not maintaining the canal bank properly.
5. The proceedings under rule 6(3) of Punjab Civil Servants (E&D) Rules, 1975 were taken. The appellant was issued show-cause notice. The appellant in reply to the show cause notice raised the plea that the bank is reach RD 65-RD 75 were strong enough to carry the full discharge of water. The breach occurred due to excess discharge of water for which he was not responsible. The Authorised Officer in his recommendations dated 20-3-1999 proposed minor penalty of Censure to the appellant. The Authority did not agree and issued the appellant show-cause notice on 5-5- 1999 that why a major penalty should not be awarded. In para. 4 of the said notice, it was mentioned that the appellant being SDO (Irrigation), Rasool Headworks Division was mainly responsible for regulation/passing the excess discharge of water into R.Q. Link Canal. In fact, the appellant was not the incharge of Rasool Head Works. The appellant was incharge for the maintenance of bank of R.Q. Link Canal. Muhammad Khan, S.D.O. Was the S.D.O. Irrigation, Rasool Head Works Division and was responsible for regulations/passing excess discharge of water in the R.Q. Link Canal. It is thus clear that the notice dated 5-5-1999 for enhancement of the proposed penalty was issued by the Authority under mistake of fact that the appellant was posted S.D.O., Rasool Headworks Division and was responsible for excess discharge of water which according to all the preliminary enquiries above mentioned resulted into the breach of the canal.
6. In the show-cause notice issued to the appellant, it is mentioned that the breach occurred on 3- 12-1998 caused heavy damage to public and private property. A committee consisting of Assistant Commissioner, Mandi Baha-ud-Din, Tehsildar, Mandi Baha-ud-Din, Tehsildar, Phalia Sub-Division and Deputy Collector, Irrigation Division, Gujrat was constituted to assess the damages but the proceedings were finalized without waiting the report of the Committee. It was mentioned in the summary to the Chief Minister that area is water logged, therefore, minor damage was noticed.
7. The learned counsel for the appellant argued that the appellant is SDO(BS-17). He was awarded the major penalty of reduction to a lower grade. In fact he was reduced from grade BS-17 to BS-11 on the ground that he was working as SDO on officiating basis. The learned counsel further argued that penalty of reduction to a lower grade was to be awarded and his status was to be reduced from SDO (BS-17) to Sub-Engineer (BS-16) and not as Sub-Engineer (BS-11). The learned counsel for the appellant further argued that the authority has not given any reason in the show-cause notice dated 5-5-1999 for disagreeing the recommendations of the Authorised Officer. The impugned order so passed by him cannot be sustained. He relied upon this Tribunal's judgment dated 22-10- 1998 passed in appeal No.762 of 1994.
8. In the parawise comments it is mentioned that in the notice dated 5-5-1999, the appellant was posted SDO (Irrigation), Rasool Headworks. Division and was mainly responsible for regulating/passing the excess discharge of water into R.Q. Canal due to typographical mistake. In reply dated 27-5-1999 of this show-cause notice, the appellant clearly mentioned that he was not posted SDO (Irrigation), Rasool Headworks Division but was in fact posted SDO (Irrigation) Jhelum Canal Sub-Division and was not responsible for excess regulation of water. The perusal of the impugned order dated 11-9-1999 reveals that both the Authority and Mr. Abdul Rashid Khan, learned Member, Board of Revenue who gave personal hearing to the appellant failed to peruse the reply of the appellant of the show-cause notice. The appellant again mentioned this fact in his revision application which was rejected on 8-5-2000 with the remarks that Chief Secretary, Punjab/Government has carefully considered the review petition and after detailed examination of the record, the review petition was rejected on merit. It is obvious that this alleged typographical mistake by which the appellant was punished being responsible for regulating the water supply at Rasool Headwarks Division was not detected by careful' consideration of review petition and detailed examination of the record by the authority.
9. As discussed above, according to the preliminary enquires conducted by different agencies, the main cause of breach was excess water supply from Rasool Headworks but the appellant was posted as SDO (Irrigation) Jhelum Canal Sub-Division and was responsible for maintenance of banks of the canal. The Authorised Officer in his recommendations dated 20-3-1999 observed that no doubt the excess supply passed into the R.Q. Link and caused breach, yet the officer is responsible to the extent that he along with his subordinates failed to adopt the optimum precautionary measures for saving the canal and proposed minor penalty of censure. The authority issued him show-cause notice for the enhancement of penalty with the mistake of fact that he was SDO (Irrigation) Rasool Headworks and was responsible for regulating/passing excess discharge of water, without assigning reason for disagreeing with the recommendations of Authorised Officer. In case of disagreement with the Authorised Officer, the Authority is bound to mention the reasons for the same. Reliance is placed on the judgment dated 22-10-1998 of this Tribunal passed in appeal No.762 of 1994.
10. 3000 to 3500 Cs excess discharge of water and rats/porcupines holes were considered causes of breach. In excess discharge, there should be overflow of water from the bank which was lacking/not . Observed in this case and for breach by rats/procupine hole excessive, high, medium or low discharge is irrelevant. The reports of preliminary enquires are ditto copies. All possible causes of breach have been discussed without pointing out the specific cause of breach, in the preliminary enquires. Under these circumstances detailed enquiry after charge-sheet was necessary in order to provide the opportunity of cross-examination of witnesses to the accused officers. The department proceeded in a hurry to show the progress to the higher authorities because summary was already submitted to the Chief Minister, Punjab on 24-12-1998.
11. Respondents Nos. 1 & 2, in their reply of parawise comments of the appeal have written that the appellant who was working as SDO (BS-17) has been reduced to Grade 16 and as such shall work as Sub-Engineer. The comments were thus submitted without verifying that the grade of the appellant had been reduced from BS-17 to BS-11 because he was officiating SDO in BS-17.
12. The appellant is S.D.O. In BS-17 with 19 years service. There are a few chances of promotion in Irrigation Department. Reduction to lower grade means depriving him the only chance of promotion he availed during his entire service. The penalty awarded to the appellant is harsh as compared to his alleged negligence regarding lack of supervision of staff responsible for the maintenance of the canal bank where the breach occurred.
13. In the light of the above discussion, the appeal is partially accepted. Major penalty of reduction in rank to a lower grade is converted into minor penalty of censure as proposed by the Authorized Officer.
14. There will be no order as to costs.