RASHID ALI MIRZA, MEMBER-- The appellant above named Mr. Aftab Ahmed Soomro who was ex- Deputy General Manager has filed this appeal bearing No. 973 of 2002 before this Tribunal under Section 4 of Service Tribunals Act, 1973 challenging his dismissal from service on the charges of being party to excessive payment to ABAD and having not disclosed the previous decision to the high level meeting.
2. The statement of allegations dated 26.1.2001 firstly issued to the appellant is reproduced as under for which an Enquiry Committee was constituted with Mr. Muhammad Ismail, General Manager
(SMD) as Convener and Mr. Khalid Mehmood Akhtar, General Manager (Marketing) as Member:--
(i) You being Incharge (Development) failed to safe-guard the interest of Pakistan Steel in the case of provisional payment to ABAD. At the final stage of the case final claims of M/s. ABAD having already been accepted by Mr. Muhammad Usman Farooqui, Ex-Acting Chairman/MD, you while putting up the minutes of the meeting held on 7.4.1996 succumbed to his undue pressure and did not record the actual status of previous decisions whereby the payments were denied to M/s. ABAD.
(ii) You while giving the break up of the agreed amount to be paid to M/s. ABAD failed to mention the grounds on which the payment to M/s. ABAD was agreed upon except that certain problems were being faced by the allottees of Gulshan-e-Hadeed.
(iii) Your above acts of gross negligence detrimental to the interest of Pakistan Steel causing huge financial loss come under the orbit of conduct prejudicial to good order/service discipline and unbecoming of an officer and gentleman.
3. The enquiry was conducted by the Committee comprising Mr. Muhammad Ismail, G.M. (SMD) as Convener and Mr. Khalid Mehmood Akhtar, G.M. (Marketing) as Member and the appellant had been exonerated as he did not receive any show-cause notice. However, after about two months the appellant received another charge-sheet dated 20.3.2001 with the same allegations only with the modification of names of the Enquiry Committee constituted under convenership of Mr. Taha Saeed, General Manager (CMD) and Mr. S.H. Irshad Rizvi, General Manager (QAD) as Member. An extract of 2nd statement of allegations though same is reproduced as under:-
(i) You being Incharge (Development) failed to safe-guard the interest of Pakistan Steel in the case of provisional payment to ABAD. At the final stage of the case final claims of M/s. ABAD having already been accepted , by Mr. Muhammad Usman Farooqui, Ex-Acting Chairman/MD, you while putting up the - minutes of the meeting held on 7.4.1996 succumbed to his undue pressure and did not record the actual status of previous decisions whereby the payments were denied to M/s. ABAD.
(ii) You while giving the break up of the agreed amount to be paid to M/s. ABAD failed to mention the grounds on which the payment to M/s. ABAD was agreed upon except that certain problems were being faced by the allottees of Gulshan-e-Hadeed.
(iii) Your above acts of gross negligence detrimental to the interest of Pakistan Steel causing huge financial loss come under the orbit of conduct prejudicial to good order/service discipline and unbecoming of an officer and gentleman.
4. In both these charge-sheets the appellant has denied the allegation and has taken the plea that he was not involved in the excessive payment made to ABAD as from , the very beginning the appellant had been opposing and refuting the claims of ABAD in writing through his letters dated 29.7.1990, 26.9.1994, 27.9.1997, 28.9.1994, 11.10.1994, 16.10.1994, 16.10.1994, 30.10.1994, 31.10.1994, 14.11.1994,28.11.1994,28.11.1994, 8.12.1994, 20.12.1994, 15.1.1995, 15.1.1995, 15.1.1995 and 19.4.1995. In the second enquiry usual question and answer session was held with the appellant and report was submitted declaring the appellant "not guilty" having no proof.
5. That it was transpired that in the first enquiry held by Mr. Muhammad Ismail, GM (SMD) the appellant was exonerated (as no show-cause notice was issued) but mala finely the same charges were again repeated and another Enquiry Committee headed by Mr. Taha Saeed, GM
(CMD) was constituted which also exonerated the appellant from the charges having not been proved. However, the respondent No. 2 was not satisfied with these two enquiries as he wanted the results of his choice and constituted a 3rd Enquiry Committee of Dr. N.1. Khawaja, Director (Production) as Convenor with Mr. Malik Tayab as its prosecutor, with the same charges in the statement of allegation. .The said Enquiry Committee refused to disclose the reasons of third enquiry as requested by the appellant and decided the enquiry one sidedly, without examining any of the witnesses or allowing the appellant to cross-examine the witnesses etc. The appellant through his letters dated 2.5.2002 and 8.5.2002 respectively addressed to the Enquiry Officer declaring no confidence in the Enquiry Officer for not providing the required documents and also his dictative attitude with the appellant. The said Committee declared the appellant as guilty of the charges and consequently the respondent No. 4 issued final show-cause. Notice on 5.7.2002 and ordered his dismissal from service vide Order No. CAP/MGR(008443)/2002/PA/A2375, dated 9.10.2002. The appellant submitted his departmental appeal on 7.11.2002 which was regretted by the respondent No. 2, hence this appeal.
6. I have heard Mr. Abdul Ghafoor Mangi, learned Advocate of the appellant and Mr. Shaukat Ali Shaikh learned Advocate for the respondents. Mr. Abdul Ghafoor Mangi the learned counsel for the appellant has contended that the appellant was innocent and was dragged in the enquiry resulting into his dismissal on account of personal grudge and all actions taken were mala fide with ulterior motives, It has further been stated by the learned counsel that it had become a practice with the former Chairman of Pakistan Steel that he was never satisfied with any report of the Enquiry Officers/Enquiry Committees who declared any accused officer as not guilty, but he used to punish those enquiry officers by issuing them charge-sheets and consequently, demoting them or to issue them warnings or remarks of displeasure, In the case of appellant it has been stated by the learned counsel that similar attitude was adopted by the respondent No. 2 and therefore, he did not accept the reports of earlier two enquiry committees who had exonerated the appellant from the charges and the third enquiry report was under the pressure to save their skin and they recommended the appellant being guilty of the charges without even examining a single witness and also passing an order one sidedly in the absence of the appellant. They under the instructions were not supposed to disclose the reasons of the 3rd enquiry which was the right of the appellant to know the factual position. The learned Advocate of the appellant has further stated and has placed on record, number of documents whereby the appellant had " vehemently opposed the excessive payments demanded by ABAD stating that they were not entitled. There are number of correspondences and the letters submitted by the appellant to the authorities not to allow any excess payment as he was well-aware of the facts that the builders are not entitled for the same for their incomplete works. The Management had also constituted a fact finding committee to determine the position of the demands of ABAD which was also comprising five (5)
Members including the appellant where the view point of the appellant was accepted and their unanimous decision was that M/s. ABAD are not entitled for any excessive payment as per their demands at that stage as there was number of left over construction works which is to be completed and only then their demands if any can be considered on merits. This decision was given on 29.2.1996. The learned counsel has further stated that the appellant being Incharge of the construction of houses from Pakistan Steel side, was in a better position to assess the situation and had rightly opposed the excessive payments. The learned counsel has further stated that the former Chairman of Pakistan Steel, Mr. Muhammad Usman Farooqui who had been involved in number of cases after his removal from the Steel Mill and was convicted, had also its collusion with M/s. ABAD sanctioned an amount of Rs. 90 million to be paid to ABAD at his own without any consultation with the experts or with the appellant. Chairman Mr. Muhammad Usman Farooqui got approved from the Board of Directors, the said excess amount of Rs. 90 million and in this regard a memo. No. Sec.1(11)-Abad/96/623, dated 11.8.1996 was issued by the Secretary Pakistan Steel. The first plea of statement of allegations also supports this position of the appellant where it has been quoted by the respondent No. 4 that "Mr. Farooqui has already accepted the claims of the builders" and the allegations against the appellant were of vague nature that he had succumbed to undue pressure in the meeting for the purpose. So far the question of meeting is concerned, it has been stated that the meeting was attended by 8 officers including the appellant as well as all Directors, Secretary and General Managers. Mr. Muhammad Iqbal, the General Manager (Township & Development) who was the head of the department of the appellant had also attended the- meeting and all the participants of the meeting have signed the minutes, but nobody from the participants raised any objection including Mr. Muhammad Iqbal as the Chairman was most powerful person and all the objections of the appellant were overruled. The learned counsel has further stated that the 3 enquiries on the same subject are against the principles of law and natural justice which clearly shows the mala fide intentions of the respondent No. 2 where as in the two (2) enquiries the1 appellant was honourably exonerated. The respondents had no record or proof to contradict the written objections of the appellant raised and declaring him as guilty ex parte was also against the principles of law and natural justice which was only manipulated as there was no proof or evidence with the department to involve the appellant. The allegations against the appellant as stated by the learned counsel are absolutely vague and he was not competent to sanction any excessive amount but his duty wab to point out the factual position as per terms and conditions to the authorities which he has been doing all alongwith his repeated correspondence and comments raising his objections to the authorities that the said claims of ABAD are not tenable. The learned counsel of the appellant further added that Mr. Usman Farooqui himself put a provision of Rs. 200 Million in the budget with the Accounts Department on 18.3.1996 before the said meeting on 7.4,1996 where Mr. Farooqui approved the excess payment to ABAD.
7. The learned counsel for the respondents has not controverted the documentary evidence so produced by the appellant and submitted that he relied upon the reports of the 3rd enquiry committee and opposed the appeal stating that a great loss had been caused to the Steel Mill on payment of the excessive amount to ABAD.
6. We have gone through the arguments of learned counsels and have perused the record produced by the appellant regarding denial of the claims of ABAD. The letters of the appellant dated 29.7.1990, 26.9.1994, 27.9.1997, 28.9.1994, 11.10.1994, 16.10.1994, 16.10.1994, 30.10.1994, 31.10.1994, 14.11.1994, 28.11.1994, 28.11.1994, 8.12.1994, 20.12.1994, 15.1.1995, 15.1,1995, 15.1.1995 and 19.4.1995 prove that the appellant has rejected the claims of ABAD. We have also gone through the comments offered by the appellant on the said claims of ABAD dated 23.7.1995 where the appellant has apprised the management that the claims of ABAD are not justified. We have further seen that the former Chairman Mr. Muhammad Usman Farooqui had himself put a provision of Rs. 20 Crores in the budget on 18.3.1996 at para. 8 in a Note No. ACC/FA/102 02/2368, dated 10.3.1996 submitted by Manager Accounts where as the meeting for the purpose was held on 7.4.1996. This proves that Mr. Muhammad Usman Farooqui was already in agreement with ABAD for the said excess payment.
We have also gone through the reports dated 29.2.1996 of the committee constituted by the management comprising Incharge (Finance), GM (Township), GM (BMD), DGM (Audit) a*-u -the appellant for the comments on the said claims of ABAD, where the point of view of the appellant for the refusal of the claims to ABAD was accepted by the committee and recommended for no compensation is admissible at this stage. We have also perused the minutes of meeting held on 7.4.1996 where at para. 47 Mr. Qaiser Raza the then GM (Project) has confirmed, that "in the meeting the former Chairman held with ABAD an amount of Rs. 90 million was agreed as full and final settlement". This also proves that the former Chairman agreed the excess amount at his own without any involvement of the appellant. Moreover, we have also perused the first para, of the statement of the allegations where it has been mentioned that "claim of M/s. ABAD having already been accepted by Mr. Muhammad Usman Farooqui, Ex-Acting Chaimian/MD", this clearly shows that the respondents are agreeing that the said claims of M/s. ABAD were already agreed by the Chairman, Mr. Muhammad Usman Farooqui though denied by the appellant. We have come to the conclusion that the three (3) inquiries held on the same subject were not legally required to be done and the same shows the mala fide on the part of the management and secondly the excess payment was allowed by the Chairman, Mr. Muhammad Usman Farooqui himself prior to even holding a meeting on 7.4.1996 for the said purpose which was attended by all senior Directors and officers of Pakistan Steel. We have also perused the 3rd enquiry report of the Enquiry Officer, Dr. N.1.
Khawaja, Director (Production) where at para. 3 of the findings it is stated by him that no such provision of Rs. 200 million was made by Ex-Chairman, Mr. M.U. Farooqui in the budget with the Accounts Department as informed by the appellant, whereas we have seen a note of Manager (Accounts) dated 10.3.1996 provided by the appellant which clearly indicates at para. 8 that the Ex- Chairman, Mr. M.U. Farooqui himself in his own hand-writing has put a provision of an amount of Rs.
20 Crores (Rs. 200 million) in the budget. This proves that the findings of the 3rd enquiry conducted by Dr. N.1. Khawaja are not correct as he has concealed the facts and has tried to give his report unjustifiably against the appellant.
9. We have seen that the 1st two enquiries were rightly held and their results should have been accepted by the Management. The 3rd enquiry was against the facts and principles of natural justice and its findings being contrary to 1st two enquiry reports cannot be accepted, under the circumstances as the enquiry officer being under the pressure of fear of the former Chairman Col. Muhammad. Afzal Khan. There was no need to conduct third enquiry when two enquiry officers had exonerated the appellant third enquiry means that authority was adamant to punish the appellant.
The action on the part of authority smacks bias with appellant and it was necessary that the authority must give detailed reasons regarding conducting the third enquiry but no reasoning has been given, hence the principle of natural justice has been violated.
10. We, therefore, while holding the appellant not guilty of misconduct set aside the impugned dismissal order dated 9.10.2002 of the appellant from service and direct the respondents to reinstate the appellant in service with all back benefits for which he shall submit an affidavit before the Competent Authority that he was not gainfully employed elsewhere. No order as to costs.
11. Copies of the judgment be sent to the parties (under registered cover) and to the relevant quarters under Rule 21 of the Service Tribunal (Procedure) Rules, 1974.