' RASHID ALI MIRZA (MEMBER).---The appellant has challenged the impugned order dated 17-2-2002 whereby he was dismissed from service vide Notification No,F-4(17)/99 ADMN-III dated 16-11-2001 issued from Ministry of Housing and Works Islamabad which reads as under:-- "Government of Pakistan Ministry of Housing and Works No, F. 4(17)/99-Admn-III, Islamabad, November 16, 2001 NOTIFICATION ' WHEREAS Mr. Anwar Ali Baloch-II, Executive Engineer (Civil) under suspension (BPS-I8) Pak, P.W.D was charged with committing acts of omission and commission consisting inefficiency/misconduct/corruption, through a charge sheet bearing No,F.4(17)/99-Admn-III, dated 17-2-2000 issued under Government Servants (Efficiency and Discipline) Rules 1973.
2. (i) WHEREAS an inquiry was conducted into the above charges by an enquiry, officer/enquiry committee under the rules ibid.
(ii) WHEREAS Mr. Anwar Ali Baloch-II, Executive Engineer (Civil) (Under suspension) Pak P.W.D. Was found guilty of the following charges by the Enquiry Officer/Enquiry Committee.
(i) That while Incharge of G.O.R. Bath Island Karachi on his certification and recommendation as stated by the then Chief Engineer (South), Pak. Karachi, allotment of 5 plots/houses namely 11-B, 12- B, 13-A, 13-B and 14-B, Block-7, Clifton, Karachi was made in the name of under mentioned persons.
S1. No.Plot/House No. Name of Allottec
(i) 11-B, Plot No.9, Block-7, Clifton, Karachi.Mr. Muhammad Ahmad
(ii) 12-B, Plot No.9, Block-7, Clifton, Karachi.Mr. Naqi-ud-Din (iii)13-A, Plot No.9, Block-7, Clifton, Karachi.Mr. Abdul Rehman (iv)13-B, Plot No.9, Block-7, Clifton, Karachi.Mr. Muhammad lqbal Sarni (v)14-B, Plot No.9, Block-7, Clifton, Karachi.Mr. Noor Muhammad.
(ii) That according to the then Chief Engineer (South), Pak. PWD, Karachi, he certified that abovementioned 5 persons had been living in the said houses since long as Katchi Abadi.
Consequently the plots/Houses were allotted to the abovementioned persons at a rate of Rs,200 per sq.Ft. And leased out for a period of 99 years by 16-7-1996 and 18-7-1996 by the Sub-Registrar T.
Division-II Clifton, Karachi. The then Chief Engineer (South) (Mr. N.H. Usmani) had further stated that draft lease which was subsequently sent to Works Division was prepared and supplied to him by Mr. Anwar Ali Baloch.
(iii) That according to the report of the Ehtisab (Cell), the allotment of plots/houses was illegally made. A team of officers along with the SDM, Clifton, Karachi visited the site and found that there was no such sign of construction of houses built on Plot No,9, Block-7, Clifton, Karachi. Further according to the Ehtisab Cell's report, the land in question is not in physical possession of any person, as such, the report that abovementioned five persons had been residing there, was absolutely fake and baseless.
(iv) That on 27-7-1996 you informed the Works Division that the allegations made in the names of 5 applicants were not in order as the property belonged to Government of Sindh and the Federal Government had no concern with that property. Consequently Ministry of Housing and Works vide their letter No,F.10(5)/96-E-III, dated 30-7-1996 ordered for the cancellation of said plots/houses.
Despite urgency and seriousness of the matter, he did not approach the quarter concerned with ulterior motives, for cancellation of lease agreement as advised by the Works Division. Thus he concealed the facts and did not inform the higher authorities in the matter at the right time.
(v) That he reported the matter on 27-7-1996 to the Works Division that the Plots/houses belonged to the Government of Sindh, whereas the following three allottees deposited the cost of plots in your Division in September, 1996 which clearly shows that he was a party in fraudulent allotment of Plots/houses, as he accepted the cost of plots even .After lapse of two months of the cancellation as mentioned below:--
(a) Mr. Muhammad Ahmad Shaikh, 11-B,639'00 Sq.Yds, Rs,127,800 vide receipt No,652101, dated 29- 9-1996.
(b) Mr. Naqi-ud-Din, 12-B, 53900 Sq. Yds. Rs,167,800 vide receipt No,652110, dated 30-9-1996.
(c) Mr. Noor Muhammad, 14-B, 500.00 Sq.Yds. Rs,10;00,000 vide receipt No,821997, dated 22-9-1996.
(vi) That the plots were cancelled by the Works Division on 30-7-1996, but he malafidely did not approach the Registrar of cancellation of Lease Deed and subsequently a sources report was made to the then Accountability Cell, Prime Minister's Secretariat, Islamabad. On their intervention in the matter vide their U.O. No,12(2)/H&W/98, dated 10-7-1998 and 22-8-1998 he approached the Registrar as also advised by the Works Division vide its letter No,F.10(5)/96-E-III, dated 8-8-1998 for cancellation of Lease Deed which was done on 2-3-1999 and 20-3-1999 as intimated by you.
(vii) That Chief Engineer (South), Pak. PWD Karachi vide his letter No,126/184(B.I) WII, dated 16-8- 1999 asked you to explain your position with regard to aforementioned Charges. You submitted reply vide your letter No,KCC-D.1/920, dated 28-8-1999, which was found un-satisfactory and unjustified.
3. WHEREAS the Authorized Officer, having considered and accepted findings of the Enquiry Officer/Enquiry Committee, served a Show-cause Notice bearing No,F-4(17)/99-Admn.III on 15-2- 2001. Mr. Anwar Ali Baloch-II, Executive Engineer (Civil) (under suspension) Pak. PWD, asking him to Show-cause as to why the major penalty of dismissal from service may not be imposed on the charges mentioned above.
4. WHEREAS Mr. Anwar Ali Baoch-II, Executive Engineer (Civil) (under suspension) Pak. PWD was also provided an opportunity of personal hearing by the Authorized Officer on the former's request.
5. AND, whereas the Authorised Officer, after going through the written reply to the Show-cause Notice along with relevant record, and listening to verbal defence offered by Mr. Anwar Ali Baloch-II Executive Engineer (Civil) (under suspension) Pak.PWD and not finding his explanation as satisfactory, recommended the imposition of a major penalty of "dismissal from service" upon him to the Authority under Government Servants (E&D) Rules, 1973.
6. THEREFORE, having considered the records of the proceedings and being satisfied with the findings of the Enquiry Officer/Enquiry Committee and recommendations of the Authorised Officer, the 'Authority', in exercise of the powers conferred on him by rule 3 read with rule 5(1)(iv) of Government Servants (E&D) Rules, 1973, has imposed upon Mr. Anwar Ali Baloch-II, Executive Engineer (Civil) (under suspension, Pak.PWD the major penalty of "Dismissal from service" with immediate effect, in terms of Rule 5(1)(iv) of the Government Servants (Efficiency and Discipline)
Rules, 1973, of the aforesaid rules.
7. Mr. Anwar Ali Baloch-II, Executive Engineer (Civil) (under suspension) Pak PWD shall have a right of appeal/review petition to the appellate Authority under the Civil Servants (Appeal), Rules, 1977 within a period of 30 days from the date of issue of this Order/Notification.
(Sd).
(Ali Abid)
Deputy Secretary"
2. It is the case of the appellant that 5 persons namely Muhammad Ahmed Shaikh, Naqiuddin, Abdul Rehman, Muhammad Abdus Sami, Noor Muhammad had submitted application separately to the then Federal Minister for Housing and Works on 10-6-1996 for allotment of alleged plots in their names. The then Federal Minister for Housing and Works ordered on each application "Please examine and put up" and earmarked the said application to then Secretary, Ministry of Housing and Works and the concerned Section Officer, Estate-III, Mr. Muhammad Tariq Umer, sent the abovementioned 5 applications to Mr. N.H. Usmani, the then Chief Engineer) (South), Pakistan P.W.D.
Karachi, with the remarks "for report C.E. (South)", Thse then Chief Engineer (South), who sent reports to the then Secretary, Ministry of Housing and Works, on each case vide his letter No,726/1841-BI-WI, dated 25-6-1996 and mentioned in his report that the persons who have applied for the allotment of plots/houses in their names, have built 2 bed rooms, verandah and kitchen by each one of them and residing there since long. It is further stated that the Sale Agreement provided by the applicants along with their requests were duly supported by the Chief Engineer (South) and he had mentioned In his reports that the plots are located in Katchi Abadi and recommended to lease out the said plots/houses at the costs of Rs,200 per Sq. Yard for a period of 99 years in favour of the applicants. Subsequently on receipt of these five reports from the Chief Engineer (South), Pakistan P.W.D. Karachi. The said plots were leased out in favour of the applicants on 16-7-1996 and 24-7-1996. The appellant has stated that he informed the Works Division that the above property belonged to the Government of Sindh and the allotment of the plots made by the Works Division, on 27th June, 1996, may be withdrawn and cancelled. Subsequently the Ministry of Housing and Works, cancelled the allotment vide letter No,F.10(5)196-III, dated 30th July, 1996.
Appellant has further stated that the plots had been sold out at Rs,200 per Sq. Yards to the abovementioned 5 persons and only 3 allottees had deposited cost of plots. He stated that on 10- 7-1998, Ehtisab Cell, Prime Minister's Secretariat, initiated the inquiry and written a U.O. No,12(2)
H&W/98, dated 10th July, 1998, addressed to the then Secretary, Ministry of Housing and Works, Government of Pakistan, Islamabad and sent a team of officers along with S.D.M. Clifton Cantonment Board, who had visited the spot and found that land in question is physically not in possession of any person and there was no house constructed by the allottees as mentioned by the Chief Engineer in his report. Again on 22-8-1998 another U.O. No,12(2)/98- H&S, dated 22nd August, 1998, had been received from Ehtisab Cell to Ministry of Housing and Works, in which Ehtisab Cell, mentioned that the report of the then Chief Engineer (South), was based on mala fide and tantamount to cheating and abuse of authority and it was suggested that case against the persons who have fraudulently got the Government land/plots allotted in their name be registered as per law and those who failed and were involved in the illegal act be treated under Efficiency and Discipline Rules, 1993. It was also suggested that in spite of clear instruction for cancellation of allotment of the subjected plots/land vide No,F.10(5)/96-E-III, dated 8-8-1998 the field staff in Karachi have yet not got the registration cancelled. It is recommended that the same is done by deputing some special officer/team of officers and land be got secured immediately. Compliance be sent to this office within 10 days. He further stated that two allottees namely Muhammad Ahmed Shaikh and Noor Muhammad appeared before the Sub-Registrar on 14-2-1999 and surrendered the lease in respect of Plots No,11-B and No,14-B respectively. The appellant has stated that the matter was taken up with Secretary who authorized the appellant vide letter, dated 8-8-1998 to cancel the Lease Deeds. The appellant approached the Registrar and got the allotments cancelled and informed the Ministry of Housing and Work's Islamabad. The appellant was served with Charge Sheet dated 17-2-2000.He denied the allegations. Thereafter enquiry was conducted.
3. Thereafter, Show-cause Notice dated 15-2-2001 was served upon the appellant along with Enquiry Report. The appellant replied to the Show-cause Notice. The Respondents not accepting the reply of the appellant made in response to the Charge Sheet, Show-cause Notice and also totally neglecting the brief history submitted by the Departmental Representative Mr. Ali Akbar Shaikh in Enquiry Report, the Respondents dismissed the appellant from service by Notification dated 16-11-2001. The appellant made departmental appeal on 12-12-2001 but no reply was received, hence this appeal.
4. The Respondents have filed Parawise Comments stating therein that all the charges contained in the Charge Sheet- served upon the appellant were approved by the Enquiry Officer. Besides the Show-cause Notice was served upon him as well as opportunity of personal hearing was granted to him but he failed to prove himself innocent. The plots were allotted on the basis of recommendation and certification of the appellant that five different persons were living there with their families whereas it was a fake Statement and the allotment of the plots was illegal, and had been cancelled subsequently. The Respondents further stated that the appellant was dealing this case personally and record of dispatch of letters was not maintained. However the Enquiry Officer has proved that the appellant was in full picture of the case. Appellant being .Custodian of the Government property should have reflected factual position to the Chief Engineer but he did not apprise him deliberately. The respondents further stated that it was in the knowledge of the appellant that the allotments being made to five persons were not in order as the property belong to Government of Sindh even then he did not inform the facts to the higher authorities. The respondents have admitted that the appellant took the matter for cancellation with the Registrar Karachi after completion of allotment process deliberately. The respondents further stated that the Ministry of Housing and Works authorized the appellant to sign the cancellation of Lease Agreement on behalf of the President of Pakistan but he intentionally failed to take steps for the purpose with mala fide intention.
5. We have heard the arguments of learned counsel for both the parties and perused the record.
6. The Learned Counsel for the appellant has contended that 5 persons submitted applications separately to the then Federal Minister for Housing and Works for allotment of plots in their names.
The then Federal Minister for Housing and Works ordered on each application "Please examine and put up" the said application to the then Secretary, Ministry of Housing and Works and the concerned section Officer Mr. Muhammad Tariq Umer sent the abovementioned 5 applications to Mr. N.H. Usmani the then Chief Engineer with the remarks for report. The then Chief Engineer sent reports to the then Secretary, Ministry of Housing and Works on each case and mentioned in his report that the persons who had applied for the allotment of plots in their names have built two bed rooms, Verandah and Kitchen by each one of them and are residing there since long. He has further contended that the Sale Agreement provided by the allottees along with their request were duly supported by report of Chief Engineer who in his report has mentioned that the plots are located in Katchi abadi and recommended to lease out the said plots at the cost of Rs,200 per Sq.Foot for a period of 99 years in favour of the applicants. Subsequently on receipt of these 5 reports from the Chief Engineer (South) Pak P.W.D., Karachi on 25-6-1996 the Works Division issued Allotment Orders vide order dated 27-6-1996. Accordingly the said plots were leased out in favour of the applicants and such deed was registered in the Office of the Sub-Registrar Cantonment Karachi.
7. Mr. Sanaullah Noor Ghauri Learned Counsel for the appellant has further contended that the appellant who was Incharge Central Civil Division Pak P.W.D. Karachi informed vide his letter dated 27-7-1996 to Works Division that the same property/plots belonged to the Government of Sindh and the allotment of the plots made by the Works . Division Islamabad on 27-6-1996 may be withdrawn and cancelled. Subsequently the Ministry of Housing and Works cancelled the allotment vide order dated 30-7-1996. He has further contended that the matter was reported to Ehtisab Cell Prime Minister Secretariat vide order dated 10-7-1998 who sent a team of Officers along with SDM Karachi who visited the plots and found that land in question is not physically in possession of any person and there was no any house constructed by the allottee as mentioned by the Chief Engineer (South) in his report. Again on 22-8-1998 a message was received from Ehtisab Cell to Ministry of Housing and Works in which Ehtisab. Cell has mentioned that the report of the then Chief Engineer (South) Karachi was based on mala fide and tantamount to cheating and abuse of authority and suggested that the case be registered against those who failed and were involved in the illegal act according to law but no case was .Registered. He has further contended that after long efforts of the respondents with Registration Office, two allottees named as Mr. Muhammad Ahmed Shaikh and Noor Muhammad had appeared before the Sub-Registrar on 14-2-1999 and surrendered the lease in respect of plots No,11-B and 14-B respectively and the Lease Deed of remaining three plots was caviled on 4th March 1999. The Ministry of Housing and Works had initiated disciplinary action against Mr. N.H. Usmani the then Chief Engineer South, Karachi and issued Charge Sheet vide order dated 6-3-1999. Mr. S. Sarshar Malik Chief Engineer (North) Pak.
P.W.D. Islamabad was appointed as Enquiry Officer. Mr. Ghauri contended that the impugned Notification of dismissal of the appellant is based on mala fides as the Enquiry Officer Mr. Raees Khan Superintending Engineer had totally neglected the written material submitted by Mr. Ali Akbar Shaikh, Chief Engineer (South) P.W.D. Karachi but the respondent has added his own assumptions on the basis of alleged Statement not supported by documentary evidence Mr. Ghouri further stated that the allegations contained in the Charge Sheet and Show-Cause Notice are totally based on verbal quoted Statement 'of the Chief Engineer (Mr. N.H. Usman) against the appellant.
He has contended that the appellant is innocent and no case has been made out against the appellant and there is not a single word or involvement of the appellant in the whole picture. He has contended that the appellant has not been the accused of wilful default, wilful disobedience, misappropriation or misconduct, and as such the punishment awarded to him is illegal, ultra vires and void. He has contended that the concluding words of the Enquiry Officer clearly indicate that his opinion is based on oral without any evidence and based on mala fides. There is nothing on record to prove the appellant guilty in the matter. He has further contended that the appellant has never certified that the abovementioned 5 persons had been living in the said plots since long nor he had proposed rate of Rs,200 per Sq.Ft nor prepared the draft lease document supplied and submitted to the Chief Engineer (South). He has further contended that the Section Officer was deputed by the Ministry to carry out the Lease Agreement in the Sub-Registrar Officer vide letter dated 11-7-1996. He has further contended that the appellant was the Incharge of the Division and came to know about the allotment, he immediately informed the Ministry that allotment made in the names of 5 applicants were not in order and requested for cancellation of the order of the above 5 plots. He has further contended that the appellant was authorized by Ministry of Housing and Works Islamabad for cancellation of the Lease Agreement vide letter dated 8-8-1998 which shows that the appellant had not concealed the facts and informed the authorities at the right time and saved the Government from loss and from the land grabbers, on the contrary the appellant should have been appreciated rather he was indulged to face the consequence and was punished. He has contended that during the entire service since 1974 the appellant has worked honestly and diligently and there is no adverse entry in his entire service record. The learned Counsel last prayed that the impugned Notification dated 16-11-2001 issued by the respondents be set aside and the appellant be reinstated in service with full back benefits without any break of service to the post he was already holding.
8. The Learned Counsel for the respondents has based his arguments mainly upon Parawise Comments and has contended that all the charges against the appellants were established by the Enquiry Officer and as such he was penalized with dismissal from service. He has further contended that all the charges levelled in the Charge Sheet were duly supported with documentary evidence.
9. We have heard the arguments of learned Lounsel for both the parties and have also perused the appeal file. The perusal of the appeal file shows that the respondents have not produced nor mentioned any Such document on record about involvement of the appellant in the alleged allotment of the plots to the allottees. We have also observed that the Standing Counsel as well as D.R. Could not be atle to produce the documents relating to the allotment of the appellant in the Charge Sheet, Show-cause Notice or the impugned order. When the entire matter was based on documentary evidence, even though nothing has been produced on record to establish the guilt of the appellant nor there is any single word as evidence on record to connect him with alleged allotment. The appellant who was Incharge Central Division Pak PWD Karachi informed the Works Division that the plots belonged to the Government of Sindh and the said plots which had been allotted by the Works Division may be withdrawn and cancelled. Subsequently, the Ministry of , Housing and Works Division cancelled the allotment vide order dated 30-7-1996. The Ehtisab Cell had mentioned that the report of the then Chief Engineer (South) Karachi was based on mala fide and suggested that the case be registered against the persons who are involved in the illegal act.
It has also come on record that the Ministry of Housing and Works had initiated disciplinary action against Mr. N.H. Usmani, the then Chief Engineer (South), Karachi and issued the Charge Sheet vide order dated 6-3-1999 which shows that the appellant is not involved in the said transaction. These facts have been mentioned by Mr. Ali Akbar Shaikh Chief Engineer which are available on record.
Thus it is apparent that Mr. Muhammad Tariq Umer, Section Officer sent the said 5 applications of the allottees to Mr. N.H. Usmani, the then Chief Engineer for report and the then Chief Engineer sent the report on each case to the Secretary, Ministry of Housing and Works mentioning therein that the allottees/persons who had applied for the allotment of plots in there names have built 2 bed rooms, Verandah and Kitchen by each one of them and are residing their since long and recommended to lease out the said plots at the cost of Rs,200 per Sq.Ft. For a period of 99 years in favour of the appellants, subsequently the Works Division, Islamabad issued allotment orders of the plots in favour of the above 5 allottees on 27-6-1996 and such documents were prepared in favour of the 5 applicants in the Office of Sub-Registrar, Karachi. From these facts, it is crystal clear that the appellant is not involved in the allotment of the plots in favour of the allottees and the charge against the appellant is without any substance. It has also borne out from the record that the appellant has not certified that the abovementioned 5 persons had been living in the said plots since long.
10. We, therefore, allow the appeal, set aside the impugned Notification No,F.4(17)/99-Admn. III dated 16-11-2001 and direct the respondents to reinstate the appellant in service with full back benefits for which the appellant shall submit an Affidavit before, the competent authority that he was not gainfully employed elsewhere after his dismissal from service.
11. Copies of the judgment be sent to the parties (under registered covet) and to the relevant quarters under rule 21 of Service Tribunal.