' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER)---While he had been serving as Director Engineer (BPS-19), National Highway Authority, Karachi (hereinafter called the NHA), the appellant was dismissed from service under section 3(e) of the Removal from Service (Special Powers)
Ordinance, 2000, vide office order, dated 29-3-2002, said to have been delivered to him on 3-4- 2002. He preferred a departmental appeal to the respondent No,1 on 18-4-2002 and having not received the reply thereof, he filed the present appeal before the Tribunal on 13-7-2002 after waiting for the statutory period of 60 days.
2. Briefly, the history of this case, gleaned from the record , is that the Regional Officer of NHA Sindh Karachi awarded the following four contract to contractor Ameer Business Corporation (for short Messrs ABC) for certain works to be carried on Super Highway vide letter, dated 25-4-2000:-- "(a) Contract No,EM(S)-6188, (b) Contract No,EM(S)-6189, (c) Contract No,EM(S)-6190 and (d)
Contract No,EM(S)-6191."
3. During the currency of the said project, a complaint (through fax from Messrs ABC was received against Muneer A. Memon, the then Deputy Director (Maintenance), NHA Karachi alleging that the said Deputy Director had taken over the said Engineering Maintenance Contract No,6189 in their name without obtaining their permission. It was further stated in the complaint that the matter had already been reported to NHA Regional Office, Karachi, but no action was initiated by that office.
The competent authority took cognizance and ordered inquiry to probe into the matter vide letter, dated 9-9-2000, appointing Messrs Ateeq Ahmed and Pervez Akhtar, as Inquiry Committee. The fact-finding report of the above committee, received vide letter dated 23-9-2000, was forwarded to the General Manager, Sindh, NHA Karachi viz. Abdullah Mahesar for comments vide Member Highways' letter, dated 7-11-2000 In response to that fact-finding report, Abdullah Mahesar, vide his letter dated 22-11-2000, recommended that the contractor Messrs Ameer Business Corporation be black-listed and its performance security (reference NHA code clause No,4 of chapter three) be forfeited because it was quite clear that the said firm did not have sound credentials, vide letter, dated 22-11-2000. Such letter was said to have not been received by NHA, Headquarters, Islamabad. However, the Headquarters pursued the case vigorously. Meanwhile, the then General Manager, Abdullah Mahesar was transferred and was replaced by Mian Abdul Haq.
4. The new General Manager, Sindh Mian Abdul Haq was not aware about 'the above-said inquiry in the matter, but during a joint visit to the site with the appellant in January, 2000, he found certain defects in the work on Super Highway, which the appellant could not justify; hence, he examined the record of all the four contracts and found that although the four contracts were processed in the same period by the same Field Unit, but the procedure for contract under EM(S)-6189 was different from that of other above mentioned three contracts. The bills whereof were marked to the General Manager, Sindh, whereas, the bill of EM(S)-6189 was marked directly to the Deputy Director (Accounts). Such deviation in processing of the bills created doubt in the mind of General Manager, Sindh, therefore, he reported the matter to the Member (Operations), NHA, Headquarters, vide letter, dated 30-4-2001. Prior to that, the then General Manager, Sindh Abdullah Mahesar had appointed Director (Maintenance/Procurement) Syed Raza Hamid Zaidi to make an inquiry in the light of the contents of the facts of the complaint of Messrs (ABC). The said Director approached Messrs ABC, who, in writing, denied to own the fax, but then the closure of the inquiry by the said Director was not found on record.
5. In pursuance of the aforementioned letter of the General Manager, Sindh dated 30-4-2001, the NHA, Headquarters appointed Brig (R) Javed Abbas, the then General Manager (N.-W.F.P.), as Inquiry Officer, vide letter, dated 5-5-2001, but due to his poor health, he could not continue the same; hence, Raja Nowsherwan, the then General Manager(Balochistan) was appointed Inquiry Officer in his place, vide letter, dated 30-5-2001 to probe into the matter. Raja Nowsherwan, General Manager (Balochistan) submitted his inquiry report, dated 23-6-2001, which is on record /file at pages 107 to 115. On the basis of his findings, a show-cause notice, dated 6-7-2001 was issued to appellant Rasheed A. Memon by Pervez Mehmood Khan, D.G. (Admn.)/ Authorized Officer. Relevant portion of the show-cause notice is reproduced as under:-- "(i) That you while posted as Director (Construction) in G.M. Office, Karachi concealed the facts from new G.M. Mr. Abdul Hague as the then G.M. (Mr. Abdullah Mehaser) had instructed you that the bill in regard to Contract No,EM(S)-6189 should be paid consequent to the findings of the inquiry, but you did not follow the instructions of the then G.M.
(ii) That you did not inform the new General Manager (Mr. Abdul Hague) about the details that an inquiry was under process in the Head Office on the above issue.
(iii) That you processed the same bill on a fresh noting and marked it directly to DD (Accounts) for payment."
' The reply dated 27-7-2001 of the show-cause notice submitted by Rasheed A. Memon was as under:- "The Director-General (Admn.)/Authorized Officer, National Highway Authority, Islamabad.
' Subject: Show-cause notice.
' Reference: Your letter No,Inq/CS/Admn/NHA/134/2001/166, Islamabad dated 6th July, 2001.
' Sir, ' It is refuted/rebutted that while posted as Director (Construction) NHA (Sindh) Karachi, I have committed any act of commission and omissions as alleged in the show-cause notice.
' There is no truth in it as alleged in para. Under reply that I have concealed any fact from new General Manager (Sindh) Mr. M. Abdul Haque, I was never transmitted any instructions by former General Manager (Sindh), Mr. Abdullah Mahesar for onward transfer to new General Manager to new General Manager (Sindh) hence accusing me of such allegations which were not known to me is shocking and surprising. I do hereby state on oath that no any instructions were given to me by Mr. Abdullah Mahesar to be given to new General Manager (Sindh) as such the question of any concealment does not arise on my part.
' I have no knowledge about any inquiry or findings of inquiry on Contract No,EM(S)-6189 and no any such instructions regarding Bills of this contract were specially made known to me by the former General Manager (Sindh) hence allegations are refuted and rebutted being misquoted.
(ii) That I had no knowledge about proceedings of any inquiry if pending as such I had nothing to tell to new General Manager (Sindh) as such allegations are refuted and rebutted in respect.
(iii) That I never processed any fresh bill as alleged but the already processed bill, which was with Accounts Section and the note sheet was missing as such on their pointation the missing note sheet was resubmitted to them to be attached with the pending bill and if there had been any prohibitory instructions in my knowledge I would have never even processed the bill and the Accounts Branch would have refused to accept the same and payment would not have been made.
' I once again refute and rebut the entire allegations of para.(i), para.(ii) and para.(iii) being untrue and redundant.
(2) There is no any act of inefficiency or misconduct on my part as alleged hence allegations are refuted in its entirety.
(3) That there is no any documentary proof with NHA from which it can be presumed that I was intimated any such information by any memo./letter/communication regarding subject issue hence allegations rebutted.
(4) There is no fault whatsoever on my part hence threatening me of alleged penalty is unjustified when there is nothing against me with NHA.
' I would, therefore, humbly and respectfully submit that impugned show-cause notice may very graciously be recalled and withdrawn against me and I be exonerated from untrue allegation.
' Soliciting for personal hearing.
' Karachi, dated 27-7-2001 Yours faithfully (Rasheed Ahmed Memon), Director (Construction) U.S. NHA (Sindh), Karachi."
' The appellant was then called for personal hearing on 21-8-2000, which was followed by appointment of another Inquiry Committee comprising Brig. (R) Parwez Mahmood Khan, D.G.
(Admn.) NHA, Abdul Rauf Ch. Executive Director (RAMD) and Maj. Syed Sajid Pervez Deputy Director (Vigilance), vide letter dated 25-8-2001 by Director (Personnel). The Inquiry Committee submitted its report wherein the findings were based, "on the preceding statement and questions with answers" of the following persons, besides such statements of the accused officers namely Syed Raza Hamid Zaidi, Director (Maintenance), Munir Ahmed Memon, Deputy Director (Maint) and Pir Bux Langah, Deputy Director (Accounts):-- "(1) Mian Abdul Haque, General Manager (Sindh),
(2) Abdullah Mahesar, Ex-G.M. (Sindh),
(3) Pir Bux Langah, Deputy Director (Accounts),
(4) Nawab Ali Kalwar, Assistant Director (Accounts).
(5) Mumtaz Ali, representative of Messrs ABC."
' The conclusion of the Inquiry Committee is reproduced as under:-- CONCLUSION ' Foregoing in view and having given consideration to the different aspects of the issues regarding irregularities occurred in Emergency Maintenance Contract No,EM(S)-6189, the conclusion is as under:--
(a) The following officers willfully concealed the (not legible) constituted by NHA Head Office which tantamounts to keep the new G.M. (Sindh) (Mian Abdul Haq) in dark regarding the action to be taken against the subject Contractor:--
(i) Syed Raza Hamid Zaidi, Director (Maint)/Highway,
(ii) Mr. Munir Ahmed Memon, Deputy Director (Maint),
(iii) Mr. Pir Bux Langah, Deputy Director (Accounts),
(iv) Mr. Nawab Ali Kalwar, A.D. (Accounts).
(b) The following Officers concealed the information from the new G.M. (Sindh) (Mian Abdul Haq) regarding the observations made by the ex-G.M. (Sindh), (Mr. Abdullah Mahesar) on the Inquiry Report dated 13th September, 2000 (page.122-125) and letter written to Member (Highways) dated 22-11-2000 (placed at page 63):--
(i) Syed Raza Hamid Zaidi, Director (Maint),
(ii) Mr. Pir Bux Langah, Deputy Director (Accounts),
(iii) Mr. Nawab Ali Kalwar, A.D. (Accounts).
(c) The following officers fraudulently and willfully favoured the Contractor Messrs ABC by removing original noting (page 40) from the file containing the remarks of ex-G.M. (Sindh) (Mr. Abdullah Mahesar) regarding the stoppage of the payment and replacing with new noting (page 41). The replaced noting was directly submitted to D.D. (Accounts) instead of G.M. (Sindh) violating the procedure:--
(i) Syed Raza Hamid Zaidi, Director (Maint),
(ii) Mr. Rasheed Ahmed Memon, Programme Manager,
(iii) Mr. Pir Bux Langah, DD (Accounts),
(iv) Mr. Munir Ahmed Memon, Deputy Director (Maint),
(v) Mr. Nawab Ali Kalwar, Assistant Director (Accounts).
(d) The following officers, with a view to provide undue favour to the Contractor Messrs ABC, convinced DD (Accounts) (Mr. Pir Bux Langah) and A.D. (Accounts) (Mr. Nawab Ali Kalwar) to process the case of payment of the contractor for 4th and final bill release of Bank Guarantee and not to bring the matter of inquiry to the notice of new G.M. (Sindh) (As a proof copy of statements is attached at pags 70 and 71).
(i) Syed Raza Hamid Zaidi, Director (Maint),
(ii) Mr. Rasheed Ahmed Memon, Programme Manager,
(iii) Mr. Munir Ahmed Memon, Deputy Director (Maint), Super Highway.
(e) Incorrect practice has been carried out by Ex-G.M. (Sindh) Mr. Abdullah Mahesar by making Committee of the officer to regularize the advancement of Maintenance Contract by approval of variation order (more than power delegated to G.M. For the item of cut vegetation) (Page 87) instead of tendering which was instructed by NHA, HQ, Islamabad (page 86).
(f) The Contractor Messrs ABC has been providing illegal gratification to the officers of G.M. (Sindh) to obtain their undue favour in carrying out the project (copy of the questioner of the contractor duly signed is attached at .(page 108). However, the contractor did not provide the names of the officers involved in the corruption. Keeping in view the observations of Ex-G.M. (Sindh) (page 63) and suggestions of Inquiry Report of NHA, HQ, Islamabad (pages 122-125), the following actions are suggested to be taken against the contractor.
' The Contractor Messrs ABC may not be allowed to participation in the future bidding/tenders of NHA and should be blacklisted.
(ii) The following withheld amounts of the said Contractor against Contract No,EM(S)-6189 and 5% Retention money may also be forfeited:-- {{TABLE}} 10% of the 4th and final bill Rs,307,464 5% Retention money Rs,241,225 Total amount Rs,548,689 {{TABLE}}
6. On the basis of the above inquiry report, following show-cause notice, dated 27-9-2001, was issued to appellant Rasheed Ahmed Memon: -- SHOW-CAUSE NOTICE
(1) That you, Mr. Rasheed Ahmed Memon, Director (BS-19), NHA (Sindh), Karachi (under suspension), while posted as Programme Manager G.M. (Sindh)'s Office NHA, Karachi committed the following acts of commission and omission:--
(a) That you willfully concealed the facts regarding the findings of the report furnished by the Inquiry Committee constituted by NHA HQ in the case concerning Messrs ABC in Emergency Maintenance Contract No,EM(S)-6189 consequent upon transfer of Mr. Abdullah Mahesar, G.M.
(Sindh) and assumption of duty in his place by Mian Abdul Haq. This tentamounted to keeping the new G.M. (Sindh) in dark regarding the action to be taken against the Contractor Messrs ABC.
(b) That you, with the ill-intention of extending undue favour to the Contractor Messrs ABC, convinced DD Accounts (Mr. Pir Bux Langah) and A.D. Accounts (Mr. Nawab Ali Kalwar) to process the case of payment of the contractor for fourth and final bill/release of bank guarantee and not to bring the matter of inquiry to the notice of the new G.M. (Sindh).
(2) Whereas, the above stated facts amount to misconduct and inefficiency under section 3 of the Removal from Service (Special Powers) Ordinance, 2000 as amended vide Ordinance No,V of 2001 and render you liable for imposition of major penalty of dismissal from service.
(3) That as a sufficient proof in support of the allegations mentioned above and, keeping in view the conclusion of the Inquiry Committee, it has been decided to serve upon you this show-cause notice as required under the rules.
(4) You are, accordingly, called upon to show cause as to why the major penalty of dismissal from service may not be imposed on you. Your reply should reach the undersigned within seven days of the receipt of this notice. In case no reply is received with the stipulated period, it shall be assumed that you have nothing to say in your defence and action shall be taken ex parte.
(5) You are also required to state in writing, if you desire to be heard in person by the competent authority.
(6) A copy of the inquiry report is enclosed.
(Sd.) (Maj. Gen. Tariq Javed), Chairman NHA.
Encl. (Enquiry Report)."
' The appellant replied to Show-Cause Notice as under:-- "The Chairman, National Highway Authority, Islamabad.
' Subject: Reply to show-cause notice dated 27-9-2001 ' Sir, ' Kindly refer your Show-Cause Notice No,Inq/CS/Admn./NHA/ 134/2001/552, dated 27-9-2001.
' I have gone through the allegations as alleged against me in the show-cause notice and do hereby deny the same word by word, para. By para. And in toto being incorrect and false. My ;ply is as under:--
(a) That the contents of para. Under reply are false, misconceived and untrue as such denied. It is denied that I had willfully concealed the facts regarding the findings of the report furnished by the Inquiry Committee. I have in my reply dated 27-7-2001 (photocopy enclosed) to previous show- cause notice dated 6-7-2001 and para. (a) of said reply be read into the instant reply as part and parcel and are not repeated for sake of brevity.
(b) The contents of para. Under reply are denied in its entirety and totality being incorrect and flimsy. I never had any ill intention of extending undue favour to the contractor Messrs ABC. It is incorrect and wrong that I had convinced DD (Accounts) and AD (Accounts) to process the case of payment of the contractor for bill or released of Bank Guarantee and I deny the same. It is also denied that any effort was made by me on DD and AD (Accounts) for not bringing the matter of inquiry to the notice of the new G.M. (Sindh) hence allegations denied.
(2) There is no misconduct and inefficiency on my part which comes within the purview of section 3 of the Ordinance, 2000 as amended till to date as such I am not liable for any penalty major or minor.
(3) There is no iota of evidence against me with NHA as alleged and neither enquiry was conducted strictly under the NHA (E&D) Rules, 1995, hence I have been unnecessarily dragged in the issue with no fault on my part.
' In view of above contention and being innocent I may very kindly be exonerated from allegations as alleged in the show-cause notice, dated 27-9-2001 and my reply dated 27-7-1991 be also accepted as part extension of reply and justice be done to me. Your obediently (Sd.) (Rasheed Ahmed Memon)
Director (under suspension)
NHA Regional Office, Sindh, Karachi ' Karachi dated 8th October, 2001 ' Encl. Photostat copy of reply dated 27-7-2001."
' Chance of personal hearing was given to the appellant and then he was dismissed from service vide impugned order, dated 29-3-2002.
7. We have heard the learned counsel for the parties. We have also examined the record with the help of the learned counsel for the parties.
8. The learned counsel for the appellant argued that the disciplinary IA proceedings against the appellant had not been drawn in accordance with the Removal from Service (Special Powers)
Ordinance, 2000 (hereinafter called the "Removal Ordinance, 2000") as amended upto date.
According to the learned counsel, under S.R.O.411, dated 13-6-2000, notified by the Government of Pakistan in relation to the Removal Ordinance, 2000, the competent authority in respect of the appellant was Administrative Secretary, Ministry of Communication; that there being no provision under the S.R.O. For delegation of powers, as such, the action of dismissal taken by respondent No,4 (Chairman, NHA) was without lawful authority as he was not authority under the said Ordinance; that the appellant was not aware about the inquiry being conducted in the matter of Contract No,EM(S)-6189 at the NHA, Headquarters and he had not kept Mian Abdul Haq, General Manager, Sindh in dark about the said report as alleged in the show-cause notice; that the appellant was not aware about the note of previous General Manager, Abdullah Mahesar regarding stoppage of payment and he had not removed the alleged note of General Manager from the file, but on being given to understand by the Accounts Section (Where the bill had been lying) that the previous General Manager had approved payment of the 4th bill of Messrs ABC, he put up a fresh note for payment and sent it to Deputy Director (Accounts) knowing that the same would be sent to the General Manager Mian Abdul Haq for further necessary action; that the bona fide of the appellant was apparent from the fact that he had recommended withholding of 10% amount of the bill for rectification of the defects in the work carried out by Messrs ABC; that if the appellant had any corrupt intention or motive for obtaining any gratification from the contractor Messrs ABC, he would not have made the recommendation of withholding 10% amount from payment of the 4th bill of Messrs ABC in respect of Contract No,EM(S)-6189; that the allegations in the two show-cause notices were based on the statements of General Managers, Abdullah Mahesar and Mian Abdul Haq, Pir Bux Langah, Deputy Director, (Accounts), Nawab Ali Kalwar, Assistant Director (Accounts) and Mumtaz Ali recorded in the preliminary inquiries at the back of the appellant and the appellant was not given any chance to cross-examine these witnesses, as such, their evidence could not legally be used against the appellant to penalize him; that no loss was caused to the Government by payment of the 4th bill of Messrs ABC pertaining to Contract No,EM(S)-6189 and that the appellant had also not acquired any monetary gain by processing the payment of the bill; that so far as sending the 4th bill to Deputy Director (Accounts) was concerned, it was sent to him for processing further after rectification of the defective work; that if the appellant had adopted wrong procedure it was the duty of the Accounts Section to raise objection on it, but no objection was raised by the Accounts Section and the appellant had, as a matter of fact, sent the fresh note to the Accounts Section on the insistence of Deputy Director (Accounts) and Assistant Director (Accounts); that in view of the facts and circumstances, mentioned above, the appellant had not committed any misconduct and a harsh penalty of dismissal from service could not have been imposed on him by the respondent No,4, who was not the competent authority under the law. In support of his above contentions, the learned counsel for the appellant relied on judgment dated 10-6-2003 of this Tribunal passed in Pir Bux Langah v. Chairman, National Highway Authority and others Appeal No,1138(R)CE of 2002; 1997 PLC (CS) 873; 2003 SCMR 207 and 2000 PLC (CS) 1252.
9. Basing his arguments on the written comments filed on behalf of the respondents, the learned counsel for the respondents stated that the bills for three contractors viz. 6188, 6190 and 6191 were directly marked to the G.M. (Sindh), but the bill for Contract No,6189 was directly marked to the Deputy Director (Accounts); that such deviation in processing of the bills created doubt in the mind of the G.M. (Sindh), therefore, he reported the matter to Member (Operations), NHA HQ, vide letter, dated 30-4-2001 in pursuance of which, a preliminary inquiry for probating into the matter was held by Raja Nosherwan Sultan, G.M. (Balochistan) and a show-cause notice was issued to the appellant by the Chairman, NHA, but action on it was held in abeyance and a fresh inquiry under the order of the Chairman was held by a Committee of three Officers, associating the appellant in the inquiry proceedings; that it was proved in the inquiry that the appellant along with other four officers of NHA did not disclose the previous recommendations of the then G.M. (Sindh) Abdullah Mahesar regarding the stoppage of the payment of Messrs ABC and forfeiture of their performance security to new G.M. (Sindh) Mian Abdul Haq; that on the contrary the appellant recommended/released the 4th and final bill of the contract Messrs ABC along with performance security (a) without waiting the result of the above inquiry proceedings, (b) despite having knowledge thereof deliberately, (c) by keeping the new G.M. (Sindh) in dark, (d) by tampering the record of the case, and (e) reproduced the official documents in back dates and directly submitted to DD (Accounts) for payment instead of G.M. (Sindh) as per practice in vogue; that as per statement of Mumtaz Ali, representative of contractor Messrs ABC that the appellant along with other officers of NHA had been getting commission from them; that the appellant could not justify his position in writing to the show-cause notice, dated 27-7-2001; hence, he was rightly dismissed from service by the competent authority after giving him a chance of personal hearing; that the inquiry by Raja Nowsherwan Sultan was a fact-finding inquiry which was not agreed to by the competent authority; hence, fresh inquiry was ordered by the competent authority to be held by a committee of three officers.
' Regarding objection of the learned counsel for the appellant about the Chairman, NHA, being not competent authority under S.R.O.411 dated 13-6-2000 and the Secretary, Ministry of Communication, being competent authority, it was stated in para.39 of the written comments as under:- "No comments for the want of knowledge. This honourable Tribunal may please examine."
' It was admitted in the written comments (para.37) that the question of cross-examination of the witnesses by the appellant was not considered necessary by the Inquiry Committee before which the appellant had allegedly admitted that he reproduced the new noting sheet in place of missing noting sheet of the contract and to have directly submitted the bill with fresh noting to the Deputy Director (Accounts) for payment; that due to the order of the competent authority to hold fresh inquiry in the matter, the previous show-cause notice issued on 6-7-2001 by Parwez Mehmood Khan, D.G. (Admn.) as Authorized Officer, had become infructuous; the learned counsel for the respondents urged that the appeal be dismissed as having no merit.
10. We have carefully considered the above arguments of both sides and minutely examined the record of the case.
11. We have found that the disciplinary proceedings against the appellant had not been drawn in accordance with law. Action for disciplinary proceedings against a civil servant at the relevant time is to be taken/initiated under the Removal Ordinance, 2000, which overrides any other law for the time being in force. If in the opinion of the competent authority a person in Government or corporation service is inefficient, guilty of misconduct, corrupt, is engaged in subversive activities and found to have been appointed or promoted on extraneous grounds in violation of law and the relevant rules, the competent authority after an inquiry by the Inquiry Officer or Inquiry Committee appointed under section 5, may, notwithstanding anything contained in law or terms and conditions of service of such person, by an order in writing impose major or minor penalty upon him under section 3 of the Ordinance. The procedure for initiating the disciplinary proceedings is given in section 5 of the Ordinance, which is that the competent authority shall pass an order in writing wherein charges and statement of allegations have to be mentioned and the Inquiry Officer or the Committee is to be appointed. The Inquiry Officer or the Committee shall then communicate to the accused such charges and statement of allegations. On denial of charges and allegations by the accused the Inquiry Officer or the Committee shall hold inquiry during which accused shall be given chance to cross-examine the witnesses and to bring on record his defence, if any.
Thereafter, second show-cause notice of the proposed penalty has to be given to the appellant along with copy of the inquiry report. This is to be followed by appropriate penalty by the competent authority. Under section 5(4) of the Removal Ordinance, 2000, the competent authority is empowered to dispense with the inquiry under subsection (1), if it is in possession of sufficient documentary evidence against the accused or for the reasons record in writing, it is satisfied that there is no need of holding an inquiry.
12. The two inquiries held against the appellant can only be termed as preliminary inquiries for the reasons that these were not held after issuing to the appellant any charge-sheet/statement of allegations nor after the show-cause notice issued to him. As a matter of fact there is nothing on record to show that the competent authority had passed any order wherein charges/allegations against the appellant had been specified. A perusal of the first preliminary inquiry (held by Raja Nowsherwan) was, in a way, favourable to the appellant, but no action on it was taken and rightly had been done so as the show-cause notice was issued by an incompetent person. The second preliminary inquiry by the Inquiry Committee was held in the absence of charges and statement of allegations recorded by the competent authority. The first preliminary inquiry, as per statement in the written comments, was infructuous. No reason had been assigned in the office order, dated 25- 8-2001 whereby Inquiry Committee of three officers was constituted under the orders of the competent authority. In this office order charges and allegations against the appellant were not specifically mentioned. However, inquiry was held on the basis of the earlier statements of the appellant and others and their statements recorded in the form of question-answers by the Inquiry Committee. The appellant had denied the allegations contained in the two show-cause notices, but no chance of cross-examination was given to him. The show-cause notices contained serious allegations of fact, which, having been denied by the appellant, a chance of cross-examination of the witnesses/persons, who had levelled allegations against the appellant, had to be given to the appellant, as repeatedly held by the Honourable apex Court in a number of cases. Reliance is placed on 1997 TD (Service) 346; NLR 2003 (Service 1; 1980 SCMR 850; 1997 SCMR 1543; 2004 SCMR 316; 2004 SCMR 49; 2005 SCJ 455; 2003 PLC (CS) 314; 2003 SCMR 1126; 1997 PLC (CS) 873; 1993 SCMR 683 and 1440; 1996 PLC (CS) 868; PLD 1994 SC 22; 1985 PLC (CS) 219 and 245; 1990 PLC (CS)
745; 2003 PLC (CS) 7; 2003 PLC (CS) 365; 2003 SCMR 256; 2004 SCMR 294; PLJ 1999 TRC (Service)
374; 1992 SCMR 1789; PLD 1994 SC 222; 1996 SCMR 201; 1999 SCMR 841; PLD 1981 SC 176; 1987 SCMR 1562 and 1463; 2004 PLC (CS) S.0 1275; 2004 SCMR 1662; PLD 2002 SC 667; 1997 SCMR 1543 and 2005 SCMR 678. Since no chance was given to the appellant to cross-examine the witnesses, the disciplinary proceedings against him stood vitiated and on such proceedings the appellant could not have been penalized legally. The Honourable Supreme Court has, repeatedly held that in case of major penalty, where allegations of fact are denied, a departmental inquiry is absolutely necessary giving the accused full chance of defending himself by means of cross-examination of the witnesses. Obviously, that had not been done by the Inquiry Officer or Inquiry Committee.
Regular inquiry, which had to be followed by a charge-sheet, was not dispensed with in the two show-cause notices and no reason for that was mentioned therein.
13. So far as inquiry held at the headquarters by Messrs Ateeq Ahmed and Pervez Akhtar is concerned, its report or record is not available on the record of the appeal. There is only a reference to the facts of the fact-finding inquiry of the said committee received vide letter dated 9-9-2000, was forwarded to Abdullah Mahesar, General Manager (Sindh), NHA, Karachi for comments, vide Member Highways' letter dated 7-11-2000, and in response to that fact-finding report, the said General Manager Sindh recommended blacklisting of the contractor Messrs ABC and forfeiture of their performance security, vide letter dated 22-11-2000. It has transpired from the record that such letter was not received at the NHA, Headquarters. The appellant had denied any knowledge about the letter of the Inquiry Committee comprising Ateeq Ahmed and Pervez Akhtar.
In view of such denial, the respondents were required to prove the fact that the appellant was in the knowledge of the inquiry in question. However, under clause (a) of the conclusion of the Inquiry Committee (comprising three officers), reproduced above, clearly shows that the name of the appellant was not amongst the four persons, mentioned therein (viz. Syed Raza Hameed Zaidi, Munir Ahmed Memon, Pir Bux Langah and Nawab Ali Kalwar), who had willfully concealed from the new G.M. Mian Abdul Haq the facts of the Inquiry Committee comprising Ateeq Ahmed and Pervez Akhtar, constituted by NHA, Headquarters. Such conclusion of the Inquiry Committee had rendered as redundant allegation "a" of the show-cause notice, dated 27-9-2001. There remained against the appellant the allegations of (i) extending undue favour to the contractor, (ii) convincing Deputy Director (Accounts) Pir Bux Langah and Assistant Director (Accounts) Nawab Ali Kalwar to process case of payment of the contractor of 4th and final bill and release of bank guarantee and (iii) not to bring the matter of inquiry to the notice of the new G.M. (These allegations have been mentioned in allegation "b" of the second show-cause notice). For proving these allegations as also other allegations, the appellant was required to be given a chance to cross-examine the General Manager, Sindh, Abdullah Mahesar, General Manager, Sindh Mian Abdul Haq, Deputy Director (Accounts) Pir Bux Langah, Assistant Director (Accounts) Nawab Ali Kalwar Mian Mumtaz Ali , representative of Messrs ABC and others, but that was not done. The reason for not allowing an opportunity of cross-examination of the witnesses, as given in the written comments, was the alleged confession of the appellant that he had reproduced the new noting sheet in place of missing noting sheet of the said contract and having directly submitted it to the Deputy Director (Accounts) for payment. Surely, the appellant had not admitted to have seen or to have removed the previous noting sheet and his explanation in the inquiry to the effect that he had done so on the insistence of the Accounts Department (i,e, Deputy Director Muneer Ahmed and Assistant Director Nawab Ali Kalwar), who had allegedly given him to understand that the payment had already been approved by former G.M. Sindh (Abdullah Mahesar). Such facts could have been elicited only by means of cross-examination of the said Deputy Director and Assistant Director (Accounts). The statement of Pir Bux and Mumtaz Ali against the appellant were also to be subjected to cross- examination by the appellant for finding out the truth of the allegations against the appellant, that was also not done. The alleged admission of the appellant cannot be called his confession. The facts evident from the inquiry reports (parts whereof were produced by the respondents) to establish that the appellant had sent new noting in place of the earlier noting directly to the Deputy Director (Accounts), but by such an action he was not shown to have violated any rule or law, but even any person, he had violated the practice in vogue (para.5 of the written comments). Now violating the practice in vogue, whereby no loss was caused to the respondent NHA and wrongful gain to the appellant, who had admittedly withholding 10% amount from the payment of the 4th bill of Messrs ABC, no major penalty of dismissal or any penalty whatsoever could have been imposed on the appellant without giving him a chance of cross-examination the relevant witnesses. It appears from the record that the respondents were not sure what allegations had to be levelled against the appellant which is evident from the modification of the charges of the first show-cause notice by second show-cause notice, issued to the appellant after the second preliminary inquiry by the committee of three officers.
14. From the above discussion of the material on record , it is evident that the respondents had not drawn the disciplinary proceedings against the appellant in accordance with law. Over and above all this, the E respondents had not given any satisfactory reply to the objections about the competent authority. The definition of "competent authority" given under section 2(aa) of Ordinance, 2000 is as under:-- "Competent Authority" means the Chief Executive and where, in relation to any person or class of persons, the Chief Executive authorize any officer or authority, not being inferior in rank to the appointing authority prescribed for the post held by the person against whom action is proposed to be taken, to exercise the powers of competent authority under this Ordinance, that officer or authority, and, in relation to an employee of a Court or Tribunal functioning under the Federal Government, the appointing authority or the Chairman or Presiding Officer of the Court or the Tribunal."
' So far as the appointing authority is concerned, we have to refer to Rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 whereby sub-rule (2) for the post of BPS-17 to 19, Establishment Secretary is the appointing authority, but as per notification of the Cabinet Secretariat (Establishment Division) dated 27-5-2000 the officers authorized to exercise power of the competent authority under section 3 of the Ordinance, 2000 shown in Column 2 of the table are as under:-- Table No,1 ' For persons employed in Federal Secretariat or serving in a post, or belonging to a service, group or cadre, administratively controller by a Ministry or Division. {{TABLE}} S.No, Class of person Officer authorized to exercise 1 2 3 Holders of posts in BS-20 and above Chief Executive of Pakistan.
Holders of posts in BS-16-19 Secretary of the concerned Ministry/Division.
Holders of posts in BS-1-15 An officer not below the appointing authority to be notified by the Secretary of the Ministry, Division concerned.
Table No,II ' For persons employed in an Attached Department or a Subordinate Office of the Federal Government. {{TABLE}] S.No, Class of person Officer authorized to exercise the powers of competent authority 1 2 3 Holders of posts in BS-20 and above Chief Executive of Pakistan.
Holders of posts in BS-16-19 Head of the Department/Subordinate office Holders of posts in BS-1-15 An officer not below the appointing authority to be authorized by the Head of the Department/ Subordinate Officer.
Table No,III ' For persons in Corporation service. {{TABLE}} S.No, Class of person Officer authorized to exercise the powers of competent authority 1 2 3 Holders of posts in BS-20 and above and equivalent Chief Executive of Pakistan.
Holders of posts in BS-16-19 and equivalent Managing Director/Chief Executive Officer of the Organization by whatever name called.
Holders of posts in BS-1-15 and equivalent An officer not below the appointing authority to be authorized by the Chief Executive Officer of the Corporation. {{TABLE}} ' The appellant belonged to the Attached Department of the Federal Government; hence; under Table-II, the competent authority in his case would be Head of the Department viz. Chairman, NHA.
However, by notification of Government of Pakistan, Cabinet Secretariat, Establishment Division dated 17-6-2000, the above mentioned Table-II was amended as under:-- Table No,11 ' For persons employed in an Attached Department or a Subordinate Office of the Federal Government. {{TABLE}} S.No, Class of person Officer authorized to exercise 1 2 3 Holders of posts in BS-20 and above Chief Executive of Pakistan.
Holders of Posts in BS-17-19 Secretary of the Ministry of Division concerned.
Holders of posts in BS-16 Head of Department or Head of Subordinate Office.
Holders of posts in BS-1-15 An Officer not below the appointing authority to be authorized by the Head of Department or Head of Subordinate Office. {{TABLE}} ' In view of the above amendment by means of S.R.O.-411, Secretary of the Ministry or Division concerned was the Authorized Officer i,e, the competent authority under section 2-A of the Removal Ordinance, 2000 hence, the two show-cause notices dated 6-7-2001 and 27-9-2001 (issued by the Director-General NHA and Chairman NHA respectively) and the impugned order, dated 29-3-2002 (issued by the Chairman NHA) of dismissal of the appellant from service having not been issued by the Secretary of the Ministry or the Division, were without any doubt void and nullity in the eyes of law and these were, therefore, liable to be set aside.
15. Sufficient unto us is the above discussion of ours of the factual as well as legal position of the disciplinary proceedings against, the appellant to come to the unflinching conclusion that the impugned order of dismissal of the appellant from service and the order of rejection of the department appeal of the appellant against his dismissal from service (without any cogent reasons) were illegal, void and nullity in the eyes of law; hence, the order of penalty of dismissal imposed upon the appellant cannot be sustained. Such order and the order of rejection of the departmental appeal are, therefore, set aside with direction to the respondents to reinstate the appellant in service from the date of his dismissal with all back-benefits for the period he was not gainfully employed elsewhere for which he shall submit an affidavit before the competent authority.
16. No order as to costs.
17. Copies of judgment be sent to the parties under registered cover and to the relevant quarters under Rule 21 of Service Tribunal (Procedure) Rules, 1974.