JUSTICE (RETD.) ABDUL GHANI SHAIKH, CHAIRMAN - By this single consolidated judgment we propose to decide the above titled three appeals which involve common questions of facts and law.
2. Briefly, the facts of the instant appeals are that appellant Syed Tanweer Hussain Shah and Syed Sarfraz Ali Shah, Executive Engineers and appellant Ali Asghar Memon, Assistant Engineer, Highway Division, Communication and Works Department (now Works and Services Department), were proceeded against departmentally under the provisions of the Sindh Civil Servants (E&D) Rules, 1973. They were separately served with show-cause notices dated 06.08.1998 that while posted at Highway Division, Nawabshah, they had committed following acts of misconduct:-
(i) Two times payments made in IIIrd and Vth R.A. Bill to M/s. Rahat and Brothers for the item of excavation, in mile 18/0 18/2 = 3960 SFT. At Rs. 27.95% SET and Rs. 1106.82 plus 7.95% premium allowed to Contractor Rs. 87.99 total amounts to Rs. 1194.81 say Rs. 1195.00.
(ii) Two times payment made in IInd and Vth R.A. Bill to M/s. Rahat Brothers for the item of sub- base in mile 18/1-2 = 990 Cft. At Rs. 1560.20 % Cft = 15445.98 plus 7.95% premium to ?Contractor = Rs. 1227.95 total amounts to Rs. 16673.93 say Rs. 16674.00 i.e. Total (Rs. 11Q5/- + 16674/- - 17869/-).
(iii) Fraudulent payment made on RIGHT SIDE = Rs. 1,29,535/- Hence fraudulent payment (LEFT SIDE + RIGHT SIDE) G. Total = 1,47,404/-(as shows in Appendix's').
(iv) Sub-base allowed in Vth R.A. Bill whereas Base Course allowed in IIIrd R.A. Bill.
(v) Reason for reduced rate allowed in final bill not recorded so far,
(vi) 10% checking of Executive Engineer yet not made as per rules though agreement closed.
(vii) Agreement yet not found sanctioned through accounts closed/finalized.
(viii) Token signature of contractor M/s. Rahat and Brothers over Vth R.A. Bill not available though cheque released.
All the three appellants in their respective replies denied the allegations and explained their positions. Appellant Syed Tanveer Hussain Shah was again served with another show-cause notice dated 22.09.1998 containing almost same allegations, which too he replied and denied the allegations. Their replies were not found satisfactory and they were separately served with final show-cause notice dated 25/27.10.2000, which too they replied and almost reiterated the stand earlier taken by them. After affording personal hearing to the appellants, they were awarded minor penalties vide separate orders dated 13.11.2000. Appellant Syed Tanveer Shah was awarded minor penalty of "Censure' appellant Ali Asghar Memon was awarded penalty of "recovery of losses amounting to Rs. 1,08,706/- and appellant Syed Sarfraz Ali Shah was awarded minor penalty of 'withholding of one annual increment'. Being aggrieved with the impugned punitive orders, appellants preferred departmental appeal(s) to the Chief Secretary, Sindh. Departmental appeals of appellants Ali Asghar Memon and Syed Sarfraz Ali Shah were rejected as per order/letter dated 06.072001 and 16.05.2003 respectively, while departmental appeal of appellant Syed Tanveer Hussain Shah remained un-responded. They have now filed these appeals for setting aside the punitive orders.
3. Mr. Moula Bakhsh Khoso, learned counsel for appellant Syed Tanveer Hussain Shah, argued that whole disciplinary proceedings initiated, conducted and concluded were in derogation, of the prescribed procedure and in violation of the mandatory provisions of the Sindh Civil Servants (E&D)
Rules, 1973, inasmuch as they allegations being serious in nature which were denied vehemently yet no regular inquiry was either ordered or conducted, which vitiates the whole disciplinary proceedings. He submitted that the work in question was carried out during the period of appellant's predecessor and payment up to Vth R.A. Bill was also made by his predecessor up to the month of June, 1995, while appellant was posted as Executive Engineer, Highway Division, Nawabshah on 27.02.1996, therefore, by no means he can be held responsible for the false measurement and fraudulent payments made to the Contractor. While referring to the inspection note prepared by the Director Highways, Office of the Chief Engineer, Highways Department, SukkurRegion, learned counsel argued that as per observation in the inspection note, the entire measurement on left side up to surface dressing of the road were recorded by Mr. Ali Asghar Memon, Assistant Engineer and submitted the running bills from 1st R.A. To 5th R.A. To Divisional office and paid by Mr. Sarfaraz Ali Shah, the then Executive Engineer. Learned counsel added that appellant Syed Tanveer Hussain Shah, did not cause any loss to the Government and that since he was not satisfied he not make payment of the 6th bill to the Contractor, which amount was kept in PWD deposit, therefore, the appellant was wrongly proceeded against departmentally and he was unlawfully penalized and that the impugned punitive order being opposed to facts, justice and equity may be set aside.
4. Mr. Abdul Sattar Mughal, learned counsel for appellant Ali Asghar Memon, has argued that technical sanction for widening of Nawabshah-Qazi Ahmed Road (Miles 18/0 to 20/0) was accorded by the Chief Engineer, Highways Department, Sukkur, which was allocated to M/s. Rahat Brothers & Co., being lowest bidder. According to the PWD Manual, the running bills were always initiated during the process of work and finally concluded after making all adjustments of excess or short payments in the final bill. Learned counsel further submitted that running bills were prepared during appellant's posting as Asstt. Engineer, Highways, Nawabshah and were submitted to the Executive Engineer for proper assessment, verification and payment, wherein inadvertently some pervious measurements were also included and the amount of the same was inadvertently paid by the Executive Engineer to M/s. Rahat Brothers & Co., the Government Contractor to whom the work was allocated. He added that payment of 1st i.e R.A. Bills was made to the Contractor and finally 6th R.A bill was initiated but its payment was not made for the reasons that previously some, excess payment was made to the Contractor, as such, Government has not sustained any loss.
Learned counsel also contended that the Director, Highways Sukkur Region, made thorough inspection of the work in question and pointed out some discrepancies and over payments, however, it was finally concluded by the Director, Highways that fresh inquiry officers may be appointed for investigation and inquiring about the discrepancies and the losses sustained by the Government and after adopting proper procedure as laid down in E&D Rules, the action may be taken against the officers concerned and the loss may be recovered from them, but no such inquiry was either ordered or conducted but in a slip shod manner appellant was made responsible for making over payments and penalized to pay the amount of Rs. 1,08,706/- as the loss allegedly sustained by the Government. He stated that impugned order being in violation of the mandatory rules and the principles of natural justice, may be set-aside.
5. Mr. Muhammad Arshad Khan Tanoli, learned counsel for appellant Syed Sarfarz Ali Shah argued that no illegality or irregularity has ever been committed by appellant while making payment of running i.e bills to the Contractor. He submitted that appellant's successor Syed Tanveer Hussain Shah had thoroughly re-checked every item at the site who after satisfying himself for discrepancies, if any, emerged out from the work previously carried out/executed and paid on funning accounts and after adjustment he finalized the account but did hot find any short fall or discrepancy both in quantities and payments made during appellant's incumbency. Learned counsel) further added that the Chief Engineer, Highways, Sukkur in his comments dated 12.06.2000, cleared appellant from all the charges levelled against him and in the said comments it was concluded that; Syed Sarfraz Ali Shah was not involved in duplicate payments or fraudulent/excess payment of the road. He prayed that the impugned order being opposed to facts, justice, law and equity may be set-aside.
5. In rebuttal, learned Asstt. Advocate-General duly assisted by Mr. Nazir Ahmed Shaikh, Additional Secretary (Technical), Works & Services Department, has fully supported the impugned orders whereby appellants were awarded minor penalties. She while referring the written statements argued that as per Inspection note prepared by the Superintending Engineer, Highways Circle, Nawabshah, a preliminary inquiry was got conducted and on the basis of said preliminary enquiry report, initially i.e Engineers were proceeded -against departmentally, however, later-on show- cause notices against two Assistant Engineers namely M/s. Madad Ali Arain and Ahmed Nawaz Panwhar, were withdrawn. She further argued that appellant Syed Tanveer Hussain, It-out the remaining work at the site to another Contractor Pir Aijaz Ali but could not exercise due care while exercising the test checking during payments released nor sanctioned estimate for remaining work so also he had not completed other codal formalities before letting out work to new Contractor which resulted^ in duplicate payment. As regards appellant Syed Sarfraz Ali Shah, learned Asstt.
Advocate-General submitted that he had made payment of Rs 7,30,309/- to M/s. Rahat Brothers Contractor who abandoned the work and he was fully responsible for allowing fraudulent payment of Rs. 1,29,535/- and 17,869/- (total Rs. 1,47,404/-) to M/s. Rahat Brothers, without verifying the real position. So far appellant Ali Asghar. Memon, she stated that this fellow recorded fictitious measurements in the R.A bills and that payment to the Contractor was made bn his certification through 2nd R.A bill as per page 22/1 - 23/1 of M.B. No.1188 and that he was bound to adjust fictitious measurements and the payments made in the 6th and final bill but he intentionally and wilfully failed to do so, thus the Government sustained heavy losses. Learned Asstt. Advocate-General stated that appellant Ali Asghar Memon in his replies to the show-cause notices so also in his memo, of appeal admitted that due to wrong measurements the contractor was paid expess amount which was to be adjusted in the 6th and final bill but inadvertently it was not adjusted, and that this admission on the part of appellant Ali Asghar Memon by itself is sufficient to maintain the order of recovery of losses passed against him.
6. Learned counsel for appellant Syed Tanveer Hussain Shah while exercising his right of reply, stated that charge of letting out remaining work at the site to another Contractor or making duplicate payment are not the part of the show-cause notice issued to appellant, therefore, penalty on the basis of charge which is not mentioned in the show- cause notice is neither maintainable not sustainable.
7. We have carefully considered the above submissions and minutely perused the case papers and record made available before us.
8. Perusal of record made it crystal clear that appellant Syed Tanveer Hussain Shah was posted as Executive Engineer, Highway Division, Nawabshah on 27.02.1996 and much prior to his posting the payments up to 5th R.A bill were made to M/s. Rahat Brothers Contractor. The 6th R.A bill prepared and submitted by Mr. Ali Asghar Memon, Asstt. Engineer, was though passed by the appellant Syed Tanveer Hussain Shah but its payment was not released for the sole reason that excess payment was already made to the Contractor, therefore, he cannot be held responsible for making double or excess payment. As regards allegation of letting out the remaining work at the site to another Contractor, it is worthwhile to point out here that no such charge is mentioned in the statement of allegations annexed with the show-cause notice served upon , appellant Syed Tanveer Hussain Shah. It is settled law that a civil servant cannot be penalized on allegation which is not form part and parcel of the statement of allegation. In this view of the matter, the impugned penalty awarded to appellant Syed Tanveer Hussain Shah is neither sustainable not maintainable.
9. So far case of appellant Syed Sarfraz Ali Shah is concerned, he was awarded minor penalty of withholding ' of one increment on the basis of his replies to the show- cause notices and the comments furnished by the Chief Engineer, Highways, Sukkur. In his replies to the show- cause notices, this appellant has vehemently denied the allegations of making double and fraudulent payment. While explaining his position, he stated that the contents of 3rd R.A bill in M.B. 1188 (LS) at page 27 reveal the item of excavation for mile 18/0 to 18/1 to 18/1 to 18/2 were recoded by Assistant Engineer Mr. Ali Asghar Memon on left side of the road for 3960 Cft. And whereas the verification of 5th R.A bill in the same M.B at page 54 for the same reach was recorded on the right side of the road by the same Assistant Engineer, as such, the concept of duplicate measurement for duplicate payments in the same reach does not arise. Similarly, the Chief Engineer in his comments dated 12.06.2000 furnished to the Secretary, Communication & Works Department, specifically stated that there is no duplicate payment made by Syed Sarfraz Ali Shah, the then Executive Engineer, Highways Division, Nawabshah.. Therefore, the allegation of making double payment having lost its sanctity cannot be made the basis for awarding penalty.
11. As regards case of appellant Ali Asghar Memon, the main allegation against him was that of preparing duplicate bills showing duplicate measurements. In his reply to final show-cause notice so also in the memo, of appeal he Admitted that due to non-availability of earlier bills in his office, the previous measurements were included inadvertently in the running bills in respect of widening of Nawabshah - Qazi Ahmed Road, which was due to over sight and bona i.e mistake. He also stated that no fraudulent payment was made but it being excess payment was required to be adjusted in future bills. This explanation is hardly believable. He being the Sub-Divisional Officer/Assistant Engineer was primarily responsible to properly supervise, check and verify the work at the site. It was his responsibility to check and verify the material used, take proper and physical measurement, recoded the same in M.Bs. And then prepare the bill showing the actual work done at the sit so also proper measurement, but as it appears, this appellant without due diligence and care and without physical measurements of the work at the site submitted fictitious measurements. The preparation of duplicate bills showing duplicate and fictitious measurements by no means can be termed as bona i.e mistake or inadvertent omission as claimed by appellant.
In any case, the Authorized Officer, as it appears, after taking into consideration the replies to the Show-cause notices furnished by this appellant has already taken a lenient view by imposing minor penalty of recovery of losses instead of awarding major penalty. This appellant thus entitled to any further leniency.
10. For the aforesaid reasons, Appeal Nos. 86/2001 and 79/2003 are allowed and impugned orders dated 13.11.2000 passed against appellants Syed Tanveer Hussain Shah and Syed Sarfraz Ali Shah and appellate order/letter dated 16.05.2003 passed against appellant Syed Sarfraz Ali Shah are.
Set-aside while Appeal No. 183/2001 is dismissed and original as well as appellate orders dated 13.11.2000 and 06.07.2001 passed against appellant Ali Asghar Memon are maintained. Parties are left to bear their own costs.
ASHIQUE HUSSAIN MEMON, MEMBER-1 - [As per his dissenting note], I respectfully disagree with the findings/ decision of my learned colleagues in Appeal No. 86/2001, Syed Tanveer Hussain Shah and Appeal No. 79 of 2003, Syed Sarfraz Hussain Shah on the reasons that both the above appellants and the appellant in the Appeal No. 183/2001, Ali Asghar Memon are equally responsible for omission and commission of losses caused to the Government Exchequer as per statement of allegations, which or common and identical. The allegation at Sr. No. I to IV and VII relates to Syed Sarfraz Ali Shah and the allegations at Sr. Nos. V-to VIII relates to Syed Tanveer Ali Shah and to some extent Ali Asghar Memon is also involved with them. The fault of Ali Asghar Memon is that he made measurement and prepared bills and sent to the Executive Engineer against that the fault of appellant Syed Tanveer Shah and Syed Sarfraz Shah are that they did not check record, reassign the measurement, passed the bills without any verification and made the payment to the contractors without obtaining the signatures and done agreement as per allegations as such they violated the Works Manual and did not fulfil the legal formalities . And adopted the proper procedure as mentioned in the statement of allegations, being competent authority as Executive Engineers because it is their primary duty but they blindly relied upon the subordinates and passed the bills and made the payments, which clearly shows that they both are responsible for the omissions and commissions more than Ali Asghar Memon their subordinate.
As observed by my colleagues in fact Syed Tanveer Hussain Shah has taken over th$ charge of the post of the respective Division on 27.10.1996 and the payment of 1st to 5th R.I. Bill was made to the contractor earlier to his posting, but under the rules the 'adjustments were to be made in the 6th and final bill, which payment has been made by him as such, he is responsible and involved in the omission and commission in excess and double payments, because he failed to perform his duties according to procedure and failed to check and verify the previous payments and blindly relied upon his subordinates although there is sufficient staff with him for this purpose, but he failed to Utilize their services in the matter.
His reply to show-cause Notice he failed to explanation who is responsible in the omission which shows his mala i.e intension to protect his predecessor and various subordinates, it was his duty to report the matter to higher authority but he failed to do so, and finally Superintending Engineer pointed out these omission and commission during his inspection who reported the matter to the higher authority.
So for the case of Syed Sarfraz in Appeal No. 79/2003 is concerned it reveals that my colleagues have relied upon the report of Chief Engineer dated 12.06.2000, who stated that there is no duplicate payment made by Syed Sarfraz Ali Shah, therefore the allegation of double payment has lost its (sic) cannot be made the basis for awarding the penalty.
It is surprisingly to say that if it is so, then why the appellant in Appeal No. 183/2001 have been held responsible for double payment in the circumstances, either the appellant in the Appeal No. 183/2001 should be exonerated from the charges or the appellant in Appeal No. 79/2003 should be held responsible for the said charges, otherwise it will be presumed that there is a discrimination with the appellant in Appeal No. 183/2001 and the discrimination have had been condemned by the Apex Court in many decisions from time to time.
In my humble opinion we should have to avoid the discrimination and should have to act upon the decisions of the superior Court under Article 189 of the Constitution of Islamic Republic of Pakistan.
In whole proceedings one main point has not been taken into consideration by the authorized officer neither my colleagues which was that, that the three learned counsel for the appellants and Superintending Engineers stated that the fact finding regular enquiry was not held in the matter which was mandatory provision of law under the rules, to reach at the ends of justice. Otherwise it is violation of principle of and altem parten as settled by the superior Courts.
Therefore in the, interest of justice I hold that it would be very essential to remand all three appeals to the departmental authority to initiate the enquiry against the appellants and. Finalize the matter in accordance with law within 3 months from the pronouncement of this judgment.