SHAH SAHIB (MEMBER).--- The appellant had filed the instant appeal under section 4 of the N.-W.F.P.
Service Tribunals Act, 1974 read with section 10 of the N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000 against the order, dated 18-10-2006, whereby the appellant had been awarded the major penalty of dismissal from service with immediate effect. He had prayed that the impugned order may be set aside and the appellant be reinstated in service with full back- benefits.
2. Brief facts leading to this appeal are that the appellant had served the respondent-Department for 24 years on different posts. On account of his excellent performance and spotless service career, he had earned promotions and had been given responsible positions in the Department. He had been lastly posted as Executive District Officer, Schools and Literacy Department, City District Government, Peshawar. While serving in the said capacity, the Government of N.-W.F.P. Had, in accordance with the budget for the fiscal year 2002-03, allocated a considerable amount of fund for upgrading 50 High Schools of 22 Districts of N.-W.F.P. To the status of English Medium. In this view of the matter, 5 Schools of District Peshawar had also been identified for upgradation to status of English Medium Schools. Accordingly, a considerable amount had been allocated for the purchase of furniture, sports and laboratory materials (Annexure "A"). The Government of N.-W.F.P. Vide Notification No,SOS.Lit/Edu.1.13/2001, dated, April, 2002, constituted a District Purchase Committee for each District of the Province for the purchase of the furniture, equipment, classroom consumables, sports goods etc., for the Education Institutions in Secondary and Primary School.
The Committee consisted of the following officers;--
(a) District Coordination Officer Chairman
(b) Executive District Officer (Finance Member and Planning)
(c) Executive District Officer (Schools and Literacy) Secretary
(d) District Officer (Schools and Literacy) Member
(e) Representative of Zilla Nazim Member ' Accordingly, the Secretary, District Purchase Committee invited tenders for the supply of the furniture etc. Through open tenders published in the press. The interested suppliers provided their bids with necessary specifications. After the approval by Committee's Chairman, the lowest bids had been accepted and the successful bidders had been directed to supply the items according to the specification with clear understanding that no compromise on the quality would be acceptable. To this effect, their affidavits had been obtained on the stamp papers (Annexures "C", "D", "E", "F", "G" and "H"). The rates of successful bidders had further been negotiated with them and due to the insistence of the members of the District Purchase Committee, the successful bidder agreed to lower the offered rates (Annexures "I" and "J"). In this whole process neither any illegality had been committed nor had any violation of rules committed. The whole process of tender had been transparent and fair. On a complaint of a public representative, the Provincial Inspection Team had conducted its inquiry without associating the appellant. Thereafter, the appellant had been served with a show-cause notice containing the following 3 main allegations:--
(a) the furniture purchased was substandard;
(b) the material was not complete according to the list within, the given time;
(c) no action was taken against the firms, which supplied the substandard furniture (Annexure "K").
' The appellant had refuted the allegations and submitted a detailed reply rebutting all the allegations (Annexure "L"). The authority after the receipt of the reply and without affording an opportunity of personal hearing, awarded the appellant the major penalty of dismissal from service with immediate effect vide order, dated 18-10-2006 (Annexure "M"). The appellant had submitted a review petition both to the Chief Minister as well as the Governor, N.-W.F.P. On 31-10- 2006. However, the appellant had never been conveyed any appellate order till the expiry of 60 days. Aggrieved with the impugned order, the appellant had filed the instant appeal on the following grounds on 26-1-2007: --
(A) the appellant had not been treated in accordance with law, hence, his right secured and guaranteed under the Constitution of 1973, had been badly violated;
(B) all the proceedings conducted against the appellant had been violative of law and against the express provisions of N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000, hence, the penalty awarded had not been legally tenable;
(C) that the supply of furniture had been made in accordance with the specification and standard', none of the schools or their staff had ever objected on the quality or quantity of the furniture, necessary certificates had been issued by the concerned school at the time of supply (Annexures "R", "S", "T", "U" and "V");
(D) it is pertinent to point out here that the District Purchase Committee was having its technical members, who with the approval of the Chairman, D.C.O. Purchased the furniture thus, checking the standard of the furniture purchased had been his sole responsibility albeit the furniture supplied to the school had never been objected by the concerned school, nor any complaint had ever been received from the schools, hence in the absence of such report it had been difficult to ascertain the standard of the furniture;
(E) z the supplier did not supply the required number of furniture within the prescribed time, hence, in accordance with the decision of the District Purchase Committee, the payment of Rs,62,85,606 had been withheld from the supplier and thus, the action had been properly taken against him. The amount in question had been deposited in the Government Account No,1381-9 HBL GT Road, Peshawar thus, the appellant had performed his part of obligation and duty and did nothing illegal or against the rules in the performance of his duties;
(F) the appellant had not been provided proper opportunity to defend himself, because allegations levelled against him are factual in nature which required thorough probe albeit adopting summary procedure of show-cause notice had not been maintainable and against the principles of natural justice;
(G) the appellant had been only the member of the District Purchase Committee and that everything had been done with the approval of the Chairman (D.C.O.) and if there had been any irregularity in the purchase (which was totally out of question) then instead of taking action against the D.C.O., the appellant had been made a scapegoat which had been illegal and against the law;
(H) the authority had been influenced with the report of Inspection Team and had not been given any weight to the clarification/ defence of the appellant, thus, he had been prejudiced and his long spotless service of 24 years had been done away in a slipshod manner;
(I) the other members of the District Purchase Committee had either been set free without any proceedings or some had been awarded minor penalties while the appellant had been imposed with major penalty of dismissal from service which did not commensurate with the charges or the role played in the whole process, thus, the penalty imposed had been highly discriminatory and in violation of the fundamental rights of the appellant guaranteed and secured under the Constitution;
(J) the charges levelled against the appellant had been baseless and illegal. None of the acts/omissions could be termed as misconduct within the meaning of law, thus, the penalty imposed had not been tenable and liable to be set at naught;
(K) the appellant had been jobless since his illegal dismissal from service.
3. The case had been admitted to regular hearing on 27-4-2007 and notices had been issued to the respondents. They appeared through their representatives, filed written reply, contested the appeal and denied the claim of the appellant.
4. Arguments heard and record perused.
5. The learned counsel for the appellant contended that all the proceedings conducted against the appellant had been violative of law and against the express provisions of N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000. The penalty awarded had not been legally tenable as no charge-sheet had been framed against the appellant and no formal inquiry had been held on the complaint. The "authority" had issued the appellant the show-cause notice on the mere report of the Provincial Inspection Team without instituting a regular inquiry in terms of Rule 5 of the Civil Servants Efficiency and Disciplinary Rules, 1973 as incorporated in the Removal from Service Ordinance, 2000. Furthermore, the appellant had been afforded no opportunity of personal hearing before awarding him the major penalty of dismissal from service. In this connection reliance was placed on the apex Court's rulings reported under the title 2004 PLC (C.S.) page 438 reproduced as follows:-- "Sections 3(1)(b)(c), 5(4) & 6---Dismissal from service---Civil servant serving as Medical Officer was dismissed from service after issuing him show-cause notice, but without holding any inquiry regarding allegations on basis of which he was dismissed from service---Authority could not produce any letter which could show that inquiry against civil servant was dispensed with under S.5(4) of Removal from Service (Special Powers) Ordinance, 2000---Civil servant having denied allegations levelled against him, it has become obligatory for Authority to hold inquiry against him- --Mandatory provisions of law having not been complied with by Authority in the case of civil servant, order of his dismissal from service was not sustainable and was set aside with direction to reinstate him in same position."
' This view had, been further held in the reported cases titled 2007 PLC (C.S.) page 727, PLD 2002 SC 667, Civil Petition No,1123 of 2001, 2004 PLC (C.S.) page 312, 2005 PLC (C.S.) page 1544.
' Similarly, the furniture supplied had been found in accordance with the specifications and standard. None of the recipient schools or their staff had ever complained about the poor quality or short supply of the furniture. Necessary certificates about receipt in the required number and condition of the furniture issued by the concerned schools at the time of supply had been available on record. The District Purchase Committee also had comprised a Technical Member, who had examined and checked consignment of furniture and had found the items technically sound before clearing for receipt. It is incorrect to say that the Government had sustained loss in the procurement of these furniture items and no action had been taken against the defaulting suppliers of the furniture. On the contrary, the suppliers indulging in late supply and substandard items had been fined for an amount of Rs,9,66,272. The same amount had been deducted at source from them and deposited in the public exchequer vide Challan No,201, dated 4-4-2005 and a copy thereof was available on the file of the appeal. Likewise, an amount of Rs,53,19,334 had been withheld from the claims of the firms indulging in short supply of the furniture items as against the assessed loss of Rs,23,77,686. This amount is still available in the official Account of EDO (S&L)
Peshawar bearing No,1381-9 maintained in Habib Bank Ltd. G.T. Road Branch, Peshawar. In addition, the supplier's bank security in the amount of Rs,3,84,860 furnished vide C.D.R. No,046000, dated 15- 3-2003, Prime Commercial Bank, Peshawar Cantt. Had still been intact. Thus, the appellant had performed his part of obligation and duty and did nothing illegal or against the rules in the performance of his duties. The authority had been influenced with the report of Inspection Team and had not been given any weight to the clarification/defence of the appellant, thus, he had been prejudiced. The other members of the District Purchase Committee had either been set free without any proceedings or some had been awarded minor penalties, while the appellant had been imposed with major penalty of dismissal from service which did not commensurate with the charges. The charges levelled against the appellant had been baseless and illegal. None of the acts/omissions could be termed as misconduct within the meaning of law, thus, the penalty imposed had not been tenable and liable to be set at naught. The appellant had remained jobless since his illegal dismissal from service. He prayed that the appeal be accepted.
6. The learned Government Pleader contended that tenders had been invited through open media.
The specifications of the furniture items and terms and conditions of the supply order had been mutually fixed. However, the same had not followed during the course of supply made by the firms concerned. The inspection report of the Provincial Inspection Committee the District Officer, Peshawar had ended with the following conclusions:--
(i) Ignored the quality/specification and standard of material.
(ii) Committed the financial irregularities.
(iii) Incomplete and time-barred supply of the material.
' The evaluation and confirmation of the specification/quality of material had been the sole responsibility of the appellant as the head of the procuring department. The appellant had failed to perform his duty in letter and spirit with due caution and diligence. Accordingly, the appellant had been held to account for his failure to perform his obligation. The service of notice and detailed reply of the appellant, as required under the rules, was the part of his self-defence and proceedings. All the proceedings against the appellant had been carried out in accordance with law/rules and no violation whatsoever had been committed in the proceedings against him. The learned A.G.P. Prayed that the appeal may be dismissed,
7. After patiently hearing both sides, the Tribunal holds that, Technical Officer had been inducted in the Purchase Committee for providing the technical input to it on the quality and specifications of the furniture items. In the presence of Technical Expert, the appellant's responsibility about the items supplied had been considerably diminished. Secondly, the appellant appears to have takes all punitive measures possible within his means against the defaulting supplier firms. He had withheld payment of Rs,62,85,606 from the contractors to make good the loss, if any on account of supplying the substandard furniture. Items by the contractors concerned. This amount had been retained in the respondent-Department's Bank Account No,1381-9 Habib Bank Ltd., G.T. Road Branch, Peshawar. Moreover, an amount of Rs,9,66,272 had been realized from the contractor concerned as fine imposed on him for late supplying and substandard furniture items and had been deposited in the Government exchequer vide Challan- No,201, dated 14-4-2005. The Bank security of an amount of Rs,3,84,860 furnished by the contractor in the form of guarantee bearing C.D.R. No,046000, dated 15-3-2003 drawn on the Prime Commercial Bank, Peshawar Cantt. Had still been intact.
Considering these precautionary measures taken by the appellant, no laxity on his part appears to have been committed to punish the defaulting contractors of short quantity and substandard quality furniture item. Hence, the allegation against him on this account is found not 'well, founded.
Thirdly, no charge-sheet accompanied by the statement of allegations had been framed nor communicated to the appellant. The framing of charge was not only a formality but a mandatory requirement of law. To top it all, the major penalty of dismissal from service had been imposed on the appellant without instituting a regular inquiry within the terms of relevant law. He had been straightaway issued a show-cause notice under the Removal from Service (Special Powers)
Ordinance, 2000. He had submitted his detailed reply to the allegations and had outrightly denied the allegations levelled against him in the show-cause notice. In spite of all these legal lacunae, the "authority" had imposed the major penalty of dismissal from service upon the appellant which had been against the prescribed procedure and not sustainable under the law and liable to be set aside. In this connection, reference had been made to principles formulated in the case titled Javid Akhtar v. Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others 1991 SCMR page 140. The relevant portion of the case is reproduced below:-- "... So, if the charge is found on admitted documents/facts, no full-fledged inquiry is required but if the charge is based on disputed questions of facts, a civil servant cannot be denied a regular inquiry, as the same cannot be resolved without recording evidence and providing opportunity to the parties to cross-examine the witnesses."
8. In view of the foregoing, the Tribunal tends to agree with arguments put forth by the counsel for the appellant. The appellant had a long spotless service of 24 years and the charges levelled against him had not been proved. Moreover, the respondents had neither held any regular inquiry in terms of section 5(1) nor had the "authority" dispensed with the necessity to hold one, or at least it is evident from the language of the impugned order (show-cause notice), within the meaning of section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000 prior to imposing the harshest punishment upon the appellant. This being a mandatory requirement of the law cannot be overlooked. Moreover, the Government had sustained no loss. The appellant appears to have successfully made out a case for the Tribunal's interference. The Tribunal accordingly accepts the appeal, sets aside the impugned order, dated 18-10-2006 and directs the respondent-Department to reinstate the appellant from the date of his dismissal from service with all back- benefits within a period of one month.
' The order also disposes of the other connected Appeal bearing No,28 of 2007 titled "Ayaz Khan ex- Project Manager v. Government of N.-W.F.P. Through Chief Secretary, Peshawar and other" involving the common question of law, in the same manner.
' The parties are left to bear their own costs. File be consigned to the record after completion.