' MOAZZAM HAYAT (MEMBER).--- Appellant ltrut Ali Sheikh was in the service of WAPDA as Budget and Accounts Officer (Projects) in the office of General Manager, Finance (Water). He was charge- sheeted for inefficiency and misconduct in terms of Rule 2(5)(i)(ii)(iv) and (vii) of WAPDA Employees (Efficiency and Discipline) Rules, 1978. He was also accused of laxity of control under the said rules. In the statement of allegation charges under following heads were levelled against him:-
(1) Payment of photostat etc.
(2) Unjustified/unauthentic payments on repair and maintenance of vehicle,
(3) Issuance of uncrossed cheques to the contractors/suppliers for Rs,270.790 Million,
(4) Excess payment of Rs,6,16,511 on cutting of Trees in Contract No,SDB-14,
(5) Booking of expenditure without funds and non-preparation of budgetary control expenditure statement,
(6) Irregular payments against house acquisition at WAPDA cost,
(7) Non-remittance of Miscellaneous: Receipts/Interests to G.M.F (Water) Lahore as on 30-6-1997,
(8) Non-remittance of deductions from salary bills as on 30-6-1997,
(9) Non-maintenance of tools and plants account.
(10) Laxity of control over expenditure,
(11) Unnecessary and unauthorized operation of Bank Accounts,
(12) Advance to contractors,
(13) Advances outstanding against officer/staff,
(14) Expenditure on work charged establishment,
(15) Unauthorized payment for the purchase of material already rejected,
(16) Funds of Rs,130.650 million kept for land compensation were misappropriated against other expenses of the project,
(17) Bogus payment of charcoal,
(18) Bills worth Rs,120.998 million passed/paid against unauthorized extension in completion period,
(19) Bills in excess of contract cost amounting to Rs,14.992 million,
(20) Bills paid for excessive quantities as mentioned in BOQ Rs,22.130 million,
(21) Bills for escalation charges amounting to Rs,8.168 million passed for payment,
(22) Bills passed & paid for Rs,76.054 million in excess of sanctioned estimate.
' In the end of the statement following specific charge was levelled against him:- "He completely failed to discharge his duties as primary auditor, custodian of Authority's funds and as Financial Advisor. Being the Incharge of Accounts Section, instead of watching Authority's interest, he misappropriated the official funds and also gave free hand to other officials to do so.
Resultantly, his dishonest conduct put the Authority to loss of millions of rupees by making fraudulent payments."
2. In his reply the appellant denied all the allegations leveled against him. An inquiry was constituted for inquiring into charges levelled against him. This Committee comprised of Mr. Ijaz Ahmad Humayun, General Manager (P&D) as Convener, Lt.-Col (Retd.) Muhammad Naeemullah, Director (Inquiries) WAPDA and Mr. Mahmood Khalid, Director as Members.. Since Mr. Mahmood Khalid had earlier submitted his preliminary inquiry report, therefore, he was replaced by Muhammad Khalid, Director General, Finance WAPDA. The Inquiry Committee recorded the statements of Mr. Muhammad Ashraf, Senior Budget and Accounts Officer, Muhammad Khalid, Director Accounts, Muhammad Amin, Senior Engineer and Mr. Ihsanullah Malik, Director (I&D)
Planning. Thereafter the Committee proceeded to record cross-examination of the appellant made by the departmental representative. The statement of the only defence witness produced by the appellant, was not recorded as it was held that "he had nothing new to tell/explain so the Court found him irrelevant D.W". On the completion of inquiry the Committee submitted its report comprising 49 pages. The appellant was found guilty of Charges Nos.1, 2, 3, 5, 7, 8, 9, 10, 11 and 17. He was found not guilty of Charges Nos.6, 13, 14, 15 and 16. A final show-cause notice was issued to him.
The proceedings culminated into dismissal of the appellant from service vide order dated 1-12- 1999. He was also directed to pay an amount of Rs,84,07,623. A departmental appeal was filed by him on 27-1-2000 but it was rejected on 4-4-2000 hence the present appeal.
3. The appeal is resisted by the respondents. It is stated that the appellant had committed financial irregularities and had not performed his duties in accordance with the rules, therefore, he was charge-sheeted and then awarded penalty in accordance with the rules.
4. We have heard the learned counsel for the parties and have also perused the record.
5. We have seen the record of inquiry proceedings submitted by the learned counsel for the respondents. It has transpired from this record that as many as 50 officers/officials were served with charge-sheets on accounts of embezzling WAPDA's fund during their stay in SCARP Construction Circle, Lahore. Only 17 officers/officials were dealt with as documentary evidence was available against them. It is an admitted position that appeals of some of the officers/officials have been accepted by this Tribunal. Appeal No,154(L)(C.S) of 2000 filed by Mazhar Qayyum, Sub- Engineer against his dismissal from service was accepted vide our judgment dated 20-12-2003.
Appeal No,168(L)(C.S) of 2000 filed by Inayat Ali Bhatti, Head Draftsman was also accepted vide our judgment dated 5-1-2004. It was held by us that the inquiry was not held against these officials in accordance with the rules. We had remanded the cases for fresh inquiry to the respondents. An observation was also given by us that discrimination had been made as no action had been taken against Mr. Sami Ullah, XEN.
6. The learned counsel for the respondents has vehemently argued that the case of the present appellant is proved on record and it should not be remanded on this score alone that the cases of other officers/ officials have been remanded for fresh inquiry. According to him an inquiry had been held against the appellant strictly in accordance with the rules and the appellant had been provided every opportunity to defend himself. From the record produced by him we find that the Inquiry Committee had recorded the statements of Muhammad Ashraf, Muhammad Khalid, Muhammad Amin and Ihsanullah Malik in the presence of the appellant and he had been provided an opportunity to cross-examine them. While conducting these proceedings the Inquiry Committee committed an irregularity of very serious nature. It did not record the statements of Muhammad Amin and Ihsanullah Malik in detail. Both these witnesses stated only this much that "they fully corroborated the statement of P.W.1". They did not make any other statement. This was not a correct way of recording the statement of prosecution witnesses. Under law these witnesses were required to state in their own words what they knew about the case. In fact these two witnesses had not made any statement at all. As such their testimony could not be used against the appellant. This material irregularity had caused serious prejudice to the appellant and this is a sufficient ground for remanding the case for fresh inquiry.
7. The appellant had produced a defence witness but his statement was not recorded. An order was made that his statement was not relevant. It appears that the Committee had first heard the statement of defence witnesses and then declared it not relevant. The Committee had prejudged the statement of defence witness without recording it. A correct procedure was not adopted by the Committee. It was duty of the Committee to first record the statement of defence witnesses and then make an observation in its report as to whether or not such statement was relevant.
The third illegality committed by the Committee was that it did not record the examination-in- chief of the appellant. It appears that the appellant had submitted his additional defence reply and was then subjected to cross-examination by the departmental representative. The departmental Committee was acting like a Court and at various places the Committee had described itself to be a Court. The orders recorded on the order sheet on every date of hearing demonstrated that the Committee was proceeding in the matter like a Court. We appreciate the mode of inquiry adopted by the Committee but once it had adopted that manner it should have completed the inquiry in the same manner. It was incumbent upon the Committee to record the examination-in-chief of the appellant and then allow an opportunity to the departmental representative to cross-examine him.
9. The main witness in the case was PW.1 Mr. Muhammad Ashraf. He had produced many documents. The grievanc, of the appellant is that he had not been supplied these documents in advance. The Inquiry Committee should have ensured the delivery of these documents to the appellant before starting the inquiry and if it was not possible to supply copies of the documents the appellant should have at least been given an opportunity to inspect the record. This contention of the appellant has not been controverted that neither he had been supplied copies of the documents nor he was given an opportunity to inspect the relevant record.
10. The Inquiry Committee had itself observed that at least 50 officials/officers were involved in the case. It has not been explained as to why only 17 were selected for departmental action. There appears to be a force in the argument of the learned counsel for the appellant that it is a case of discrimination. This aspect of the case requires determination not only by the Inquiry Committee but also by the I Competent Authority.
11. A careful perusal of the inquiry report reveals that the Inquiry Committee was influenced by the reports of fact-finding committees. Being an independent and impartial committee it should not have been H influenced by the reports of the fact-finding committee. The learned counsel for the appellant has, therefore, correctly argued that the inquiry report is not 100% fair and impartial.
12. We are told that the main duty of the appellant was to give financial advice to department. The sanctioning authorities were different. The official/officers who had actually incurred the expenditure were also different. The appellant was not a direct beneficiary of the plundering alleged to have been committed with his connivance. The Committee was required to give a definite finding as to in what manner the appellant had derived monetary benefit out of his alleged misconduct. The conclusions drawn by the Inquiry Committee II are merely conjectural.
13. The learned counsel for the respondents has submitted that on repairs of official vehicles more money was spent in just one year than their actual price. For this expense charge No,2 was framed against the appellant. We have perused the findings of the Inquiry Committee on this charge. It is not clear from the report of the Inquiry Committee as to who were the officers using these vehicles, who were the officers who had sanctioned repairs at exorbitant rates and who were the officers/officials who had actually spent this money. The role of sanctioning authority/authorities and also the roles of officials/officers who had actually incurred the expenses has not been discussed at all. Even the names of the delinquent officials have not been mentioned in the report.
The appellant could be connected with the charge only after the identity of such officials and the role played by them was ascertained. We have asked the learned counsel for the respondents to name these employees and also inform us about the action taken against them. He has not given categorical and positive statement in this regard. The reason is that the inquiry report is deficient on this point. We realize this difficulty of the learned counsel but it gives strength to own view that the matter was not thoroughly probed into by the Inquiry Committee.'
14. On Charge No,1 the Inquiry Committee had examined P.W.1 Muhammad Ashraf. P.W.1 Muhammad Ashraf in his statement had relied on the statements of Mr. Ishfaq Ahmad, Machine Operator and Muhammad Aslam, Circle Head Draughtsman. In fact the statements of these two employees were admitted in evidence by the Inquiry Committee. This procedure was not warranted by law. Either the Committee should have examined these employees itself or it should not have allowed P.W.1 Muhammad Ashraf to produce their statements, made at some stage before him or any other person. It appears to us that P.W. Muhammad Ashraf had relied on the evidence of these two officials for proving charge No,
1. He had no direct knowledge of the facts. We fail to understand as why the Committee had not recorded the statement of these officials when they could be very easily produced by the prosecution. Only that evidence is admissible which is given by the concerned person himself. The evidence of that person is not relevant who had heard these persons in the line of his duty. This is another major lacuna in the case of the respondents.
15. For the above reasons the inquiry report is liable to be set aside for the same transactions we have accepted some appeals and have ordered fresh inquiry against the accused employees, therefore, accordingly, following the rule of consistency and in view of our directions given above we set aside the impugned order and direct the respondents to hold a fresh inquiry against the appellant strictly in accordance with the rules. The statements of all the witness shall be recorded.
Reliance shall not be placed on the statements of witnesses not examined by the Inquiry Committee itself. The entire process shall be completed within a period of six months from the date a copy of this order is received in the office of the respondents.
16. There shall be no order as to costs. Parties be informed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.