' MOAZZAM HAYAT (MEMBER).--- Appellant Sarwar Ali Sheikh was an Assistant Engineer/Planning in the service of Pakistan Railways. He was served with a charge-sheet dated 12-3-1998 under Government Servants (Efficiency and Discipline) Rules, 1973. The charge against him was of slack supervision and negligence while working as Assistant Engineer/Development, Lahore on a project "installation of Tube-well in the Railway Benevolent Fund Building, Allama Iqbal Road, Lahore". It was alleged that he had failed to ensure the quality of strainer and weld between the pipeline and the strainer which failed during the testing. It appears that this project had been executed by Messrs Punjab Drilling Corporation, Lahore. The payment was made to this Corporation on attestation/clarification of work by the appellant. According to the charge-sheet the appellant was found responsible for wasteful expenditure of Rs.3,58,800. Mr. Abdul Waheed Sheikh, Director Land Management, Pakistan Railway was appointed as an Inquiry Officer. The departmental proceedings initiated against the appellant culminated into his removal from service vide order dated 27-3-2000. He was also directed to pay the aforementioned amount of loss caused by his negligence i.e. Rs.3,58,800. Since his departmental appeal dated 24-4-2000 was not responded, therefore, he was constrained to file the present appeal under section 4 of Service Tribunals Act, 1973. It is prayed by him that the impugned order of removal and recovery be set aside and he be reinstated into service with back-benefits.
2. Many grounds were taken in the memo. Of appeal. It was stated that the Inquiry Officer was biased as he had acted as a prosecutor also, that the statements of witnesses were not recorded in the presence of the appellant and he was not granted an opportunity of cross-examine them, that the appellant was not provided an opportunity to produce defence evidence that the findings of the Inquiry Officer were based on surmises and conjectures and that penalty of recovery of Rs.358800 was not proposed in the show-cause notice. As regards to conduct of Authorized Officer it was stated that he too was biased. However, today the learned counsel for the appellant has raised only one argument and that is with regard to quantum of punishment. It is argued by him that the work of installation of tube-well had been executed under the direct supervision of Engineer Incharge Mr. Shakeel Ahmed and the Inspector of Works B but these two officers were let off and were not even charge-sheeted. The learned counsel for the appellant has also referred to about 39 years of unblemished record of service of the appellant.
3. The appeal is resisted by the respondents. It is submitted that in the inquiry the charge levelled against the appellant was fully proved, therefore, he was awarded the penalty which he deserved in the circumstances. It is also submitted that the appellant is not entitled to any lesser punishment.
4. We shall restrict our findings on the quantum of punishment awarded to the appellant since this is the only argument raised by the appellant. It is not denied that the appellant had joined the service of the respondents in 1961. He had, therefore, put in about 39 years in the service of the respondents when he was awarded the impugned penalty. This assertion of the appellant made in his memo. Of appeal that he had excellent record of service has not been controverted by the respondents in their objections. We are of the view that while determining the punishment to be imposed upon the appellant the Competent Authority should have taken into consideration his long service with the respondents which was blotless.
5. We have taken into consideration ground-C(vii) taken by the appellant in his memo. Of appeal.
This ground is reproduced in verbatim as under:--- "That the entire work of installation of the Tube-well was executed in the direct supervision of the Engineer Inchaige Mr. Shakeel Ahmad, he was himself present at the time of necessary Inspection of the strainer and welds was carried out by him. The Appellant strictly acted upon his instructions all the time. The Inspector of Works was also present along with his field subordinate, but astonishingly the Engineer Incharge Mr. Shakeel Ahmad, the Inspector of Works as well as his field staff works Mistry and Assistant I.W.O. Etc., who were directly responsible for the propose and accurate execution of work as per Codified Rules (as referred to in the replies to the charge-sheet and show-cause notice) as well as in the department appeal, by the appellant, all of them have been let off, as none of them was even issued a charge-sheet what to talk about imposing a penalty, whereas step-motherly treatment has been given to the.Appellant, who has been awarded harsh penalty of removal from service as well as recovery of Rs.3,58,800, which is a gross violation of specific provisions of Article 25 of the Constitution of Pakistan, 1973 and the law laid down by the Honourable Supreme Court of Pakistan in 1996 SCM R 280, 2000 SCM R 669."
6. The learned counsel for the appellant has vehemently argued that the supervisory officers of the appellant were let off and the appellant was made a scapegoat. According to him the treatment given to the appellant was violative of Article 25 of Constitution of the Islamic Republic of Pakistan, 1973. Reliance in this regard is placed on 1996 SCM R 280 and 2000 SCM R 669. In reply to the above assertion made by the appellant in his memo. Of appeal it was stated by the respondents in their objections that the appellant had been proceeded against in respect of his roles regarding the incident involved and he was not justified in law to say that he had acted only on the instruction of his superiors. It was also stated that being a public official the appellant was required to have acted as per rules and regulations and not on unwarranted instructions of his seniors. We fully endorse this defence taken by the respondents in their objections. A public servant has to go by the written rules and instructions and not by the unauthorized instructions alleged to have, been issued to him by his seniors. If he obeys any such instruction he does so at his own risk. Obedience of unlawful instructions of seniors can never be a good defence in disciplinary proceedings. However, each and every case has to be decided on its own merits. In the present case the gravity of the charge levelled against the appellant had lessened as his work had been supervised directly by his two senior officers. The competent Authority did not consider this aspect of the case while awarding penalty to the appellant.
7. The appellant has prayed for lenient punishment which means that he has admitted the charge levelled against him. However, a observed by us above the gravity of the charge was considerably reduced as the work carried out at the site by the contractors was supervised not only by the appellant but also by his two senior officers. We accordingly accept the appeal and set aside the impugned order. The penalty of removal from service is converted into compulsorily retirement of the appellant. With this modification in the impugned order the appeal is disposed of.
8. There shall be no order as to costs. Parties be informed.