SHAHID ANWAR BAJWA, J. --- With the consent of the learned counsel this Constitution petition was finally heard at Katcha Peshi stage and is being decided accordingly.
2. Petitioner was employed by respondent No. 1 as Executive Engineer in 1975 in BS-18 and Through successive promotions, he was lastly promoted to BS-20 in 1989. On 3.2.2003 a show-cause notice was issued to the petitioner. Allegations part of the show-cause notice stated as under:- qa) Responsible for defective monitoring of Bulk Water Supply Scheme of PQA, wilfully ignoring the advice of the consultant, deviation from original drawings and defective construction work of the scheme.
(b) Responsible for negligence and gross violation of rules, with mala fide intention in respect of payment of fabricated escalation charges amounting to Rs. 10.4 million paid to the contractor of Dual Carriageway in Eastern Industrial Zone of PQA.
(c) Involved in a corruption case No. 1/98 FIA, Karachi and having a persistent reputation of being corrupt."
3. It was also stated in the show-cause notice that the competent authority was satisfied that there was no need of holding an inquiry and therefore it decided to dispense with the requirement of holding inquiry and had decided to issue show-cause notice and the petitioner was called upon to show cause as to why he should not be dismissed from service under Section 3 of the Removal from Service (Special Powers) Ordinance, 2000. Petitioner submitted reply to the show-cause notice. After considering reply vide order dated 7.11.2003, the petitioner was dismissed from service which order has been challenged in this petition.
4. Learned counsel for the petitioner made the following submissions:-- (1) This show-cause notice has been issued without approval of the competent authority.
(2) Under Section 3(2) of the Removal from Service (Special Powers) Ordinance, 2000 opportunity of showing 'cause and the order in writing are required to be two separate documents and therefore two separate notices should have been issued to the petitioner.
'(3) The charges required recording of evidence and no evidence had been recorded.
(4) Although in the show-cause notice it is stated that the competent authority had decided to dispense with the inquiry proceedings but nothing has. Been paced on record to show as to on what basis opinion was formed by the competent authority. Learned counsel relied upon Executive Engineer, Qadirabad Barrage Division Qadirabad and others v. Ejaz Ahmad (2007 SCMR 1860), lnayatullah Khan v. The Provincial Government, N.W.F.P., Peshawar (1985 SCMR 1747) and Chairman, Area Electricity Board, WAPDA, Peshawar and 3 others v. Jehangir Khan (1999 PLC (C.S) 423).
5. Mr. Sulehary, learned counsel for respondent No. 1 submitted that a report was submitted by the consultants, National Engineering Services Pakistan (Pvt.) Limited. He read the following from the report of the consultants:--
(i) The Committee has examined the role of the "Engineer" in the execution of the three works which were the centre of conflict. It was observed that majority of the works of these packages were executed when Mr. Lrshad A. Shaikh was the 'Engineer'. Similarly, most of the payments (94%) were verified by him and his staff."
6. We have considered the submissions made by the learned counsel and have also gone through the record.
7. First contention of the learned counsel for the petitioner was that show-cause notice had not been issued with the approval of the competent authority. In the show-cause notice which is isseed under the signatures of Secretary Communication, Government of Pakistan, it is stated that "competent authority after considering facts had come to the conclusion that it did. In the letter, by which punishment has been imposed. It is stated as under:-- "5. Now therefore, the Prime Minister in exercise of powers vested in him, under Section 3(1) of the Removal from Service (Special Powers) Ordinance, 2000, has imposed upon Mr. Irshad Ahmed 'Shaikh, the penalty of removal from service with immediate effect."
8. Under Section 2(aa) of the Removal from Service (Special Powers) Ordinance, 2000 (hereinafter called the Ordinance of 2000), competent authority is defined and it is defined as the Prime Minister of Pakistan or such other authorities prescribed in this regard. Since the petitioner was working in BS-20,, the competent authority was Prime Minister of Pakistan. In the letter of punishment it is specifically stated that the Frime Minister approved imposition of punishment. In the show-cause notice it is stated that it was "the competent authority" which was satisfied .
Therefore, ' mere fact that Secretary Communication signed the letter , does not mean that Secretary Communication signed the letter does not mean that Secretary Communication decided or approved that action be taken or punishment be imposed. If a competent authority passes an order and the subordinate functionary merely communicate that order, it cannot be said that the subordinate functionary passed the order. Therefore this contention of learned counsel for the petitioner is repelled.
9. Second contention of the learned counsel for the petitioner is with reference to Section 3(2) of Ordinance of 2000. The said' section in the relevant part is in the following words:- "(2) Before passing an order under sub-section (1) the competent authority shall: (a) by order in writing, inform the accused of the action proposed to be taken with regards to him and the grounds-of the action; and (b) give him a reasonable opportunity of showing cause against that action within seven days or within such extended period as the competent authority may determine."
10. It was contended by the learned counsel that competent authority is requrred to do two things; firstly by order in writing inform the person of the action proposed to be taken with regard to him and secondly to give him an opportunity of showing cause against that action. Contention of the learned counsel was that opportunity to show-cause should have been given to him through a separate notice and information as to what action is proposed to be taken with regard to him should have been given through a separate notice. Mr. Aqil Awan, relied upon Ejaz Ahmad's case (supra). In that case no show-cause notice had been issued. In Inayatullah Khan's case (supra), it was also observed that failure to issue show-cause notice would be violative of principles of natural justice. In Jehangir Khan's case (supra), it was held that authority was bound to serve second show-cause notice. It may be pointed out that Jehangir Khan's as well as Inayatullah Khan's cases were under the relevant (Efficiency & Discipline) Rules, whose provisions are different from the Removal from Service (Special. Powers) Ordinance, 2000 therefore, the case-law relied upon by the learned counsel is clearly distinguishable.
Even otherwise the case-law does not appear to be, in the circumstances of any help to the case of the petitioner. It is difficult to accept contention of the learned counsel. If in one notice only opportunity of showing cause is given, should the person be not informed that what is the action proposed to be taken against him. Mr. Aqil Awan, wants us to hold that no: in that letter the person should not be informed as to what action is proposed to be taken against, him. He wants us to hold that a separate letter should be issued informing him of the action proposed to be taken against him. We are unable to read any provision in the Ordinance that two cannot be done through a single dooument Law looks at the substance and does not demand absurdities. In the show-cause notice, firstly in para 4 it was stated that proposed penalty was dismissal from service and in the same part the petitioner was called upon to explain as to why such a penalty may not be imposed upon him. Therefore the show-cause notice met both the requirements of sub-section (2) of Section 3 of the Ordinance of 2000.
11. Third and fourth contention of Mr. Aqil Awan, can be taken together. NES PAK (Pvt.) Ltd., in its report has pointed out irregularities in the works carried out and the irregularities seems to be glaring. They stated some of the irregularities in the following words:-- Thickness of Top Slab: Thickness of top slab at RD 2+80 to RD 3+110 was shown/checked and was found 130mm to 150mm against specified 200.
Rebars of Top Slab, Base Slab & Walls: Rebars of walls at RD 4+840 to RS 4+870 bar mark 1201 was counted and were found 88 in numbers whereas 150 shown in the drawing No. 1456/KR/05/G/101.
Rebars at RD 4+810 to RD 4+870 base slab and wall, bar mark No. 1203 was counted in his presence and found 89 in number as against specified 200.
PVC Water Stop in top Slab: The overlap joint of water stop is never welded as a routine practice at site. A piece of 600mm was missing in the cast slab at RD 2+110 and was shown to Mr. Solungi.
Form Work: Form work for wall was not adequately supported. This is a general practice which results in frequent out-of-plumb walls beyond tolerances.
Concrete Cubes: Concrete cubes cast were found in use to support the jacks for precast arrangement of top slab whereas these should have been tested much before.
Concrete Mix: Concreting of top slab at RD 2+080 to 2+110 was ,poured in the ratio 1:5:2 (cement 1: sand 5: crush 2) and some times 1:5:2 (cement 1: sand 5: fine chips 2). Water cement ratio upto 0.6. .No. Mix design has been submitted for approval (Ref. Spec. Sec 2300-9, Clause - 5.2.4). * Cleaning: Asa result of recent rainfall concrete section under progress was founded with mud. Concreting on the above location of base slab/wall was started without removing mud properly before start."
12. It appears that the entire action was taken against the petitioner on the basis of report of the consultants . In the show-cause notice there is no mention that the report of the consultants was given to the petitioner and the petitioner was called upon to explain the specified deviations and defects. The charges stated in the show-cause notice were general in nature without any specific reference to any specific defect or deficiency in respect of the work of the petitioner regarding the projects mentioned in the show-cause notice. Charges should .Be specific and not vague and general. Therefore, it is difficult to sustain the action taken by the authorities against the petitioner.
13. However, that does not mean that an allegedly delinquent should be allowed to go scot-free and reap the benefit of administrative lapses on part of the departmental authorities. Therefore ends of justice, in our opinion, shall be met if the departmental authority is allowed opportunity of issuing a show-cause notice giving with it all the relevant documents and specifically stating in the show-cause notice as to what were the defects and shortcoming in the work carried out for which the petitioner is responsible and thereafter giving him opportunity to explain. The Competent Authority may also consider whether in the circumstances an inquiry is called for or not. Such inquiry, if any, must be completed within four months of the date of this order and if it is decided not to conduct inquiry the entire disciplinary action must be completed within a period of four months of the date of this judgment and if it is decided to conduct inquiry, final decision be made and communicated to the petitioner within a period of six months of the date of this order. Back benefits would depend upon result of such fresh notice/proceedings. Consequently, this Constitution petition is disposed of, Order dated 7.11.2003 is set aside, the petitioner is ordered to be reinstated in service and back benefits as stated above would depend upon results of fresh notice/proceedings. .