M. SALBEM CHAUDHRY (CHAIRMAN).--This judgment disposes of the following three cases which involve similar questions of law and facts :
(1) Case No, 154/727 of 1976: Maqbool Ahmad Rana v. Government of the Punjab.
(2) Cast No, 156/720 of 1976 Masood Akhtar v. Government of Punjab.
(3) Case No, 158/728 of 1976, At the relevant time all the three appellants Were employees of the Highways Department.
Appellant No, (I) was Exectttive Engineer and the one at serial No, (2) was Sub-Divisional Officer and at serial No, (3) was the Sub-Engineer. All the three officials were at the relevant time working with respect to the flood protection work of construction of Kalera Distributory Tie Bund in their respective capacities. The construction work it appears was commenced on 1st June, 1975 and according to the agreement with the Contractor was to be completed by 30th tune, 1975. It is common ground that the work was not completed till 24th July, 1975, when due to the incidence of floods the incomplete bund was breached, which led to departmental enquiries which brought to light certain acts of omission and commission on the part of the appellants. All the three appellants were suspended from service by an order of the Governor dated 13th September, 1975 which was effective from the same date. Subsequently the appellants were served with separate charge sheets dated 20th September, 1975 for the alleged irregularities with respect to the aforesaid work.
2. Charge No. 1 which was common in all the three charge-sheets was that the work was allowed to be done below specifications inasmuch as the specifications laying down that the embankment will be constructed in successive layers of not more than 9" in thickness and each layer to be compacted to specified density and density as verified by tests before the next layer was laid, was not followed.
3. Charge No, 2 which arose from the above charge was that though the earth work was not compacted to specification yet the payment was made at the rate prescribed for compacted earth work. On this account the Executive Engineer was charged for allowing payment at full rates in all the running bills without ensuring that the work was executed according to specification. The S.D.O. Was charged for authorising on the measurement book the preparation of the bill without ensuring that the work was done according to specifications. The Overseer in turn was charged for making bogus entries in the measurement book wrongly showing the work as 'compacted'.
4. Charge No, 3 related to the Executive Engineer only in which he was accused of not getting the work completed in time by 30th June, 1975 as provided in the agreement.
5. Replies to the charge-sheets were submitted by the Executive Engineer, S.D.O. And the Sub- Engineer on 30th September, 1975. It seems that replies of the appellants were considered unsatisfactory and the Governor of Punjab by his order dated 4th October 1975 appointed the Chief Engineer, Highways as the Enquiry Officer. The Enquiry Officer submitted his report holding the appellants guilty. Consequently the appellants through a demi-official letter from the Deputy Secretary (Administration), Communication and Works Department dated 7th January, 1976 were informed that the enquiry officer had held them guilty and in case they wanted to be heard in person, they may see the Secretary Communication and Works on 10th January 1976 at 9 a.m. The appellants availed of the opportunity of personal hearing before the Secretary Communication and Works. By an order dated 17th February, 1976 the Governor was pleased to order the compulsory retirement of the Executive Engineer and dismissal of the S.D.O. And the Sub-Engineer.
Being aggrieved of this order the appellants preferred review petitions to the Governor which partly succeeded as that by an order dated 16th April, 1976, the Governor modified the penalties whereby the XEN & SDO were ordered to be demoted and the Sub-Engineer was debarred from promotion and his three increments were stopped with cumulative effect. This last order has resulted in the three appeals before us.
6. It is contended on behalf of the appellants that Chief Engineer Highways had already expressed his opinion adverse to the appellants in his preliminary report to the Government so that be was disqualified to act as the formal Enquiry Officer. It is further alleged by the appellants that the enquiry officer in his capacity as Chief Engineer Highways had sponsored and supported a technically unsound scheme of flood protection bund in the face of opposition from other experts.
On the failure of the bund in face of floods he had made a self-exculpatory preliminary report to save his skin and to throw the responsibility on the appellants. Since he had personal involvement in the matter and was himself a party, he was disqualified to act as the enquiry officer even on that account. It is urged that the enquiry conducted by a biased officer was a nullity in the eyes of law and could not form the basis of awarding penalty to the appellants. It is also contended by the appellants that the enquiry officer has relied on reports of his subordinates submitted to him after field checks at site in which the appellants were not associated, no copy of the report was made available to them and the authors of this report were not produced for cross-examination by them.
It is vehemently urged that reliance on such ex parte reports has caused serious prejudice to the defence of the appellants so that the entire enquiry and orders based there on stand vitiated due to this illegality. Regarding the show-cause notice of 7th January, 1976 it is urged that it fails to mention the specific punishment proposed to be inflicted and gives a very short notice to the appellants requiring them to appear before the Secretary Communications and Works at Lahore on 10th January, 1976. The notice is claimed to have been received by the SDO at Sargodha on 9th January, 1976 (AM). Thus lack of proper opportunity to defend themselves is pleaded by the appellants. Non-supply of copies of the enquiry report, it is submitted, has also seriously handicapped the appellants in their defence and is violative of principles of natural-e justice. Copy of report was refused even when a request for the same was made by the appellants to the S. D. O.
It is also submitted that the competent authority which is the Governor in this case did not provide an opportunity of personal hearing which is in violation of rule 8 of the 1975 E & D Rules. With the above submission it is vehemently urged by the appellants that the appeals may be accepted.
7. It may be observed here that the appellants in their further arguments and defence have gone to a great length questioning the feasibility, soundness and viability of the proposed work of the Tie Bund seeking to prove that the work was doomed to failure due to its inherent defects of design and lay-out and the appellants could not be held responsible for the same. No doubt in the statement of allegations there is some reference attributing the failure of the bund to acts of omission and commission on the part of the appellants, but the specific charges as framed in the charge-sheet and against which the appellants have to defend themselves speak only of the work being executed below specifications and making payments at full rates for such sub-standard work. Thus, we feel that the technical controversies sought to be raised by the appellants are not germane to the issues arising in this case which are limited to the aforesaid charges, and are thus not reproduced here. The additional charge in the case of the XEN of failing to see that the work was completed within the period stipulated in the agreement, is also independent of the said technical controversy.
8. The main allegation against the appellants from which arise the two charges against them is that they executed work sub-standard inasmuch as the specikatious about compaction laid clown in the standard specifications in the Road and Bridge Construction, 1st Edition, September, 1971 in para 411 were not adhered to according to which the bund was to be made up in successive compacted layers of not more than 9' thickness and top 3' layer was to have a compaction of 95% while for the lower portion the compaction of 85 % was prescribed.
9. Regarding the plea of bias against the Enquiry Officer, it is alleged firstly on the ground that he had already expressed an opinion adverse to the appellants in the preliminary enquiry and secondly he was himself an interested party as he was keen to escape the responsibility of the failure of the Bund and shift the same on to the appellants. We have observed the conduct of the appellants in raising this plea. This plea was never raised either in the reply to the charge-sheet or in their statements before the Enquiry Officer. The appellants for the first time came out with this plea in their review to the Governor after the punishment had been inflicted on them. Taking the latter ground first, it may be impressed that as already observed the causes of, or responsibility for, the failure of the bund are not relevant to the charges against the appellant so that if Mr. Fayyaz Ali Shah, the Enquiry Officer was in any way responsible for the failure of the bund due to faulty design or layout of the work, he could not lessen the burden of his responsibility of holding the appellants guilty of executing sub-standard work nor has he in fact attempted to do So in his enquiry report as the following quotation from the formal enquiry report amply bears out : "Perhaps the Bund could have withstood the pressure of the immense flood to a good extent if the compaction was properly and effectively carried out. It could not be ruled out that in such a situation of the attacking severity of the immense flood, when this bund was under the direct hit, it could have stood for long. Breaches could have possibly occurred though in lesser magnitude."
The Enquiry Officer has rather conceded that compaction or no compaction, the work was anyhow doomed to failure in the face of severity of the floods. Thus the above ground of bias on the part of the enquiry officer is wholly misconceived.
10. Taking the first ground of bias, we may observe that as Chief Engineer Highways, it was he in the official hierarchy who was required to submit a report in respect of such a mishap under his charge to the Government, and the opinion expressed in such a report is only tentative and brings out only prima facie facts to decide upon further course of action. In the absence of any personal plea of bias against the enquiry officer, in or view the mere expression of a tentative opinion in the preliminary report does not per se lead to a conclusion of bias. In supporn4 of this view we may cite the following observations from In re : The' President v. Mr. Justice shoukat Ali at page 605; "The mere fact that the council had scrutinised the declaration of assets is not sufficient to establish such likelihood of bias, for, if it were so, then no Judge, who issues a rule in a motion or issues a notice to show cause in any other proceeding or frames a charge in a trial, can ever hear that matter or conduct that trial. The reason is that a preliminary inquiry intended to determine whether a prima facie case has been made out or not is a safeguard against that commencement of wholly unwarranted final proceedings against a person. To say that a charge should be framed against a person amounts to saying nothing more than that the person should be tried in respect of it. Anybody who knows the difference between a prima facie case and its final trial would reject the objections as misconceived. We accordingly reject them as misconceived."
In respectfully following the above rule, we repel the plea of bias on the part of the Enquiry Officer.
11. Regarding the objection to the show-cause notice we do not detect any violation of the relevant rules. As the E & D Rules, 1975 do not provide for any formal show-cause notice by the authority.
Rule 8 of the said rules simply stipulates that "the authority shall, after affording the accused an opportunity of being heard in person pass such order as it may deem fit. This is exactly what the authority has done by issuing the D.O. Of Deputy Secretary Establishment dated 7th January 1976.
The objection is thus misconceived. Similarly the objection of the appellants regarding non-supply of a copy of the enquiry report is unfounded as the appellants have not been able to show any provisions in the E & D Rules, 1975 in support of their contention.
12. The contention of the appellants that rule 8 of the E & D Rules which requires the authority to afford a personal hearing to the accused before passing such order as it may deem fit has been violated inasmuchr as the Governor, who was the `Authority' in this case admittedly did not grant such opportunity to the appellants, is also devoid of any legal foundation. Vide notification of the S & GAD dated 14th October, 1975, the schedule annexed to the West Pakistan Buildings and Highways Department Delegation of Power Rules, 1968 was substituted by a new Schedule. This new schedule designates for Superintending Engineer and the Executive Engineer 'Government' as the 'authority' (Col. 4) as well as the Authorised Officer (Col. 5) as defined in the E & D Rules, 1975.
Such being the case we do not see how the Governor could be construed as the `authority' in the case of the appellants. As laid down in Article 129 of the Constitution the executive authority of the Provincial Government is to be exercised in the name of the Governor by the Government consisting of the Chief Minister and the Provincial Ministers acting through the Chief Minister. Article 139 (2) of the Constitution authorises the Provincial Government to frame rules and delegate any of its functions to subordinate authorities to regulate its business, under which authority the Rules of Business of the Punjab Government have been framed. According to rule 5 (2) of the said Rules of Business the type of cases enumerated in Part A of Schedule VII are required to be submitted to the Chief Minister for his approval before issue of orders. Item 14 of Part A of this schedule is as below : "All cases relating to appointments, promotions and disciplinary action against officers of grade 18 and officers of equivalent rank and status and above."
Under the above provisions the case of the appellants was required to be submitted to the Chief Minister before issue of the orders. We find that these requirements have been complied with inasmuch as for initiation of formal enquiry the orders of the Chief Minister were obtained by the Secretary Communications and Works on Summary submitted no 26th August, 1975. Similarly a detailed summary dated 17th January, 1976 was submitted to the Chief Minister who passed the order of imposing penalties on the appellants. In face of the above facts the above contention of the appellants is rejected.1
13. The penal order against the Sub-Engineer which is impugned before us reads as under : "Mr. Nazir Ahmad Khalid, Sub-Engineer is debarred from promotion and his three increments will be stopped with future/cumulative effect."
It is vehemently argued on behalf of the Sub-Engineer appellant that there is no warrant in the E & D Rules for imposing a penalty of debarring from future promotion. Rule 4 of the E & D Rules which enumerates the minor and major penalties that are authorised under these rules does not include debarring from future, promotion as one of the permissible penalties. It is thus submitted that the penalty imposed upon the appellants of debarring from future promotion is illegal and a nullity in the eye of law and of no effect against the rights of the appellant. We find much weight in the above arguments on behalf of the appellant. There is no authority for imposing a permanent 0 bar against the promotion of a civil servant in the E & D Rules, 1975, in rule 4 thereof. However as a minor penalty under rule 4 (a) (ii) the promotion could be withheld for a 'specified period'. We, therefore, hold that the part of the penal order against the Sub-Engineer debarring him from future promotion as ultra vires of the E & D Rules, 1975 is thus illegal.
14. The first charge against the appellants is of inadequate compaction of the earth work of the Tie Bund. The second charge of making payment at full rates for the inadequately compacted work flows from the first charge. It has been stated that the relevant specifications required that the bund was to be constructed in successive layers not more than 9if thick and each layer compacted to the required degree. The top 3' portion of the bund was required to attain 95% and the lower portion 85% compaction. It is alleged that the work was not constructed in layers as described above and the prescribed compaction was also not attained.
15. In the preliminary report submitted to the Government, the Chief Engineer Highways who was also later the Enquiry Officer, based the allegation of lack of compaction on visual observations and not on any specifically obtained field data. The relevant portion of the enquiry report may be reproduced below with advantage : "The first 3 to 4' of the height of bank from the ground appears to have been better laid out and compacted as was seen when the site was visited soon after the floods. The earth work has been laid to a height of 8' to 10'. Beyond the first 4' of the embankment where the quality of work can be called somewhat tolerable, remaining work was found to be mostly lacking in adequate compaction, grades and slopes."
In the final enquiry the only positive evidence in support of the allegation of inadequate compaction is the field tests carried out under the supervision of Superintending Engineer, Mech Circle, Lahore with the help of officers of Road Research Laboratory who were deputed by the Enquiry Officer for the purpose. Admittedly the appellants were neither informed of, nor were associated with the field tests carried out by the above said checking party. Copies of the report of this party was also not supplied to the appellants. There is no indication in the statements of the appellants recorded by the Enquiry Officer that they were confirmed with the report of the checking party. The authors of the report were also admittedly not put before the appellants for cross- examination. On the other hand we find that the report of the checking party is the only tangible evidence relied upon by the enquiry officer and the departmental authority to uphold the charge of insufficient compaction of earth work against the appellants.
16. In the summary submitted to the Chief Minister by Secretary Communications and Works along with the enquiry report and on which the penal order was passed by the latter authority, the results of the field tests of the checking party were relied upon in support of the relevant charge against the appellants. It was observed as under in the summary : "5. During the enquiry, Mr. Manzoor Ahmad Chaudhry, S. E. Mechancal Circle, Lahore was deputed by the Enquiry Officer to measure the full work at the spot and also to test the compaction of the bund with the help of the Road Research Laboratory. The bund was tested at different points and the compaction was found less than the required specifications. It was also found that the bund had not been constructed in layers."
It was on the basis of the above that the Chief Minister was persuaded to impose the penalties on the appellants in excess of what was proposed by the Secretary Communications and Works. The collection of field data was a very crucial evidence which was admittedly used against the appellants to indict them. The non-association of the appellants with the collection of field data and keeping them in the dark about the contents of the report by neither supplying them a copy nor confronting E, them with the same and not providing them any opportunity to cross examine the authors of the report constitute a very serious denial of an opportunity to the appellants to defend themselves. This is violative of principles of natural justice and violation of the established law on the subject through a chain of authorities of the superior Court, such as PLD 1959 SC 177 or PLD 1961 SC 537. Respondent produced nothing to contest the above position.
17. The third charge against the Executive Engineer-appellant that he failed to get the work completed in time by 30th June, 1975 as provided in the agreement, it appears was not pressed against the appellant in the final summary submitted by Secretary Communications and Works on 17th January, 1976 to the Chief Minister, which stated that : "11. The Executive Engineer further explained that he had some other very important work going on in his Division including the overhead bridge at Lyallpur which was to be opened by the Chief Minister and consequently he could not pay whole time attention to the construction of the bund.
Still the progress achieved by his staff was appreciable. The enquiry officer has also confirmed the point and appreciated the remarkable physical progress to deliver about 20.0 lac cut. Of earth work in a span of about I month."
Thus if it is said that on the one hand the progress of the earth work achieved by him during the limited time was remarkable, he cannot be accused on the other hand of not having done much more work during the same period.
18. For the above reasons, we are unable to uphold the impugned orders of the Government dated 17th February 1976 and 16th April, 1976 and we set aside the same as illegal and of no effect against the appellants. r The parties are, however, left to bear their own costs. PLD 1971 SC 58