' JUSTICE (R) MUHAMMAD JAHANGIR ARSHAD (CHAIRMAN).--- As common questions of law and facts are involved in the following appeals, hence the same are being disposed of through this single order:---
(i) Shafique Ahmed Chaudhry v. Chief Secretary, Government of the Punjab, Civil Secretariat, Lahore and others (Service Appeal No,1387 of 2010);
(ii) Khalid Iqbal v. Chief Secretary, Government of the Punjab, Civil Secretariat, Lahore and others (Service Appeal No,1400 of 2010);
(iii) Ashfaque Cheema v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No,1447 of 2010);
(iv) Muhammad Ilyas v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No,1448 of 2010);
(v) Tahir Mehmood v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No,1449 of 2010);
(vi) Amir Sami Khan v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and (Service Appeal No,1450 of 2010);
(vii) Ehsan Qadar v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No,1451 of 2010);
(viii) Tariq Rasheed v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No,1452 of 2010);
(ix) Ahmad Khan Khokhar v. Chief Secretary, Punjab, Civil Secretariat, Lahore and others (Service Appeal No,1453 of 2010);
(x) Farman Ali v. Chief Secretary, Punjab, Civil Secretariat, Lahore and others (Service Appeal No,1454 of 2010);
(xi) Muhammad Saeed v. Chief Secretary, Civil Secretariat, Lahore and others (Service Appeal No,1455 of 2010);
(xii) Salamat Hussain v. Chief Secretary, Punjab, Civil Secretariat, Lahore and others (Service, Appeal No,1456 of 2010);
(xiii) Javed Anwar v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No,1457 of 2010);
(xiv) Muhammad Ashraf Shahid v. Secretary to Government of-the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No,1458 of 2010);
(xv) Ghulam Murtaza Balouch v. Secretary to Government of-Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No,1462 of 2010);
(xvi) Mahboob-ul-Hassan v. Secretary to Government ,of Punjab, Irrigation and Power Department, Lahore and other (Service Appeal No,1492 of 2010); (xvii)Akhtar Ali v. Secretary to Government of Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No,1493 of 2010); (xviii)Waseem Ahmad v. Secretary to Government of Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No,1494 of 2010);
(xix) Rana Khalid Mahmood v. Secretary to Government of Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No,1495 of 2010);
(xx) Haider Zaman Khan v. Secretary to Government of Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No,1496 of 2010);
2. All the appellants who are employees of Irrigation and Power Department, Government of Punjab were proceeded 'against departmentally being guilty of misconduct and negligent in the performance of their duties under Punjab Removal from Service (Special.
' Powers) Ordinance, 2000. Although each appellant was served separate charge sheet yet the gist of charge against all the appellants is that on account of their inefficiency, misconduct and corruption arising out of financial and codal irregularities and embezzlement the Government had to suffer huge financial loss. All the appellants through separate replies denied the charges against them. An Inquiry Committee consisting of Mian Abdul Ghaffar, Chief Engineer (Power)/Convener Enquiry Committee, Mr. Moin-ud-Din Shah, Superintending Engineer, UJC, Jhelum and Ch. Asghar Hameed, Executive Engineer, Samundri Drainage Division, Faisalabad, as Members of Inquiry Committee was constituted. The said Inquiry Committee after completion of probe submitted its report and made recommendation against each appellant as follows:---
(i) Recovery of the loss proportionately
(ii) Dismissal from service except
(a) Mr. Khalid Iqbal, appellant in Appeal No,1400 of 2010,
(b) Mr. Akhtar Ali, appellant in 1493 of 2010 and
(c) Mr. Mehboob-ul-Hassan, appellant in Appeal No,1492 of 2010, who were recommended penalty of compulsory retirement.
3. On receipt of above noted report of Inquiry Committee, the competent authority namely Secretary to Government of Punjab, Irrigation and Power Department, Lahore issued final show- cause notice to all the appellants and also afforded the opportunity of personal hearing through a properly Constituted Committee. Consequently the 'competent authority vide order dated 16-9- 2009 imposed various penalties on each of the appellant per details given below:--- {{TABE}} Sr. No, Name of the appellant Appeal No, Penalty imposed Ghulam Murtaza Baloch, Executive Engineer 1462 of 2010 Withholding of promotion for a period of three years along with recovery of 1/4th of the loss of Rs,99,64,379.41 Mr. Shafique Ahmed, SDO 1387 of 2010 Withholding of promotion for a period of three years along with recovery of 1/4th of the loss of Rs,51,05,927.48 Mr. Haider Zaman Khan, SDO 1496 of 2010 Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs,74,38,467.65 Mr. Khalid Iqbal, SDO 1400 of 2010 Withholding of promotion for two years along with recovery. Of 1/4th of the loss of Rs,4,28,608 Mr. Ashraf Shahid, SDO 1458 of 2010 Withholding of promotion for three years along with recovery of 1/4th of the loss of Rs,64,38,882.00 Mr. Tahir Mehmood, Sub- Engineer 1449 of 2010 Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs,28,32,517.91 Mr. Amir Sami Khan, Sub- Engineer 1450 of 2010 Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs,25,58,739.58 Mr. Akhtar Ali, Sub-Engineer 1493 of 2010 Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs,9,19,616.66 Mr. Mehboob-ul- Hassan, Sub- Engineer 1492 of 2010 Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs,3,15,387.50.
Mr. ' Wasim Ahmad, Sub- Engineer 1494/2010 Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs,1,84,490.60 Mr. Muhammad Ilyas, Sub- Engineer 1448 of 2010 Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs,27,21,715.24 Mr. Ehsan Qadir, Sub-Engineer 1451 of 2010 Reduction to an initial 'stage in pay scale along {{ TABLE }} with recovery of 1/4th pf the loss of Rs,25,08,301.80
13. Mr. Javed Anwar, Sub-Engineer ' - 1457 of 2010 Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs,15,48,302.28 ,14. Mr. Ashfaq Cheema Sub- , Engineer 1447 of 2010 Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs,13,08,493.63 ,, Mr. Tariq Rasheed, Sub- Engineer ,1452 of 2010 Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs,13,03,077.44 Rana Khalid Mehtnood, Sub- Engineer ' 1495 of 2010 Reduction to an initial stage in pay scale along, with recovery of 1/4th of the loss of Rs:11,54,324.85 Mr. Farman Ali, Store -Keeper 1454 of 2010 Recovery of 1/8th of the loss of Rs,66,68,175.15 Mr. Muhammad Saeed, Store Keeper 1455 of 2010 , Reduction to an initial stage in pay scale along with recovery of 1/8th of the loss of Rs,61,85,255.11 Mr. Ahmad Khan Khokhar, . Store t. Keeper 1453 of 2010 Reduction to an initial stage in. Pay scale along with recovery of 1/8th of the loss of Rs,61,85,255.11 .,. Mr. Salamat Hussain, Store Keeper. 1456 of 2010 Reduction to an initial stage in pay scale along with recovery of 1/8th of the loss of Rs,1,90,62,310.67
4. However, it would not be out of place to mention here that in its own wisdom and for unknown reasons,, same competent authority i,e, Secretary to Government of Punjab, Irrigation and Power Department, Lahore on 15-9-2009 through a separate order imposed penalty of stoppage of two annual, increments upon Rana Asif Mehmood, Executive ' Engineers, Mirza Aslam Baig Executive Engineer, Mr. Muhammad Ashraf Sindhu, SDO and Mr. Irshad-ul-Haq, Sub-Engineer whereas exonerated Mr. Shafique Ahmad Khan, Sub-.Engineer from the charges although all the above noted civil servants were recommended by the Inquiry Committee penalty of dismissal from service along with recovery of 1/4th of the financial loss. All the appellants filed departmental appeals separately against the above mentioned order of competent authority but the same were dismissed by the Chief Secretary, Government of Punjab, Lahore on 20-4-2010 being the appellate authority.
5. All 'the present appeals comprised following four sets of employees i,e, Executive Engineer, Sub- Divisional Officers, Sub-Engineer and Store Keepers and the same are being decided as follows:--- {{ TABLE }} Store Keepers Sr. No, Appeal, No, Name of appellant Designation 1453 of 2010 Ahmad Khan Khokhar Store Keeper 1454 of 2010 Farman Ali -do- 1455 of 2010 Muhammad Saeed -do- 1456 of 2010 Salamat Hussain - - {{ TABLE }}
6. All the above noted four appellants were performing their respective duties as Store Keeper and all were proceeded against on the following charges:----
(1) Huge and excessive expenditure incurred during financial year 2002-2003 without any lawful authority and proper control/check.
(i) You, with the connivance of Executive Engineer and SDO have managed to procure stock articles in bulk and huge quantity of spare parts and POL in excessive of the actual requirement for machines/vehicles etc. Which resulted in misappropriation and embezzlement of this material.
Moreover there was no such capacity for proper storages, especially of P.O.L.
POL procured Rs, 1,4700,262
(ii) You with the connivance of Sub-Engineer/SDO/XEN managed to issue huge & bulk quantity of POL worth Rs,1,53,73,669/78 Ps during the year 2002-2003 resulting in heavy loss to manufacture account and leading to embezzlement of this material. This factitious issue of spare parts/POL booked to machines, which was finally withdrawn and placed in Misc. Advance of officers/official to conceal misappropriation and embezzlement.
2. The following documents were found incomplete and incorrectly maintained.
(i) The scrap of spare parts issued have not been properly taken on scrap register as per details/units of issued material. In many cases the scrap have been accounted for/taken on scrap register in weight instead of original unit (in number) of material issued from stock register just to conceal the huge quantum of material issued which in fact have been embezzled/misappropriated. The scrap material have neither been put to physical verification nor the scrap register was produced, which clearly indicates that these are merely paper transaction to embezzle/misappropriate Government funds.
(ii) The practice of annual physical verification and preparation of yearly and half yearly returns of Stock, scrap and T&P articles have not been exercised at all, which is the for most obligations under codal rule to check misappropriation and excessive purchase/issue and pilation of stock, a crime according to Account Code.
3. Storage of POL was in-appropriate and does not tally with the storage capacity.
' Storage of POL was not properly maintained. Huge and Excessive quantity of POL have been managed to procure unnecessarily without consideration of storage capacity and monthly consumption, whereas it is all the time readily available in the market. Thus providing chances for misappropriation/ embezzlement leading to a huge loss to public exchequer. The withdrawal of the excessive expenditure originally booked to machines and finally placed in the Misc. Advances of Officers/ Officials is merely paper transaction to conceal the embezzlement, which also certifies these corrupt and malpractices prevailed therein.
4. The POL stores at Sub-Divisional Headquarter were poorly maintained at the residences of Storekeeper/in the field without any lawful authority and without keeping in view the storage capacity, security and watch and ward for safe custody of consumable items and same is the position regarding other material at site and scrap parts in the field and at the residences at Sub- Divisional Headquarters which is a serious slackness and resulted in heavy loss to public exchequer.
The Sub-Division has done purchase of spare parts and POL without calling tenders.
(i) With connivance of SDO/XEN a huge and excessive quantity of lubricants (which are not rate contract items), appearing in the books of account for the year 2002-2003 have been shown purchased and payments are made without calling tenders, / quotations.
(ii) Similarly huge and excessive quantity of spare parts have been procured with your connivance, without calling tender and publishing in Newspaper for wide publicity for competitive rate, violating all the Codal Rules.
(iii) You, with the connivance of SDO/XEN managed to purchase bulk material/spares parts by splitting to avoid tendering and giving proper publicity to favour the contractors.
(iv) Moreover one and same items have been purchased with different nomenclatures to avoid exceeding the limit of financial powers of purchase of each item under rules."
7. The Inquiry. Officer as well as the competent authority treated all the above Store Keepers/appellants,on the same footing along with other appellants who were either Executive Engineers, Sub-Divisional Officers or Sub-Engineers and were extended penalty of reduction to an initial stage in pay scales along with recovery of 1/8th of the loss notwithstanding the fact that none of these persons were either deputed for the job of excavation, operation of excavation machines, checking of quality and, quantity of purchased material and their job was only to enter the purchased material in the goods receipt sheet as well as stock register. If there was huge and excessive expenditures during the disputed financial year without any lawful authority etc neither it was the function of Storekeepers to purchase spare parts nor the same were purchased by the appellants without calling tenders but the Inquiry Committee as well as competent authority held present appellants/ Storekeepers guilty of said charges. Another important factor is that while holding appellants guilty of misappropriation neither the Inquiry Committee nor the competent authority looked into the glaring omission about any evidence to this effect. On court query Departmental Representative as well as learned Deputy District Attorney frankly conceded that the only evidence on the question of financial loss to the public exchequer was the statement prepared by Mr. Zafar Ullah Bhatti, Executive Engineer and submitted before the Inquiry. Committee without any corroborative evidence i,e, statement of maker of the said statement namely Zafar Ullah Bhatti before the Inquiry Committee and affording opportunity of cross- examination tab the appellants. I am afraid such like evidence can be considered as a valid evidence. There is not an iota of evidence to this effect and on the basis of report of expert from the record prepared by Mr. Zafar Ullah Bhatti not only without providing 'copy in advance to the appellants which was prepared in their absence and not getting the same proved through a proper manner without cross-examination can be considered as a legal and valid evidence. I, therefore, feel that none of the Storekeepers/appellants could be held responsible for the acts committed by their high-ups including XEN, SDOs and Sub-Engineers. No evidence on the record to prove that any of the Storekeeper/appellant made entry without verifying vouchers/ 'receipts regarding purchase of relevant material. If some receipt/voucher was forged by XEN, SDO or Sub-Engineer but was properly verified by-them in the present administrative set up Storekeepers cannot refuse to enter the same in the record.
8. As a result of above discussions, I feel that the charge against appellants/Storekeepers were not only irrelevant but also not proved through sufficient evidence. There is no allegation against any of the appellant that either he himself purchased the material or found guilty of embezzlement as alleged by the competent authority.
9. Resultantly all the above appeals are allowed and the appellants/Storekeepers are exonerated of the charge.
Executive Engineer {{ TABLE }} Sr. No, Appeal No, Name of appellant Designation
1. 1462 of 2010 Ghulani Murtaza Balouch Executive Engineer {{ TABLE }}
10. Ghulam Murtaza Balouch, Executive Engineer, above appellant along with Rana Asif Mehmood and Mirza Aslam Baig, Executive Engineers were proceeded against on the charge of inefficiency, misconduct and corruption arising out of committing financial/codal irregularities while posted in Excavator Division, Faisalabad. All the three named persons were after completion of inquiry recommended by the Inquiry Officer imposition 'of penalty of dismissal from service as well as recovery of 1/4th of the financial loss as according to the report of Inquiry Committee they were equally found guilty of the above noted charges. The competent authority on receipt of said report and after affording opportunity of hearing through final show cause notice imposed penalty of withholding of promotion for a period of three years along with recovery of 1/4th of the loss through order dated 16-9-2009 upon the present appellant but strange enough through a separate order dated 15-9-2009, despite holding Rana Asif Mehmood and Mirza Aslam Baig, Executive Engineers equally guilty of the charges of negligence and loose administrative control etc. But imposed penalty of stoppage of two annual increments only upon them. As noted above the appellant filed departmental appeal before the Chief Secretary, Government of Punjab who dismissed the same on 20-4-2010.
11. At the very outset learned Counsel for the appellant Ghulam Murtaza Balouch, by referring'to the case of Mirza Aslam Baig and Rana Asif Mehmood, Executive Engineers, strongly argued and rightly so that there was neither any special reason nor justification for the competent authority to have imposed different penalties upon the appellant as well as Rana Asif Mehmood and Mirza Aslant Baig, Executive Engineers after holding all of them equally guilty of negligent and loose administrative control upon the subordinate staff, therefore, according to learned Counsel, appellant was extended discriminatory treatment by the authorities below in the matter of punishment and the same being in violation of provisions of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 and also the law declared by the apex court in 2009 SCM R 187 and 2005 SCM R 445, 499. Learned counsel for the appellant further argued that there is no iota of evidence on the record to attribute the charge of causing financial loss to the public exchequer except statement prepared by Zafar Ullah. Bhatti, Executive Engineer who neither appeared in the witness-box nor was subject to, cross-examination. According to learned counsel the penalty of causing financial loss was also imposed in discriminatory and without considering the length of posting during the disputed period which according to him comes to only 30 days as against period of Rana Asif Mehmood and Mirza Aslam Baig i,e, 4 moths and 12 days who also remained posted for a period of more than the appellant, therefore on this score also the imposition of penalty of recovery on the appellant without any evidence was not maintainable.
12. On the other hand, this appeal has been opposed by learned Deputy District Attorney as well as Departmental Representative. However, none of them was able to controvert the above noted contention of learned Counsel for the appellant rather according to record for establishing financial loss of the appellant the admission position is that except statement prepared by Zafar Ullah Bhatti no other evidence was produced and the said statement was also not got proved through its author named above nor he was subject cross-examination and on this score also the statement so prepared and placed on record cannot be considered as admissible evidence and for this reason alone penalty of recovery of amount against the appellant is not sustainable being without evidence. Further in view of finding of Inquiry Committee holding Rana Asif Mehmood and Mirza Aslam Baig, equally responsible for the charge and non-imposition of penalty of recovery against these two persons also lead me to conclude that at least the penalty of recovery as imposed on the appellant was not within the lawful authority. I also find a considerable force in the contention of learned counsel for the appellant that appellant was extended discriminatory treatment in the matter of punishment. While imposing penalty of withholding of two annual increments only on Rana Asif Mehmood and Mirza Aslam Baig despite being placed in similar facts and circumstances along with the appellant, the competent authority acted in sheer violation of the provisions of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 providing every citizen to be treated in accordance with law and also guaranteeing equal protection of law in terms of Article 25 of the Constitution as also held by the apex court in the above noted judgment.
13. I am therefore satisfied that learned counsel for the appellant has successfully made out a case of discrimination in the matter of punishment. As the penalty of recovery of amount imposed on the appellant was without evidence, therefore the same is set aside whereas in-line with the order of competent authority dated 15-9-2009 imposing penalty of stoppage of annual increment for two years as corrected by the Chief Secretary, Government of Punjab being appellate authority in his order dated 20-4-2010, the penalty of .Withholding of promotion for three years as imposed on the appellant is converted into penalty of withholding of increment for two years without cumulative effect. Order accordingly.
Sub-Divisional Officers {{ TABLE }} Sr.
No, Appeal No, Name of appellant Designation 1387 of 2010 Shafique Ahmad Chaudhry Sub-Divisional Officer 1400 of 2010 Khalid Iqbal - -do- 1458 of 2010 Muhammad Ashraf Shahid - - 1496 of 2010 Haider Zaman Khan - - {{ TABLE }}
14. All the above four appellants/Sub-Divisional Officers along with Muhammad Ashraf Sindhu, Sub-Divisional Officer were proceeded against on the charge of inefficiency, misconduct and corruption arising , out of committing financial/codal irregularities while posted in Excavator Sub-Division, Sheikhupura etc. All the five named persons were after completion of inquiry recommended by the Inquiry Officer imposition of penalty of dismissal from service as well as recovery of 1/4th of the financial loss as according to the report of Inquiry Committee they were equally found guilty of the above noted charges. The competent authority on receipt of said report and after affording opportunity of hearing through final show-cause notice imposed various penalties through order dated 16-9-2009 upon the present appellant but strange enough through a separate order dated 15-9-2009 despite holding Muhammad Ashraf Sindhu, SDO equally guilty of the charges but imposed penalty of stoppage of two annual increments only upon him. As noted above the appellants filed departmental appeals before the Chief Secretary, Government of Punjab who dismissed the same on 20-4-2010.
15. At the very outset learned Counsel for the appellants by referring to the case of Muhammad Ashraf Sindhu, Sub-Divisional Officers, strongly argued and rightly so that there was neither any special reason nor justification for the competent authority to have imposed different penalties upon the appellants as well as Muhammad Ashraf Sindhu, SDO after holding all of them equally guilty of negligent etc. Therefore, according to learned Counsel, appellants were extended discriminatory treatment by the authorities below in the matter of punishment and the same being in violation of provisions of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 and also the law declared by the apex court in 2009 SCM R 187, 2005 SCM R 445,
499. Learned counsel for the appellants further argued that there is no iota of evidence on the record to attribute the charge of causing financial loss to the public exchequer except statement prepared by Zafar. Ullah Bhatti, Executive Engineer who neither appeared in the witness box nor was subject to cross-examination. According to learned Counsel the penalty of causing financial loss was also imposed in discriminatory and without considering the length of posting of each appellant during the disputed period which according to him comes less than the period of Muhammad Ashraf Sindhu i,e, 6 months and 16 days who also remained posted for a period of more than the present appellants. Moreover, the period of posting in case of appellant Khalid Iqbal in Appeal No,1400 of 2010 is only for one day, therefore on this score also the imposition of penalty of recovery etc. On the appellants without any evidence was not maintainable.
16. -On the other hand, this appeal has been opposed by learned Deputy District Attorney as well as Departmental Representative. However; none of them was able to controvert the above noted contention of learned counsel for the appellants rather according to record for establishing financial loss of the appellants the admission position is that except statement prepared by Zafar Ullah Bhatti no other evidence was produced and the said statement was also not got proved through its author named above nor he was subject to cross-examination and on this score also the statement so prepared and placed on record cannot be considered as admissible evidence and for this reason alone penalty of recovery of amount etc. Against the appellants is not sustainable being without evidence. Further in view of finding of Inquiry Committee holding Ashraf Sindhu, SDO, equally responsible for the charge and non-imposition of penalty of recovery etc. Against this person also lead me to conclude that at least the penalty of recovery as imposed on the appellants was not within the lawful authority. I also find a considerable force in the contention of learned counsel for the appellants that appellants were extended discriminatory treatment in the matter of punishment. While imposing penalty of withholding of two annual increments only on Muhammad Ashraf Sindh despite being placed in similar facts and circumstances along with the appellants, the competent authority acted in sheer violation of the provisions of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 providing every citizen to be treated in accordance/ with law and also guaranteeing equal protection of law in terms of Article 25 of the Constitution as also held by the apex court in the above noted judgment.
17. I am therefore satisfied that learned counsel for the appellants have successfully made out a case of discrimination in the matter of punishment. As the penalty of recovery of amount imposed on the appellants was without evidence, therefore the same is set aside whereas in- line with the order of competent authority dated 15-9-2009 imposing penalty of stoppage of annual increment for two years as corrected by the Chief Secretary, Government of Punjab being appellate authority in his order dated 20-4-2010, the penalty of withholding of promotion/reduction to initial stage etc. Imposed on the appellants is converted into penalty of withholding of increment for two years without cumulative effect whereas as the period of posting of Khalid Iqbal, appellant in Appeal No,1400 of 2010 is admittedly one day, therefore cannons of justice demands that the penalty as imposed on him by the competent authority and maintained by the appellate authority is reduced into 'Censure' only. Order accordingly. ?Sub-Engineers, {{ TABLE }} Sr. No, Appeal No, Name of appellant Designation
1. 1447 of 2010 Ashfaque Cheema ,Sub-Engineer {{ TABLE }} 1448 of 2010 Muhammad Ilyas -do-.
1449 of 2010 Tahir Mehmood -do- 1450 of 2010 Amir Sami Khan - - 1451 of 2010 Ehsan Qadar -do- 1452 of 2010 Tariq Rasheed -do- 1457 of 2010 Javed Anwar - - 1492 of 2010 Mehboob-ul-Hassan -do- 1493 of 2010 Akhtar Ali -do- 1494 of 2010 Waseem Ahmad -do- 1495 of 2010 Rana Khalid Mahmood . -do- {{ TABLE }}
18. All the above eleven appellants/Sub-Engineers along with Irshad-ul-Haq, Sub-Engineer were proceeded against on the charge of inefficiency, misconduct and corruption arising out of committing financial/codal irregularities while posted in Excavator Division, Faisalabad. All the above named persons were after completion of inquiry recommended by the Inquiry Officer imposition of penalty of dismissal from service as well as recovery of 1/4th of the financial loss as according to the report of Inquiry Committee they were equally found guilty of the above noted charges. The competent authority on receipt of said report and after affording opportunity of hearing through final show cause notice imposed various penalties through order dated 16-9- 2009 upon the present appellants but strange enough through a separate order dated 15-9-2009 despite holding Irshad-ul-Haq, Sub-Engineer equally guilty of the charges but imposed penalty of stoppage of two annual increments only upon him. As noted above the appellants filed departmental appeals before the Chief Secretary, Government of Punjab who dismissed the same on 20-4-2010.
19. At the very outset learned Counsel for the appellants by referring to the case of Irshad-ul- Haq, Sub-Engineer, strongly argued and rightly-so that there was neither any special reason nor justification for the competent authority to have imposed different penalties upon the appellants as well as Irshad-ul-Haq, Sub-Engineer after holding all of them equally guilty of negligent etc. Therefore, according to learned Counsel, appellants were extended discriminatory treatment by the authorities below in the matter of punishment and the same being in violation of provisions of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 and also the law declared by the apex court in 2009 SCM R 187, 2005 SCM R 445,
499. Learned counsel for the appellants further argued that there is no iota of evidence on the record to attribute the charge of causing financial loss to the public exchequer-except statement prepared by Zafar Ullah Bhatti, Executive Engineer who neither appeared in the, witness box nor was subject to cross-examination. According to learned counsel the penalty of causing financial loss was also imposed in discriminatory , and without considering the length of posting of each appellant during the disputed period which according to him is lesser period as against period of Irshad-ul-Haq, therefore on this score also, the imposition of penalty of recovery etc. On the appellants without any evidence was not maintainable.
20. On the other hand, this appeal has been opposed by learned Deputy District Attorney as well as Departmental Representative. However, none of them was able to controvert the above noted contention of. Learned Counsel for the appellants rather according to record for establishing financial loss of the appellants the admission position is that except statement prepared by Zafar Ullah Bhatti no other evidence was produced and the said statement was also not got proved through its author named above nor he was subject to cross-examination and on this score also the statement so prepared and placed on record cannot be considered as admissible .Evidence and for this reason alone penalty of recovery of amount etc. Against the appellants is not sustainable being without evidence. Further in view of finding of Inquiry Committee holding Irshad-ul-Haq, Sub-Engineer, equally responsible for the charge and non-imposition of penalty of recovery etc. Against this person also lead me to conclude that at least the penalty of recovery as imposed on the appellants was not within the lawful authority. I also find a considerable force in the contention of learned counsel, for the appellants that appellants were extended discriminatory treatment in the matter of punishment. While imposing penalty of withholding of two annual increments only on Irshad-ul-Haq despite being placed in similar facts and circumstances along with the appellants, the competent authority acted in sheer violation of the provisions of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 providing every citizen to be treated in accordance with law and also guaranteeing equal protection of law in terms of Article 25 of the Constitution as also held by the apex court in the above noted judgment.
21. I am therefore satisfied that learned counsel for the appellants have successfully made out a case of discrimination in the matter of punishment. As the penalty of recovery of amount imposed on the appellants was without evidence therefore the same is set aside whereas in-line with the order of competent authority dated 15-9-2009 imposing penalty of stoppage of annual increment for two years as corrected by the Chief Secretary, Government of Punjab being appellate authority in his order dated 20-4-2010, the penalty of withholding of promotion/reduction to initial stage etc. Imposed on the appellants is converted into penalty of withholding of increment for two years without cumulative effect. Order accordingly.