SHAHID ANWAR BAJWA, J. --- Petitioner was employed by the Karachi Port Trust. On 9.2.2002 he was issued charge-sheet and statement of allegations. Statement of allegations reads as under:-- STATEMENT OF ALLEGATIONS The Port Intelligence Officer vide letter No, ECNC/790/2001/1004, dated 19.10.2001 submitted his report that the Contractor, M/s. Ferro Fabricator was awarded a contract maintenance and repairs to residential building of Port Department, Manora at a total cost of .Rs. 33,25,817.15 and that the Contractor had not done the maintenance work as per requirement of BOQ.
The plan estimate prepared was not based on any factual survey or complaints of users. It was purely based on guess work. In order to ascertain factual position a preliminary inquiry was ordered to be conducted by the Competent Authority. The preliminary enquiry report pointed out the discrepancies in works carried out by the Contractor on BOQ items. The quantity verified by the Enquiry Committee against various BOQ items as compared with quantities recorded and paid for is as under:-- BOQ itemDescription Quantity paid Quantity verified by Committee 1.Dismantling of Plaster6955.22 Sq. Meter323.00 Sq.
Meter
2. Dismantling of CC.
Floor1925.97 Sq. Meter85.4 Sq. Meter
3. Dismantling of R.C.C.81.67 Cu. Meter Nil
4. Taking out Door Windows Frame512 Nos. 36 Nos.
5. Providing and laying RCC81.67 Cu. Meter Nil
6. Steel Reinforcement3.83 Tons Nil
7. Providing Cement Plaster699.58 Cu. Meter16.41 Cu. Meter
8. Providing Stone ballast6.23 Cu. Meter 6.23 Cu. Meter 9.
10.Providing CC Floor1925.97 Cu. Meter85.41 Cu. Meter Providing deodar wood doors window and ventilators548.08 Sq. Meter59.48 Sq. Meter
11. Providing brass fittings7045 Nos. 514 Nos.
12. Providing plain glass314.14 Sq. Meter 46.21 Sq. Meter
13. Providing Earthenware W.C.51 Nos. 8 Nos.
14. Providing 4" & 3" dia C.I. Soil Vent Pipe1651.71 Meter 1651.71 Meter
15. Providing C.I. Specials857 Nos. 857 Nos.
16.Dismantling Stair caseNil Nil
17. Providing and fixing special stair caseNil Nil
18. Providing water proofing for roof2906.00 Sq. Meter2906 Sq. Meter
19. Providing G.I. Pipe 878.71 Meter 878.71 Meter
20. Providing Gun Metal Valves54 Nos. 54 Nos.
21. Oil Bound distempering52,465.33 Sq. Meter16,49219 Sq.
Meter
22. Painting with Enamel paint9603.89 Sq. Meter2342.75 Sq.
Meter
23. Duroceming 17,483.76 Sq. Meter17,483.76 Sq.
Meter The measurements recorded in the measurement book are fake and do not correspond to the actual work carried out. Contractor was entitled for the amount of ,Rs. 12,35,878.63 against BOQ items whereas amount of Rs. 33,19,694.38 had been certified under these bills out of which payment of Rs. 28,57,095.11 has already been made.
The preliminary enquiry reveals that prima facie case exists against Mr. Jalaluddin, XEN, drawing Rs.
13,985.00 per month in the scale of Rs. 8135-58519835 for failure to comply with the procedure as outlined in paras 35 to 39 of Engg. Deptt. Manual and to assess that not more than 30% - 40% works had been completed as against 60% - 70% as stated by him and failure to ensure the correct recording of measurings of repair works in the measurement, and correct execution of work as laid down in the Engg. Deptt. Manual, to carry out 10% test check of all the measurements recorded in the measurement book by Sub-Engineer and thus causing financial loss of Rs. 16,21,216.48 to KPT alongwith others.
The above acts show negligence in performance of duty constitute "Misconduct" on the part of Mr. S. Jalaluddin, XEN and he is, therefore, charged for the same."
2. Thereafter an enquiry was held and after completion of enquiry show-cause notice dated 11.5.2002 was issued to the petitioner and it was stated in it that enquiry was conducted in accordance with the provisions of the Removal from Service (Special Powers) Ordinance, 2000 and enquiry officer had held him guilty and he was consequently called upon to show cause as to why he should not be dismissed from service. Petitioner submitted reply to the show-cause notice and thereafter vide order dated 14.6.2002 punishment of compulsory retirement from service was imposed upon the petitioner.
3. Being aggrieved by the order of punishment petitioner filed service appeal bearing No. 820(K)
(CE)/2002 before the Federal Service Tribunal. Through an Administrative Order communicated by the Assistant Registrar of the Tribunal the petitioner was informed that his appeal had abated. This Constitutional petition was filed on 16.5.2007.
4. Learned counsel for petitioner made the following submissions:--
(i) No mention of any provision of any law in the statement of allegatlons was mentioned. It was for the first time stated in the show-cause notice that action was being taken under the provisions of the Removal from Service (Special Powers) Ordinance, 2000.
(ii) Learned counsel referred to para 30 of the petition which states as under:-- "30. That the petitioner craves permission to refer to paragraph 5 at page 23 of the findings of Enquiry Committee:
(a) In this charge the main allegation is the causing financial loss to KPT to the tune of Rs.
16,21,216.48. The inspection of the relevant records, evidence, survey made by the previous committee and the present inspection team, it has been revealed that:
(i) "While determining the magnitude of work done the assessment was limited 'to inside work.
(ii) Survey of initial committee was done after 4-5 months of completion report.
(iii) Repair work assessm ent of certain items like dismantling of plaster, dismantling of C.C. Floor, dismantling of R.C.C. Taking all doors/windows, R.C.C. Steel reinforcement etc. Is difficult especially in the weather condition prevailing at Manora.
(iv) The present survey when carried out for closed quarters outside work and at NIL shown quarters gave additional quantum despite the limitation that 100% survey was not possible."
The above findings and observations of the Enquiry Committee itself are sufficient to conclude that neither the charges could be levelled nor the same could be proved. These observations prove the petitioner's contentions in his defence. In this state of affairs the petitioner should have not been made escape-goat nor should have targeted for the inflicting of the major penalty of compulsory retirement from service."
(iii) Learned counsel read from paras 18, 19, 20, 21 and 22 as also paras 37, 38 and 40 of the report of enquiry officer which are as under:--
18. Therefore Department 'Enquiry Committee called Mr. Bachal Qureshi, AEE, CM&EE Department and Mr. Tanveer Ahmed Shaikh, XEN, P&D Division who were the members of the Survey Team of Preliminary Enquiry Committee. These officers explained about the detail of the first survey carried out by them. They were again assigned to get detailed survey of the flats which were declared as closed by them.
19. Firstly the Survey Team, comprising of Members of Enquiry Committee, Mr. Bachal Qureshi, Mr. Tanveer Ahmed Shaikh, Mr. Zahid alongwith XEN & Sub-Engineer, sarted thorough checking of closed flats and took the measurement of C.C. Floor, R.C.C. Work, Plaster, wooden work, Brass Fittings, Glass work, W.C. Distemper Paint, Enamel Paint of Darmentary Block, Building Nos. 1937, 1938, 1947, 1951, 1962, 1966 and 1972.
20. The Committee also directed the survey team to carry out inspection in the flats which were declared as "NIL" work in the first survey. Accordingly the Survey Team checked the works of flats/quarters showed as "NIL" work in first survey. The Survey Team randomly checked these flats and found that the repair work on these does exist.
21. In order to explore the exterior work i.e. Varandah, Star cases; Parapet walls and Roof etc. Which are mentioned in BOQ but not counted in the first Survey, they surveyed the extensor work also in random.
22. After completing the above survey of vacant quarters, the committee noted that an additional.
Amount of approximately Rs. 4,50,000/- does exist which was not included in the first survey conducted by Preliminary Enquiry Committee.
37. This is a difficult task to verify the measurement and countable items with BOQ for this purpose, the services of first survey team consisting of Mr. Bachal Qureshi E.E.CM&EE and Mr. Tanveer Ahmed Sheikh, XEN, P&D alongwith the member Enquiry Committee visited the buildings and undertook a survey on the report of first survey team.
38. The enquiry committee while surveying the work also saw other KTP buildings in the vicinity which were of almost of same vintage and had not been included in this contract. It was observed that these buildings which are awaiting repairs are in appalling condition and some are not in a condition to live. The exterior is badly damaged/eroded by weather beating. It was stated that these buildings were last repaired lately therefore their turn of repair was not considered before the one already under enquiry.
40. The Dormitory Block was surveyed and checked internally and externally. Internally it was found during survey that 5080 SFT plaster work has been carried out 580 glasses replaced, whereas glasses recorded in Measurement Book are 2256 glasses. Physically 70-80% work of Dormitory Block has been completed."
(iv) Learned counsel submitted that Sub-Engineer and Assistant Executive Engineer were let off and Executive Engineer Muhammad Akbar was compulsorily retired. He submitted representation on which he was reinstated and subsequently separated from employment under the Golden Handshake Benefits. Regarding Engineer Maqsood and Khadim Hussain learned, counsel submitted that they were compulsorily retired and their petitions are pending.
(v) Learned counsel submitted that petitioner was head of department and he checked randomly and, therefore, cannot be held responsible for any misconduct.
(vi) Learned counsel also raised objection regarding enquiry and stated that no prosecution witness was examined and the enquiry committee itself assumed role of prosecution. He further submitted that enquiry committee exceeded itself _ by conducting inspection associating the petitioner and then relied upon those inspections.
5. Learned counsel for respondent submitted that allegations were clearly mentioned in the Statement of Allegations and it was nowhere denied by the petitioner either in response to the Statement of Allegations or in response to show-cause notice that any of the figures stated in the Statement of Allegations was incorrect. He further submitted that KPT has suffered substantial loss.
6. We have considered submissions of the learned counsel for the parties and have also gone through the record.
7. In response to the charge-sheet the petitioner stated as under:- "2. The recording in the measurement book is the prime responsibility of the Sub-Engineer and then the AXEN concerned. The Executive Engineer is the incharge of the entire division having a vast area and many other jobs. I however carried out 10% test check as laid down under the Manual. The main predicament lies where the internal work involved, where practically going inside the houses and checking is difficult and one has to rely on the statement of custodian of the houses, who had verified that the work had been done inside their houses. Even if there would have been any deficiency final payment could have been stopped until and unless the work was completed in alt respect. So charging an Executive Engineer for any incorrect recording in the measurement book is at least beyond my comprehension and I believe there has been some misunderstanding."
8. The allegation against petitioner has been reproduced above. Perusal of the allegation indicates that quantity for which payment had been made is totally disproportionate to the quantity verified by the Committee before Statement of Allegation was issued. For example, in case of dismantling of plaster the quantity for which payment was made was 6,955 square meters, whereas quantity verified by the Committee i.e. Preliminary Enquiry Committee before issuing Statement of Allegation was only for 323 square meters which is not even matter of 5% quantity for which payment had been made. This indicates that not even 10% inspection was done. Similar is for many other items e.g. Earthenware W.C. Verified quantity was 8 Nos. And quantity for which payment was made is 51 Nos., Plain Glass verified quantity was 46.21 square meter and the quantity for which payment was made is 314.14 square meter, Deodar wood doors window and ventilators' verified.
Quantity 59.48 square meter and quantity for which payment was made 548.08 square meter. The defence of the petitioner, as reproduced above, was responsibility for measurement was of Sub- Engineer and Assistant Executive Engineer and he carried out only 10% test check. Perusal of Statement of Allegations indicates that in most cases actual work done was not even 10% of the quantity for which payment had been made. Contention of learned counsel that Enquiry Committee conducted inspection in his absence does not help his case because even in response to the Statement of Allegation and also in response to the show- cause notice the petitioner had not at all denied or disputed that any of the quantities said to have been verified by the Preliminary Enquiry Committee were incorrect.
9. Learned counsel for petitioner submitted that in the Statement of Allegation no mention was made of the law under which action had been taken against him and it was only in the show- cause notice that the Removal from Service (Special Powers) Ordinance, 2000 was referred to and, therefore, the action had been taken without jurisdiction. Contention is patently misconceived for three reasons. Firstly, it is not requirement of law that in the statement of allegations specific provision of law under which action had been taken should have been mentioned. Secondly, non- mentioning of law or even wrong mentioning of law does not vitiate the departmental action. If any authority is needed, one may refer to Muhammad Aslam v. Director General, L.D.A., Lahore and 2 others (2007 PLC 585). Thirdly, it has not been pleaded in the petition that prejudice, if any, had been caused to the petitioner in his defence by non-mentioning of law under which action was initiated. It is settled law that minor irregularities in disciplinary proceedings that have not been caused any miscarriage of justice or prejudice to the employee cannot be ground for vitiating disciplinary proceedings against the employee. If any authority in this regard is needed, one may refer to Ishtiaq Ahmed Shaikh, reported in PLD 2006 SC 1994.
10. Learned counsel for the petitioner also emphasized that Sub-Engineer and Assistant Executive Engineer who had also been involved have been either let off or given lower punishment. No material in this regard has been placed on record. Moreover, it has been held by the Honourable Supreme Court in the case of Nazir Ahmed Pathan and another v. The Muslim Commercial Bank Ltd. And others (2008 SCM R 899) that inaction on the part of the employer to initiate proceedings against such other persons alleged to be delinquent employees further alleged involvement would not be a ground for exonerating or absolving the petitioner from the charge. Therefore even if others equally guilty have been let off, it does not confer entitlement on the petitioner that he should be allowed to go scot-free.
11. Result of the above discussion is that this petition is dismissed.