TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Civil Petitions Nos, 1708-L to 1710-L of 2012 as they are directed against the same judgment dated 16-5-2012 passed by the learned Service Tribunal vide which respondents' appeals were allowed and by reversing the order of the Competent Authority whereby the respondents were awarded major penalty of dismissal from service and recovery of amount specified was imposed, they were directed to be reinstated into service.
2. Facts in brief are that the respondent officers were proceeded against departmentally on charges of misconduct inter alia on the ground as under:-- "That during their posting in Provincial Highways Division, Sialkot, they committed financial irregularities by making advance payments to the contractor worth Rs, 9.802 million; As a matter of fact, the payment should have been made as per actual work done/executed. This advance payment, in a way; was like making financial comfort to the contractor for the items of work which were not even executed.
' In view of above, they are guilty of inefficiency, misconduct and corruption as envisaged under the Act ibid.
3. The afore-referred charge was relatable' to the respondent officers for the period as under:-- "Sr.
No.Name Designation Period
1. Khalid Hussain Hamdani Executive Engineer , Punjab Highways Division, Sialkot.18-10-2005 to 16-11-2006
2. Nawazish Ali Shah SDO, Punjab. Highway , Pasrur with additional, charge of the Work.July, 2005 to 25-2-2007
3. Muhammad Younis Mirza Sub Engineer , Punjab Highways Division, SialkotJune 2005 to 18-1-2007
4. The Inquiry Officer having recorded the evidence and examined the relevant material came to the conclusion as under:- "(1) In view of the provisions of clause 51 of the agreement and Article 4.5 (I&J) of B&R Code the responsibility of the Executive Engineer gets lightened to some extent, but in my views he could have performed better than he has done. It is therefore recommended that under para-4(a) (v) of PEEDA. Act 2006 minor penalty be awarded to Mr. Khalid Hamdani by stopping his promotion for one year.
(2) Sub-Divisional Officer and Sub-Engineer are responsible for detailed measurement and are basically responsible for the wrong entries of the work. Since a lot of work has been executed by them after running bill No, 18 and over payment which was initially Rs, 9.808 Million has been reduced to Rs,2.764 Million. Therefore it is recommended that under para-4(a)(v) of PEEDA Act 2006 promotion of Mr. Nawazish Ali Shah and Mirza Muhammad Younish Sub-Engineer to the next higher rank be withheld for a period of two yeaRs,
(3) I have checked the ledger of account of this work. It has come to my knowledge that neither security nor any guarantee is otherwise available with the Department so as to adjust the over payment' of Rs,2.764 million. Since the construction Company Messrs Tarmac Pak is the main beneficiary of this over payment, it is recommended that this amount be recovered from Messrs Tarmac Pak if they are working in the Department on any other project. In other case, this amount of Rs, 2.764 million be recovered from them as arrear of land revenue."
5. The Competent Authority issued notice to the respondent officers in terms of the findings in the inquiry and being not satisfied with the assessment of the alleged excess payment made to the contractor directed the Chief Engineer to carry out measurement of the work subject matter of the inquiry and submit report and without confronting the respondent officers with the findings of the said report submitted by the Chief Engineer imposed penalties in terms as follows:-- Sr.
No.Name and Designation Penalties
1. Mr. Khalid Hussain Hamdani, District Of ficer (Roads), V ehari(i) A major penalty of Recovery of Government loss amount to Rs.6.598 million.
(ii) Major penalty of dismissal from service.
2. Syed Nawazish All Shah, Deputy District Of ficer Roads), Tandlianwala.Major penalty of dismissal from service.
3. Mirza Muhammad Younis, Sub- Engineer , o/o XEN, Provincial Highways Division, Sialkot.Major penalty of dismissal from service.
' The learned Service Tribunal allowed the appeal.
6. Learned Additional Advocate General sought leave on the ground that the learned Service Tribunal in reversing the order of the Competent Authority did not appreciate the evidence led; that if the Service Tribunal was of the view that the inquiry had not been conducted as mandated in law or the respondents had not been granted hearing after the submission of report of the Chief Engineer the proper course for the Service Tribunal would have been to remand the case for a de novo inquiry and reversing. The order of the Competent Authority in the case of serious misconduct is not sustainable in law.
7. Learned counsel for the respondents, on the other hand, defended the impugned judgment by submitting that the respondent officers had been subjected to lengthy inquiry; that the Inquiry Officer having elaborately discussed the evidence led had recommended award of minor penalties to the respondents but the Competent Authority without giving any reason disagreed with it and imposed major penalty of dismissal from service along with recovery of the amount mentioned above; that according to the Inquiry Officer the excess payment was made only to the tune of Rs, 2.76 million but the Competent Authority enhanced it to Rs,6.518 million on the basis of the report submitted by the Chief Engineer with which the respondent officers were never confronted; that the Inquiry Officer as also the Competent Authority totally ignored the fact that a sum of Rs, 66 lacs of the contractor was lying with the Government which was forfeited and if there was any excess payment, the same has been made good and that in any case learned Additional Advocate General has not raised any question of law of public importance within the meaning of Article 212(3) of the Constitution to warrant interference. In the alternative learned counsel added that if the Court is not satisfied with the submissions made by him the Court may substitute the penalty of dismissal from service with the penalties awarded by the Inquiry Officer as they were the result of proper hearing of the respondents.
8. Having considered the submissions made by learned Law Officer and learned counsel for the respondents, we find that the basic charge against the respondents was of excess advances made to the contractor. In such like cases, there are two types of advances made to the contractor i,e, 'mobilization advance' which is against the guarantee before the start of the work. There is no allegation that any mobilization advance was made. The second advance is the 'secured advance' which is made against material stacked at site for executing the work. The respondent officers were charged with making secured advance payments in excess. The question whether there has been excess payment or not is a question of fact which can only be decided by factual inquiry ,which inter alia may include measurement of the work, subject matter of inquiry. As held by the Tribunal, only visible parts of the work done were measured and hidden/concealed and eroded parts of the work were not taken into account. There is nothing on record to indicate as to why the measurement of launched stone work, eroded earth work and steel/high tension wires used in the concrete work was not carried out. After going through the inquiry report and having already given show cause notices to the respondents, the Competent Authority called for a report from the Chief Engineer, On Court query, learned Additional Advocate-General admitted in all fairness that the act of the Competent Authority in calling for a fresh report from the Chief Engineer after respondents had been issued show cause notices on the basis of the findings of the Inquiry Officer and awarding penalty to the respondents on the said report of the Chief Engineer was not tenable in law. He further admitted that the respondent officers were never confronted with the findings in the said fresh report received from the Chief Engineer. He however, suggested that it is a fit case for de n0v0 inquiry.
9. There was no charge of corruption against the respondents nor there is any allegation of making personal gain and the tenor of the findings recorded by the Inquiry officer indicates that the act of the respondents could be described as contributory negligence. The Inquiry B Officer who carried out a detailed inquiry found that in making the excess payment to the Contractor even the Divisional Accountant was partly liable on account of his omission to keep the requisite check. The finding about the said officer is that he has miserably failed in the performance of his duties." The context in which he gave this finding would be of relevance. He observed as follows:- ' As far as the provision of Article 4.5 (1&J) is concerned it certainly provides some relief to the Executive Engineer by way of check measurement either of 24 bills or 10% of the amount paid during one year. But this relief is not available to any Executive Engineer without any check and balance. The requirement of Article 4.5 (1&J) of the B&R Code binds the Executive Engineer to physically carry out necessary check and a record thereon is to be maintained and which is to be the personal responsibility of the Divisional Accountant to preserve the abstract of checking. I could not found such a record in the entire proceedings. Accordingly Divisional Accountant has miserably failed in the performance of his duties. In addition to it higher rates of reinforcement steel of Rs,7,500 per % Kg has been allowed for girders whereas this rate was quoted as Rs,6,000 per % Kg by the contractor. In my earnest views this was also the responsibility of the Divisional Accountant to watch out and not to allow any rate other than quoted rates by the contractor."
' With regard to the role and liability of the accused officers, the Inquiry Officer came to the conclusion as under:- "In the beginning of each measurement book, there are instructions for posting. Para 3 writing of detail measurements should be recorded by Executive Engineer, Sub-Divisional officers, Assistant Engineers and by. Executive Sub-Ordinate (Sub-Engineer). If this paragraph is read with Article No, 4.5(5) it becomes clear that the officer responsible for making detail measurements are Sub- Divisional officer and Sub-EngineeRs, On large works, Sub-Divisional Officer is responsible for entries himself whereas for small works he require to check various %ages as laid down in B&R code Article 4.5. But as a common agreeable practice- invoke(sic.) in the department, the detail - measurements are recorded by the Sub-Engineer and 100% check is applied by the Sub-Divisional Officer. In view of this discussion it is obvious that the responsibility of measuring works rests with the Sub-Engineer and Sub-Divisional officer. Another quesion needs discussion, whether there can be any ' mistake or error in recording the measurements or not. The reply again comes from Article 4.5 of the B&R code which clearly states that there may be chances of erroneous measurements but the error has been limited to 2% only. In the instant case the variation plus and minus both are there, over all impact cost Wise remains within 2% of the permission limit (if the latest position of the work is considered including work pre-audited as well as not pre-audited).
As such the intensity of Wrong measurement though it is there yet it gets eased out to certain extent. The Sub-Divisional Officer Provincial Highway Sub-Division Pasroor and his Sub-Engineer are therefore guilty of wrong measurements."
10. The Competent Authority, it appears, neither examined the evidence recorded during inquiry nor appreciated the findings given by the Inquiry Officer and proceeded to enhance the penalty by converting the same into major penalty of dismissal from service and the recovery from Rs, 2.76 million as determined by the Inquiry Officer to Rs, 6.518 million merely on the basis of a report submitted by the Chief Engineer after the submission of inquiry report and issuance of show cause notices to the respondent officeRs, If he was of the view that the finding of the Inquiry Officer qua the quantum of excess payment was factually incorrect, he could have directed de novo inquiry or could have confronted the respondent officers with the report of the Chief Engineer. He even did not specifically disagree with the findings of the Inquiry Officer with regard to the nature of the misconduct committed by the respondent officers which persuaded the latter to recommend minor penalties. The authority enhanced the penalty merely on the basis of Chief Engineer's report that the excess payment made was more than what was calculated by the Inquiry Officer. There is no cavil to the proposition that the act of carelessness on the part of a civil servant could be a valid ground to award penalty. Elements of bad faith and willfulness may bring the act of negligence within the mischief of 'misconduct' but a conduct demonstrating lack of proper care and the requisite vigilance may not always be willful amounting to, grave negligence to warrant harsh punishment.
11. The learned Additional Advocate-General to be fair to him did not defend the manner in which he proceeded and suggested remanding the case for de novo enquiry. However, since the respondent-officials have undergone the agony of a protracted enquiry, that course in the facts of this case may not be tenable more so when the entire evidence is on record. What in the aforementioned circumstances and the evidence led should be the appropriate punishment? The award of appropriate punishment under the law is primarily the function of the concerned administrative authority and the role of the Tribunal/Court is rather secondary. The court ordinarily would not substitute its own finding with E that of the said authority unless the latter's opinion is unreasonable or is based on irrelevant or extraneous considerations or is against the law declared.
12. The law provides for more than one kind of punishments keeping in view the object of such penal provisions and the gravity of the charge in a case. Conceptually punishment to a delinquent public servant is premised on the concept of retribution, deterrence or reformation. In awarding punishments, the Competent Authority has to keep in mind the underlying object of law and the severity of the misconduct.
13. In the administrative law, the authority is vested with a certain amount of discretion and the said discretion has to be exercised by applying independent mind uninfluenced by irrelevant or extraneous considerations. In Messrs Gadoon Textil Mills v. WAPDA (1997 SCMR 641), this Court was called upon to comment on the ambit of the discretionary power vested in an administrative authority. While analyzing the opinion, this Court observed as follows:- "42. To make exercise of discretionary power valid it is necessary that apart from being legal it is also reasonable. While conferring discretion on an authority the statute does not intend to arm such Authority with unfettered discretion which may be beyond the limits of reason, and comprehension of a man of ordinary intelligence. Wade in Administrative Law has traced the principles of reasonableness which according to him is firmly established at least from 16th century and has quoted Rooke's case (1598) 5 Co. Rep. 99b where the Commissioner of Sewers had levied charges for repairing a river bank on one adjacent owner instead of apportioning it among all the owners, who had benefited. Although the power to levy charge was there, it was disallowed as inequitable and unreasonable. Coke observed:-- ....And notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and abstance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections; for as one saith; talis discretio discretionem confundit."
' This view has prevailed throughout till the modern times.
43. In Brean v. Amalgamated Engineering Union (1971) 2 QB 175) Lord Denning MR. Observed as follows:- "The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this; the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith, nevertheless the decision will be set aside. That is established by Padfield v. Minister of Agriculture, Fisheries and Food which, is a landmark in modern administrative law."
14. One of the most articulate judicial expositions of reasonableness in exercise of statutory discretion in English jurisdiction is found in Associated Provincial Picture Houses Ltd. v. Wednesburry Corporation (1948) 1 KB 223. Lord Greene speaking for the Court in the said case explained this concept in terms as follows:- "It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the words 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. In another, it is taking into consideration extraneous matteRs, It is unreasonable, that it might almost be described as being done in bad faith; and in fact, all these things run into one another."
15. This view was reiterated in Union of India v. Ganayutham (dead) by LRs, (AIR 1997 SC 3387) and it was inter alia held as follows:-- "To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test.
16. The doctrine of proportionality is yet another principle of judicial review of administrative actions. Particularly when it comes to quantum of sentence. While quashing the punishment in a Court-Martial case and describing it to be strikingly disproportionate, the Indian Supreme Court in Ranjit Thakur v. Union of ndia (AIR 1987 SC 2386) explained the concept as under:-- "The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-martial. But the sentence has ' to suit the offence and the offender. It Should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, Would ensure that even on an aspect which is otherwise, within the exclusive province of the Court-martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.
Irrationality and perversity are recognized grounds of udicial review."
17. Acts of serious misconduct may be visited with major penalty so that not only the offender is brought to justice but also to make it an example for otheRs, This is deterrent and has reformative effect on society. However, if the gravity of the charge is of a lesser degree and the circumstances reflect absence of bad faith and willfulness which may amount to mere negligence then the minor punishment may be a preferred course. The award of minor penalty provides an opportunity to the delinquent public servant to reform himself. In Auditor-General of Pakistan v. Muhammad Ali (2006 SCMR 60), this Court upheld the order of the Federal Service Tribunal wherein the major penalty of compulsory retirement was converted into reduction in timescale by three stages for a period of two years without cumulative effect. The. Court while doing so, observed as follows:-- "The purpose of deterrent punishment is not only to maintain balance with the gravity of wrong done by a person 'hut also to make an example for others as preventive measure for reformation of the society, whereas the concept of minor punishment in the law is to make an attempt to reform the individual wrong doer. In service matters, the extreme penalty for minor acts depriving a person from right of earning would definitely defeat the reformatory concept of punishment in administration of ustice."
18. The Inquiry Officer in the case in hand submitted the inquiry report to the Competent Authority so as to enable the latter to proceed further as provided in law. Section 13 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 lays down a procedure to be followed by the Competent Authority and it reads as follows:-- "13. Order to be passed by. The competent authority on receipt of report from the inquiry officer or inquiry committee.---(1) On receipt of the report from the inquiry officer or inquiry committee, as the case may be, the competent authority shall examine the report and the relevant case material and determine whether the inquiry has been conducted in accordance with the provisions of this Act.
(2) If the competent authority is satisfied that the inquiry has been conducted in accordance with the provisions of this Act, it, shall further determine' whether the charge or charges have been proved against the accused or not.
(3) Where the charge or charges have not been proved, the competent authority shall exonerate the accused by an order in writing.
(4) Where the charge or charges have been proved against the accused, the competent authority shall issue a show cause notice to the accused by which it shall-
(a) inform him of the charges proved against him and the penalty, or penalties proposed to be imposed upon him by the inquiry officer or inquiry committee;
(b) give him reasonable opportunity of showing cause against the penalty or penalties proposed to be imposed upon him and to submit as to why one or more of the penalties as provided in section 4 may not be imposed upon him and to submit additional defense in writing, if any, within seven days of the receipt of the notice, before itself or the hearing officer, as the case may be;
(c) indicate the date of personal hearing or appoint a hearing officer to afford an opportunity of personal hearing on his behalf provided that the hearing officer shall only be appointed where the competent authority is of the rank of Secretary to Government of the Punjab or above. ' provide a copy of the inquiry report to the accused; and ' direct the departmental representative to appear, with all the relevant record, on the date of hearing before himself or the hearing officer, as the case may be.
(5) After affording personal hearing to the accused or on receipt of the report of the hearing officer, the competent authority shall, keeping in view the findings and recommendations of the inquiry officer or inquiry committee, as the case may be facts of the case and defence offered by the accused during personal hearing, by an order in writing-
(i) exonerate the accused; or
(ii) impose any one or more of the penalties specified in section 4: Provided that -
(i) Where charge or charges of grave corruption are proved against an accused; the penalty of dismissal from service shall be imposed, in addition to the penalty of recovery, if any; and
(ii) Where charge of absence from duty for a period of more than one year is proved against the accused, the penalty of compulsory retirement or removal or dismissal from service shall be imposed upon the accused.
(6) Where the Competent Authority is satisfied that the inquiry proceedings have not been conducted in accordance with the provisions of this Act or the facts and merits of the case have been ignored or there are other sufficient grounds, it may after recording reasons in writing, either remand the inquiry to the inquiry officer or the inquiry committee, as the case may be, with such directions as the competent authority may like to give, or may order a de novo inquiry.
(7)
(8)
' The Competent Authority purportedly proceeded in terms of subsection (5)(ii) read with subsection (6) of section 13 referred to above. However, contrary to what is required under section 13(6) of the Act, the Competent Authority did not give any reason for disagreeing with the recommendations of the Inquiry Officer. Under the afore-referred provision, the Competent Authority could either proceed in terms of subsection (5)(i) and (ii) "keeping in view the findings and recommendations of the inquiry officer or inquiry committee, as the case may be, facts, of the case and defence offered by the accused during personal hearing" or could have proceeded in terms of subsection (6) of section 13 and "either remand the inquiry to the inquiry officer" or could have directed de novo inquiry "after recording reasons in writing" if he was of the view that "merits of the case have been ignored or there are other sufficient grounds". Having not agreed with findings and recommendations made in the inquiry report, the Competent Authority instead of following the options available to him under subsection (6) of section 13 quoted above, proceeded to award major penalty of dismissal from service.
19. While examining the penalty awarded in the light of two salutary principles of judicial review of administrative actions, discussed in paras 14 .To 17 above i,e, 'reasonableness' and 'proportionality', we find that the Competent Authority disagreeing with the recommendation of the Inquiry Officer enhanced the penalty by relying on a report of the Chief Engineer submitted after the inquiry which was prepared on the asking of the said Authority. This was neither part of the inquiry nor the respondent officers were given any notice of the said report. After the submission of the inquiry report, show cause notices were issued to the respondent officers and it was only thereafter that the Competent Authority asked the Chief Engineer to submit a report in the preparation of which the respondent officers were admittedly not associated. The J award of penalty on the basis of the said report was unreasonable and was squarely hit by Wednesbury test of reasonableness. The enhancement of penalty in the afore-referred circumstances was based on an extraneous material and cannot stand the threshold of the said test and therefore is not sustainable. The quantum of sentence even otherwise was disproportionate to the gravity of the charge as admittedly neither there was an allegation of collusiveness with the contractor or of corruption.
Respondents' case in these circumstances calls for judicial review of the penalty awarded.
20. In Shibli Farooqui v. Federation of Pakistan (2009 SCMR 281), 7 out of 10 charges stood proved against the accused official but keeping in view the nature of the charges framed against him, the Authorized Officer proposed the penalty of reduction of pay by two stages in the timescale for a period of two yeaRs, The. Competent Authority, however, disagreed and imposed major penalty of dismissal from service. This Court set aside the said order and remanded the case to the said authority to pass a fresh order by observing as under:-- "12. Nevertheless, the "authority" without taking into consideration the recommendations of the Authorized Officer of the status of the Auditor-General of Pakistan completely overlooked his recommendations and went on to impose an extremely harsh penalty of removal from service. Mr. M.M. Aqil Awan, learned counsel for the appellant relied upon, the judgment of this Court in the case of Chief Director Central Directorate of National Savings v. Rahat Ali reported in 1996 SCMR 248 wherein it was held that if the authority was not inclined to agree with the findings of the Authorized Officer it was required to record proper reason for doing so after notice to the affected civil servant. It was further observed that public power could not be exercised arbitrarily or capriciously. No reasons have been recorded by the "authority".
13. We are also conscious" of the well-recognized principle that when a decision is rendered by an administrative authority it is essential that an appropriate balance must be struck between the adverse effects which the decision may have on the rights or interests of the person contemned and the purpose which the authority is seeking to pursue, proportionately by now is a well recognized concept of administrative law and this Court in the case of Independent Newspaper Corporation (Pvt.) Ltd. And another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others reported in 1993 SCMR 1533 held as follows:-- "The principle is well-settled that when express statutory power is conferred on a public functionary, it should not be pushed too far, for such conferment implies a restraint in operating that power, so as to exercise it justly and reasonably. In the words of Seaman L.J. "excessive use of lawful power is itself unlawful."
21. In Mukhtar Ahmed Bhatti v. Director Food, Punjab (1992 SCMR 1864), this Court set aside the order of the Competent Authority as no reasons have been given. The Court held as follows:-- "9. Thirdly, the Enquiry Officer had conducted a fact-finding enquiry into the conditions of storage and the nature of the duties performed by the appellants in looking after the stored wheat. It had apportioned the responsibilities accordingly. It appears on paper to be an objective report. It is not disputed by anybody as to the powers of the competent authority to form opinion different from that of the Enquiry Officer with regard to involvement of the appellants. But that has to be done on some well-founded principle or fact. None has been disclosed in the Order's of the competent authority and whatever appears is not a rational yardstick in apportioning the responsibility of the appellants."
22. In Director Food v. Rashid Ahmad and others (1990 SCMR 1446) the accused --- officers were charged for being responsible for shortage in the storage of procured wheat. The Authorized Officer recommended that the loss to a reasonable extent be written off as for substantial damage the concerned officers were not responsible. The Competent Authority, however, enhanced the penalty.
The Service Tribunal after examining the case on merits set aside the order of recovery passed by the Competent Authority. This Court upheld the order by holding that the storage conditions were far from satisfactory and the Inquiry Officer as also the decision of the Tribunal was based on the said consideration. In Deputy Director Food v. Akhtar Ali (1997 SCMR 343), the civil servant was charge sheeted when shortage in the storage of procured wheat was detected. He was awarded major penalty of dismissal from service on the basis of the inquiry report. The Tribunal' was of the view "that the Enquiry Officer relied upon the record and had not inspected the stores at the spot; that evidence of Mr. Muhammad Ajmal Ghazali, AFC had unduly weighed with the Enquiry Officer in finding the respondent guilty as he was himself involved in the case" and further was not allowed to be cross-examined by the respondent which was obligatory under the Rules; "that the respondent having been retired was no more a 'civil servant' within the purview of section 2(1) (b) of the Punjab Civil Servants Act (VIII of 1974) read with the Instructions Annex 'X' dated 7-9-1982 when the penalty of recovery of losses and that of retirement was imposed:" The Tribunal in the afore-referred reasons allowed the appeal and set aside the order of the Competent Authority. This Court took note of the poor storage conditions, which was supported by documentary evidence. It also referred to another judgment in Muhammad Ibrahim Dasti an another v. Deputy Director Food, Multan and another (1986 PLC (C.S.) 845) to hold that the wheat was stored in open in shape of Gunjies' and then in a house type godowns, the loss occurring as a result of heavy rains, infestation and other vagaries of nature which is beyond the control of those responsible, the recovery of the losses so occurred cannot be made. In the afore-refereed circumstances, this Court upheld the judgment of the learned Service Tribunal.
23. In accepting the appeals, the learned Service Tribunal non-read the material evidence led during the inquiry. It also erred in not appreciating the mandate of law that if the charge stands proved penalty has to follow. The impugned judgment is thus not sustainable. Consequently, for reasons given above, these petitions are converted into appeals and partly allowed and the judgment of the Service Tribunal is set aside. The respondents are awarded the penalty as recommended by the Inquiry Officer i,e, respondent Khalid Hussain Hamdani, Executive Engineer, is awarded minor penalty of stoppage of promotion for one year and respondents Nawazish Ali, Sub- Divisional Officer and Mirza Muhammad Younis, Sub-Engineer's promotion shall be withheld for a period of two years under para-4(a)(v) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006. So far as the finding of recovery of rupees 2.764 million which as per the Inquiry Officer was the excess payment made to the contractor and was recommended to be recovered by the Department from Messrs Tarmac Pak as arrears of land revenue would not be tenable because the contractor was not associated with the said inquiry. However, it would be open for the Department to take appropriate steps provided in law to effect the said recovery from the contractor.