' S. ABDUL JABBAR KHAN (CHAIR MAN). -Mr. Abdul Jabbar, Sub-Engineer, Highways Circle, Leiah, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Secretary, Communication & Works Department as respondent. By virtue of this appeal appellant has prayed that the impugned order dated 30th June, 1980 be set aside by which his annual increments have been withheld for two years with cumulative effect besides recovery of proportionate loss.
' Brief facts of the case are that the appellant was issued a show-cause notice under rule 6 (3) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, dated the 12th March, 1980. He submitted a detailed reply to show-cause notice on 3rd April, 1980. The appellant was ordered to appear before the respondent for personal hearing on 3rd May, 1980. Although at the time of personal hearing to the appellant he was told that he was innocent yet an enquiry was held by Mr. Nisar Ahmad Khan, Director Road, Research and Material Testing Institute, into the matter. The appellant who was associated with the enquiry was not given any chance to present this case.
According to the appellant on the basis of said enquiry the impugned order has been passed against him. The appellant filed the review petition dated 28th July, 1980 and he was communicated on 15th November, 1980 that his review petition has been rejected. The appellant filed this appeal before this Tribunal on 27th December, 1980 and reason for the delay given by him is that as per judgment delivered by High Court Lahore in Writ Petition No, 1819 of 1980 titled Khawar Ijaz v. Government decided by Mr. Manzoor Hussain Sial, the Sub-Engineers were declared as workmen and it was held that they were amenable to the jurisdiction of the Labour Court. As this Tribunal first of all did not take cognizance of the cases of Sub-Engineers, in view of the said judgment, later on proceeded with the same assuming jurisdiction, in cases of Nazir Ahmad Khalid v. Punjab Government on 11th December, 1980. The short delay caused by the appellant in filing the appeal was due to this uncertainty of law and has filed an application i,e, that of appeal under section 5 of the Limitation Act for condonation of period which is 12 days. Hence this appeal.
' We have heard the learned counsel for the appellant as well as the learned D. A. Assisted by the Representative of the Department and have perused the record of the case carefully with their assistance. It has been contended on behalf of the appellant that the application of rule 6 (3) of the Punjab Civil Servants (E & D) Rules, 1975 was not justified as the case of the appellant needed a detailed enquiry therefore the procedure adopted was without any jurisdiction. The appellant in this ease has stated that the Enquiry of Mr. Nisar Ahmed Khan, has been made basis of the impugned order so passed which was detrimental against his interest as he was neither associated with the enquiry nor any copy of the enquiry report was provided to him, for this he has placed reliance on in Syed Mir Muhammad v. N.-W.F.P. Government (1). {{FOOT NOTE}}
(1) P L 1981 SC 176 {{FOOT NOTE}} ' With regard to the merits of the case it has been submitted that appellant never recorded the measurements for collection of 21501 cft. Stone metal in 11th and running bill. It has been asserted that entries made by the appellant were correctly made and this was duly certified by the S. D.
0. A reference has been made to para. 2.98 (a) of B & R Department Code which lays down "payment of secured advances should be made only on the certificate of an officer not below the rank of Sub-Divisional Officer that the quantities of material upon which the advances are made have actually been brought to site. The officer granting such certificate will be held responsible for any over-payment which may occur in consequence. With regard to charge No, 2 the appellant has submitted that in fact this charge was due to misunderstanding as the bitumen was not carted to site but was kept in a dump therefore the Executive Engineer, Highway Division could not locate this quantity properly at the site as the same was lying as stated earlier in a dump in one place and not in various places along with the road. If he would have made enquiries from the appellant before the location of the bitumen the appellant would have been in a position to satisfy him on this point. According to the appellant the balance quantity minus the one so consumed in the work was still available with the contractor.
With regard to charge 3 it has been submitted that this charge being consequential to Charges Nos. I and 2 therefore the same was repudiated as baseless. In the end it was denied that the appellant was not responsible for causing any financial aid to the contractor and thus financial loss to the Government. On the other hand the learned D. A. Assisted by the Representative of the Department has challenged the appeal as time-barred under section 5 of the Limitation Act and has claimed that the case of the appellant was time barred and the delay in this case was liable to be condoned. It has been vehemently argued that no regular enquiry was conducted in this case and action against the appellant was taken under rule 6 (3) of the Punjab Civil Servants (E & D)
Rules, 1975 by which the regular enquiry was dispensed with. With regard to the probe made by Nisar Ahmad Khan at the spot, it has been stated that same was made under the orders of the competent authority after the appellant was beard in person in order to verify certain points which were urged at the time of personal hearing by the appellant before the said authority. According to learned District Attorney as the probe into the matter was made by Nisar Ahmad Khan the same probe cannot be termed as regular enquiry and therefore there was no necessity to allow the appellant to participate in the proceedings and to set up his defence. It was a matter of physical verification by the Executive Engineer Highways Division, Sahiwal which was made in the presence of the appellant as well as the other accused. With regard to the merits of the case it had been submitted that in CLC 12th Running bill vide measurement book No, 9400 page 40-41 stone metal comprising the quantity of 17,000 cft. Was shown available at the site as secured advance, but on actual verification it was found short at site. In this way the excess payment was made to the contractor in the running bills. It was the duty of the appellant while preparing the bill to show that the quantity so mentioned was not available at site and he should have asked the contractor either to make the quantity available or to have recovered the same amount from him to safeguard the Government interest. According to the learned District Attorney the appellant was negligent in not recording the measurements of the said material in the measurement book although the said procedure was not given in the Rules but as a matter of abundant caution and as an act of prudence he should have done so. It has not been denied that the voucher for the secured advance is executed between the Government and the contractor yet the quantity so entered therein is based on the entries recorded by the Sub-Engineers and checked physically by the Sub-Divisional Officer, therefore, the appellant cannot absolve himself of the responsibility or to share negligence on his part with that of the S. D.
0. Similarly it has been denied by the respondent that the appellant was not asked by Nisar Ahmad Khan to show the site where the material was said to have been dumped was a lame excuse. The shortage, according to the learned D. A. Was made good only at a later stage when the appellant was suspended. In this way the minor penalty which was imposed upon him has been fully justified.
We have given anxious thought to the arguments so made by both the parties and first of all deal with point of limitation raised by the respondent against the appellant by filing this appeal late by 12 days. What we find is that Lahore High Court by its judgment mentioned in the earlier part of our order did hold that the Sub-Engineer was a workman and in that way interpreted that this Tribunal has no jurisdiction to deal with their cases under section 4 of the Punjab Service Tribunals Act. It is also a fact that we later on disagreed with the honourable High Court on this point and decided to assume jurisdiction by declaring that a Sub-Engineer was a civil servant and not a workman and thus the appeals under section 4 of the Punjab Service Tribunals Act A were liable to be heard by us. In this way we find lot of force in the arguments raised on behalf of the appellant that the delay in filing this appeal was due to confusion created earlier by two divergent views on point of law by the High Court and the Service Tribunal In view of above we proceed to condone the delay and would decide the case on merits.
' With regard to the merits of the case, after going through the record of this case we find that appellant being an officer of the spot, would be in a better position to know what was happening at the site. As a prudent officer he has to record the measurement of the material at site and there is no denial of the fact that the bills eta. With regard to the payment against that material are always prepared on the strength of measurement and reports. Undoubtedly the S. D.
0. Is also required to make cent. Per cent. Check at the site but as frankly conceded by the Representative of the Department (who was himself an XEN of the Department) that the senior officers mostly depend upon the verification of the officers of the appellant's status i,e, Sub- Engineers and reliance so placed by them on such reports although may not strictly be justified yet this was a common procedure being adopted all over the country. In view of the above circumstances and the routine working of the Department we in no way can absolve the appellant of his negligence which has resulted into financial loss to the Government. The show-cause notice issued in this case also is not defective as the penalty already imposed was minor and he was made aware of the same by the authorised officer/competent authority. With regard to the claim of the appellant that his case needed an elaborate enquiry we are not impressed with this argument. In this case that had to be verified was only shortage of material at the site as compared to the report submitted. The competent authority too extra care to get the same fact verified by a senior officer of the Department who confirmed the same in presence of the appellant and thus exception can be taken to this procedure. We fully agree with the learned District. Attorney that this probe cannot be termed as regular enquiry which would entitle the appellant to get a copy of the same from the competent authority for his defense. The competent authority who was the ultimate authority to arrive at a conclusion, with regard to the innocence and guilt of the appellant was fully justified to satisfy itself about the actual conditions at site, so as to verify whether the material so shown in the bills prepared by the appellant was available at the site or not. Such like procedure would be conducive in the end of justice and it would not be fair to fetter the hands of the competent authority for seeking assistance in such matters through an independent agency without taking recourse to a regular enquiry.
' In view of above we are of the considered opinion that the authorised officer/competent authority have taken a just view of the situation and the minor penalty so imposed upon the appellant can in no manner be considered unjustified. The result is that we dismiss the appeal as being without any merits.