' Concisely stated the facts of the case are that the appellant while working as Executive District Officer (C&W) Chakwal, was departmentally proceeded against under the PEEDA Act, 2006 by 'the competent authority/Chief Minister, vide order dated 21.11.2007 Bearing No, SO.D.1(C&W)2-152007 whereby the then Chief Engineer (South Zone), Punjab Highway Department, Lahore was appointed as inquiry officer to conduct inquiry against the appellant and his co accused on the following allegations:-- "They got executed, accepted and paid for substandard work of the aforementioned scheme and committed following acts of omission and commissions:-- Relative compaction of base course in Group-I, II, III and V was found 99.3%, 99.2% and 99.2% respectively against minimum requirement of 100%. Relative compaction of sub base course in Group-I, II, IV and V was found 99.6%, 99.1%, 99.4% and 99.7% respectively against minimum requirement of 100%. The relative compaction of sub grade in group 1, III, IV and V was found 94.7%, 94/8%, 94.3 and 94.5% respectively against minimum requirement of 95%.
Thickness of base course in Group IV at RD 23+700 was found 8.75 against 9" required. Thickness of base coarse in Group V was found 7.5 against 8" required. Similarly, thickness of sub base course in group II, III and IV was found, 8", 8" and 8.25" respectively against 9" required. Thickness in Group IV at Rd 23+300 and RD. 4:700 was found 8.25" against 9" required.
Deep rain cuts were observed which caused damage to road edging, in all groups, berms were also not properly dressed, TST in general was not found upto the mark.
The bitumen used was also of inferior quality and it was applied scantly. The road was not properly sealed: Water penetrated into the base course due to poor quality of TST wand was seen saturating the base course at many locations."
' The inquiry officer namely Chief Engineer (south Zone), Punjab, Lahore Highway Department conducted the inquiry who after recording the evidence recommended the exoneration of the appellant vide order dated 26.11.2009. Thereafter, the competent authority i,e, Chief Minister, Punjab directed a denovo inquiry vide an order dated 16.3.2010 as passed by the then Secretary C&W. In the said denovo inquiry order the authority observed that on the basis of analysis and examination of the inquiry report that the inquiry was not conducted in accordance with the PEEDA Act, 2006.
Moreover, the facts and circumstances of the case have been ignored. Through such order Member Engineering Chief Minister Inspection Team was appointed as Inquiry officer to conduct the denovo inquiry upon the same charges. The said inquiry officer having conducted the denovo inquiry exonerated the appellant from Charges No, 4 whereas Charge No, 1, 2, 3 and 5, was found partially proved to the extent of inefficiency and recommended the penalty of .Withholding of two increments for a period of one year. Resultantly, a final show-cause notice under Section 13(4) of PEEDA Act, 2006 was issued to the appellant which he contested through written reply. The Secretary C&W by the order of Chief Minister imposed the penalty upon the appellant of withholding of 10% pension (as he stood retired froM service on 31.12.2010) vide impugned order dated 30.1.2011. The appellant filed a representation against such order on 8.3.2011 which was dismissed vide impugned order dated 5.7.2011, hence this appeal.
2. Learned counsel for the appellant contended that.
3. Learned DA opposed the contentions as raised by the learned counsel for the appellant and stated that the appellant was rightly punished by the departmental authorities, therefore, he is not entitled for any relief. He prayed for dismissal of the instant appeal.
4. Arguments heard and record perused.
5. Record shows that the then Chief Engineer (north Zone) Highway Department conducted the previous inquiry in depth who recommended the exoneration of the appellant from the charges but the competent authority was not in agreement with the findings of the I.O. And opted to order for denovo inquiry vide order dated 16.3.2010. It is evident that the said authority used his discretion under Section 13(6) of PEEDA Act, 2006. The report of the previous regular inquiry as well as denovo inquiry were examined. Likewise, the order of the denovo inquiry was also looked at. The decision of this appeal lies in the answer of two vital questions formulated below:
(1) Whether the competent authority examined the evidence and record as ascertained by the previous inquiry officer, if so, examined, whether the competent authority independently rendered the fair reasons while disagreeing. The he inquiry report of the exoneration and justified to use discretion under Section 13(6) of PEEDA Act, 2006?
(2) Whether after recommendations of the exoneration the appellant was entitled to be heard in any manner before invoking the Section 13(6) of the Act ibid?
Undeniably, the previous inquiry was conducted by a Chief Engineer. During the course of inquiry, he recorded the statement of prosecution witnesses as well as defence witnesses, given below: PW-1 Mr. Shahid Manzoor-ul-Hassan, Assistant Director PR & MTI Lahore PW-2 Syed Abrar Hussain Assistant Director PR & MTI, Lahore Statement of D.R namely Sarfraz Butt XEN provincial highway division Lahore.
' The report of the previous inquiry officer speaks that the evidence was recorded on oath. Likewise, defence witness namely Mirza Sarib Sub Engineer PHSD Sheikhupura was also recorded. PW-1 and PW-2 performed the duties of field tests, who took various samples of base, sub base, sub grade and TST for lab testing. They took such samples on 28.7.2006, 1.8.2006 and 2.8.2006 and handed over these samples to the concerned section of lab testing. During the course of examination over them glaring information merged on the record. It came into evidence that the deficiencies in compaction of sub grade varies from 0.3% to 0.7%, in compaction of sub grade from 0.3% to 0.9%, likewise, the deficiencies varies from 0.6% to 0.8% and such deficiencies falls in tolerable limits of 2 to 3% in view of instructions/letter dated 4.2.1981 issued from Director PR and MTI, Lahore. Likewise, in respect of half compaction of embankment it came on surface that it should be 9.3.95" for layer for sub grade just below the sub grade. In addition to above, it was also divulged that required thickness of base in all groups was 8" whereas at road RD 23+ 700, such thickness was 8.7" which was more than required thickness. The thickness at RD 29 + 00 was excessive. It came also on the record during the cross-examination that no test of bitumen was carried out. The statement of the D.R Muhammad Sarfraz Butt XEN was also recorded on oath, it came into evidence that deficiencies in compaction of sub grade, sub base and base, as pointed out in charge sheet, falls within practical allowance to 2 to 3" in view of letter dated 4.2.1981 issued by the Director PR & MTI, Lahore as addressed to the Chief Engineer Punjab Highway Department. The previous I.O. Having considered all the evidence produced by the prosecution as well as the appellant reached at the conclusion that none of the charges was proved against the appellant. The findings recorded by the 1.0 was based on evidence. Therefore, the authority in order to differ with such findings was required to examine all the record and evidence for denovo inquiry. In this regard, learned counsel for the appellant has relied upon the judgment of the honourable Supreme Court of Pakistan dated 17.4.2003 handed down in CPLA No, 4036-L of 2002.
6. In view of recommendations of the exoneration in favour of the appellant, the competent authority had the power under Section 13(3) of the PEEDA Act, 2006 to exonerate the appellant or if the authority was of the view to order denovo inquiry in exercise of power of 13(6) of the Act ibid. In such eventuality of the exercise of power of Section 13(6) the competent authority was required to record the reasons while indicating the evidence discernable from the record which has been misread by the inquiry officer. In Tariq Aziz-ud-Din and others' case (2010 SCM R 1301) the honourable Supreme Court of Pakistan at page 1331 held that arbitrariness in any manner is to be avoid to ensure that action based on discretion is fair and transparent. It was further observed by the honourable Supreme Court of Pakistan that wherever wide-worded powers conferring discretion exist, there remains all need to structure the discretion. In view of this legal back, ground the competent authority was required to use his discretion in well structured manner while giving his independent opinion to the facts and circumstances of the case and evidence on the record. It is evident from the order dated 16.3.2010 (denovo inquiry) the authority passed the order ritualistically and no evidence was discussed by him and no reasons were given as required Section 24-A of General Clauses Act. It is evident that before passing the order of denovo inquiry neither any kind of such show-cause notice was issued to the appellant nor he was heard. The authority unilaterally subjected the appellant to face another inquiry on the same charges without any assigning cogent and coherent reasons. In subsequent inquiry no fresh evidence was recorded and the subsequent I.O. In the para 7 of the inquiry report dated 17.9.2010 mentioned that C&W department did not supply the relevant record along with the inquiry proceedings conducted by the previous I.O. The prosecution evidence as well as defence evidence was not produced. It appears that he just lumped together charge sheet and defence plea and thus recorded findingg against him which was relied upon by the authority and punished him with the penalty of withholding of 10% pension vide impugned order dated 31.1.2011. While doing so, did not pounder the over the record of previous inquiry wherein evidence was brought on record. Likewise, the appellate authority has ritualistically dismissed the review petition of the appellant. The competent authority could not advert to the evidence of the prosecution which was led in the previous inquiry and prosecution remained failed to prove the charges against the appellant, therefore, the impugned orders are not sustainable in the eye of law.
7. The upshot of .Above discussion is that this appeal is accepted and the impugned orders. Are set aside. The relevant staff of this Tribunal in view of Rule 21 of the PST (Procedure) Rules, 1975 is directed to furnish/send the copy of this judgment to the competent authority within 15 days from the date of receipt of this order in the -concerned brarch.