' Conspectus of the case as unfolded from the memorandum of service appeal are that vide order dated 18.02.2012 passed by Respondent No 2 penalty of withholding of 50% of pension was imposed upon the present appellant by invoking Rule 1.8(a) of Punjab Civil Services Pension Rules, 1963 due to inefficiency, misconduct and corruption as reflected in show-cause notice dated 18.08.2010.
Being aggrieved, the above said order was challenged by filing departmental representation before Respondent No, 1 (Chief Minister Punjab), which was rejected vide order dated 12.12.2012, hence this appeal.
2. Arguments heard. Record peruse.
3. Admittedly, the appellant being Chief Engineer Irrigation, retired from service on 28.02.2009 after attaining the age of superannuation and after about 11/2 year of his retirement, Addl. Secretary (Admn.)/Pension Sanctioning Authority issued him show-cause notice Bearing No, SO(E.V)2- 51/2009 dated 18.08.2010 under the provisions of Rule 1.8(a) of the Pension Rules, 1963 on the following allegations:
1. The PC-I of the project was approved as a single scheme, the project was split into eight packages. Tender of packages A, B, F & H were invited and scope of these packages enhanced revised by deleting important work of rehabilitation & repairing of bridges and canal falls and shifting the cost in the benefit of contractor towards earthwork and stone pitching items without revision of PC-1 from competent authority.
2. Only two bidders participated in Package-A, B, and which shows a serious lack of healthy and fair competition in bidding process. In Package-A, rates offered by 1' lowest and 2"d lowest bidders were 9.3% and 15.3% above estimated cost, contract were awarded after negotiation on 4.3% above the estimated cost.
3. You did not ensure the receipt of 5% performance security in the shape of bank guarantees from the contractors before the start of work and revised performance security after enhancing the scope of work in Package-A.
4. Contrary to government instructions "not to undertake further contracts for Pakpattan Canal dated 19.10.2006, you actually revise the scheme after 5 months on 20.03.2007.
5. IR Package-A, the rates of M/s. Sparco for stone pitching is Rs, 21/Cft as compared to T.S rate of 17/Cft, which is 23.35% higher than the T.S rata You enhanced quantity of this item in the revised T.S estimate from 4,10,620 Cft to 49,19,144 Cft which is several time upward revision. Contractor was paid up to a quantity of 50,47,203 Cft and benefited with a payment of Rs, 16.513 million in excess as compared to the over all discounted bid rate of 4.13% above T.S. Estimate.
6 You did not ensure that the budget allocation for the Rehabilitation Pakpattan Canal, Khadir Branch and System are fully spent without wastage and also did not ensure the quality control mechanism which resulted in the following:- i. At RD 52+000 D/s of fall, payment of Rs, 4.358 Million for a quantity of 315,900 Cft providing and weaving G.I wire netting has been made to the Contractor, Actual measurement at site is less 15,900 Cft (Area = 140' x 40'). Bogus payment of Rs, 4,138 Million for a quantity of 300,000 Cft has been made to the Contractor for fudge work; ii. Payment of Rs,5.924 Million against the item "Ramming of Earth works" has been made in Package-A. This item was neither present in approved PC-1 nor in approved rates of contractor.
While inspecting site by CMIT during 2009 closure no ramming effort was observed and the stone was being laid on loose embankment. iii. Payment of Rs, 39.242 Million was made against the item "Earth work excavation from outside borrow pits lead up 4000 feet". This item was neither present in approved PC-1 nor in approved rates of the contractor in the head "Side Protection by Providing Stone Pitching RD 0112". While inspecting site by CMIT during 2009 closure it was observed that the earth for making embankment was digging from the bed of Canal within 200 ft contrary to the payment made by the Department staff for hauling it from outside borrow pits lead up 4000 feet. A fudge payment of Rs, 19.381 Million has been made to the contractor. Iv. Payment of Ps.
147.434 Million was made against the work items "Stone Pitching, graded Bajri & its carriage" under the head of Side Protection by Stone Pitching. There was a provision of Rs, 26.47 Million against these items of work in original T.S estimate (Rs, 25.194 Million in approved PC-1). An excess payment of Rs, 120.888 Million over and above the provision has been made to the contractor. Contrary to the provisions of Stone pitching Ws & D/s of structures Stone Pitching was done in straight reaches. v. You did not carry out the periodic inspection of the work and failed to ensure good quality of work and as a result, field formation accented defective and sub standard stone work. Depth of stone pitching in apron throughout the pitching length was quite less then required depth of 5'x5'.
Also depth of bajri layer beneath the stone pitching was less then the designed depth of 12 inches."
4. Appellant however submitted reply to the show-cause notice, whereby refuted all the allegations as flashed in the show-cause notice dated 18.08.2010. In December 2008, a summary was submitted to the Chief Minister by the department regarding serious irregularities committed in the planning, designing and execution of project namely "Rehabilitation of Pakpattan Canal, Khadir Branch and System" upon which, Chief Minister was pleased to direct CMIT to hold thorough probe in the matter. Pursuant to the direction issued by the Chief Minister, CMIT after conducting probe submitted its report to the Chief Minister with the conclusion that the present appellant along with two officials namely Mr. Tariq Siddique Khokhar and Muhammad Arif, Executive Engineers committed serious procedural / financial irregularities and thus recommended for holding of regular inquiry against the delinquent officials under Pension Rules / PEEDA Act, 2006. Mr. Tariq Siddique Khokhar and Muhammad Arif were proceeded under the provisions of PEEDA Act, 2006 vide order dated 18.08.2010. Whereas, show-cause notice was issued to the present appellant on 18.08.2010 under the provisions of 1.8 (a) of Punjab Civil Services Pension Rules, 1963.
5. Earlier, Secretary Irrigation being competent authority inflicted penalty of "forfeiture of past service for a period of two years" and minor penalty of "reduction to two lower stages in pay scale" upon the co-accused of the appellant vide order dated 15.02.2012 but on filing departmental appeal, the Chief Secretary allowed the departmental appeals and ordered holding of de novo inquiry against them. The inquiry officer, Mr. Arjad Hussain Jaffri, Chief Engineer Irrigation, Sargodha conducted the de-novo inquiry against the said co-accused and on perusing the inquiry report, Secretary Irrigation being competent authority exonerated the said co-accused vide order dated 1.12.2012.
6. The Punjab Employees Efficiency, Discipline and Accountability Act, 2006 was promulgated through Act No, 12 of 2006 and it was extended to whole of the Punjab w.e.f 17th October, 2006.
Section. 1(4)(iii) of the act ibid says that retired employees of government and corporation service provided that proceedings to be conducted under this Act against them during their service or within one year of their retirement. Similarly, Clause "c" sub-section (1) of Section 4 of the PEEDA Act, 2006 deals with the penalties to be imposed after retirement. Section 5 of the PEEDA Act, 2006 deals with the initiation of departmental proceedings. Section 21 of the PEEDA Act, 2006 says that all proceedings initiated against the employees having retired or in service, shall be governed by the provisions of this Act and the rules made thereunder.
7. The above mentioned Sections of the PEEDA Act, 2006 show in an unequivocal term that the department could have initiated departmental proceedings against the civil servant or against the retired employees of the Government in the light of provisions of PEEDA Act, 2006 and not in view of the Rule 1.8 (a) of Punjab Civil Services Pension Rules, 1963. Initiation of proceedings against the present appellant separately under the provisions of Punjab Civil Services Pension Rules, 1963 seem alien to the law especially when other two officials were proceeded under the provisions of PEEDA Act, 2006.
8. At the cost of repetition, as mentioned in Para No, 5 above Syed Arjad Hussain Jaffri, Chief Engineer Irrigation, Sargodha, carried out enquiry under the PEEDA Act 2006 against Mr. Tariq Siddique Khokhar and Muhammad Arif (Ex Executive Engineers) on the same allegations as reflected in Para No, 3 and submitted his detailed report. The inquiry officer in his said report recommended for exoneration of the said officials facing inquiry proceedings as none of the charge stood proved against them.
9. While dealing with Charge No, 2, the inquiry officer did observe that no financial loss to the Govt.
Was involved. The inquiry officer while suggesting the recommendation, did not observe even tentatively that the present appellant was responsible.
10. The contention of the authority that the appellant misused his power as per Rule 2.7 of the. PWD Code; Package A of the Contract was sanctioned for a sum of Rs, 8,61,60,430/- while the appellant accorded revised sanction of Rs, 22,51,02,887/- without getting prior revised administrative approval and committed many anomalies while according the revised sanction. Appellant made payment of item stone pitching graded Bajri and its carriage as Rs, 133.475 (M) against its provision of Rs, 27.251 (M); appellant committed other acts; responsible to increase of cost manifold and in this way caused loss to exchequer in clear violation of Govt. Rules.
11. The appellant in his reply to the show-cause notice denied the allegations and submitted that estimates were revised which were under execution and no new estimates were sanctioned; shifted the responsibility on executive engineer; estimates were duly checked by the Zonal Chief Draftsman and rechecked by the senior most staff officer who did not point out any discrepancies; the sanction was done under the delegation of power which was within 15% of the original cost of the project; in 2007, the Secretary Irrigation and Power Department and Minister Irrigation and Power Department jointly inspected the work and did not raise objection on the quality of the work.
The work was also scrutinized by Anti Corruption Department and did not find any quality/quantity discrepancies.
12. Record of this case flashes (Annexure-F) that app911ant was transferred from Multan to D G Khan in the month of July 2007 and ultimately retired from service on 28.02.2009 after attaining the age of superannuation, why the competent authority failed to initiate legal action/ departmental proceedings immediately on his transfer from Multan under the provisions of PEEDA Act, 2006 and disposed off the same within the confinement of limitations as set out in the Act ibid.
13. In the above referred panorama, I feel no hesitation to say that the department itself is responsible to bestow premium to the appellant and took action against the appellant under the lousy advise, mechanism and marched on the crummy path. It is well settled that when law provides some mechanism to do something, that thing must be cisgie in that very v.T.37, law permits and not otherwise. Reliance is placed on PLD 2010 Supreme Court 759 in the matter of Human Rights cases Nos. 4668 of 2006, 1111 of 2007 and 152883-G of 2010 and order passed in W.P No, 39142/2015 titled Syed Raza Mehdi. Baqari vs. Province of Punjab etc.
14. Even otherwise, in my humble view provisions of 1.8 (a) of the Punjab Civil Services Pension Rules, 1963 would be applicable those pensioners who have been convicted of serious crime or has been found guilty of grave misconduct either during or after the completion of the service. Before applying the provisions of 1.8 (a) of the Punjab Civil Services Pension Rules, 1963, it was incumbent upon the authority to have pointed out that the pensioner has been convicted of serious crime or has been found guilty of grave misconduct during disciplinary proceedings carried out under the relevant law by the competent authority but this exercise was not carried out by the Respondent No, 2 while passing the impugned order dated 18.02.2012. While deciding the departmental appeal, the departmental appellate authority perhaps failed to note the above mentioned facts and law, thus fell in error.
15. Prima facie, the initiative and procedure adopted by the respondents for the infliction of punishment impugned seemed unlawful and unjustified, hence can not sustain.
16. In view of what has been discussed above, this appeal is allowed/accepted and impugned orders are set aside. Consequence shall follow.