S. ABDUL JABBAR KHAN (CHAIRMAN).-Abdul Qayyum, ex-Executive En--gineer, Public Health Engineering Department, Sargodha, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded Government of the Punjab through Secretary, Housing and Physical Planning Department, Lahore, as respondent.
2. By virtue of this appeal he has prayed that the order of com--pulsory retirement of the appellant dated 9-5-1981, passed by the respon--dent be set aside and the appellant be re-instated in service with all back benefits.
3. Brief facts of the case are that the appellant while serving as Executive Engineer, Public Health Engineering Department, Sargodha, was served with charge-sheet under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, by the Secretary to Government of the Punjab, Housing and Physical Planning Department, Punjab, Lahore, through the Administrative Officer, for Chief Engineer, Punjab Public Health Engineer--ing Department. The charge-sheet contained allegations to which the appellant submitted his reply on 30-8-1980. Subsequently the appellant received a show-cause notice from the respondent dated 8-2-1981. Reply was submitted to the same on 15-2- 1981, 21-2-1981 and 5-3-1981. However, on 9-5-1981, the appellant was ordered through a notification to compulsorily retire from service. Hence this appeal. The appellant filed review petition against the impugned order which was considered and rejected and intimation of the same was communicated to him vide letter dated 6-1-1982.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the department and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that the allega--tions levelled against the appellant are based on no material while the explanation offered by him was fully justified but the same was totally ignored. It has been further submitted that the enquiry conducted against the appellant was no enquiry in the eye of law as it was violative of the mandatory provisions of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. A number of legal objections have been taken by the learned counsel for the appellant on the ground that the Enquiry Officer failed to suggest any penalty on his behalf and, therefore, it was incumbent upon the authority to hear the appellant before passing any order. Similarly the legality of the show-cause notice has also been challenged by assailing the same for lack of intimation of proposed penalty. In this manner the appel--lant has relied on (Noor Muhammad Malik v. Secretary to Government of the Punjab, Communication & Works Department) (1981 PLC 161) as well as 1981 PLC (C. S.)270. A grievance has been made to the effect that the earlier charge---sheet served upon the appellant vide memo. No. 1189-BC, dated I3-9-1976, was withdrawn which contained same allegations in seriatem as those served upon him by the second charge-sheet. According to the learned counsel-the withdrawal of the first charge-sheet after the appellant sub--mitted his reply to all the allegations presumes the appellant's innocence, therefore, the appellant cannot be again charged and thus action taken against him becomes a nullity in the eyes of law. In this matter he has relied on Islamic Republic of Pakistan v. Muhammad Arshad and 2 others (1981 PLC (C. S.) 125).
6. With regard to the merits of the case, it has been submitted that the prosecution listed 17 P. Ws.
And 22 sets of documents to prove allega--tions against the appellant whereas actually one witness Mumtaz Hussain was examined as P. W. 1 while other witness Mehboob Ali, Head Cons-- table was only called to place documents on the record. Learned counsel for the appellant has vehemently argued that the documents relied upon by the Enquiry Officer placed on the record by Mehboob Ali, Head Constable, would be unproved documents in accordance with Evidence Act, therefore, no punishment can be awarded under the law, on the said basis. Learned counsel has also submitted that the appellant was not allowed to cross-examine the prosecution witness and the defence so produced by him, has not been duly considered either by the Enquiry Officer or by the Authority.
7. On the other hand learned District Attorney has adopted the para--were comments in extenso as submitted by the respondents and has sub--mitted that all the legal objections so raised by the learned counsel for the appellant are not well founded, as prescribed procedure was followed by the Authority and the appellant was given every chance to defend himself. It has been submitted that the record of the enquiry shows that the appellant himself did not avail the opportunity to cross-examine the wit--ness, therefore, his objection in this respect, is of no avail. It has been further urged that rule 7-A ibid lays down that it would be the Authorised Officer who had to determine whether the charges so levelled against an accused person, have been proved and not the Enquiry Officer. In the present case the Enquiry Officer made his recommendation holding the appellant guilty of the charges except No. 7, in which the guilt was con--sidered to be partial. In the show-cause notice the appellant was given full opportunity to be heard in person as required under rule 8 and was given a personal hearing before the final order was passed. The learned District Attorney has fully defended the conduct of the Enquiry Officer by submitting that the inquiry so conducted by him, was impartial and the statements of the witnesses so recorded by him were duly signed by them. It was also pointed out that Enquiry Officer was fully entitled to cross--- examine any of the defence witness in order to elucidate the real picture. Learned District Attorney has also challenged the claim of the appellant that his request to obtain Inquiry Report was ever refused, a fact apparent from his own admission in the grounds of appeal.
8. We have given our anxious thought to the arguments advanced by the parties and would reproduce the charges so levelled against him in order to assess the nature of the charges as well as to see whether the appellant has been able to rebut the same or not:---
(i) On or about 1-5-1965, the Superintending Engineer, P.H.E. Circle, Sukkur on your request permitted you to make local purchase of the stock material to the extent of Rs. 1,40,000 subject to the strict financial regularities but you dishonestly with ulterior motive in violation of instructions of the Superintending Engineer, P.H.E., Sukkur conveyed to you under GM/ST/749, dated 1-5-1965, made local purchases to the extent of Rs. 3,13,630.56 thereby you made excess purchase to the extent of Rs. 1,73,(-80.56.
(ii) As per instructions contained in para. 2.61 of the B & R Depart--ment Code before making purchases were publicity through News--papers etc. For inviting quotations should have been made but you with ulterior motive instead of giving were publicity gave copies, of notices to the local officer and some of your pet con--tractors including M/s. Semab Construction, Khalil Hameed, Pak Trading Corporation Shahoor and Brothers, Arab Brothers of Lahore.
(i.e) According to Government of West Pakistan Industries and Com--merce Department memo.
No. IX-6-9/60, dated 22-11-1960, the Heads of Offices were authorised to make purchases from within the country and article of store or a class of similar article of store at one time without splitting the indent and the value of which does not exceed Rs. 5,000 but you in contravention of these orders made purchases of 13 items worth Rs. 1,88,483.10 as detailed in the statement of allegations, the cost of which exceeded Ks. 5,000 each.
(iv) You showed purchases of material worth Rs. 2,44,166.56 from M/s. Semab Construction Company but as a matter of fact this was a bogus Company and the material was allegedly supplied by one Ghulam Mustafa Tailor Master, Khairpur who was a relative of Mr Abdul Ahad, Head Clerk; posted under you.
(v) As per P. W. D. Rules contained in para. 150 and note of C. P. W. A. Code the receipt of the materials allegedly purchased during June, 1965, ought to have been entered in the stock registers "Form-11 and Tools and plants register Form-15 but it has been observed that the two articles worth Rs. 7,256 as detailed in the statement of allegations were not entered in either of the two registers.
The remaining entries in the T & P register did not bear the signature of any officer and all its pages were in loose condition without any certificate.
(vi) As rules 494, 495 of the G. P. W. A. Code, the bills and vouchers were to be pre-audited by the Divisional Accountant but you in violation of these rules did not permit the Divisional Accountant to examine the bills and conduct checking.
(vii) On or about 30-6-1965, 100 numbers C. I. Flanges of 4 and 100 number of C. I. Flanges of 5' worth Rs. 4,110 purchased vide C. V. No. K-105, dated 30-6-1965 and entered in P. W. Misc. Advances but on or about 7-3-1966 this item wag transferred from Misc. Advance to IV suspense stock vide T.
E. O. No. 6 and 7-3-1966 but no such entry is available in the Stock Register Form 11 which indicates that the material were either not purchased or misappropriated.
9. We have carefully examined the report of the Enquiry Officer as well as photostat copies of the statements of the three witnesses Mumtaz Hussain P. W.
1. Mehboob Ali P. W. 2 and Imdad Ali D. W. 3, so recorded by him against the appellant. We have also taken care to place on the record photostat copies of statements of Manzoor Hussain P. W. 1, Ghulam Sarwar D. W. 2 and the statement of the appellant himself while conclud--ing his defence and the statement of co- accused Shamshad Hussain Butt.
10. The fact of the matter is that all the charges in this case so levelled against the appellant, pertain to the year 1965, when the appellant was posted as XEN Public Health Engineering, Khairpur.
The crux of the charges was that of misuse of his official position in collusion with Shamshad Hussain Butt the then S. D. O. Public Health Engineering, Khairpur wherein he utilised the -funds for the purchase of material against the financial regulations with ulterior motives in violation of the instructions so laid down in this behalf. It is on record that the originally the case was entrusted to the Anti-Corruption Department to probe into the matter and to find out whether the appellant and his co-accused Sham--shad Hussain Butt were in any manner responsible 'for any corrupt practice and were guilty of misappropriation and defalcation. The Anti-Corrup--tion Department probed into the matter at great length and did not find any material against the appellant to find that he was is any manner guilty of any misappropriation of Government money or material and the case was forwarded to Government to proceed against the appellant at departmental level. It was only in the year 1976, i.e. After full 11 years of alleged occurrence that the appellant alongwith Shamshad Hussain Butt former S.D.O. Were served with charge-sheet during September, 1976. The enquiry proceedings took place on 6/x-10-1980 at Khairpur, Sind and again on 15118-10-1980 at Lahore. Out of 17 witnesses cited by the prosecution before the Enquiry Officer, only two could be produced and the remaining 15 were abandoned. 22 sets of documents were made available by a formal witness Mehboob Ali, Head Constable, Anti-Corruption Establishment, Khairpur, Sind on 7- 10-1980. In this manner the entire enquiry revolved over documentary evidence without proving any document on the record in accordance with the procedure laid down under the Evidence Act.
The office of the Enquiry Officer falls within the definition as given in section 3 of the Evidence Act and would be a Court. The word "Court" according to the said section includes all Judges, Magistrates and all persons except arbitrators, legally authorised to take evidence, Once the Enquiry Office falls within the definition of Court, he is under obligation to take evidence according to the Evidence Act. This Act provides a clear-cut method o receiving evidence with regard to the documents. Sections 61 to 72 are the sections which deal with the manner by which the documentary (e.i)--dence is admitted, and is used against a person under enquiry or trial, etc. In the present case what we find is that the learned Enquiry Officer in complete disregard of the mandatory provisions of law admitted 18 documents through Mehboobl Ali, Head Constable. Anti- Corruption Establishment, P. W. 2, who was neither the author of such documents nor a person to vouched safe the correctness of the same. In this manner we are of the considered opinion that the said documents cannot be read as evidence against the appellant. While looking into the evidence of Imdad Ali a solitary witness of prosecution in this case, we find that the evidence of this witness is negative in nature without showing in any manner that he had the knowledge of the issues in dispute. Evidence of this nature would hardly be of any use against the appellant and can be safely ruled out as no evidence at all.
11. We have also taken care to go through- minutely the evidence of the defence witness produced by the appellant- which also only relates to explanation of certain procedure to be adopted while utilizing the funds so sanctioned by the competent authority in matters of purchases etc. Etc. In nutshell the crux of the prosecution against the appellant is that he did not observe the rules and procedure so laid down in the Code while making purchases from the local market.
12. The appellant has vehemently denied this charge by submitting that he purchased stores for the works for which the estimates had since been sanctioned by the competent authority and, therefore, his action to purchase stores to the extent of Rs. 3,21,034 including Rs. 3,13,630.56 was in order. With regard to his non-compliance of the Government, instructions which required him to invite tenders through Government or local newspapers, he --has submitted that he made purchases through notices which were issued and displayed on Notice Board of Public Health Engineering Department, Sukkur and other Divisions. He has also denied his alleged involvement with M/s. Semab Construction Co., Latifabad, who according to prosecu--tion was a fake Firm conducting its business through Ghulam Mustafa, Tailor Master. According to the appellant the said charge was unfounded as the said firm was duly registered as Class Firm and story of Tailor Master was nothing but a cock and bull story and a mere figment of imagination in his case. The main stress of the appellant laid down in his defence is that he had to make purchases immediately as the time was running short and public interest demanded to complete the purchases as early as possible.
13. We have indicated above that the enquiry has not been conducted strictly in accordance with the Law of Evidence to which the Enquiry Officer was under obligation to follow, but by looking into the entire facts of the case we would agree with the Enquiry Officer only to the extent that the appellant was not as vigilant as he should have been in making local purchases which required him to make were publicity before entering into such transactions. With regard to the observation of the Enquiry Officer that the appellant has some ulterior motives and for the said purpose he did grind his axe through Ghulam Mustafa Tailor Master, we do not find any material on the record to accept his findings in this behalf. No evidence has been lead to show as to who was Ghulam Mustafa, Tailor Master, what were his credentials and how he succeeded in securing payments on behalf of Semab Company. In this respect without any evidence on the record, the conclusion drawn by the Enquiry Officer is based on conjectures and presumptions, which cannot be allowed to remain on the record when we find no evidence of any sort to prove the same.
14. In the present case we have also taken into consideration the long service of the appellant which is more than 20 years as S. D. O. And XEN, wherein he was never found !Guilty or charged for violation of financial rules. We also cannot remain oblivious of the fact that the matter under enquiry relates to the year 1965 and no audit report after the said occur--occurrence ever brought to the notice of higher authorities about the said violation of rules as audit is perpetual process from time to time. In this connection we may point out that Divisional Accountant is a direct sub-- ordinate to Director, Audit and Accounts (Works), Lahore,, and is solely responsible, to him in the matter of accounts. He is not Subordinate to XEN in any manner except for purpose of leave and allied matters. Under rule 495, it enjoins upon him that he should examine the accounts returns of the Sub-Divisional Officer on receipt to see :-
(i) that they have been received in a complete state ;
(ii) that all sums receivable are duly realised and realisation credited to proper head of Accounts as well as to personal accounts if any, of the contractor employee or other individual ; (i.e) that the charges are covered by sanctions and appropriations and are supported by complete vouchers, setting forth the claims and acknowledgments of the payees legally entitled to receive the sums paid ;
(iv) that all vouchers and accounts are arithmetically correct
(v) that they are in all prepared in accordance with the rules appli--cable to each case ; and
(vi) that all charges are correctly classified that which are debitable to personal accounts of a contractor, employee or other in Divisional or recoverable from him under any rule or other being recorded as such in a prescribed account.
Similarly under rule 495 he is required to examine such vouchers day-to--day in regard to the transactions in the Divisional Office and has to see in particular that on the basis of rates sanctioned by the competent authorities and of the facts (as to quantities of work done, supplies made etc. Or services rendered) are certified by the authorised officer and the claims admitted for payments are valid and in order. In view of the above when we find that nothing has been brought out against the appellant through Accounts Department, the presumption would be that no misappropriation) was ever committed.
15. We have also attended to the legal objections raised in this behalf by the learned counsel for the appellant and find that the same are un--founded. The enquiry was conducted according to the E & D Rules although not in accordance with Evidence Act as pointed out in the earlier part of our judgment and the Authorised officer was fully competent to issue show-cause notice and also the competent authority was fully compe--tent to inflict major punishment against the appellant.
16. In view of the detailed analysis of the facts as well as of law made by us in this case, what we find is that the appellant has not been proved guilty of any misappropriation, defalcation or of any ulterior motives in this case which pertains to the year 1965, but definitely has been careless and negligent while making local purchases by not inviting tenders, etc. As he could only make local purchases to the maximum of Rs. 5,000 for each item and for the total 13 items he cannot exceed the limit of Rs. 65,000. The appellant might have been actuated, in the public interest, to complete the public projects and see that the funds do not lapse, but it was his duty to follow the rules and procedure strictly.
17. The result is we partially accept the appeal, vary the sentence of compulsory retirement to that of stoppage of three increments without cumulative effect and censure on the premises that his punishment of com--pulsory retirement cannot be in consonance with the guilt so attributed to him. The punishment so awarded by us would serve. a sufficient deterrent for him in future to comply with the rules strictly. We hereby direct that the appellant be re-instated in service subject to the extent of punishment indicated above. The period during which he remained out of service, would be treated without pay. There will be no order as to costs. To be communicated to the parties.