Muhammad Mushtaq Jadoon, Member. The appellant has filed this appeal under Section 4 of the Service Tribunal Act, 1973 against the impugned order dated 28.6.2019 which was conveyed to the appellant on 09.07.2019 whereby major penalty of removal from service, along with recovery of Rs.
25/- Million was imposed w.e.f. 21.06.2019 under Government Servants (E&D) Rules. 1973. He preferred departmental appeal on 6.8.2019 which was not responded to despite lapse of statutory period of 90 days. The appellant also filed an application under Order XXXIX Rule 1 & 2 read with Section 157 of CPC for suspension of impugned order, to the extent of recovery of Rs. 25/- Million till final decision of appeal. Vide Court order, dated 29.01.2020, temporary injunction was granted which was vacated on 20.08.2020 and MP No.04/2020 was dismissed.
2. Learned counsel for the appellant initiated his arguments by giving back ground of the case.
Appellant joined MES in September, 2003 as Assistant Executive Engineer (BS-17) and promoted as XEN in 2009. Till initiation of this inquiry the appellant has clean record with good PERs. Being civilian, Government Servants (E&D) Rules, 1973 were applicable to him but the proceedings were carried in violation of (E&D) Rules, 1973. The appellant was not provided excess to inquiry report. The allegations were made in 2011. A fact finding inquiry conducted in 2013 and regular inquiry lasted for 03 years November, 2015 to July, 2017. The whole inquiry was conducted in question/ answer format which is violation of Rule-6 of Government Servants (E&D) Rules, 1973 and hence unsustainable. In support of his arguments he placed reliance on 1993 SCMR 1440. The inquiry was dragged over a period of three years. During this period the relevant officers had retired and their absence was justified by the Authorized Officer not to associate them with the proceedings of inquiry. As per spirit of law a retired officer can be, and should, be called for inquiry proceedings. The demand to cross-examine the officers was made in 2013 which was transmitted to the officers in 2016, by the time most of them stood retired. Though the role of XEN is pivotal but only the appellant has been singled out. No other officer was proceeded against as pointed out by the Inquiry Officer. Contract awarding authorities were also held responsible by the Inquiry Officer. Personal hearing was not held by the Secretary, Ministry of Defence rather Acting Authorized Officer, did the same. Despite major penalty of removal from service and recovery of Rs. 25/- Million, his departmental appeal dated 6.8.2019 was not responded to. Army Rules were applied which are not applicable to the appellant being civilian. The appellant was not provided an opportunity to produce evidence in support of his defence neither he was provided an opportunity to cross-examine the witnesses.
Learned counsel for the appellant pointed out that allegations of non performance of duties in term of paras 50, 51, 54, 72, 92, 95, 331 and 335 of Defence Services Regulations (MES) 1998 have not been explained to fix the responsibility of appellant, and others. Rather a general reference, to cited paras, has been made. Regular Inquiry was held for four long years (2015-2019) which is violation of Rules 6(4) of E&D Rules, 1973. Prolonged period resulted in retirement of many officers which deprived the appellant of opportunity to cross examine the witnesses. In this regard, he placed reliance on 1997 SCMR 1440, 1996 SCMR 802, 1997 SCMR 343, 1999 SCMR 3221, PLD 2003 SC 187, 2003 SCMR 1140, PLD 2014 Tr. Cases.
3. He further pointed out Handing Over/Taking Over charge, dated 12.09.2011, between the appellant and Lt. Col. Muhammad Hayat, clearly states details of cheques received by CVS from NHA and other Wapda Bills. The successor of appellant has certified that there is no public or regimental or other claim plus no over payment has been made to any contractor against work pertaining to Sub Division and this certificate has been signed by four SDOs as well as the appellant along with Col. Muhammad Akmal Hayat who succeeded the appellant. In regard to alleged loss in project he drew the attention of Court to seek project report dated 16.8.2018 which indicates 100% final progress but 60% physical progress in only 02 works out of 07. He concluded his arguments that alleged less work in projects is nullified by findings of the inquiry report at para cc and dd. It was admitted that the Court summoned Col. Akmal Hayat and Col. Shahzada Adil Sultan but they refused to appear before the Inquiry Committee to record statement. Rather Col. Akmal Hayat refused to record statement. The report further states that the said Col Akmal Hayat further admitted by taking money to buy two cars out of NHA money. It further states that Lt. Col. Akmal Hayat presented Maj. Ahmed Aziz, GE as representative of GE Services and fraudulently got 36.536 Million and 13.464 Million on account of GoIra Work for which payment were also made through public funds. In regard to absence from duty he relied on salary slips of September, 2011 which indicates his presence in Garrison. Personal hearing was not held by Competent Authority i.e. Secretary, Ministry of Defence, as per rules, but by the Acting Authorized Officer which is violation of rules and principle of justice. The Competent Authority has not applied judicial and independent mind rather relied on the recommendation of the Inquiry Officer. Since the Fact Finding Inquiry and the Court of Inquiry not held as per procedure laid down Government Servants (E&D) Rules, 1973.
Besides, as per provisions of Rule-6(4) the inquiry is to be held on day to day basis and adjournment must be reasoned. Thus when the basic order is without lawful authority then all super structure built on it would fall on ground. Reliance was placed on 2007 SCMR 729, 2007 SCMR 1835, PLD 2008 SC 663, 2017 PLC (CS)
46. With regard to question answer format of inquiry without examination of witness such proceedings being not consistent with requirement of Rule-6 of Government Servants (E&D) Rules, 1973 was not sustainable (1993 SCMR 1440), 2003 SCMR 1140, 1996 SCMR 802, 1997 SCMR 343, 2001 TD (Service) 361.
4. Learned AAG along with DR relied on the parawise comments and counter argued that inquiry under Government Servants Rules, 1973 was initiated as a result of Fact Finding Inquiry. Proper Charge Sheet was framed and the appellant was associated with the proceedings of inquiry.
Appellant submitted his written defence and also provided personal hearing by the Secretary, Defence. Major penalty was imposed by the Secretary, M/o Defence. Appellant preferred an appeal to the Appellate Authority which was received in E&C Branch on 9.8.2019 and forwarded to Ministry of Defence on 18.12.2019. The appellant paid final bill before completion of work which was denied by the concerned SDO. Allegations in regard to 07 work stood proved against the appellant and during the Question/Answer session by the Court he could not justify advance payment in June, 2011 and he had 03 months right up to September, 2011 to complete the balance work.
5. We have heard the arguments put forward from both the sides and have perused the 'record.
6. There are procedural irregularities in the inquiry such as; a) Appointment of Inquiry Officer by the Authorized Officer, but the proceedings were conducted by an Inquiry Committee/Board of Officers; b) Proceedings were carried out in question/answer format and the appellant was not provide an opportunity to cross-examine the witnesses. Appellant signed the statement under protest; c) The most important witness Lt. Col. Muhammad Abram Hayat, who succeeded the appellant as GE, refused to record his statement. Nothing on record and comments of respondents to indicate any action taken against Lt. Col. Muhammad Akmal Hayat. He was otherwise supposed to report deficiencies in the works and payment made, as he assumed charge on 12th September, 2011, just three months after the closing of financial year; d) Handing over/Taking Over Charge Report indicates no deficiencies; e) Inquiry proceedings were dragged over long period of four years which is violation of Rule-6(4) of (E&D) Rules, 1973. Inquiry Committee/Inquiry Officer shall conduct inquiry on daily basis and reasons shall be recorded for adjournment; f) No immediate inspections were carried out to asses physical progress of works. Appellant successor should have reported the deficiencies promptly, g) No overseer, SDO and higher officers were examined and only appellant was singled out. Thus there is clear discrimination in apportionment of blame among all those responsible for omissions and commissions in the light of roles and responsibilities.
7. The following pants of MES Regulation Manual, 1998 were referred in the Charge Sheet dated 17.11.2015: Para-50 Careful control is essential to ensure that allotments are economically spent ....
Para-51 After 15th April no new Capital/Major works will be commenced....
Para-54 By 15th April all funds which it is anticipated cannot be spent economically during the financial year shall be surrendered...
Para-92 GE or an independent AGE is the local representative of the CMES. He is also responsible for:-- a) xxx xxx xxx b) The proper and economic expenditure of the funds allotted to him by the CMES; c) xxx xxx xxx d) Technical procedure in connection with orders placed by him and bills arising from such orders; e) The constructions accounts upon which the system of accounting for engineer services is based; Para-95 MES officers trained in M/M duties are posted either as technical advisers to DW&CE/CMES or to hold executive charge as GE where the division contains important installations. Their duties include: a) The examination and when so ordered, the preparation of schemes, estimates, specifications and BQ for M/M work; b) Questions regarding the Administration of E/M personnel; c) The examination of the working costs of E/M installations and recommendations for improvement in efficiency and economy; d) Technical examination of large E/M works bills and contracts; Para-331 SDOs are personally responsible for the accuracy of measurements taken- Para-335 These will be maintained by the GE/AGE for all buildings, etc-
8. Periodic Services measurement Book will be maintained, as per Para 335, by the AGE//GE for all buildings. Learned counsel further relied on 2010 SCMR 1345 (Govt of NWFP vs. Asif Iqbal) whereby it was held that recommendations of Inquiry Committee would not be building upon competent authority who could take any reasoned action subject to law. Certified copy of physical and financial progress indicating two works e.g. CEA 127/11 with 60% physical progress and work for external electric and road widening Golra were indicated as per details of the appeal on 16.08.2018.
Appellant is a Civil Servant and thus subject to E&D Rules, 1973. While order of inquiry dated 17.11.2015, was passed by the Engineer in Chief in exercise of powers conferred under Rule 5(ii) of the ED Rules, 1973; Charge Sheet dated 17.11.2015 and the impugned order dated 28.06.2019, was also passed under E&D Rules. The Inquiry was held under Army Act/Rules. Under E&D Rules the Authority either appoint Inquiry Committee or Inquiry Officer. In case of appellant Lt. Col Hafiz Muhammad Nadir was appointed as Inquiry Officer but Inquiry Report Indicates that it was Board of Officers and Court of Inquiry on the pattern of proceedings under Army Act/Rules. Fact Finding Inquiry was held in the format of Questions/Answers and the appellant was not allowed to cross-examine the witnesses, and thus the appellant signed the report under protest. It was in violation of rules as held in 1993 SCMR 1440.
9. It would be pertinent to briefly discuss the roles and responsibilities of officers as referred above; Para-522 As and when bills for payment are completed by SDOs they will be sent to the GE.
Para-523 a) The abstract will be checked with the measurement book, and the bill with... b) All final bills passed for payment by the GE will be forwarded accompanied by PAFW-2254, .... c) After this examination final bills will be returned to the GE for payment after pre-audit.... d) The percentage of bills to be, checked in the CMES office will be fixed by the DW&CW.... e) The bills, after payment, will be sent for post audit. f) The upper part of the last page of PM' W-2262 should invariably be stamped and signed.... g) Post payment technical check of bills will be carried by the DI&E of E-in-C's Branch.
10. Cited pares indicates joint responsibilities of all the officers. Category A Contractors are engaged for the works of MES/ NHA. Even it is presumed that 100% payment were released in advance for deficient work (60% in both the cases). MES Authorities GE and other Authority; as per provisions of Work Contract, can issue notice to the Contractor for: a) Completion of work; b) In case of failure notice to complete the work at the risk and cost of Contractor; c) Forfeiture of Security/Call Deposit; d) Black listing of the Contractor; No such action against the Contractor(s) available on record as per parawise comments offered by the respondents.
11. We tend to agree with the stance and view-point of learned counsel for the appellant in regard to procedural irregularities such as question/answer format of inquiry, non-access of appellant to official record and non-provision of an opportunity to cross-examine the witnesses. In fact some of the officials like successor of appellant, AGE and SDO were not made part of inquiry; either as accused or witnesses.
12. Charge Sheet and the facts reported in the Inquiry report are self contradictory. Vide para 1(a) of statement of allegations; appellant was charged for 100% final payment for 07 incomplete works.
But the inquiry report indicates only two works GA 127/11 and Exit Golra Road with 60% progress.
Appellant, in his written statement, has explained that he highlighted the progress of various works with amount in his Handing/Taking Over report.
13. Inquiry Report is quite in detail. Few irregularities mentioned in inquiry report are; Para (o): Appellant misappropriation of Rs. 175/- million; Para (r): Misappropriation of Rs. 105/- million; Para (z): Refusal of appellant to respond to question under protest as Lt. Col. Muhammad Akmal Hayat was presented for cross-examination. A justifiablet demand indeed; Para (cc): Refusal of Lt. Col. Muhammad Akmal Hayat to record his statement. Being successor of appellant his statement and cross-examination by, both, the Board of Inquiry and the appellant was essential; Para (gg): Fraud of Rs. 36.536 million under command of Lt. Col. Muhammad Akmal Hayat; Para (ff): Generalized nature of allegations against the appellant, at best, can be termed as, based on hearsay evidence; Para (gg): Involvement of higher ups in sanctioning and reviewing and approval of works; Para (hh): A logical conclusion by Board of Inquiry that funds issuance, project approving and contract awarding authorities are involved in sanctioning and receiving white money, a term not explained and elaborated in the inquiry report; Para (ii): Involvement of lower Executive Staff (SDO) to violate MES Rules and procedures;
14. But in the Charge Sheet only three allegations were framed against the appellant; a) 100% payment of 07 works, in violation of Para 50, 51, 54, 72, 92, 95, 331 and 335 of Defence Service Regulations (MES) 1998; b) Absence period 14th September to 12th December, 2011, partially proved as per Inquiry Report; c) Recovery of Rs. 25/- Million as cost of left over works from the appellant; Para-k of Inquiry Report; Involvement of lower staff with appellant. And based on findings action recommended against various officers, including appellant;
15. Report signed by SDOs and other two indicates that only two out of 07 works with 60% Physical progress: i) GA 127/2011 and ii) Exit Golra Road; It would be pertinent to mention that Routine Instruction No. 25/11 (Discipline) rectified by Government of Pakistan, Ministry of Defence vide No.F.1/23/D3 (A-III)/2010 dated 10.2.2011 are almost same as per provisions of Government Servants (E&D) Rules, 1973.
16. We are mindful of the fact that jurisdiction and role of the Service Tribunal is as per parameters set in the Service Tribunal Act, 1973. It is not an anti-corruption Court to take cognizance of A corruption or adjudicate against official whose case is not before the Tribunal but law and the rules empowers the Service Tribunal to record further evidence and also call the relevant officers specially in case like the one before us. Proceedings against all the officers/officials responsible, as identified and recommended by the Court of Inquiry, become mandatory through a joint inquiry.
Separate inquiries would cause prejudices to the accused/petitioners due to lack of apportionment and fixation of responsibility. It also provides an opportunity to all the accused officials to offer their defence in a better and logical manner in the light of statements and cross- examination of various officials. Even if some facts comes into the knowledge of an official after recording statements, and cross-examination of other official, the accused have a right to make request for a supplementary statement.
17. Departmental inquiries impacting terms and conditions of an official(s) the; Tribunal is competent to remand the case or order departmental proceedings against all other officials who should have been part of joint inquiry. While judgment of Service Tribunal operates as judgment in rem in identical cases allowing some financial benefits in case of employees who were not a party before the Tribunal as held in 1996 SCMR 1185, 2005 SCMR 499, 2009 SCMR 01. Conversely the Service Tribunal judgment could operate against those employees who should have been included in the inquiries as selective and discriminary selection of officials for inquiry cause prejudice to one official and also an infringement of his fundamental right of fair trial. Such course of action is violation of Articles 4, 14, 19-A & 25 of Constitution of Islamic Republic of Pakistan.
18. Contrary to findings and recommendations of Inquiry committee/Board of Inquiry, prima facie, disciplinary action taken only against the appellant. Respondents, in their parawise comments, have C not been able to identify other officials against whom disciplinary proceedings were initiated.
19. Based on evidence and arguments put forwarded by both, the parties, inefficiency, misconduct and corruption of appellant is established to the extent of two works having 60% physical progress with 100% releases. Rest of five works were completed as per report submitted by the respondents.
As per Rules and Manuals, provided by the parties inspection and release of funds is, duty of multiple tiers. Only panelizing one amongst them is not justifiable. Besides, multiplicity of exercise of powers dilute the responsibilities and the resultant apportionment of blame. Thus the quantum of punishment is to be viewed in the light of roles as assigned under the Rules and Manual.
20.In view of discussion and aforementioned reasons, appeal is accepted, impugned order dated 28.06.2019 is set aside with the following modifications:- i) Major penalty of removal from service is modified and converted into major penalty of reduction in Grade and post to BS-17, as Assistant Executive Engineer for a period of three years; ii) Recovery of Rs. 25/- Million from just one officer does not seems justifiable. Based on findings and recommendations of Inquiry Committee the Competent Authority to decide judicious apportionment of recovery of Rs. 25/- Million; iii) Period of absence from 14.09.2011 to 12.12.2011 may be treated as leave of kind due.
21. No order as to cost. Parties be informed.