Muhammad Alam Khan, ex-Overseer has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Secretary to the Government of Punjab, Local Government, Social Welfare and Rural Development Department, Lahore and the Commissioner, Multan Division, Multan as respondents.
2. By virtue of this appeal he has prayed that the impugned order, dated 6-11-1978 passed by the learned Commissioner, Multan Division and his representation for consideration of appeal against the order of the Commissioner which was rejected by respondent No. 1, vide his order dated 23-8- 1981 be set aside and he may be re-instated in service.
3. Brief facts of the case are that the appellant while posted as Overseer, Municipal Committee, Chichawatni prepared the comparative statements in respect of tenders relating to work laying of R.C.C. Sewer pipe near Sangeet Cinema and Government Girls High School, Chichawatni. On the basis of the social comparative statements prepared by him tender of Mr. Abdul Aziz contractor was accepted and work was allotted to him. Subsequently the Resident Audit Officer detected that the rates tender of Mr. Abdul Aziz were not the lowest. As a result of acceptance of higher rate tender, the Municipal Committee had to sustain loss of Rs. 7,052. The learned Commissioner charge-sheeted the appellant and the Executive Engineer, Local Government and Rural Development Multan Division was appointed an Enquiry Officer. The said Enquiry Officer after examining the prosecution as well as defence held the appellant guilty of the charge contemplating to causing loss of Rs. 4,378 to Municipal Committee. The appellant was served with a show-cause notice, and he was heard in person on 30-4-1978. Entire disciplinary proceedings were placed before the Divisional Local Government Board, Multan on 8-8-1978, which recommended major penalty as specified by rule 4 (b) (iv) of the Punjab Civil Servants (Efficiency and Discipline) Rules 1975, The Commissioner (Authority) passed orders of dismissal of the appellant from service on 6-11-1978. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as the learned District Attorney assisted by the representative of the Department. The learned counsel for the appellant has submitted that respondent No. 2 has no jurisdiction to issue the charge-sheet and to pass the impugned order as the appellant being Member of the Provincial Local Council Service (L. C. S.) therefore, it was only the Government which could initiate the disciplinary proceedings against the appellant and pass the final order. It was further argued that there was no delegation of powers in respect of the same on the anvil, therefore, this action against the appellant could only be taken by the Government which was the appointing authority under the provisions of Local Government Act, 1975 and to nominate another officer as authorised officer. The learned counsel for the appellant came with a proposition that even if it was assumed that the respondent No. 2 was the authority over the appellant even then it could not arrogate to himself the powers of authorised officer as well.
5. With regard to the merits of the case it was submitted that the report of the Enquiry Officer was not given to the appellant alongwith the show-cause notice which was necessary as laid down by their Lordships of the Supreme Court in Mir Muhammad v. N.-W. F P. (PLD1981SC177). It was further pointed out that the show-cause notice was also contrary to law as it did not specify the nature and the quantum of the punishment likely be awarded to the appellant. The general phrase used in the show-cause notice that he may be awarded a major penalty as provided by rule 4 (b) was illegal. The learned counsel for the appellant has vehemently argued that the comparative statement of tenders prepared by the appellant was duly checked by the Municipal Engineer who was a Senior Officer as well as overall responsible for the administration of Engineering Section of the Municipal Committee. The said Officer had positively observed that he had checked the calculations" the lowest may be accepted". According to the learned counsel the responsibility of the appellant came to an end when the comparative statement was checked and verified by a Senior Gazetted Officer. He has also pointed out that the Accountant Mr. Muhammad Bashir of the said Committee was also charge-sheeted and dismissed from service by the learned Commissioner but on appeal his dismissal was substituted with stoppage of three increments with cumulative effect, therefore, the treatment meted out to the appellant was discrimina--tory in nature.
6. On the other hand the learned District Attorney has adopted the comments of the respondent No. 1 in extenso and has submitted that the legal objections raised by the appellant have no force at all as in Appeal No. 107/720 of 1980 Muhammad Akram v. Province of Punjab by Full Bench of the Tribunal, this issue has been concluded once for all by holding that the persons like the appellant were not civil servants and they have been so declared only for limited purpose to enable them to invoke the jurisdiction of this Tribunal only for the purpose of Punjab Service Tribunals Act, 1974, and the appointing authority derives the power of dismissal from service by virtue of rule 19 of L. C. And M.C. Service Rules, 1963, as well as from section 15 of General Clauses Act. The Tribunal came to the conclusion that the Commissioner would be authority competent to dismiss, remove from service or reduce in rank any member of the Local Council Service like that of the appellant.
7. With regard to the claim that copy of the Enquiry Report was not supplied to the appellant, it was submitted that the appellant received personally such copy on 16-3-1978. The learned District Attorney has further submitted that the penalty stood amply specified in the show-cause notice issued on 13-3-1978 to the appellant which is on the record.
8. With regard to the merits of the case it was submitted that it is a fact proved on the record that the appellant failed to prepare a correct comparative statement and M. Abdul Aziz who was not lowest in tender secured the contract. Whereas Iqbal Shamim Rao at Sr. No. 4 had given a lowest tender for the said work. He has relied on R.I. Statement prepared by the Municipal Engineer, Chichawatni dated 18-10-1982 which is placed on the record. It has been further argued that this fact being on the record, therefore, the punishment awarded to him was in every manner justified.
9. We have given our anxious thoughts to the arguments so advanced by the parties and have no hesitation to hold in respect of the legal objections raised by the learned counsel for the appellant that these stood fully resolved by our judgment in Muhammad Akram v. Province of Punjab decided on 24-3-1981 which has been placed on the record for reliance. We therefore, maintain the reasons given by the learned District Attorney in this respect of these legal objections and hold that rich Commissioner, Multan Division Was competent to take action against the appellant under the rules.
10. However, we do not agree with the learned Commissioner, Multan Division, Multan as well as respondent No. 1, with regard to the imposition of extreme penalty of dismissal on the appellant as it is on the record that the comparative statement prepared by him was duly checked by the Municipal Engineer and he verified the same as correct. Moreover the first running bill passed in favour of the Contractor was not of the entire amount, therefore, no loss was caused to the Municipal Committee. In this respect we will also refer to an arbitration which was conducted by the Deputy Commissioner, Sahiwal with regard to the claim of the contractor for the payment of the work done on the rates quoted in the tender and the learned Deputy Commissioner on 10-11- 1979, accepted the plea of the contractor by holding that he was entitled to the payment of work done on the rates which was duly approved by the Administrator Municipal Committee, Chichawatni. This will show that no loss in any manner was suffered by the Municipal Committee and the error committee by the appellant can at the most be considered as an act of negligence, an act which does not fall under the definition of misconduct.
11. We also do, not find any reason to differentiate the case of Muhammad Bashir Accountant, who was also a party to this act for not bringing out the errors and omissions of the appellant/Municipal Engineer to the higher authorities while scrutinizing the bill at the relevant time. This Accountant was only punished by the appellate authority 'by stoppage of 3 increments with cumulative effect and was not dismissed from service.
12. In view of our above discussion we are of the considered opinion that the case of appellant would be a case of negligence at par with the case of Bashir Ahmad, Accountant, therefore, we will give the same treatment as meted out to the said Accountant in this case.
13. We, therefore, accept the appeal of the appellant and set aside the impugned order to the extent that the penalty of dismissal would be conver--ted' into punishment of withholding of 3 increments with cumulative effect for the act of negligence so committed by him. However, the period from his dismissal to that of re-instatement would be treated as leave of kind due without pay. The parties will bear their own costs.