S. ABDUL JABBAR KHAN (CHAIRMAN).- Muhammad Aslam, S. D. O., has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Government of the Punjab through the Secretary, Communication and Works Department, Lahore, as res--pondent.
2. By virtue of this appeal he has proved that the impugned order dated 27th February, 1982 by which minor penalty of stoppage of one increment without cumulative effect, has been imposed as well as review order, dated 20th May, 1982 by which his review was rejected by the competent authority/appellate authority, be set aside.
3. Brief facts of the case are that the appellant was served with a show-cause notice, dated 9th March, 1981 to which the appellant sub--mitted his reply on 28th March, 1981. The case remained pending for about 11 months and after giving personal hearing to the appellant, the respondent finally imposed a minor penalty of stoppage of one increment without cumulative effect, vide order dated 27th February, 1982. The appellant filed review petition on 7th April, 1982 which was later on rejected on 20th May, 1982 and received by the appellant on 24th May, 1982. Hence this appeal.
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 entire record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that the work in between kilometers 27.75 and Kilometers 47 was not actually done under the supervision of the appellant and the defects pointed out in the show-cause notice, dated 9th March, 1981 related to left hand side of the Tarunal- Fatehjang Road in between k.m. 27.75 and k.m.
47. According to the learned counsel this left hand side was widened in between 1968 and 1970 for which act the appellant was not at all responsible.
With regard to the allegation as given in the show-cause notice that the appel--lant failed to take measurements as required under para. 4.5 of B & R Code was wholly incorrect, as the same was done by the Sub-Engineer concerned and 100% of the said work was physically measured and checked by the appellant. With regard to the charge that the appellant had accepted the defective work and made payment against the same, it has been submitted that this was totally incorrect as already submitted that the road, which was widened in between 1968 to 1970, was not at all the responsibility of the appellant. In fact there was no defects in the road for which the appellant was made responsible and whereas there was not a single instance for payment of the work to the stretch/reaches constructed during the tenure of the appellant. Learned counsel has further submitted that the damage to certain portion of Tarnual-Fatehjang Road was not on account of defective work conducted and supervised by the appellant but due to inadequate and defective specifications which were determined by higher officers, with reference to the volume of traffic plying on this road. While elaborating this point further, it has been submitted that this is on the record that the Chief Engineer, Highway, inspected this road and recommended to strengthen the road due to volume of traffic, but the same could not be done due to paucity of funds. While concluding his arguments, learned counsel for the appellant has submitted that the appellant remained Incharge of the work of the road in between 11th January, 1974 and 7th March, 1975 when the inspection, which pointed out the defects, was carried out in 1979 nearly 5 years after the appellant had left the charge. It was vehemently argued that when it has been proved on the record that the damage did occur due to inadequate specifications and design, the appellant cannot be blamed for a work which was conducted 5 years earlier to the inspection, particularly when it is also on the record that the appellant was not incharge of the said work.
6. On the other hand, learned District Attorney has adopted the comments of the Department and has submitted that the appellant did carry out the work and verified the same in various M.Bs, relating to the work of widening and improvement of Tarnual-Fatehjang Road in the miles noted against each during his incumbency as S. D. O. a fact born out from the record. It has been further pointed out that although the appellant checked the measurement the bitumen content as 79 lbs.
Per 100 Sft. Whereas it was found varying from 42.7 Ibs. To 80.091bs. Per 100 s. Ft. The surface appeared to be hungry of bitumen. Similarly aggregate contents were varying from 6.6 cft, to 10 cft.
Per 100 Lft. It was vehemently argued that the defects so found by the Governor's Inspection Team was found after trough visual and bad test checks and, therefore, the same cannot be doubted. It was further pointed that the road items carried out by the appellant and accepted by him resulted in the failure of the road pavement even during the maintenance period although the work carried out/ accepted by the appellant was defective in nature and road was bound to last many years and in this way, according to the learned District Attorney, undue loss was caused, to the Government due to negligence of the appellant in not accepting the said work.
7. We have given our anxious thought to the arguments advanced by the parties and after going through the record of this case, we find that in this exercise, 15 officers were involved and some of them have been cen--sured, some of them including the appellant, have been imposed minor penalty of stoppage of one increment without cumulative effect and few of them have been exonerated, as enquiry against them were dropped. The entire aspect of the case is that the appellant cannot escape from the fact that the Governor Inspection Team did find the work defective and observed that this was due to lack of supervision by those who were res--ponsible for the construction/widening and maintenance of road under inspection. This also cannot be denied that inspection was conducted by the Governor Inspection Team, full 5 years after the appellant had left the seat and to fix responsibility directly upon him was not an easy task, particularly when it-is on the record that the measurement so made by the Sub-Engineer was duly checked by him. We have also taken into consideration the nature of the charges as levelled by the respondent against the appellant, so mentioned by us in the earlier part of our judgment, and find them not without substance but not conclusively so proved.
8. In view of the above situation after examining the entire aspect of the case, we are of the considered opinion that as the work done by the appellant was done in the year 1974 and the inspection was carried out after a lapse of full five years, the penalty of stoppage of one increment imposed on the appellant, would be excessive particularly when we find that a senior officer was let of with a penalty of censure. It is also matter of common knowledge that responsibility in this case is always vicarious and the delinquents should get treatment at par.
9. After due consideration of the case of the appellant, we hereby proceed to accept the appeal, set aside the impugned order, by varying the penalty of stoppage of one increment without cumulative effect to that of censure. However, there will be no order as to costs. The judgment be communicated to the parties.