BRIG. (RETD.), ABDUR RASHID (MEMBER).-The appellant, Ch. Munawar Hussain Bhatti, was served a show-cause notice vide M C (Power), WAPDA letter dated 16th May, 1978, which read as under: "SHOW-CAUSE NOTICE You Mr. Munawar Hussain Rhatti, Superintending Engineer committed the following acts of omission and commission while you were posted as S. E. 500 K. V. T/L Construction Circle, Multan :-
(1) While getting steel bodies manufactured for 9 Nos. Ford D-1211 Truck chasis, you committed the following irregularities
(i) Forged documents were accepted for pre-qualification of fictitious firms.
(ii) Purchase order was placed even though it was beyond the competency of S. E.
(i.e) Terms of payment through establishment of inland Letter of Credit without preaudit of invoices were accepted.
(iv) Exorbitant rates were accepted.
(v) Tenders were sold free of cost and no earnest money was obtained from the bidders.
(2) While making purchase of fans, the following irregularities were committed:
(i) Excessive quantity of fans (i. e. 160 Nos. Of various types were purchased without getting the requirements from the subordinate offices.
(ii) The purchase order was on the basis of F. O. R. Multan but the fans were collected from Lahore through departmental truck.
(i.e) No estimate for purchases of fans was prepared.
(iv) The purchase order issued was beyond the competency of S. E.
(3) The following serious irregularities were committed while the case of pre-qualifications of the firms for transportation of the material was decided
(i) Pre-qualifications of the fictitious firms by acceptance of forged documents.
(ii) Earnest money was received from the lowest bidder only.
(i.e) Firms were pre-qualified and registered by you without a financial limit of Rs. 7. 5 lacs but bids for works were invited costing from Rs. 14,87,700 to 19,83,600.
(iv) The tenders were sold free of costs.
(v) The rates were 300 to 400 per cent. High.
(4) Following serious irregularities were committed while making purchase of drawing and survey of instruments
(i) purchase order issued by you was beyond your competency.
(ii) Fictitious firms were pre-qualified by accepting forged docu--ments.
(i.e) Earnest money was received from the lowest bidder only.
(5) The following serious irregularities were committed in the Imprest Account:
(i) The amount of Rs. 3;000 was drawn by you from the advance placed on your disposal specifically for the payments of crops compensation. This amount was shown to be utilized for hiring of the furniture but the owner of the (illegible . . .) a written statement that he has neither supplied any furniture to you nor received any payment. No documentary evidence to support that furniture was hired is available in the office record.
(ii) You received earnest money from the bidders in cash but did not deposit into the bank and have been utilizing the same on miscellan--eous items of contingent expenditure.
(i.e) You have been utilizing the abovementioned amounts in spite of the fact that regular imprest was sanctioned to the Circle and all the payments relating to your office were to be made by the XEN 500 KV Multan who was the Imprest Holder.
(iv) All payments have been made in cash although this was admissible only in case of petty payments.
(v) None of the vouchers bears any payment order.
You are, therefore, hereby required to show-cause in writing within a period of 7 days as to why penalties provided in para. 4 of the West Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 should not be imposed on you.
(Sd.)
(MUHAMMADAKRAM KHAN), MEMBER (POWER) WAPDA."
2. The appellant furnished his reply vide letter dated 18th May, 1978 and while so doing, he also prayed that he be allowed to consult the relevant records and be given a personal hearing.
3. The appellant was served a charge-sheet dated 29th November, 1978 in addition to the above show-cause notice. The said charge-sheet is repro--duced below "CHARGE-SHEET You, Mr. Munawar Hussain Bhatti, Superintending Engineer (now Director under G. M. (T & G) are hereby charged as under :-
(1) That while posted as S -E 500 K V T/L Construction Circle, Multan in the year 1977-78, you with an ulterior motive got prepared an estimate for the manufacture of 9 trucks' bodies at the rate of Rs. 40,000 per body, from Mr. Arshad Ahmad Khan, SDO 500 KV Transmission Line Construction Sub-Division, Multan, on the plea that you wanted to have ultra modern special type of bodies, the drawings of which will be prepared by you although he had informed you that such a truck body could be got manufactured for Rs. 19,000 and thereafter you pre- qualified five different firms although they had applied after the due date with incomplete and forged documents knowing them as such and knowing the said firms to be the property of one and the same party with intent to get quotations at exorbitant rates for the manufacture of truck bodies giving them tenders from free of cost and without obtaining earnest money and subsequently you placed order for the manufacture of the 9 truck bodies on one of the firm namely M/s. Butha Bus Body-Building Works, Bund Road, Lahore at the rate of Rs. 40,000 per body even though it vas beyond the competency of the S. E. And accepted terms of payment inland Letter of Credit without pre-audit of invoices and thereby caused wrongful loss to the Authority to the tune of about Rs.
1,80,000.
(2) That you, with an ulterior motive, sanctioned estimate for Rs. 18:59:625 and Rs. 14,87,700 for loading/unloading carriage storing and stocking of transmission line material from Railway Station D.G. Khan to nearly Storage Yard and Railway Station Abdul Hakeem to nearby Storage Yard respectively by placing. Orders at fabulously high rates on friendly Firms namely (1) M/s. Joint Engg: Enterprises, Lhr, and (2) M/s. Complex Engineering (International) Construction Enterprises, Shad Bagh, Lahore which were pre-qualified and registered by you with financial limit of Rs. 7.5 lacs alongwith many other Firms through under-hand-tricks by accepting forged documents and, without receiving Earnest Money from all the bidders so that you could facilitate the quotations of rates of your liking from the Firms to whom tenders were given free of cost, thus attempted to cause heavy financial loss to WAPDA running into millions of rupees. .
(3) That you, with an ulterior motive pre-qualified a number of firms mentioned in the enclosed statement of allegation for the supply of Drawing and Surveying material and office furniture etc. At exorbitantly high rates and knowing it fully well that accounts of these firms were phony and some of the document submitted by them alongwith the fir application, were defective and forged, and issued purchase orders which were beyond your competency by accepting earnest money only from lowest bidders and thereby attempted to cause a wrongful loss to the Authority.
(4) That you also purchased Fans of various types in excessive quantity without getting requirement, from subordinate offices, without pre--paration of estimate for purchase of Fans; on the basis of F. O. R. Multan but the fans were collected from the Lahore through Depart--mental Truck. The purchase order was issued even though you were not competent to do so.
(5) That following irregularities were committed by you during your posting as mentioned above with an ulterior motive :---
(i) In the year 1977-78 you showed payment of Rs. 2,640 through Mr. Shaukat Hussain, Line Supdt. Out of the advance sanctioned by Chief Engineer, 500 KV WAPDA, Lahore for payment of crops, trees and plants compensation exclusively to the land-owners from whom the land for the construction of Multan Grid had been acquired, to Haji Ghulam Farid, Proprietor M/s. Pakistan Tent House, Faiz Manzil, Khnni Burj, Multan on account of the rental of Office furniture supposed to have been hired from him although a monthly imprest to the tune of Rs. 1,50,000 had been placed at the disposal of XEN 300 KV T/L Division, Multan for such expenses, whereas in actual fact, no such furniture was ever hired in the above amount shown as paid towards the rental of the furniture was misappropri--ated by you dishonestly.
(ii) Similarly while posted as mentioned above during the same period, you with an ulterior motive paid in cash the rental of office furniture and cost of various articles instead of through cross cheques because cash payments could only be made against petty purchase and thus violated the instructions of the Authority.
(i.e) You received earnest money from the bidders in cash but did not deposit it into the bank and have been utilising the same on miscel--laneous items of contingent expenditure.
(iv) You have been utilising the above-mentioned amounts in spite of the fact no regular imprest was sanctioned to the Circle and all the payments relating to your office were to be made by the XEN 500 KV Multan, who was the Imprest Holder.
(6) That you withheld the payment of Rs. 1,04.864.04 with mala fide intention and ulterior motive, out of a total amount of Rs. 3,50,203.75 sanctioned for payment of crops and trees compensation pertaining the land acquired for 55/200 KV Multan Grid Station and suggested judicial inquiry to Deputy Commissioner, Multan although allowed partial payment of Rs. 4,381.25 to some of the land-owners, thus causing Authority a loss of about Rs. 53,258 as interest charges. "
4. The appellant submitted his interim reply to the charge-sheet vide his letter dated 10th December, 1978.
5. The appellant was also served charge-sheet dated 14th January, 1979 which is reproduced: "CHARGE-SHEET You Mr. Munawar Hussain Bhatti, Superintending Engineer (now Director under C. E. (Planning) are hereby charged as under :- That while posted as S. E. 500 KV, T.L. Construction Circle. Multan in the year 1977, by abusing your official position, have your real younger brother namely Mohammad Amin appointed as Assistant Foreman vide Order No. XEN (500-K V),/Admn. 11/512-17, dated 29-12-77 in N.P.S. 11 through your subordinates S. D. O. And Executive Engineer, 500 KV T. L. Construction Divn Multan without disclosing your relationship and knowing it fully well that the abovesaid Mohammad Amin was totally unfit fox the job and had been thrown out of WAPDA service previously for being undesirable on 18-6-75 by Chief Engineer, E.H.V. Vide his letter No. 6386/EHV/CI.
I/Admn, dated 9-6-75 and thereby committed gross misconduct.
(ii) If the above allegation is proved, you will be guilty of misconduct under the West Pakistan WAPDA Employees (E & D) Rules 1978, applicable to you and will render you liable to all or any of the major penalties described in Rule 4 of the said Rules.
(i.e) You are, therefore, hereby required to show cause in writing, with--in 14 days of the receipt of this charge- sheet whether you admit the truth of all or any of the allegations made against you in the charge-sheet and whether you desire to be heard in person.
(iv) Your explanation should reach the undersigned within the aforesaid period failing which it shall be presumed that you have declined to offer the same.
(v)-Statement of allegation is attached.
(Sd:)
(MUHAMMAD AKRAM KHAN), MEMBER (POWER) WAPDA, LAHORE."
6. The appellant tendered his reply to the above charge-sheet vide his letter dated 20th January, 1979.
7. In his letters dated 2nd December, 1979 and 3rd January, 1980, addressed to A. H. Nasim, General Manager (Co-ordination), with a copy to Member (Power), the appellant requested that his case of enquiry be entrusted to an outside agency like F. I. A. Or the Federal Inspection Commission. This request was not acceded to. When General Manager (Co-ordination) A. H. Nasim was appointed as the Enquiry Officer and the appellant directed to appear before him on 19-1-1980, the appellant raised serious misgivings vide letter dated 19th January, 1980 expressing lack of confidence in the said Enquiry Officer. '
8. The appellant attended the enquiry against him under protest. He filed his defence reply dated 13th March, .1980 and requested to be heard in person.
9. On the basis of charge-sheet dated 29-11-1978, appellant's reply thereto dated 20-1-1979, the personal hearing afforded by Member (Power) on 2-8-1979 and the report of the Enquiry Officer (A. H. Nasim) dated 24th March, 1980, the following Office Order dated 28th October, 1981 was issued "OFFICE ORDER After due consideration of the above-mentioned documents, the undersigned being `competent authority' under Pakistan WAPDA Employees (E & D) Rules, 1978, has decided to award penalties under rule (4) to Mr. Munawar Hussain Bhatti, while posted as Superintending Engineer (E), 500 KV Transmission Line Circle, Multan, as follows, with immediate effect :-
(1) Reduction In pay to initial pay of. S.E.
(2) Stoppage of three (3) increments without future effect (Sd.)
(MUHAMMAD AKRAM KHAN), Member (Power), WAPDA, WAPDA House, Lahore."
10. From the above Order, the appellant preferred an appeal to the Chairman, WAPDA. As a consequence thereof Office Order dated 10th June, 1982 enhancing the penalty was issued and is reproduced OFFICE ORDER Chairman WAPDA hag as appellate authority under rule 11, Pakistan WAPDA (E&D) Rules, 1978 rejected appeal by Mr. Munawar Hussain Bhatti, Director Material Control (STG Project) WAPDA against the order dated 28th October, 1981 Office Order No. 10335-40JMDP/CEAf INQ-1076, dated 28th October, 1981) of competent authority (Member Power) awarding him penalties of (1) Reduction in pay to initial pay of S. E. And (2) stoppage of three increments without future effect.
Chairman has also in exercise of the powers under the abovesaid rule enhanced the penalties impugned by Mr. Bhatti in appeal, by impos--ing on him the penalty of reduction in rank starting from initial stage in N P S 18 instead of the above penalties awarded to him by the competent authority.
11. As per rule 11 WAPDA (E & D) Rules, 1978, the appellant preferred an appeal to the Authority which was rejected vide letter dated 1982. The appellant's appeal filed with the Federal Service Tribunal on 31-7-1982 matured after he had exhausted all laid d n departmental remedies. Together with his appeal, the appellant ha also preferred a stay petition dated 31-7-1982 before the Tribunal praying that the operation of orders of punishment passed by the Member (Power) and enhanced by the Chairman, WAPDA be held in abeyance.
12. The stay petition was heard on 15th September, 1982 after due notice to the respondents. The Federal Service Tribunal Bench ordered "that the operation of the impugned orders dated 28-10-1981 and 10-6-1982 be held in abeyance till the disposal of appeal No. 508 (L)J1982. Simulta--neously it is ordered that the said appeal should come up for hearing before the Tribunal is early as possible."
13. From the said order of the Federal Service Tribunal, the WAPDA went to the Supreme Court. The learned Supreme Court on 23-11-1982 converted the petition into an appeal and directed that the appeal (508 (L)J 1982) be heard and disposed of by the Tribunal within three weeks and that the respondent/caveator would not insist upon the implementation of the Tribunal's order as yet not implemented. We received the Supreme Court Order on 16 December, 1982 The subject appeal is now being disposed of by means of this judgment.
14. The learned counsel for the appellant at the outset pleaded that after the appellant had furnished his defence reply on 18-5-1978, respondent No. 3 (Member, Power) had sought the advice on the case file from respondent No. 4 (General Manager) as to whether major or minor penalty should be imposed and that respondent No. 4 had recommended major penalty thus rendering him (respondent No. 4) ineligible to be appointed as Enquiry Officer. The respondents have however, denied this allegation in the manner in which it has been levelled. They have admitted that respondent No 4 (General Manager) could suggest that to meet the ends of justice full opportunity be afforded to the appellant. Without labouring this point any further, we shall link it up with appellant's requests for change of Mr A. H Nasim, General Manager (respondent No. 4) which were not acceded to We feel that the appellant had given reasons which in our opinion, were convincing and weighty enough for appointing someone other than respondent. No. 4, to be the Enquiry Officer and yet this was not done ostensibly to satisfy the ego of those in authority. We are ourselves, not doubting the bona fides of the Enquiry Officer but when an aggrieved person expresses lack of confidence in an Enquiry Officer and with good reasons as are on record in this case, the respondents would have done well to be more accommodating. They could afford to do so. It would have strengthened their hands and manifested their impartiality for all and sundry.
In this connection we cannot be oblivious to the fact that in the year 1978; between April and November, in a short span of six months, the appellant was transferred four times which indicates either mala fide or inefficiency of those in authority either or both of which cannot be viewed with favour anywhere.
15 The next issue raised by the said learned counsel was that despite request, the appellant was not provided with a copy of the enquiry report. The respondents in their written statement have said that : "no provision exists in WAPDA (E & D) Rules for the supply of the enquiry report no any request to this effect was made." We repel this argument of the respondents as untenable in view of the Supreme Court judgment in the case of Syed Mir Mohammad v. N.-W F.P. Govt. (PLD 1981 SC 176) As to the non-issue of final show cause (the objection raised by the learned counsel for the appellant) the respondent's reply can not be accepted as relevant when they say that the appellant was "provided full opportunity to defend himself after inspecting and examining the relevant record. The appellant had a right to know as to which charges stood proved against his and this he could discover only from a final show cause which is an indispensable legal requirement. There is therefore, no doubt in our mind that on these legal infirmities alone, the impugned orders could be set aside. A copy of the Enquiry Report be now furnished to the appellant.
16 The next issue raised by the learned counsel for the appellant was that in disposing of the revision appeal under rule 12 of the WAPDA (E & D) Rules, 1978, respondents Nos. 2 and 3, who had punished the appellant were again present in the Authority's meeting which was against the administration of natural justice. We find a good deal of substance in this argument. In fact in our opinion, respondents Nos. 2 and 3 should have abstained from sitting in the Authority's meeting that decided the case of the appellant since their presence in the said meeting amounted to their being "judge in their own cause" and thus militated against the canons of natural justice. The other two Members viz. Water and Finance, constituting the quorum, could have, we feel, given their ruling.
Even if their decision had been the same as had been handed down to the appellant earlier on, it would have had a stamp of impartiality which the Authority (Chairman and three Members) sitting together as a. Whole, in this case, lacked.
17 Another rule of natural justice which in our opinion has been violated is that the appellant has been condemned unheard when his penalty was enhanced under rule 11 of WAPDA (E & D) Rules, 1978. Even though the appellate authority may enhance the penalty imposed, such enhancement shall be caused only after giving the appellant a show cause and an opportunity of being heard and this aspect of natural justice shall always be deemed to be an integral part of the said rule 11 and shall b read into it.
18. We also wish to mention that the appellant was vexed twice for the same cause in May and November, 1978 and this is yet another violation of the principles of natural justice. Also the proceedings against him were instituted as far back as May, 1978 or earlier, followed by two subsequent charge-sheets. The enquiry was started in January and completed by 24th March, 1980 and yet it took the Member (Power) more than 18 months to pass punishment orders on 28-10-1981. The whole process lasted nearly 31 years which cannot be termed as speedy administration of justice within the meaning of the departmental proceedings which have been designed for quickness ; obviously lost sight of in the present case.
19 In order that precious time is saved and no more departmental proceedings are taken de novo, we have carefully gone through the Enquiry Report to base our analysis and judgment on it. It is well-recorded. However, we cannot help pointing out one serious procedural irregularity at the very outset. The appellant had objected to the presence of Khalid Sajjid (P W-1) before the Enquiry Officer after his (P W-1's) statement has been recorded and the other witnesses were being heard. The Enquiry Officer overruled the appellant. From the Enquiry Report, we got an impression that it was held like a public enquiry where each one of the prosecution witnesses virtually oversaw one another and there were 18 of them. In fact, in the interest of justice and fairplay there was no justification of for any one of the prosecution witnesses after his evidence to have stayed in the room as was done in this case. This could have been prejudicial to the defence of the appellant. Another point worth mentioning is that some of the evidence comes within the definition of "hearsay" but had been included, thus giving a bias against the appellant.
20. Before touching on the findings of the enquiry we would like to mention, as an established fact, that Messrs Khalid Sajjid, XEN and Irshad Muhammad Khan, SDO (P. Ws. 1 and 2) were ill-disposed towards the appellant and vice versa. Their evidence is, therefore, not reliable. This fact is clearly brought, out from the appellants cross-examination of these two witnesses, and was also within the knowledge of Malik Muhammad Ashraf C E EHV.
21. We have come to the conclusion that as per Enquiry Report serials of charges, charge-1 being frivolous and hollow has not been proved. This is so, apart from the unreliability of P. Ws. 1 and 2, who are interested parties.
The fact that the rate of Rs. 40,000 per truck body was finally approved and paid for by those placed above the appellant; puts a stamp of legality on the transaction. The whole lot of prosecution witnesses who dealt with the issue are parroting the evidence of P. Ws t and 2. These P. Ws. Got this arbitrary figure of Rs. 20,000 per truck body from somewhere without knowing anything about the qualitative difference between a body of Rs.
20,000.00 and that of Rs. 40,000.00, and this is quite revealing from the cross-examination.
22. Charge No 2 is again frivolous and should not have been preferred P.W. 3, Malik Ashraf C. E. Has himself stated with reference to D. G. Khan and Abdul Hakeem rates: "I find that these were too exorbitant and therefore intervened. I stopped award of contracts for Abdul Hakeem and D. G. Khan------"
This being so, where is the charge against the appellant ? No loss was suffered and no irregularity committed.
23. As to charge No. 3 we exonerate the appellant because anyone could have fallen prey to the phony firms and this is a mitigating circum--stance. As regards purchase orders beyond the competence of the S. E., these were cancelled by the appellant No irregularity has therefore, been committed.
24. Charge No 4 is again not proved. If excessive number of fans were ordered (and it has nowhere been established by the prosecution as to what the exact number of fans should have been if the procurement ordered by the appellant was, in fact, excessive) these were properly utilized in the WAPDA Offices of the circle as stated by P.W. 3 (Malik Ashraf C. E.) Nothing was wasted or went down the drain. Another part of this charge was that official transport was used for conveyance of the fans from Lahore to Multan. For this the appellant had been already penalised. Again P. W. 3 says :" .. And it was decided that the excess differential in the transport will be recovered from S E Mr. M. H. Bhatti." In this connection the Enquiry Officer says: " the prosecution witnesses have tried to establish that the fans were collected by Personal Assistant of S. E.
Under verbal instruc--tions of Mr Bhatti But the allegation is not against S. E that he got the fans collected------.
The S E should have, however, taken action against persons who collected fans from Lahore which he failed to do and he is therefore guilty."
A strange way of blaming an innocent person. We have underlined* the last sentence to highlight the fact that others' mischiefs should not be heaped on to the undeserving ones Clearly the appellant is not guilty and those at the site should now take action against the guilty ones if they know who they are. In this connection we also order that the trans--portation, if recovered from the appellant, shall be refunded to him and the loss borne by the Authority.
25. As regards charge No. 5, even the Enquiry Officer has this to say; "It is, therefore, not possible to prove that the amount of Rs. 2,640 was misappropriated by the accused as alleged, an irregularity has, however, been committed by the accused as admitted by him regarding its payment through advance given to Circle office and not through his imprest holder. However, the defence has failed to establish that the furniture was actually hired and brought to the office or not. The register of T & P and furniture produced is doubtful because of the contrary statements of Mr. Yousaf Butt and Mr. Shaukat Hussain."
We exonerate the appellant of this charge.
26. Charge No 6 appears to be false and is based on mala fide intent of Khadim Hussain Khokhar. P W-10. His statement is unreliable and he made it because, in our opinion, he had his own axe to grind Even though the Enquiry Officer, due to some obscure reasons, holds the appellant guilty, we exonerate him because the prosecution evidence is quite this way and nothing is proved against the appellant.
27. Charge No. 7 was preferred through a separate charge-sheet. If the appellant had had his brother reappointed in WAPDA after his earlier removal the rues are not against it. In fact it is a settled principle so far, that those removed could be re-employed in Government offices. The bar is against those who may have been dismissed. It may have been an act of favouritism on part of the appellant but he has not violated any law. As such we exonerate him of this charge, also, because his brother's services stood terminated in any case.
28. We are quite clear in our mind that in this case, where the appellant has been framed, a gross miscarriage of justice is in evidence. We wonder if those who punished the appellant and then disposed of his revision petition did, actually, themselves read the Enquiry Report running into more than 100 pages and two appeals of the appellant of over 120 pages just to draw their own conclusions.
29. In view of the foregoing reasons, we set aside the impugned orders of punishment passed by Member (Power) on 28th October, 1981 and the Chairman WAPDA on 10th June, 1982. The appellant shall receive consequential benefits as if these two orders had inever been passed. In addition, the Authority shall clear his dues of special pay as outlined at para. 2 and outstanding T. A. Bills as mentioned in the last para. Of his appeal, of course, subject to his title.
30. No order as to costs.