' S. ABDUL JABBAR KHAN (CHAIRMAN).-Shaukat Ali Khan, Chief Officer, Municipal Committee, District Bahawalnagar, has filed this appeal under section 4 of the Punjab Service Tribunals Act of 1974 against the order dated 17th June, 1981 by which Mr. H. M. Akram, Secretary to the Government of the Punjab, Local Government and Rural Development Department has found him guilty of misconduct and imposed a penalty of withholding of annual increments of three years with cumulative effect. The appellant has prayed that the impugned order be set aside. In this case the appellant has impleaded Government of Punjab through Secretary, Local Government and Rural Development Department as respondent.
2. Brief facts of the case are that the appellant was charge-sheeted on 28th October, 1980 by Director-General, Local Government Punjab accompanied with statement of allegation which resulted in an enquiry which was held again him. The enquiry officer found the appellant guilty of misconduct and forwarded his report to the authority which imposed upon him the punishment so given above. He filed a review petition against the said impugned order but as the same remained undecided, he filed this appeal after the expiry of 90 days.
3. We have heard the learned counsel for the appellant as well as the learned D.A. For the respondent, assisted by the representative of the department and have perused the entire record of this case including the parawise comments so submitted by the respondent. The learned counsel for the appellant has submitted that the punishment imposed for misconduct upon the appellant was uncalled for as the charges so levelled against the appellant did not fall within the definition of misconduct nor under any breach of the conduct rules. It has been further submitted that the episode leading to the charges, involved not only the appellant but the Chairman, Municipal Committee Khanewal, as well as Mr. Ali Nawaz, Councillor and the Overseer. It has been pointed out that although the case of Chairman and others was identical in nature the appellant has been held guilty whereas the others have been exonerated by the Commissioner, Multan Division, Multan. The learned counsel has further submitted that gravemen of charges alleged to have been proved against the appellant by the Enquiry Officer as well as the authority only lead to the conclusion that the appellant failed to guide the Chairman when he entered into said exercise and thus was guilty of misconduct. It has been vehemently argued by the learned counsel for the appellant that no regulation, duty roster or rules have been quoted by the Enquiry Officer to show that it was within the duty of the Chief Officer to guide the Chairman about the legal aspect whereas the law is to the contrary. It was submitted that according to the provisions of Local Government Ordinance, 1979, the Contract Rules, 1960 and the Workers' Rules, 1969, the Chairman was independent person and had sole authority to act and exercise all the powers imbibed thereto. While arguing the case at length the learned counsel submitted that the enquiry so conducted was also not according to the E & D Rules, 1975 wherein it was laid down that the enquiry officer would be appointed first and then charge-sheet would be framed and served against a civil servant so proceeded against. It was urged in the instant case that the inquiry officer was appointed after issuance of the charge-sheet and after receipt of explanation from the appellant, with a purpose to find out some suitable enquiry officer to carry out the enquiry to cause damage to the appellant's career. While concluding the arguments the learned counsel submitted that no actual loss has occurred to the Committee and the case against the appellant was a case of discrimination motivated by those who wanted to bring him in trouble for ulterior motive. A wide background of the political tussle has also been given before us supported by large number of Annexs. Placed on the -Record in this behalf.
4. On the other hand learned D.A. Has fully adopted the parawise comments submitted by the respondent and has submitted that the appellant was fully responsible to guide the Chairman on matters of legal implications, observance of rules and was also required to supervise the physical side of the said organization. According to learned D.A. The minor penalty imposed upon the appellant was fully justified and Tribunal had no justification (keeping in view the facts 1.Nd record of this case) to interfere in the same.
5. We have given our anxious thought to all the arguments so raised before us and consider it useful first of all to reproduce the charge-sheet in order to assess the arguments of the parties :-
(1) The Municipal Committee, Khanewal allotted the work of earth filling costing thousands, of rupees to a contractor simply on quotations, rather than inviting tenders through press. Being Chief Officer, you were responsible for advising and guiding the Chairman for proper observance of the rules and formalities but failed to perform your duty.
(2) The work of earth filling was undertaken without initial survey report and preparation of estimates and without obtaining technical sanction from the competent authority. You failed to bring the provisions of the rules to the notice of the Chairman and to ensure observance of the requirement of rules before the commencement of the work.
(3) The quantity of earth was recorded in the measurement book with reference to the trolleys rather than actual measurement taken at site. You as Chief Officer did not take notice of this irregularity and did not guide the Chairman. Resultantly the Municipal Committee suffered a loss of. Rs, 4,608.
(4) The rate allowed for the earth work was much higher as compared to the rates indicated in the Government Schedule of Rates, 1979. You being Chief Officer, were responsible to exercise final control over the expenditure and you failed to perform your duty, by your negligence the Municipal Committee suffered further financial loss.
(5) Despite objection from the Accountant regarding absence of technical sanction you passed on the bill to the Chairman for payment. You this paved way for payment in favour of the Contractor.
(6) According to the estimates which were prepared at a later stage, the total earth work was 59,000 cft.
Whereas the payment to the Contractor was made for 65,609 cft. On 10th April, 1980. The actual earth work when measured on 3rd July, 1980 came to 45,575 cft. Thus overpayment for 20,034 cft. Earth work was made to the Contractor. You failed to compare the figures of estimated earth work and quantity mentioned in the bill or concealed the same from the Chairman for ulterior motives.
(7) Having come to know of the complaint on 1st July, 1980 you provided Municipal Labour to the Contractor for making good the deficiency of earth work on Government Farm Road.
(8) During the visit of the Inspection Team headed by the Director, Local Government, Multan Division, when asked to explain certain irregularities you misbehaved with the Inspection Team. Your attitude/behavior towards some of Councilors of the Municipal Committee, at times, also remained objectionable.
6. Out of 8 charges, charges Nos, 4, 7 & 8 were disproved, therefore, we will not go into the details of these charges. The perusal of the rest of the charges i. e. 1, 2, 3, 5 & 6 reveals that all these pertain to one subject i. e. The appellant failed to guide the Chairman for proper observance of the rules and formalities in that behalf. In this connection we have looked into the history of the case and find that the matter relates' to the allotment of work, of earth filling which was taken in hand by the Chairman, Municipal Committee on (jLI) {{TABLE TEXT}}Eimani basis. The work was carried out in this connection under the direct supervision of the Municipal Councillor by employing labour on daily basis, instead of handing over the same to some contractors. This method of work is known (jLI){{TABLE TEXT}} Eimani. The resolution on record placed as Annexure ' is to this effect. The Chairman Abdul Hag has signed the said Resolution and this is No, 14 dated 10th March, 1980. We have also looked into the contention of the appellant that although under the rules laid down he had no legal right to either disagree with the Resolution of the Committee yet as a matter of abundant caution he polite] pointed out to the contract of the work as (JLI) Eimani would not be proper as there were chances of certain irregularities which might occur while adopting the above-mentioned procedure but said observa tion was not adopted by the Committee. In this regard there is Annexure on the record signed by Councillors including the Vice-Chairman to substantiate the contention of the appellant. We have also taken notice of another Resolution No, 9 placed as Annexure 'B' on the , record in which it was decided that the District Engineer would not be associated with the checking of bills or material as the members would be better judge of these matters.
7. The moot question of this case would be whether the appellant was under obligation by virtue of certain rules or regulations to guide. Supervise, or to control the actions of the Chairman' and the Councillors of a Committee where he was working under them or not ? The second point which would need adjudication of that case would be held responsible for an act or allegation of acts which were jointly committed by the Chairman and others when that said persons vindicated their stand and were ultimately exonerated.
8. We in this matter called upon the learned D.A. As well as the representatives of the department to show us any rule or regulation which enjoined upon the appellant to guide the Chairman in matters of his duties. Nothing in this regard was produced from the respondent's side through its representative whereas on the other hand we were satisfied that according to the provision of Local Government Ordinance, 1979 the Contract Rules, 1960 or the Works Rules, 1969 the Chairman was independent person and sole authority to act and exercise all the powers imbibed therein. Even otherwise the business rules of 1960 and 1981 consequently laid down that all officials of the Committee were required to work under the supervision and control of the Chairman and Chairman was nowhere declared to be amenable to the control of the subordinates. It is a matter of common knowledge that the Chairman and the Councillors undergo a regular training course to make them conversant with the rules, procedure and day to day conduct of their officials. In this particular case we have no hesitation to observe that Sufi Abdul Hach Chairman, Municipal Committee, Kbenewal while explaining his position when called upon to do so has fully displayed that he was not novice in the game but a person fully conversant with the rules pertaining to his duties and master of the situation without depending on others. We at this stage also cannot ignore a novel aspect of this case when we find that the Commissioner while disposing the case against the Chairman and others fully accepted his explanation which is for all purpose identical with the case of the present appellant and clearly observed that if there was any fault it would lie on the doors of the technical staff in the matter and not on the Chairman. There is no denial of the fact that appellant in no manner whatsoever can fall within the category of a technical staff. In this manner we fail to understand how the appellant can be held guilty of an exercise which was Carrie out by the Chairman in lieu of a resolution of the Committee, who ultimately accepted full responsibility for the same before the Commissioner and proved that nothing was done which was against rules or based on the ulterior motives. The appellant in this case had acted in a normal manner as a subordinate of the Chairman and it has been proved on the record that he was not the person whole was ever entrusted with the work under dispute.
9. If the competent authority in this case would have kept into consideration the cardinal issues in this case as given by us in the earlier part of our judgment and would have also taken notice of the rules and regulations with regard to the duties of Chief Officer we are confident that he would not have reached the conclusion which he has reached in this case.
10 . In view of the above we are of the considered opinion the appellant was in no way under obligation, statutory or otherwise to play the role of executive over the Chairman and the Chairman was fully exonerated of the common charges the appellant in no manner could be held guilty of the same. The result is we accept the appeal and set aside the impugned order. However, there will be no order as to costs.