' S. ABDUL JABBAR KHAN (CHAIRMAN).-Dr. Saeed Asghar, Deputy Director, Livestock, P. V. T. V. Abad Rawalpindi, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Province of the Punjab through the Chief Secretary, Punjab, Lahore, and the Secretary to Government of Punjab, Livestock and Dairy Development Department, Lahore, as respondents.
2. By virtue of this appeal he has prayed that the impugned order, dated 31st August, 1983 be set aside and reversed and penalties imposed on the appellant be declared illegal and remitted.
3. Brief facts of the case are that a number of charges were levelled against the appellant when he was Director of Zoo, Lahore, for which a fullfledged enquiry was held. As a result of the said enquiry it was held that the appellant was guilty of misconduct and he was awarded major penalty of reduction to a lower stage in the time scale by one step alongwith recovery of pecuniary loss to the tune of Rs, 21,273.55, vide order of Chief Secretary, Government of the Punjab dated 24th July, 1983.
The appellant filed a review petition which was rejected, vide order, dated 15th December, 1983.
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 record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that in the matter of these charges, earlier an enquiry was held under the orders of the Advisor to Governor/M.L.A. Zone 'A' Punjab. The matter was shelved therefore, no further enquiry could be held in the matter.
6. With regard to the merits of the case it was submitted that all the charges for which the appellant has been held guilty were hollow and none stood proved against the appellant, therefore, the ultimate order of punishment was liable to be set aside.
7. With regard to the findings of the Enquiry Officer in respect of charge No, 1, it has been submitted that the correct position was that vide Zoo Letter No, 1453.61, dated 28th July, 1976, quotations for printing of gate Entry Tickets, were invited from nine Printers/Printing Presses of repute but uptil 14th August, 1976, none of the Printing Press tendered any quotation. This being the situation, fresh quotations were invited from the following four Printing Presses :-
(1) Messrs Sun Beam Arts Press, 41-Chamberlain Road, Lahore.
(2) Messrs Jadid Urdu Type Press, 30-Chamberlain Road, Lahore.
(3) Messrs Rabat Press Ltd., Link Hall Road, Lahore.
(4) Messrs Alhamra Art Printers, Maclagan Road, Lahore.
' When the said quotations were received the same were put up to the Vice-Chairman, by the Office Superintendent, vide his noting, dated 26th August, 1976. As the appellant had taken over charge on 28th August, 1976, i. e. Two days after the said noting, the Vice-Chairman marked the case of the appellant, who after preparing comparative statement of rates of the Printing Presses, the quotation of Sun Beam Art Press was accepted as being the lowest of all. Learned counsel for the appellant has laid emphasis on the fact that no complaint emanated from the so-called lowest bidder till his death which occurred more than a month after the acceptance of tender.
Learned counsel for the appellant has disowned the liability of the appellant that he in connivance with Mr. Z. B. Mirza, had accepted the said tender. With regard to Charge No, 2, it has been submitted that the Enquiry Officer himself found the appellant not guilty but strangely enough on the other hand he held him guilty of misconduct. He has argued that it was entire responsibility of the officer concerned who could not maintain the same and the appellant had nothing to do with the same. For Charge No, 3, it has been urged that under this charge the Enquiry Officer had come to definite finding that no direct evidence has come on record to substantiate the allegations, therefore, he could not find the appellant guilty of misappropriation. However, contrary to his own finding while absolving the appellant of the real allegation comprising the subject-matter of the charge, he has travelled beyond his scope of enquiry to hold the appellant guilty of misconduct.
About Charge No, 4 it has been submitted that the Enquiry Officer has himself found the charge as baseless and unfounded but strangely enough the Enquiry Officer had mentioned the name of Nazir Ahmad, Sr. Clerk and observed that Charge No, 3 against him does not stand proved. He submitted that there was no occasion either to refer to Nazir Ahmad against whom there was no charge under Charges Nos, 3 and 4. This according to the learned counsel for the appellant displayed that the -Enquiry Officer has totally misconcieved the enquiry and circumstances of the case. For Charge No, 5 learned counsel for the appellant has submitted that according to the rules on this subject, decision could be given by Zoo Maintenance Committee (Z. M. C.) the violation of the said decision did not arise. With regard to the allegation that loss of Rs, 10,000 was caused by indicating License-fee as Rs, 7,000 instead of Rs, 17,000 learned counsel for the appellant has submitted that the finding was manifestly wrong and perverse as no loss had occurred to in this respect. The cycle-stand was duly auctioned and highly offered bidder was awarded the license for one year. According to the learned counsel for the appellant, in fact zoo had been benefited by the action of the appellant and anything which was done with honesty of purpose and bona fide for the benefit of the administration cannot by any stretch of reasoning be termed as misconduct.
With regard to Charge No, 6 relating to African Cray Parrot, it has been submitted that as the said Parrots were suffering from Psittacosis the same was returned to the Donor therefore, they were not taken on the stock list hence the question of loss in any manner did not arise at all. For Charge No, 7 which pertains to the sale of lion cubs it has been submitted that the same was done to ensure economic measure as the permission in writing was asked in view of the suffering of the animals coupled with the paucity of space, with attending danger of clash of ferocious animals, It has been pointed out that since the orders were passed by the Vice-Chairman the question of irregular sale by the appellant did not arise. With regard to the observation of the Enquiry Officer about the loss of Rs, 19,000 it has been submitted that the same was conjectural as there was no evidence worth the name on record to show that the lion cubs could be sold at an amount in excess of the amount for which the appellant sold them. Dealing with Charge No, 8 relating to tender for the supply of Ration to the Lahore Zoo, it was submitted that the allegation was abundantly misconcieved. It has been submitted that tender of Muhammad Yasin being the lowest therefore, the same was accepted and was also in consonance with the spirit of rules which called for economic action. For Charge No, 9 the stand of the appellant is that the lowest tender had to be considered keeping in view the maintenance of supply to the animals of the Zoo and after due advertisement made in the Press for inviting quotations, no other course could possibly be adopted to afford competitive rates. He has described the statement o f Muhammad Nazir as of no value and unworthy of credence. With regard to Charge No, 10 which pertains to renting out the shops it has been submitted that the same was done on the direction of the Vice-Chairman/Chief Executive and was vested with the requisite powers. The decision of Vice-Chairman was based on the fact that auction was held on 30th June, 1978 and was partly unsuccessful as the bid offered were alarmingly low and had the leases been granted on the basis of that auction, it would have caused a huge loss to the zoo. This is why the Vice-Chairman had ordered to lease out the shops by private negotiation on monthly basis. The appellant only complied with the said orders, therefore, he could not be held guilty of the said charge. Charge No, 11 does not need any discussion as the same was found unproved by the Enquiry Officer himself. For Charge No, 12, it has been submitted that the finding of the Enquiry Officer are based on conjecture as he has not referred to any rule on the subject which required certification of the ticket books. However, this measure was adopted by the appellant to ensure against the pilferage of tickets. Although this practice was normally being adhered to, but in view of the extraordinary rush on Eid festival and the arrival of printed ticket books at the nick of time the appellant could observe this procedure strictly. The explanation of the appellant was quite plausible and the finding on this point was incorrect. With regard to Charge No, 13 which pertains to the printing of tickets according to requirements of zoo, it has been submitted that the same had to be discontinued as the same would have been unprofitable and the discontinuation of printing of the third part of the tickets was adopted to avoid an apparent deadlock in the supply of tickets, which would have caused extreme handicap in the sale thereof, and that the continuation of printing of the third part would have burdened the zoo with an additional expenditure of Rs, 12,000 for printing of insignia of the National Bank of Pakistan on the reverse of the tickets. Charges Nos, 14, 15 and 16 were held as do not prove, therefore, the same are not discussed by the learned counsel for the appellant. Charge No, 17, it has been submitted that the Enquiry Officer has failed to appreciate the charge and explanation offered in this behalf and as a matter of fact the temporary stalls on Eid days were leased out through open auction. Some of the unauthorised persons taking undue advantage of the Eid festival and the consequent rush managed to instal small stalls in an unauthorised manner. Instead of creating law and order situation and to have recourse the police action against them it was considered expedient to charge penal rent from them which in addition to avoiding litigation could afford financial assistance to the zoo. The amount so realised was deposited in the zoo account against proper receipt, therefore, the question of violation of rule did not arise.
8. On the other hand learned District Attorney has adopted the detailed inquiry report which runs into 45 pages of Mian Muhammad Rafi, 0. S. D. Enquiries, S & G. A. D. And has submitted that the learned Enquiry Officer has fully taken into account the defence of the appellant and his conclusions were arrived at after recording the evidence on each and every charge.
9. We have given our anxious thought to the arguments advanced by the parties and after taking into consideration the arguments of the learned counsel for the appellant, we have read the inquiry report in juxtaposition and find that whereas the negligence of the appellant stands fully proved but there is nothing on record to show that due to his such negligent acts, Government has suffered any loss in any manner of whatsoever. We have also taken into consideration the legal plea of the appellant's counsel that earlier the matter on the said charges were shelved under the orders of the Advisor to Governor/M. L. A. Zone 'A' Punjab, bat find from record that the matter was only closed as far as any criminal action was required but it is very much there that the Governor was pleased to order that departmental enquiry may be taken in hand on the said charges. In view of this note of the Governor we have no hesitation to repel this argument of the learned counsel for the appellant that no inquiry should have been initiated against the appellant.
10. The result is we hold the appellant guilty of inefficiency but accept his appeal to the extent that recovery of Rs, 21,273.50 is waived as no pecuniary loss has occurred to the zoo administration/Government due to his certain acts. However penalty of reduction to a lower stage in the time scale by one step is maintained. The impugned orders are set aside to the extent indicated above. However, there will be no order as to costs.