' ABDUL HAM1D CHAHDHRY (MEMBER).-Munawar Hussain, Sub-Engineer, Housing and Physical Division, Gujranwala has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the respondents mentioned above.
2. By virtue of this appeal the appellant has prayed that the order, dated 10th October, 1983 passed by the respondent No, 1, upholding the order, dated 26th February, 1981, passed by respondent No, 2 to the extent of imposition of penalty amounting to Rs, 39,714 be declared illegal and respondents be directed not to recover the same from the appellant. It has also been prayed that the respondents be directed to release the outstanding pay of the appellant.
3. Brief facts of the case are that the appellant was employed as Sub-Engineer by the Director, Housing and Physical Planning Division, Sargodha and posted at Jhang. The Director, Housing and Physical Planning Circle Sargodha at Faisalabad issued a charge-sheet, dated 31st May, 1977 in which it was stated that the appellant had been found guilty of {{BLUR PAGE}} caus, loss to Government. St ts to the tune of Rs, 39,714 and was asked t. 'bmit his written no. Within 14 days failing which disciplinary action was 'le initiated against im. A copy of the charge-sheet is at Annexure 'A The appellant fil .1 his reply to the charge-sheet denying the allegations. Enquiry w- held against the appellant. The Enquiry Officer recommende, '^-- of increment for one year without future {{BLUR PAGE}} effect as a disciplinary action. However, respondent No, 2 vide his order dated 26th February, 1981, imposed a recovery amounting to Rs, 39,714 from the appellant at the rate of 1/3rd of the pay and also stoppage of three increments alongwith censure. The appellant filed an appeal before the Director-General, Housing and Physical Planning Department, Lahore, which was accepted to a limited extent and the stoppage of increments and censure were waived vide order, dated 12th October, 1983, passed by the Director-General, Housing and Physical Planning Department. The recovery of the amount of Rs, 39,714 was ordered to be deducted from his pay. Hence this appeal.
4. We have heard the parties i. e., Mian Sami-ud-Din, Advocate for the appellant and Mr. Masood Ahmad Ghuman, Deputy District Attorney assisted by the representative of the respondents on behalf of the respondents.
5. It has been submitted by the learned counsel for the appellant that the appellant has been punished arbitrarily. The loss of the material attributed to the appellant, valuing Rs, 39,714 was not the responsibility of the appellant. The material in question remains the property of the Contractor and according to clauses 2 and 4 of the Agreement i. e., Indenture, it is the contractor concerned who is solely responsible for the safe custody of the material. He is, however, not authorised to remove the material from site and the adjustment of the material is made according to consumption at site. The material thus remains at site and neither it is to be exhibited in the M. B.
Nor on any other book, simply for the reasons that it is the contractor's property. It has been pointed out by the learned counsel for the appellant that the appellant did not have any direct responsibility for this material, which was actually the property of the contractor who was responsible for the proper use and consumption of the material at site. The contractor himself removed the material from site for other works and he had to account for this material. It was the liability of the contractor to make good the loss. The departmental authorities should have proceeded against the contractor, if any shortage of material was found at site in due course of time and the recovery for the same should have been made from the Contractor. Instead of doing so the departmental authorities have penalized the appellant without his fault or any justification.
He has also referred to the report of Enquiry Officer and has submitted that the Enquiry Officer had only recommended stoppage of increment for one year without future effect wherein the appellant has been punished for the recovery of the loss to the tune of Rs, 39,714 which is against the recommendation of the Enquiry Officer as well and the punishment awarded to the appellant is not at all justified.
6. On the other hand the learned Deputy District Attorney has relied on the parawise comments submitted by the respondents and also has referred to the Enquiry report of the Enquiry Officer. He has submitted that the appellant has been held responsible by the Enquiry Officer for irregularities in taking over the charge without checking the material at site, thus, he is guilty of misconduct and has correctly been punished by the respondents and no exception can be taken against the impugned orders.
7. We have given our anxious thought to the arguments of the parties and have also perused the enquiry report very carefully. The recommendations made by the Enquiry Officer are vague. On one hand he has mentioned that no action has been initiated by the departmental authorities against the Contractor who cheated the Department in two manners, on the other hand he has held the appellant responsible for the shortage. The authority should not have relied on the recommendations of the enquiry report which is itself contradictory and should have got inquired/ examined the matter further before punishing the appellant. The recommendation made by the Enquiry Officer i. e., Deputy Director, Housing and Physical Planning Division, Faisalabad is reproduced below : - "(1) It has been observed that no action has been initiated by the department against the contractor who cheated the department in two manners.
(i) By taking payment of bitumen, which was stolen from some other store and a theft case was registered against him and consequently ten tons of bitumen was left by the Police and is still under their custody.
(ii) By lifting the stone metal as reported by the Sub-Engineer from site of work he committed as breach of clauses 2 and 4 of indem cure. Finally the shortage should have been recovered from his emoluments. As explained it is recommended that contractor be forced to make good the loss either from his emoluments with the department or the amount may be recovered as arrears of land revenue through proper procedure as he is the only person responsible grossly for this huge loss.
(2) Mr. Mukhtar Ahmad Sub-Engineer did not follow the approved procedure of building and costing. He made erroneous entries in Measurement Book by billing 104/140 trucks of stone metal in one single day and at the same time he did not reported the lifting of the stone Metal from site by the contractors (which he has confessed before me). Thus, he is liable to disciplinary action i,e, stoppage increment for one year without further effect.
(3) Similarly Mr. Munawar Hussain Sub-Engineer committed as mistake by taking over the charge without checking the material present at site. Although it was under the custody of the contractor yet liaison by the Department through Sub-Engineer is necessary. He reported the shortage in his charge report dated 3rd July, 1975 but it was well after the time prescribed for this purpose.
' As such a disciplinary action (stoppage of increment for one year without future effect) is recommended."
' On perusal of the above recommendation of the Enquiry Officer, we are of the considered opinion that the appellant should not been punished on this contradictory enquiry report which leads nowhere.
8. The result of the above analysis of the case is that the appeal is accepted. The impugned orders are set aside and the case is remanded to the competent authority for proceedings afresh by conducting another enquiry to conclude the case in right earnest.
' There are no order as to costs.