' ABDUR RASHID (MEMBER).-- The appellant, S.M.A. Rizvi, while serving as Cantonment Executive Officer, Rawalpindi, was placed under suspension vide Ministry of Defence letter, dated 2-12-1980.
The suspension was ordered because of loss of life and property, which occurred due to collapse of a dangerous building in the cantonment, which had been earmarked for demolition but was not demolished. Thereafter, the appellant was served a charge-sheet, dated 12-1-1981 together with a statement of allegations, relevant portions of which are reproduced:- "(i) The building known as American Express Building located at Haider Road, Rawalpindi of Cantonment Board was damaged by fire on 21-11-1979, and was finally recommended to be demolished to avoid mishap by C.M.E.S., Rawalpindi, on 11-3-1980, but you failed to take prompt action in exercise of the powers vested in you under section 25 of the Cantonment Act, 1924, for demolishing the said building, which was necessary for the safety of the public. As a result of your gross negligence, the said building collapsed on 1-12-1980 resulting in the death of one person, injury to two persons, besides causing substantial damage to other properties."
"STATEMENT OF ALLEGATIONS ' The American Express Building situated at Haider Road, Rawalpindi Cantonment, which is the property of Cantonment Board Rawalpindi was set on fire by a mob on 21-11-1979 and had become dangerous. The Cantonment Engineer, Rawalpindi submitted a report on 3-12-1979 to Mr. S.M.A.
Rizvi, who was Executive Officer, Rawalpindi Cantt., from 14-9-1978 to 2-12-1980 saying that this building seemed to be dangerous and advised the vacation of first and second floor of the building immediately. Mr. Rizvi, instead of acting on this report requested the C.M.E.S., Rawalpindi on 14-12- 1979 to detail a board comprising of G.E.(West) and one more Engineer to assess the damage and give a detailed report. After exchange of several letters between Mr. Rizvi and the M.E.S., the G.E.
(West) submitted a report to Mr. Rizvi on 18-2-1980 advising that this building was dangerous and should not be occupied till the defects were rectified. Mr. Rizvi submitted this report to the President Cantonment Board Rawalpindi who ordered that C.M.E.S. Should be asked to confirm the report of G.E.(West) and also advise whether the building should be demolished/repaired. The C.M.E.S. In his report, dated 11-3-1980 declared this building to be unsafe beyond repairs and suggested its demolition to avoid a mishap.
2. The Executive Officer is vested with special powers under section 25 of the Cantonments Act, 1924, which reads as follows:-
25. Special ower of the Executive Officer.-- The Executive icer may, in cases o emergency, direct the execution of any work or the doing of any act which would ordinarily require the sanction of the Board and the immediate execution or doing of which is, in his opinion, necessary for the service or safety of the public, and may direct that the expense of executing such work or doing such act shall be paid from the Cantonment Fund: ' vProvided that--
(a) he shall not act under this section without the previous sanction of the President or, in his absence, of the Vice-President.
(b) he shall not act under this section in contravention of any order of the Board Prohibiting the execution of any particular work or the doing of any particular act; and
(c) he shall report forthwith the action taken under this section and the reasons therefor, to the Board.'
3. Mr. Rizvi should have acted promptly in exercise of the above mentioned powers and ordered the demolition of this building to make it safe for the public at least on receiving the clear cut report of C.M.E.S. On 11-3-1980. Mr. Rizvi neglected to take prompt action and instead referred the case to the Cantonment Board Rawalpindi. It was on 27-11-1980 that at the suggestion of Cantonment Engineer that Mr. Rizvi did exercise the emergency powers but then it was too late. The building collapsed on 1-12-1980 resulting in the death of one person, injury to two perons and damage to private and public properties.
4. This loss of human life and damage to property could have been avoided if Mr. Rizvi had not neglected to exercise the powers available to him under section 25 of Cantonment Act, 1924 at the appropriate time."
2. The appellant furnished his 14-page defence reply on 20-1-1981 to the Inquiry Officer, denying the allegations and praying for honourable exoneration.
3. As a result of the enquiry, two minor penalties of "censure" and "stoppage of increments for a period of three years" were imposed vide letter, dated 4-4-1982. From the said impugned order of punishment, the appellant preferred an appeal to the President of Pakistan on 29-4-1982. He got no reply and after exhausting the waiting period of 90 days, came up in appeal before the Federal Service Tribunal on 26-8-1982. The appeal was admitted for regular hearing on 23-1-1983 and is, now, being disposed of by this order.
4. We heard the learned counsel from both sides. We have also read through the enquiry report, a photo copy of which was made available and as a result of which the appellant had been held guilty and inflicted two minor punishments, already referred to.
5. There were, according to the learned counsel for the appellant, a number of technical infirmities thereby vitiating the proceedings. Such infirmities, which in our opinion have been of a nature as to cause no prejudice to the defence of the appellant, have been omitted. However, those of the flaws which have, in our considered view, prejudiced the defence of the appellant are being mentioned.
First: a copy of the enquiry proceedings was not made available from which the appellant could discern the conclusions or findings of the Inquiry Officer resulting in the two minor punishments.
Second: the appellant was not given a show-cause after the enquiry, to call upon him to explain his conduct with regard to such charge or charges which, in the opinion of the Inquiry Officer, stood substantiated against the appellant. Third: there was no personal hearing allowed to the appellant before the Authorised Officer inflicted the penalties. This personal hearing was warranted especially, because the appellant had neither been provided a copy of the enquiry report nor a show-cause notice after the enquiry but before the award of punishment. Fourth: As stated under rule 5(iv), "xxx If it is proposed to impose a minor penalty he shall pass orders accordingly. Xxx." Not more than one penalty could have been inflicted by the authorised officer, whereas in the instant case, two penalties have been imposed. There are serious legal lacunae, on the basis of which, we could have easily set aside the proceedings.
6. Arguing the case on merits, the learned counsel for the appellant highlighted the fact that a plain reading of section 25 of the Cantonments Act, 1924, would lead anyone to the obvious conclusion that the special powers of the Executive Officer under the said section are subject to previous sanction of the President or in his absence of the Vice-President and that the C.E.O. "shall not act under this section in contravention of any order of the Board prohibiting the execution of any particular work or the doing of any particular act." The bare reading of the section with its provisos would leave no doubt in any one's mind that the C.E.O., even in the exercise of special powers as conferred upon him under section 25 of the Cantonments Act, 1924, CANNOT act on his own. If it could be even remotely established that the appellant, in his capacity as the C.E.O., had, at any stage, acted negligently from the time the American Exprpess building was declared dangerous on 11-3-1980, till its collapse on 1-12-1980, then the punishment would be justified, said the counsel.
7. The learned counsel went over the chronology of events to prove that the appellant, in his capacity, had done all in his power to expedite action as to the demolition of the building but he was a part of the machinery of the Cantonment Board and could work only as fast as the Board did. From the chronology of events and beginning with 11-3-1980, the C.M.E.S. Declared that the structure was no longer safe and should be demolished. However, no immediate demolition was suggested. On 12-3-1980, the P.C.B. Decided to place the matter before the Board and this was done on 26-3-1980: As a result, between 13 and 22 April, 1980 the reserve price of Rs, 75,000 was indicated and on the same date viz. 22-4-1980, A.S.L(R) was ordered to put up Auction Notice. On 23-4-1980, notice were issued which appeared in newspapers on 30-4-1980 for auction on 4-5- 1980. On 4-5-1980, highest bid of Rs, 70,000 was received. As required under section 25 ibid, the case was put up to the P.C.B. For approval of the board on the same day i,e, 4-5-1980. On 22-5- 1980, the P.C.B. Decided that since the highest bid was less than the reserve price (of Rs,75,000) the building should be reauctioned. This resulted in the second notice of auction on 24-5-1980 for 31-5- 1980 and appeared in the newspapers on 29-5-1980. On 31-5-1980, no one turned up to bid. A third notice of auction for 11-6-1980 was issued which appeared in the newspapers of 8-6-1980. Again no one came forward to bid on the appointed date viz. 11-6-1980. As a result of discussion with the P.C.B., it was decided on 12/14 June, 1980 that the person who had offered the earlier bid of Rs,70,000 ought to be contacted to renew his offer. On 15-6-1980, a letter to this effect was issued but there was no response. On 22-7-1980, the P.C.B. Decided that tenders be invited. On 27-7-1980, a tender notice was issued for 4-8-1980, which appeared in the newspapers on 1-8-1980 but no tender was received. On 9-8-1980, yet another notice was published for 28-8-1980. On 28-8-1980, as a result of discussion, the P.C.B. Decided that the tender be invited for demolition and stacking a material.
Required action was initiated the same day and after estimate of cost of dismantling, on 21-9-1980, a tender notice by 27-9-1980 was issued to term contractors. On 27-9-1980 lowest bid of Rs,30,000 was received and on 29-9-1980, this offer was sent to the C.M.E.S. For vetting. On 5-10-1980, the C.M.E.S. Opined that the bid was reasonable, On 16-6-1980, the auction proceedings were put up to the Board. The Board decided to hold the matter in abeyance till Col. Raza had offered an alternative solution. After being remained on 23-11-1980, Col. Raza express inability to do anything.
On 27-11-1980, the case was put up to the P.C.B. For approving the bid of Rs,30,000. On 1-12-1980, P.C.B. Accorded approval and, tragically, on the same day the building collapsed.
8. From the above, fully documented narrative of events, we do not find that the appellant did not act when he should have. He was working diligently as part of the machine of the Cantonment Board. He could not, in our opinion, outpace the Board. On the other hand, we are convinced that everyone in the Board including the appellant acted in good faith in the interest of the Board and tried to obtain as much financial benefit for the demolition and the delay occurred, mainly, for this reason before the building crashed down. No one could reckon that the building was, at any stage, in imminent danger of collapse and that it should be pulled down as an emergency measure. The case was, therefore, handled in a steady routine as such cases generally, would be.
8-A. We have had the benefit of critical appraisal of the enquiry report which had not been made available to the appellant. We wish to highlight certain relevant aspects from the enquiry report.
Colonel S.K. Tressler, the Station Commander and President Cantonment Board has stated: "Mr. Rizvi cannot be held responsible for omission of invoking section 25 because the matter was before the Cantonment Board. Any member of the Board had the liberty to bring to the notice of the Board the emergency and no member brought up this point in any of the meetings."
' He also stated: "At no stage during the 13 months was the building in imminent danger of collapse."
"I did not think that there was any urgency of demolishing it because it was not mentioned in the report that it was in imminent danger of collapse."
9. The Cantonment Engineer has said that "no emergency action was called for in this case".
10. The conclusions reached by the Inquiry Officer are worth reproducing:
(i) Mr. Rizvi in his capacity as the C.E.O. Did possess exclusive authority under section 25 of the Cantonment Act to invoke the emergency action.
(ii) Section 25 of the Act empowers the C.E.O. Alone to exercise this authority in his own discretion.
(iii) The failure of the accused officer to invoke section 25 of the Act on the specific recommendations of the C.M.E.S on 11-3-1980 was responsible for the loss of human lives and damage to properties.
(iv) The failure of the officer to take action in this case under the powers vested in him was unbecoming as an officer and a gentleman . "
11. As a result of the above conclusions, the Inquiry Officer's recommendations are:
(i) the charge of inefficiency is proved against Mr. Rizvi.
(ii) it is also proved that Mr. Rizvi was guilty of misconduct as defined in section 2(4) of the Government Servants (Efficiency & Discipline) Rules, 1971."
12. The above enquiry is, dated 2-4-1981. It is somewhat startling for us to discover that the learned Inquiry Officer, at page 9 of the report, has blamed the appellant under section 25 of the Cantonment Act, 1924 by deleting provisos (a) (b) and (c) as if the said three provisos did not exist.
Anyone reading section 25 WITHOUT the said provisos could blame the appellant, but if anyone diced that, then he would not be reading section 25 in its entirety. This is what the Inquiry Officer has done. As urged by the learned counsel for the appellant, the tragic collapse of the building had generated so much publicity adverse to the local cantonment administration and sympathetic to the victims, that a scapegoat had to be found and the appellant, being the C.E.O., was a convenient choice, whether or not he was guilty. The Inquiry Officer seems to have done precisely this.
13. Based on the above averments, we have come to the irresistible conclusion that the appellant is NOT to blame in this case. There was no danger of imminent collapse of the building and therefore, the P.C.B. As well as those constituting the Board, including the appellant, were keen that the maximum financial benefit should accrue to the Board in demolition of the building.
14. The appellant worked as part of the Board. He could neither outpace the Board nor did he have any special authority under section 25 (ibid) to act over the head of the P.C.B. And the Board.
Section 25 (ibid) without the three provisos (a) to (c) has been applied to implicate the appellant, with a view to proving the pre-conceived notion that he was guilty, meaning, thereby, that the said section has been misapplied. This has been highly unjust and has been done, palpably, to mollify the public opinion to demonstrate that a guilty person had been punished when, in fact, the person concerned could neither be held guilty nor punished under the law, if the law had been correctly applied. We may say that the entire Board was guilty just as we may be equally right in saying that no one was guilty due to the fact that none could be torn out of the Board in this particular case as has been, inappropriately, done in isolating the appellant and judging him apart from and independent of the Board and its functioning. The appellant who acted diligently or otherwise, but together and alongwith the Board, has been singled out and punished unjustifiably. This action cannot be upheld in the overall perspective and context of the case.
15. In the result we accept the appeal and set aside the disciplinary action taken against the appellant vide letter, dated 4-4-1982. He would stand exonerated as if no disciplinary action had ever been taken against him and consequently, therefore, all the benefits flowing from this order would accrue to the appellant.
16. No order as to costs.