S. ABDUL JABBAR KHAN (CHAIRMAN).--Nazir Ahmad formerly Road Inspector, Highway Department, Faisalabad, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Chief Engineer. Highways Department, Punjab, Lahore and the Secretary to Government of the Punjab, Communication and Works Department, Lahore, as respondents.
2. By virtue of this appeal he has prayed that the impugned orders dated 28-7-1982 and final order dated 23-8-1982, be set aside and he be re-instated in service w.e.f. 28-7-1982. He has also prayed that the respondents be directed to pay the appellant his pay and allowances for the intervening period between his original dismissal from 17-5-1980 and re-instatement on 13-5-1982 or alternatively the appellant be paid subsistence allowance as originally sanctioned by order dated 21-3-1975.
3. Brief facts of the case are that the appellant was dismissed from service vide order dated 17-5- 1980, passed by respondent No.1 and was required to pay a sum of Rs.24,025 unauthorisedly spent by him on repairs to a portion of the Lyallpur-Jhang Road in 1965. The appellant filed appeal before the Punjab Service Tribunal Lahore, which vide order dated 22-3-1982, remanded the case to the Authorised Officer i.e. The Chief Engineer, for undertaking fresh proceedings if so advised, in accordance with rule 7(8) of the Efficiency and Discipline Rules. The appellant was proceeded against accordingly and after going through all the formalities the respondent No.2 vide his order dated 28-7-1982, awarded the following two penalties against the appellant:-
(1) Compulsory retirement from service;
(2) Proportionate recovery of loss to Government to be determined and recovered by Chief Engineer Highways Department, Punjab, Lahore.
Appellant submitted representation but the same was rejected vide letter, dated 23-8-1982, which reached the appellant on 25-8-1982. 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 entire record of this case as well as inquiry report, and parawise comments submitted by the respondents.
5. Learned counsel for the appellant has submitted that despite the order of remand by this Tribunal and specific direction given therein the respondents have failed to observe the procedure as laid down in the Efficiency and Discipline Rules as interpreted in the case of Mir Muhammad v.
Government of the Punjab. A grievance has been made that according to the interpretation of rule 7(8) it was necessary that Authorised Officer should have examined the case in the light of explanation furnished by the appellant to the show-cause notice and then submit record of proceedings to the Authority for his orders. According to the learned counsel for the appellant this has not been done so. It has also been submitted that the pay of the appellant for the intervening period was unjustifiably withheld although it was due to no fault of the appellant that he had been illegally dismissed from service. Lot of stress has been laid by the learned counsel for the appellant on the point that according to the factual position of the case no charge was proved against him and the Enquiry Officer Mr. Masud Ali Khan came to the conclusion which was highly unjustified and was arbitrary in nature. A legal point has also been raised by submitting that in the year 1965, when the irregularities were occurred, the appellant was not a civil servant at that time and he was only a work charge employee. In this manner the legality of the order has been assailed.
6. On the other hand learned District Attorney has submitted that the legal point raised with regard to the status of the appellant that he was only work charge employee and not a civil servant, that there was no denial of the fact that the services of the appellant were secured on work charged basis prior to July, 1972, but as the appellant alongwith other work charged establishment was brought on regular basis w.e.f. 1-7-1972, therefore, he was a civil servant and could be proceeded against under the Efficiency and Discipline Rules. It was further submitted that though the irregularities came to the notice of the Department in 1965, but a joint enquiry was initiated against the appellant and other co-accused involved in this enquiry under Rule 2.2 of the Punjab Civil Servants (E & D) Rules, 1975. Thus, it would be seen that the inquiry was initiated against the appellant when he was brought on regular cadre, therefore, we amenable to Efficiency and Discipline Rules, 1975, under which he was so proceeded.
7. With regard to the merits of the case it has been submitted that the appellant was afforded opportunity to appear before the authority on 17-7-1982, to clear his position and produce evidence in his defence but he failed to do so. It has been denied that the appellant was entitled to show- cause notice by the Authorised Officer on the strength that no such provision was available to him in the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, for issuing a show-cause notice by the Authorised Officer. Learned District Attorney has laid lot of stress on the Inquiry Report so submitted by Mr. Masud Ali Khan, Enquiry Officer wherein the appellant was afforded full opportunity of personal hearing as well as consulting the record, therefore, according to the learned District Attorney, no such prejudice was caused in his case, whereas he miserably failed to defend himself.
8. Regarding the grievance of the appellant that he was not allowed pay for the intervening period as well as subsistence allowance, it was submitted that as the case was remanded on purely technical ground for de novo proceeding, therefore, the appellant did not remain on duty for the intervening period, as such he was not entitled for the allowance for the period from 17-5-1980 to 13-5-1982. Learned District Attorney has vehemently argued that the appellant was held responsible for the excessive use of 12.58 tons of bitumen and misappropriation of material worth Rs.19,492.02, therefore, he was responsible for shortage/ excessive material to the extent of Rs.24,025.14, and the responsibility was duly fixed on him by the Enquiry Officer after taking all the pros and cons of the case into consideration. It has been urged on behalf of the learned District Attorney that the appellant's appeal has no merits and the same may be dismissed with costs.
9. We have given our anxious thought to the arguments so advanced by the parties and after taking into account the merits of the case, we find that all the charges so levelled against him stood fully proved vide detailed Inquiry Report of Mr. Masud Ali Khan dated 29-6-1979. The appellant was provided with a copy of the Inquiry Report and full chance of personal hearing before his superiors, but he could not advance any cogent defence in his favour, which could persuade his superiors to uphold his stand. Taking into consideration charge No.1, which pertains to excessive use of bitumen more than the sanctioned quantity for the work of resurfacing, patch work and heavy patch work of Lyallpur-Jhang in miles 98,101,103 and 104, the defence of the appellant was that all the road was in precarious condition and it was inevitable to use more bitumen and also the bitumen was carted in old drums from the bulk depot of Burmah Shell and some bitumen was lost through leakage of drums, could not be considered tenable on the ground that one the estimate was prepared keeping in view the condition of the road and was sanctioned by the competent authority, the appellant was under obligation to, adhere to the requirement of such estimate and his negligence to do so, made him fully responsible for the excess use so made by him. Similarly his plea that the bitumen was lost through leakage, the Enquiry Officer found that the same could not be debited to the work blindly without assessing the extent of loss and fixing the responsibility. He invoked the provision of Article 4.32 of B & R Code, which we have examined and find that the appellant was responsible for the lapse so attributed to him. While examining charge No.2., which pertains to supply of 4.28 tons of bitumen in bulk, we find that this quantity was fully recorded vide entry at page 110 Measurement Book No.2325 but despite this entry, this bitumen was neither taken on R.M.R. Nor it was shown consumed any where. In this respect we have carefully looked into the R.M.R. With the M.B. And find that although the Sub-Engineer was guilty of the same but the responsibility of the appellant was always there and being a Road Inspector, the person at the spot cannot be absolved of the same. With regard to charge No.2(b) we have taken pains to look into the detailed inquiry report on this subject so made by the Inquiry Officer, who checked the entire record and according to his analysis, it was found that only 750 cft. Bajri was shown received and consumed in mile 93 in 7/1965. The S.D.O. While checking R.M.R. Remarked that no patch work/jump removal was done in mile 93 in 7/65, therefore, the appellant was rightly held responsible for this omission. We have further satisfied ourselves from the record that the Road Inspector did not lodge any protest in writing either with the Executive Engineer against those crucial remarks so made against him on the R.M.R. Lastly charge No.3 has also been taken into consideration by us and we find that different materials such as stone matal, Bajri bitumen and fuel wood worth Rs.31,212.05 stated to be issued to Faisalabad -Jhang Road in miles 87-112 from 11/64 to 7/65 and shown as consumed without the help of road rollers was not so consumed. From the record it has been proved that the entire material was consumed within only one month and that too without employing additional labour or the road roller. When the appellant was confronted with this situation and was asked by the Enquiry Officer to produce the record of the labour so employed, the appellant failed to do so. In these circumstances, we do not find that any injustice has been done to him or the findings of the Enquiry Officer were in any manner based either on conjecture or conclusions or were drawn in arbitrary manner. In these circumstances, we have no reason to differ with the Enquiry Officer as well as competent authority who came to a justified conclusion that all this loss to Government has occurred due to the act of the appellant who was responsible to explain the same.
10. With regard to the legal point raised by the appellant that he was not a civil servant in the year 1965, when all this had occurred and thus cannot be proceeded against under the Efficiency and Discipline Rules, we hardly find any merit in the same on the ground that the appellant alongwith other work charged establishment was brought or regular strength on 1-4-1972 and, therefore, he could be proceeded against in the joint inquiry which was so initiated at the stage when he had actually became amenable to the discipline under the Efficiency and Discipline Rules, 1975. It is a settled point of law that the inquiry is initiated from the service of charge-sheet on the accused official and thus provisions of E & D Rules of 1975, would be applicable from the said date. In view of the above, we repel the arguments so advanced by the learned counsel for the appellant. We also do not find any exception to the act of the Department in recovering the proportionate. Sum from the appellant as the same can be done under the Government Dues Ordinance, 1960. The impugned orders have been issued by the competent authority after consulting the entire record and after affording him full opportunity of personal hearing, therefore, it cannot be said that any prejudice has been casued in his case.
11. The result is we dismiss the appeal as being without any merit. There will be no order as to costs.
M.I.