Abdul Qayyum Niazi, Foodgrain Inspector, Kacha Khuh, District Khanewal has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded Deputy Director, Food Multan Region and Director Food, Punjab as respondents.
2. By virtue of this appeal, Abdul Qayum Niazi has prayed that order, dated 10-3-1985 passed by Deputy Director Food, Multan Region (respondent No.1) imposing recovery of Rs.70,079,07 and order, dated 20-7-1985 passed by Director Food, Punjab (respondent No.2) rejecting his appeal may be set aside.
3. The facts of the case are that during the procurement scheme 1982-83 when the appellant was posted at Procurement Centre, Kacha Khuh, 5064.325 tons of wheat was stored in bulk in 8 house- type godowns during May-June 1982. However, on final clearance in March 1984, a shortage of 64.175 metric tons was found and reported in form No.SF.26 in respect of each godown.
On receipt of report about shortage of 64.175 metric tons, the Deputy Director Food, Multan Region directed the District Food Controller, Multan under Rule 5 of the Punjab Civil Servants (Efficiency and Dicipline) Rules, 1975 on 19-8-1984 to proceed against the appellant for the said loss and submit his "findings" to him within one month.
"After having gone through the relevant record and connected papers, it is hereby alleged:- That during the scheme year 1982-83, a storage loss weighing 64 metric Tons of wheat, godown shortage was declared by you against stored quantity of 5064.325 tons of wheat at P.R. Centre Kacha Khuh. The shortage is considered abnormal and unjustified. For your singular act of wilful negligence, the Government has sustained a heavy loss for which you are responsible.
2. That the S.F. 26 were not wilfully prepared by you within a period of one week after final clearance which is contervention of Government order amounting to misconduct.
3. In terms of Rule 6 of the Government Servants (E&D) Rules, 1975 the above allegations are made known to you and you are hereby called upon to explain your position within 7 days after the receipt of this communication clearly stating in writing as to why the loss sustained by the Government should not be recovered from you. You should send your reply to the undersigned and also appear on 4-9-1984 in this office for personal hearing if so, desired in that case."
On the basis the appellant's reply to the show-case notice and without any charge-sheet and regular enquiry, the District Food Controller, Multan submitted his "findings" to the Deputy Director, Food, Multan Region (respondent No.1) vide his memo. No.16234, dated 22-12-1984 recommending that 50$ of the shortage may be written of and the "balance quantity may be recovered" from the appellant.
After giving him a personal hearing, the Deputy Director Food, Multan Region imposed a recovery of Rs.70,079.07 on the appellant "as the loss sustained by the Government to this extent was due to his negligence". The remaining loss was written of by him in exercise of powers vested on him. On 20- 7-1985, the Director Food, Punjab rejected his appeal. Hence, this appeal before the Tribunal.
4. I have heard the learned counsel for the appellant and the learned Deputy District Attorney and have also perused the record carefully with their assistance.
5. The learned counsel for the appellant has submitted the following main points:-
(i) There were heavy and untimely rains during the procurement scheme 1982-83 when the wheat stocks were being received at Procurement Centre Kacha Khuh. In support of his statement the learned counsel for the appellant produced Newspaper clippings of issue, dated 28-6-1982 and 5- 7-1982 of Daily 'Jang' (Lahore Edition). These Newspaper cuttings showed that the wheat crop had been damaged due to untimely rains.
(ii) As the wheat received at Kacha Khuh was rain-soaked it lost weight on drying up.
(i.e) The appellant tried his best to sift the comparatively good from the bad stock before accepting it for storage but he could not reject the entire stock. This would have disrupted and stopped the storage work at P.R. Centre, Kacha Khuh. However, he submitted written complaint to the higher authorities about the sub-standard and rain damaged condition of wheat sent to Kacha Khuh. In this connection, the learned counsel for the appellant invited attention to report, dated 21-5-1982 submitted by the appellant to the District Food Controller, Multan and report, dated 22-5-1982 submitted by the appellant to Incharge Procurement Centre Makhdoompur from where damaged wheat was being despatched to Kacha Khuh. He also quoted from reports, dated 31-5-1982 and 25-5-1982 regarding damaged condition of wheat, copies of which were appended to the appeal at Annexure 0/2 and 0/3.
(iv) The rain soaked wheat became infested with "Susri and Khapra" as early July 1982 and the appellant submitted a report to this effect to District Food Controller, Multan on 13-7-1982 requesting for permission to fumigate the stock. A copy of this report is at Annexure 0/4 of the appeal.
(v) Although the wheat stocks were stored in house-type godowns, at least one of them was in a damaged and dilapidated condition. In fact a complaint to this effect was recorded by the Storage and Enforcement Officer (Food), Multan Region on 8-6-1982 when he visited Kacha Khuh Centre for inspection. A report of this complaint was also sent to the District Food Controller, Multan, Deputy Director Food, Multan Region and Director Food Punjab.
The damage condition of the godown further damaged the wheat stored in it.
(vi) Although the wheat stocks were stored in house-type godowns, they were filled with stocks beyond their approved capacity under orders of District Food Controller, Multan. In this connection the learned counsel or the appellant referred to order, dated 1-6-1982 of D.F.C., Multan recorded by him in Inspection Register Kacha Khuh which reads as follows:- "Try to store 1500 tons in each godown."
(vii) The storage of wheat stock in the abovementioned godown beyond their capacity generated unusual heat. The result was that even repeated fumigation proved ineffective. This further damaged the wheat stock.
(viii) The wheat stocks were stored in house-type godowns for an abnormally long period spreading over 21 months and this resulted in further damage to the stocks.
(ix) In spite of the shortcomings mentioned above for which the appellant was not responsible, the shortage on final clearance of wheat stock was 1.2% only. This could not be considered as abnormal. In this connection the learned counsel for the appellant relied on judgment given by this Tribunal on Case No.648/421 of 1985 and Case No.649/422 of 1985 which inter alia reads as follows: - "He has relied on the decision, dated 12-7-1984 to which loss of 2.5% during the period of about 7 months was considered quite normal and it was written of. It has been argued that even the Government Experts have already assessed the average shortage of wheat in the process of storage. According to the Department of Entomology. University of Agriculture, Faisalabad, the average shortage is as follows:-
(1) House-type Godowns. : 3% 6 months or 6% per year.
(2) Open stores. 9 to 11% per year.
Similarly further reliance has been placed on the shortage worked out by NLC Headquarters GHQ, Rawalpindi, which also runs on the same lines."
(x) The District Food Controller, Multan did not held the appellant guilty of negligence in his report submitted by him to the Deputy Director Food, Multan Region. However, the District Food Controller recommended that 50% of shortage may be written of and the remaining loss may be recovered from the appellant.
The recommendation for recovery of 50% loss from the appellant had no logical basis.
(xi) The Deputy Director Food, Multan Region (respondent No. l) vide his order, dated 10-3-1985, decided to write of loss in exercise of delegated powers and imposed a recovery of Rs.70, 079.07 on the ground that loss to this extent was due to the negligence of the appellant. How the extent of his negligence was assessed has not been clarified in the order recorded by the respondent No. 1. The order for recovery was therefore arbitrary and without any logical basis.
(xii) Order, dated 20-7-1985 by the Director Food, Punjab (respondent No.2) was also arbitrary because he did not take into account any objective criterian for assessing the extent of negligence by the appellant before imposing recovery of Rs.70.079.07 on him.
(xiii) The record of proceedings shows that the order of recovery of Rs.70,079.07 from the appellant was passed by the respondent No.1 and upheld by respondent No.2 on the basis of a show-cause notice only without holding any regular enquiry. Thus, the appellant was denied a reasonable opportunity to defend himself.
6. The learned Deputy District Attorney adopted the comments submitted by the respondent No. l and submitted that the penalty imposed on the appellant was justified and his appeal may therefore be rejected.
7. I have given anxious thought to the submissions made by both sides. On careful analysis of these submissions and the record produced before me I am led to conclude that the orders, dated 10-3- 1985 passed by respondent No.1 and order, dated 20-7-1985 by respondent No.2 are arbitrary and against the rules of natural justice. In this connection, attention is invited to the following:-
(i) In his findings conveyed vide memo. No.16234/CC, dated 22-12-1984 to the Deputy Director Food, Multan Region, the District Food Controller, Multan has not held the appellant guilty of any negligence. However, without holding him guilty of any negligence, the District Food Controller, Multan recommended that 50% shortage may be written of and the remaining loss may be recovered from the appellant. This recommendation has no' logical base.
(ii) In his order, dated 10-3-1985, respondent No.1 has held the appellant guilty of negligence on the ground that the stocks were stored in house-type godowns and such a heavy loss could not occur provided due care was exercised. Similarly, respondent No.2 in his order, dated 20-7-1985 has upheld the order passed by respondent No.1 on the ground that the stocks were stored in house- type godowns which are proper and scientific. However, both respondent No.1 and respondent No.2 have ignored the fact that there were heavy rains during the procurement scheme 1982-83 as proved by the newspaper clippings and that the stocks received at P.R. Centre Kacha Khuh were rain affected and sub-standard. Both the respondents have also ignored the fact that the appellant had submitted complaints about the sub-- standard wheat to the higher authorities and had taken other precautions by fumigating the godowns but these precautions also did not help as the godowns were filled beyond their approved capacity under the orders of the District Food Controller, Multan as is proved by his inspection note, dated 1-6-1982 recorded by him in the inspection register of Procurement Centre Kacha Khuh.
(i.e) In his parawise comments on this appeal, respondent No.1 has made the allegations that the appellant had accepted the stocks after full satisfaction and that he filled up the godowns beyond their capacity. These allegations have not been mentioned either by respondent No.1 himself in his order, dated 10-3-1985 nor by respondent No.2 in his order, dated 20-7-1985. Therefore, these allegations made in parawise comments on this appeal by respondent No.1 are in the nature of an afterthought.
(iv) Order, dated 10-3-1985 passed by respondent No.1 clearly shows that he has written of Rs.46,719.37 in the light of his delegated powers and for the remaining loss he has held the appellant B responsible without applying any objective criteria to determine the extent of his negligence. Thus, the penalty of recovery of Rs.70,079.07 is arbitrary and against the rules of natural justice.
(v) The penalty of recovery of Rs.70,079.07 has been imposed on the appellant on the basis of a show-cause notice only holding any regular enquiry to determine the extent of his negligence.
Thus, the appellant was denied a reasonable opportunity to defend himself properly. In case of Habib Khan v. Federation of Pakistan reported vide PLD 1954 Sind 109, it was inter alia held that: "The Court has to see in the light of the facts of each case whether a reasonable opportunity for showing cause had been afforded to the servant concerned or not.
8. In the light of the abovementioned detailed analysis of the case, I am led to conclude that the orders, dated 10-3-1985 passed by respondent No.1 and order dated 20-7-1985 passed by respondent No.2 were arbitrary and against the rules of natural justice. Further, the appellant was denied a reasonable opportunity to defend himself properly as no regular enquiry was held to determine the extent of his negligence before imposing penalty of Rs.70,079.07. I, therefore, accept the appeal and set aside the impugned orders, dated 10-3-1985 and 20-7-1985 and quash the arbitrary recovery of Rs.70,079.07 from the appellant. There will be no order as to costs. Judgment be communicated to the parties.
M.Y.H/110/Lb.S revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.