S.ABDUL JABBAR KHAN (CHAIRMAN).--Messrs Ali Bahadur Tarar, Deputy Director Planning, Office of the Chief Engineer North, Punjab Highway Department, Lahore and Khalid Imran Khan, Deputy Director II, Area Development Scheme (LDA) Lahore, have filed these appeals under section 4 of the Punjab Service Tribunal Act, 1974, in which they have impleaded the Secretary to Government of the Punjab, Communication and Works Department, Lahore, as respondent.
2. By virtue of these appeals the appellants have prayed that the impugned orders dated 16-11-1981 and 16-5-1985/5-6-1985, be set aside and the censure awarded to the appellants be quashed.
3. As both these appeals are out of one and the same order, therefore, we will dispose of both these appeals by our this single judgment.
4. Brief facts of the case are that the appellants were served with show-cause notices dated 19-5- 1981, in which it was alleged that during their incumbency as Incharge Highway Division, D.G. Khan, from 2-7-1976 to 5-7-1979, they have neglected the following works:-
(i) Maintenance of shoulders of road from D.G. Khan to Fort-Monro to Bewata Road.
(ii) Maintenance of passages through Causeways Vedore, Mithawan and Rakhimun Nullahs.
(i.e) Clearance of drains in Hilly Sections of D.G. Khan-Fort Monro-- Bewata Road which was alleged to be choked up.
(iv) Patch work of the above-named road.
(v) Resurfacing of the above-named road.
The appellants submitted their replies on the basis of record which was made available to them and at the same time requested that remaining record be made available to them so that they may cover up the deficiency at least during the personal hearing, but the record was not made available to them. However, detailed reply was submitted and further supplemented which was fairly a detailed one. However, respondent was not satisfied with the reply so submitted by them and vide impugned order dated 16-11-1981, imposed upon them the penalty of censure. The appellants submitted Review Petition dated 22-11-1981, which now has been rejected by Government vide letter dated 16-5-1985, endorsed by the Chief Engineer on 5-6-1985. Hence, these appeals.
5. We have heard the learned counsel for the appellants as well as learned District Attorney assisted by the representative of the Department and have perused the entire record of these cases carefully with their assistance.
6. Learned counsel for the appellants has submitted that the charge of negligence was not made out against the appellants on the basis of the facts of the case as explained above but the same have not been appreciated by the respondent while passing the impugned order. Learned counsel for the appellants has relied on Annexures K and L letters dated 4-9-1984 and 2-4-1985, written by Chief Engineer (South) Punjab Highway Department, Lahore, to the Secretary to Government of the Punjab Communication and Works Department, Lahore, in which it was observed that accordingly to the record no case was made out against the appellants and it was recommended that penalty imposed upon the appellants and three other officers be withdrawn. Learned counsel for the appellants has further relied on the factual record of this case and has submitted that Chief Engineer, Highway Punjab, has admitted that there was no adequate supply of bitumen and it was made clear that Bitumen had to be hauled up. According to the learned counsel for the appellant this letter further supports the case of the appellants that they were not at fault. A grievance has been made that the Authority in the case of the officers of Grade-18 is the Chief Secretary under Rule 5 of the Efficiency and Discipline Rules, 1975, it was incumbent upon the respondent to obtain prior approval of the Authority before initiating disciplinary proceedings Against the appellants but this was not done. It has been submitted that no order has been passed to dispense with the enquiry under Rule 6(3) of the Efficiency and Discipline Rules, 1975, as the facts of the case and interest of justice require that a regular enquiry should have been made and not a summary proceedings to be adopted against them. He has mentioned discriminatory treatment whereby Mian Muhammad Abdul Latif, Executive Engineer, who was actually responsible for the defects, which were the subject-matter of the charge-sheet has been let of without any punishment and was only given a warning which according to E & D Rules, was no punishment.
7. On the other hand learned District Attorney has adopted the comments so filed by the respondent and has submitted that the penalty of censure is fully justified in view of the circumstances, and may be maintained.
8. We have given our anxious thought to the arguments advanced by the parties and without going into the merits of the case we will advert to the crucial letter on which the appellants have placed reliance. This letter is from the Chief Engineer (South) Punjab Highway Department, Lahore, to the Secretary, Communication and Works Department written on 4-9-1984, placed at Annexure K, in Appeal No. 387/200 of 1985, when Review petition was pending before the Secretary, Communication and Works Punjab. The subject of the letter was "Neglect in the proper maintenance of Roads in Highway Sub-Division No. 1, D. G. Khan". The context of the letter is reproduced below: - "2. The matter has been sorted out with the Highway Circle, D.G Khan and detailed comments on review petitions preferred by the following Officers/ officials have been furnished by the Executive Engineer, Highway Division, D.G. Khan vide his Note (copy enclosed) wherein he has cleared the position of all of them. The position stated by the Executive Engineer has been confirmed by the Superintending Engineer. Highway cirlce D.G. Khan and these are further endorsed by this office: -
(1) Mr. Ali Bahadur, Executive Engineer.
(2) Mr. Khalid Imran Khan, Executive Engineer.
(3) Mr. Fayyazul Hussain Ansari, Sub-Divisional Officer.
(4) Mr. Ghulam Qadir Wattoo, Sub-Engineer.
3. In these circumstances it is recommended that the penalties imposed on the above officers/officials may kindly be waived of and withdrawn under advice to this office."
Both these letters were duly received by the respondent alongwith detailed comments of the two senior officers duly endorsed by the Chief Engineer with specific and positive recommendations that the penalty be waived of. To our utter surprise despite the fact that detailed comments were submitted by the XEN on the review petition of the appellants fully supporting their stand, duly endorsed by the Superintending Engineer as well as Chief Engineer, learned Secretary Communication and Works has not given a single reason to differ with the same. If the learned Secretary was of the opinion that the XEN Superintending Engineer and Chief Engineer have general comments to get the appellants exonerated, he should have either proceeded against them for this act of collaboration by initiating some inquiry after giving a cogent reason for the same or he should have accepted the said recommendation as genuine. We have ourselves taken pains to go into the comments of the XEN duly endorsed by the Superintending Engineer/Chief Engineer and find that these are based on good grounds and no deviation from the same is called for.
9. In view of the above, we proceed to accept these appeals and set aside the impugned orders by which the penalty of Censure has been imposed upon the appellants. There will be no order as to costs.
A.E./113/Sr./P