JUSTICE NAZIR AHMAD BHATTI (CHAIRMAN).--Appellant Javaid Rizvi was Executive Engineer in the Communication and Works Department of the Government of Baluchistan. He was served with a show-cause notice alongwith statement of allegations on 3-12-1983 under rule 5 of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1983. He submitted a detailed reply (spread over 11 pages) to the said show-cause notice on 15-12-1983 but he was dismissed from service through order, dated 1-8-1984. He submitted a review petition on 29-8-1984 but receiving no reply he came up to this Tribunal with the present appeal.
2. The facts of the case, most of which have been admitted by both the parties, are very simple although the memorandum of appeal is spread over long 48 pages. The Government of Baluchistan, after the dissolution of the Province of West Pakistan and coming into being of Baluchistan as a full-fledged Province, wanted to construct a building for the Provincial Assembly, in which connection work was initiated somewhere in the year 1973. As the work had to entail huge expenditure, it was thought fit by the Government to first appoint Architects and Consultants and Messrs B&A Associates, Chartered Architects of Karachi (hereinafter referred to as the Consultants) were appointed Consultants vale agreement, dated 15-5-1974. Subsequently the actual work of construction was taken in hand by the Baluchistan Construction Company Limited (hereinafter referred to as the "First Contractor"). It was awarded the contract for construction of the Assembly building through agreement executed on 14-1-1978. The appellant and Mr. Inayatullah Khan S.D.O.
Were made incharge of the work by the C&W Department. The latter was whole time incharge of the work while the former was incharge of the entire Division including the project of the Provincial Assembly. The first contractor started with the work in the year 1978 and continued uptil the middle of 1981 and was paid 22 running bills.
However, some dispute arose between the Consultants and the First Contractor and the work stopped somewhere in the middle of 1981 and remained stopped till 25-3-1983. The Government of Baluchistan then removed the Consultants and the work was entrusted to Messrs Hassan Associates of Karachi (hereinafter referred to as the "Second Contractor"). As the work had remained stopped for about two years the officials of the C&W Department and the Second Contractor examined the building to find out any damage. After examination of the work carried out by the first contractor, some defects were found in the construction work and a bill of quantities was prepared for removal of the said defects, according to which an amount of Rs.23,675 was required for removal of the said defects and the second contractor offered to repair the said defects with the said additional cost. In the meantime the appellant who was posted as the XEN Project Division in April, 1979, was transferred in February, 1981 and one Mr. Nasir Durrani, XEN was made as incharge later on. The said Mr. Durrani without any order from the superior authorities demolished the entire structure of the building in April, 1983. His explanation was called and before submitting any reply thereto he, on his own, took certain blocks from the demolished structure to Karachi and got them tested from a private laboratory on 12-5-1983, and on 18-5-1983 he submitted his reply to the said explanation. As the work of construction of the Provincial Assembly entailed huge expenditure some departures in the usual contract of the C&W Department were made and the Consultants were given the complete authority for verification and certification of the work for quality and quantity necessary for payment according to clause 2.06(d) of the contract executed with the Consultants. In pursuance of this power it was the sole duty of the consultants to make measurement of the work done by the first contractor, to check the quality and to prepare the bill for the work done, and the appellant had the authority o-ily to pass the bills.
When the defects came to the knowledge of the Department it was decided to initiate disciplinary action against the Superintending Engineer the appellant, the aforesaid S.D.O. Mr. Inayatullah Khan and some other officers connected with the construction work of the Provincial Assembly, hence the show-case notices. All the aforesaid facts are admitted by both the parties.
3. The charges against the appellant as disclosed in the statement of allegations are: firstly, that he made payments of bills to Messrs Baluchistan Construction Company on block masonary work without providing either horizontal or the vertical re-inforcement in the cement concrete block walls, causing severe cracks both horizontally and vertically with the result that these walls had to be dismantled causing loss of Rs.3,75,134.30 to the Government; secondly, from testing of few cement concrete blocks used in the work it was revealed that the ratio of cement, sand and Bajri was below the required specifications; thirdly, he failed to exercise a minimum of 10% test checking to guard again use of poor quality material thus making payments worth Rs.40,05,940, without checking; fourthly, that at least in six running bills measurements were recorded by Muhammad Javid Sub-Engineer in contravention of B&R Code; and fifthly, on his transfer he did not hand over to his successor a list of works in hand whereby bank guarantee could not be got renewed from the first contractor thus causing a loss of Rs.31,49,103 to Government.
4. We were taken through the entire record of the case very minutely by the learned counsel for the appellant and we heard both the counsels for the parries at great length. It has been explained by the learned counsel for the appellant that in so far as the charge No.1 is concerned, the agreement of construction work did not contain any provision in the drawing for horizontal and vertical bars. In such a position the learned counsel has asserted that this charge could not be preferred against the appellant for the simple reason that when there was no provision in the contract he could not compel the first contractor to provide horizontal and vertical bars in the cement and concrete blocks used for construction of the walls. The perusal of the agreement executed with the first contractor on 14-1-1978 would clearly show that there is no such provision therein. Hence this charge could not be preferred against the appellant.
5. In so far as the second charge is concerned it was urged by the learned counsel for the appellant that the work started in the year 1978 and some of the structure has already been raised while the appellant was posted in this Division in April, 1979. The work stopped in mid-1981 and remained stopped till March, 1983. During which period the structure was open to all hazards of summer and winter seasons for two years. The structure was demolished before any test could be made to find out if there was any defect in the ratio of cement, sand and Bajri. The successor of the appellant demolished structure on his own and when his explanation was called he took a block and got it tested privately and no opportunity was given to the appellant to challenge the test report or himself take the demolished material for test in any approved laboratory. Moreover according to the contract executed with the Consultants the duty to check the quality of the work was enjoined upon the latter and it was not the duty of the appellant. Even otherwise when the structure was examined by the second contractor they found minor defects which could be removed with a cost of about Rs.24,000. This check was made by the second contractor in April, 1983. All these facts have not been controverted by the learned counsel for the respondents. It can, therefore, be presumed without any fear of contradiction that neither it was the duty of the appellant to carry out the checks of the structure nor al substantial loss has occurred to the Government by use of any inferior material. This charge also could not be proved in view of the aforesaid circumstances.
6. In so far as charge No.3 is concerned although under the B&R Code it is the duty of an Executive Engineer to carry out at least 10% check of every construction work in hand but according to the provisions of special agreement which was adopted for the construction work of the Provincial Assembly the Executive Engineer was absolved of any test. According to the terms of the contract executed with the consultants it was the sole duty of the consultant in so far as the quality and[ quantity of the work is concerned. It was urged by the learned counsel in this respect that although it was not the duty of the appellant to carry out any checking of the work but as a Government servant it was his duty to safeguard the interest of the Government and the appellant was guilty of negligence. We have given serious consideration to this contention of the learned counsel but we can agree with him simply for the reason that a departure was made from the usual practice in so far as this work was concerned and the duty of entire checking was laid on the consultants. We did not find any substance in this charge.
7. In view of our findings on the aforesaid charge No.3, charge No.4 could also not be pressed against the appellant for the aforesaid reasons.
8. In. So far as charge No. 5 is concerned the material which has been brought on the record of appeal shows that during his tenure the appellant got the bank guarantee extended upto 25-3- 1981. He was transferred on 1-2-1981 when the guarantee was still intact. Even otherwise this factum was known to his successor which would be apparent from letter, dated 24-3-1981 written by him to the Manager, Habib Bank Limited, K.D.A. Branch, Karachi whereby he directed the bank to reduce the value of the above-mentioned guarantee to Rs.31, 49,103 which amount was due on the said date after adjustment of mobilization advance (given to the first contractor) in the running bills paid to him from time to time. This charge could also not be preferred against the appellant.
9. From going thorough the whole record of the case we have noted that the charges which were preferred against the appellant required a through inquiry necessitating the recording of evidence, pro and contra the appellant. Instead a simple procedure of show-cause was adopted. It has also come on the record that when the appellant requested for the grant of copies of the record in order to prepare his reply he was asked to consult the record but no copies were provided to him.
He also requested for personal hearing in his reply to the show-cause notice but no such opportunity was afforded to him. Perusal of the order of dismissal from service of the appellant would show that there is no mention therein that all the material was considered in proof of the charges levelled against the appellant. It appears to be a stereotype order not based on any facts and evidence. It has also been brought to our notice that Inayatullah Khan Sub-Divisional Officer, who was overall incharge of the project of the construction work of the Provincial Assembly was subsequently re-instated in service although he had also been dismissed alongwith the appellant by the same order. On the contrary no such indulgence was shown to the appellant. Although the said S.D.O. Was whole time incharge of the work and the appellant was incharge of all works in the Division including the project of the Provincial Assembly Building and to our mind the fault, if any, of the S.D.O. Was greater than that of the appellant but still the S.D.O was subsequently re-instated wiping up all blame from him while the review petition of the appellant was summarily rejected. In this manner a discriminatory attitude was adopted by the respondents. A person with a greater responsibility of duty was exonerated of all the charges' whereas the appellant who could at the most be guilty in 10% of the share was held to be a greater offender.
10. For the aforesaid reasons we will accept this appeal, set aside the order of removal from service of the appellant and would re-instate him in service alongwith all back benefits. There shall, however, be no order as to costs.
A.A./25/Lb/S