SARFRAZ HASAN (MEMBER). --Muhammad Sadiq, Assistant Executive Engineer/S.D.O. Bhikki Link Sub-Division, Farooqabad, District Sheikhupura has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded Secretary to Government of the Punjab,, Irrigation and Power Department as respondent.
2. By virtue of this appeal, Muhammad Sadiq has prayed that the impugned order, dated 13-2-1985 passed by the respondent may be set aside, the recovery of Rs.28,000 quashed and appellant's increments restored.
3. The facts of the case are that one Farooq Arshad, Gauge Reader, submitted a petition before the Superintending Engineer, Lower Jhelum Canal Circle, Sargodha on 16-4-1983 alleging that about 40 trees had been removed from R.D. 94-96 Khadir Feeder with the connivance of the appellant.
Accordingly, the said Superintending Engineer had preliminary enquiry conducted through Executive Engineer, Shahpur Division and Kirana Division. According to the preliminary enquiry report, 19 Government owned trees worth Rs.28:000 had been removed with the connivance of the appellant.
On 8-6-1983, the then Secretary to Government of the Punjab, Irrigation and Power Department, appointed Mian Masud Akhtar, Chief Engineer, Irrigation, Sargodha Region as Authorised Officer.
Keeping in view the preliminary reports submitted by Executive Engineer, Shahpur Division and Executive Engineer, Kirana Division, the Authorised Officer issued charge-sheet against the appellant containing the following charges:-- "That while posted as Sub-Divisional Officer, Khadir Sub-Division you committed the following offences:--
(1) In your Sub-Division nineteen Shisham trees from the avenue line along Khadir Feeder R.D. 93- 95/L adjoining to Bakhuwala Rest House were removed illegally with your connivance causing a loss of worth Rs.28,000 to Government exchequer.
(2) No reference whatsoever was made to the competent authority for removal of nineteen No. Trees which proves that your action is illegal and mala fide.
(3) During the inspection by Executive Engineer, Kirana Division on 20-4-1983 you could not show/put up any Measurement Book and Stock Register in support of having entered any material recoverable from these trees. Nor could you show the timber/wood corresponding to the trees having girth 6' to 7' as indicated from fresh stumps at site clearly showing thereby the produce had been pilferred be you.
(4) You failed to account for the produce of these 19 No. Trees and show the same in the Monthly Accounts for March and April, 1983 whereas, as per your report, these trees were removed during the first week of March, 1983.
(5) Subsequently, you made a futile effort to make up papers (to make entries in Measurement Book and take the material on Stock Register) to counter the genuine charge of misappropriation through joint venture with the Sub-Engineer concerned.
(a) By reasons of the above you appear to-- be corrupt or may reasonably be considered as corrupt within the meaning of rule 3(c) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975;
(b) be guilty of misconduct within the meaning of rules 2(1)(d) and 3(b) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, for the said omissions/ commissions on your part and; or
(c) be inefficient or have ceased to be efficient within the meaning of rule 3(a) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975.
As detailed in the enclosed statement of allegations and as such you are liable to disciplinary action under Rule 3 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, which may involve imposition of one or more of the penalties prescribed by rule 4 of the said Rules."
Vide his letter No. Admn.I/83/1269/255/79, dated 23-7-1983, the Authorised Officer appointed Superintending Engineer, SCARP-II Circle, Sargodha as Enquiry Officer. The Enquiry Officer submitted his enquiry report on 8-10-1983 in which he held "Misappropriation of 19 Nos. Trees costing Rs.28,000 was made in collusion jointly and mutually by both Muhammad Sadiq, S.D.O., Muhammad Ibrar Naqvi, Sub-Engineer and as such both of them are guilty of corruption, misconduct and inefficiency."
On 11-12-1983, the Authorised Officer submitted his report stating that the charge of unauthorised removal of trees from canal plantation and misappropriation of 19 trees valuing Rs.28,000 had been established against the appellant and that the case was fit for award of major penalty.
On 13-2-1985 Mian Masood Akhtar, then Secretary to Government of the Punjab, Irrigation and Power Department in his capacity as Authorised Officer imposed upon the appellant major penalty of recovery of an amount of Rs.28,000 and stoppage of increments for three years with future effect.
On 4-3-1985 the appellant submitted a review petition before Mian Masood Akhtar, Secretary to Government of the Punjab, Irrigation and Power Department. However, according to the affidavit filed by the appellant with this appeal, no decision on his review petition was conveyed to him but he came to know on 15-7-1985 that his petition had been rejected. Hence this appeal.
4. We have heard the learned counsel for the appellant, the learned District Attorney and have also perused the record with their assistance.
5. The learned counsel for the appellant has submitted the following main points:--
(i) Mr. Abdul Hamid Arif, Superintending Engineer, SCARP-II Circle who was appointed as an Enquiry Officer relied "wholly and solely" on the findings submitted by Sh. Nazir Ahmad, Executive Engineer, Kirana Division who had held the preliminary enquiry. The Enquiry Officer did not even visit the site to sift facts on the spot. Therefore, the enquiry report submitted by the Enquiry Officer stood vitiated due to this legal flaw.
(ii) Mian Masood Akhtar first acted as an Authorised Officer and in that capacity came to the conclusion that the charges against the appellant had been proved. He accordingly recommended a major penalty to the then Stecretary, Irrigation and Power Department.
Subsequently, the same Mian Masood Akhtar himself became Secretary to the Department and in that capacity, on the basis of his own recommendations, imposed the major penalty of recovery of Rs.28,000 from the appellant alongwith stoppage of increments for three years with future effect.
This was against the principles of natural justice.
(i.e) The wood of the trees alleged to have been cut and misappropriated was still lying at the Rest House but the Enquiry Officer did not care to visit the Rest House and verify the facts. He preferred to rely on the preliminary enquiry report submitted by Sh. Nazir Ahmad, Executive Engineer.
(iv) None of the witnesses supported the version of the prosecution except the complainant and Muhammad Rashid.
(v) The Enquiry Officer did not allow the appellant to give his defence statement and rebut the allegations against him.
(vi) The quantum of alleged loss of Rs.28,000 has been assessed arbitrarily. The basis on which the recovery of Rs.28,000 has been calculated is not known.
(vii) There is no provision in the Punjab Civil Servants (E & D) Rules, 1975 to stop increments with future effect.
(viii) Sh. Nazir Ahmad, Executive Engineer, Kirana Division on the basis of whose preliminary enquiry report the appellant was charge-sheeted bore a personal grudge against the appellant. While writing the Annual Confidential Report of Sub-Engineers of Kirana Division for the period ending 31- 12-1982, the said Executive Engineer tried to spoil their A.C.Rs. The result was that all the Sub- Engineers of Kirana Division went on strike and passed resolution demanding transfer of Sh. Nazir Ahmad. On the intervention of Superintending Engineer, Lower Jhelum Canal Sh. Nazir Ahmad assured the Sub-Engineers that he would give them good A.C.Rs. And the strike was called of.
However, some mischievous persons misled the said XEN to believe that strike against him had been instigated by the appellant. Therefore, Sh. Nazir Ahmad who held the preliminary enquiry against him was only waiting for a suitable opportunity to take revenge against him.
(ix) Similarly, Farooq Arshad, Gauge Reader who was the complainant in the case was got transferred by the appellant on complaint vide his letter No. 37/IRO, dated 25-1-1983. Subsequently, another complaint was submitted by the appellant against the same Farooq Arshad vide his letter No. P525/5-E, dated 10-4-1983 and he was placed under suspension as a result of this complaint.
This explained why Farooq Arshad gave a false petition against the appellant to the effect that 40 trees had been pilfered with the connivance of the appellant and he had received Rs.2 lac in lieu of their illegal disposal.
(x) After conclusion of enquiry against the appellant, the same Farooq Arshad (complainant) was posted back to the same place from where he had been transferred on the complaint of the appellant. This proved that Sh. Nazir Ahmad, Executive Engineer was hand in glove with Farooq Arshad.
(xi) Muhammad Rashid, Dak Runner called as a witness at the instance of Farooq Arshad, the complainant was a notorious black mailer. The appellant had written against him vide his letter No. 523/5-E, dated 20-9-1982 for his transfer Muhammad Rashid was also in the habit of stealing timber from Government plantation. In this connection a case was got registered against him. Like Sh. Nazir Ahmad who held the preliminary enquiry, Farooq Ahmad who lodged the complaint against the appellant, Muhammad Rashid, Dak Runner also bore a personal grudge against the appellant.
6. The learned District Attorney adopted the parawise comments filed on behalf of the respondent and submitted that the penalty imposed was justified and the appeal may be rejected.
7. We have carefully considered the submissions made by both sides and the record produced before us. After careful examination of the entire evidence, we have come to the conclusion that the proceedings against the appellant were not conducted in a just and fair manner and in the conduct of these proceedings, the rules of natural justice were violated. In this case, attention is invited to the following main points:--
(i) Vide para. 6(i) and Annexure 'J' of this appeal, the appellant has explained in detail his allegations that Sh. Nazir Ahmad, Executive Engineer, Kirana Division bore personal grudge against him. However, in the written objections submitted on behalf of the respondent, these allegations have not been denied. On the other hand, the entire contents of paras. 5, 6 and 7 have been "admitted" by the respondent.
(ii) Sh. Nazir Ahmad, Executive Engineer, Kirana Division against whom allegations of personal hostility against the appellant have been admitted by the respondent was deputed as departmental representative as mentioned in the enquiry report submitted by the Superintending Engineer SCARP-II Circle, Sargodha. Sh. Nazir Ahmad attended the proceedings conducted by the Enquiry officer and remained present when prosecution and defence evidence was recorded by the Enquiry Officer. He was allowed to cross-examine Farooq Arshad, the complainant who appeared as first prosecution witness. Under the law of evidence, Sh. Nazir Ahmad who represent the prosecution side could not cross-examine prosecution witness. Rule 7(i) of the Punjab Civil Servants (E&D) Rules, 1975 also inter alia lays down that "where any witness is produced by one party, the other party shall be entitled to cross-examine that witness." The right of cross examine the witness is vested in the other party and not in the party who produces the witness.
(i.e) The enquiry report submitted by the Superintending Engineer, SCARP-II Circle, Sargodha and the record of proceedings shows that the Enquiry Officer did not know the difference between the examination-in-chief, cross-examination and re-examination.
(iv) Vide para. 6/Annexure 'J' of this appeal, the appellant has explained in detail his allegations of personal hostility on the part of Farooq Arshad, complainant who appeared as P.W. 1 and Muhammad Rashid, Dak Runner who also appeared as prosecution witness. However, in the written objection submitted on behalf of the respondent, these allegations of personal hostility and bias made by the appellant have not been denied by the respondent. On the other hand, the entire contents of paras. 5, 6 and 7 have been "admitted".
(v) As the personal hostility and bias of Sh. Nazir Ahmad, Farooq Arshad and Muhammad Rashid has not been denied by the respondent and the contents of para. 6/Annexure 'J' of the appeal have been admitted, the evidence of Farooq Arshad, complainant, Muhammad Rashid, Dak Runner and Sh. Nazir Ahmad, Executive Engineer, could not be considered as objective and unbiased.
(vi) The record of proceedings shows that defence evidence was closed before evidence of prosecution witnesses Muhammad Saleem, Muhammad Rashid and Sh. Nazir Ahmad was recorded. The recording of prosecution evidence after the defence had been closed placed the appellant at a clear disadvantage.
(vii) The evidence recorded by the Inquiry Officer closed with the prosecution evidence of Sh. Nazir Ahmad. There is no evidence to show that the appellant was given an opportunity to submit) his written defence. Rule 7(iv) of the Punjab Civil Servants (E&D) Rules, 1975 reproduced below provides for this written defence:-- "The Inquiry Officer or Inquiry Committee as the case may be, shall complete the enquiry proceedings within the period of sixty days, commencing from the last day of submission of the written defence by the accused and shall, within ten days of the expiry of the said period of sixty days or within further such period , as may be allowed by the Authorised Officer, submit his or its findings and the grounds thereof to the Authorised Officer."
(viii) In this case, Mian Masood Akhtar acted as Authorised Officer and Authority. The review petition had also to be submitted to Masood Akhtar as appellate authority.
(ix) Vide his memo.No. Admn.I/83/20475/255/79, dated 11-12-1983 to Secretary, Irrigation and Power Department, Mian Masood Akhtar in his capacity as Chief Engineer and Authorised Officer recorded the following opinion on the findings submitted by the Inquiry Officer:-- "The Inquiry Officer has established the charge of unauthorised removal of trees from canal plantation and misappropriation of 19 trees valuing Rs.28,000 against both the accused.
(x) In the aforementioned letter, dated 11-12-1983, Mian Masood Akhtar in this capacity as Authorised Officer submitted the following recommendations to the Secretary, Irrigation and Power Department:--- "The case is fit for the award of Major penalty and is submitted for further action under the Punjab Civil Servants (E&D) Rules, 1975."
(xi) Before the authority could pass order on the recommendations submitted by Mian Masood Akhtar, the said Mian Masood Akhtar was promoted as Secretary, Irrigation and Power Department and in that capacity himself became the authority in this case. "! Thus, Mian Masood Akhtar passed the impunged order, dated 13-2-1985 on the basis of his own recommendations.
(xii) Under rule 2(A)(ii) of the Punjab Civil Servants (E&D) Rules, 1975, where the authority is personally interested in the result of the proceedings, the authority shall not proceed with the case and shall report the matter to the appellate authority and such appellate authority shall appoint another officer of the correspondent rank and status to act as Authority. In this case although Mian Masood Akhtar was not personally interested in the bad sense of the word the fact remains that he became personally involved to the extent that he had to pass the impugned r order on the basis of his own recommendations. In this connection it would be relevant to quote case reported as 1982 PLC (C.S.) 795, according to which the order of dismissal was struck down on the ground that the same person acted as authority and Authorised Officer and thus the appellant was deprived of examination of his case at two stages before the appellate stage.
8. Keeping in view the detailed analysis of the case given above we have come to the conclusion that the proceedings against the appellant were not conducted in a fair and just manner and that in the conduct of the proceedings, the rules of natural justice were violated. We, therefore, accept the appeal and set aside the impugned order, dated 13-2-1985 passed by the Secretary to Government of the Punjab, Irrigation and Power Department. However, the Department is at liberty to proceed afresh against the appellant keeping in view the rules natural justice and the rulings of the superior Courts.
There will be no order as to costs.
M.Y.H/90/LB/S