A.Q.QAZI, (MEMBER),--This order shall dispose of the appeal No.32 of 1986 filed at this Tribunal against the order of Secretary Communication & Works Department. Government of Sind in which he has been awarded the minor penalty of recovery of Rs.22,233.33 alongwith withholding of one increment with cumulative effect.
2. To state briefly the facts, the appellant who is a Senior Executive Engineer and now posted as Section Officer Highway in the Sind Secretariat was working as Executive Engineer Highway Division No.II Larkana in 1974 and when the work of construction of Kumbar --Dost Ali Road (0/0 - 5/0 miles)
Hard Crust was under progress. The work had been started during the days of his predecessor on 20-10-1973 and was to be completed within 4 months namely i.e. On 24-2-1974. This work was contracted to M/s. Marwat Construction Company. The date of completion of this work was finally extended to 20-10-1975.
3. While the work was in progress in mid seventies and the Government of Sind took some decision in Special meeting held under the Chairmanship of the Chief Minister of Sind on 30-9-1974 to consider escalation in construction costs. Accordingly a Notification No. PA/192 dated 5-9-1974 was issued under the signature of Chief Engineer Highways, Government of Sind, Hyderabad. The final operative para of the notification reads "any advances or other dues outstanding against the constructions may be adjusted from the first payment of escalation in cost i.e. From the period on 1-7-1974 onwords as far as possible".
4, In pursuance of this notification Mr.Nazar Muhammad Soomro the appellant who was Executive Engineer Highways prepared the cases of escalation cost and put it before the competent authority to sanction the same i.e. Before the Superintending Engineer Highways Circle Larkana (Camp at Hyderabad) for approval. Alongwith this letter, he appended two documents statements showing position of cases and the list of cases. This letter alongwith its enclosure was sent on 31- 12-1974.
5. Approval for escalation cost was also obtained in respect of M/s. Marwat Construction Company and accordingly payment for Rs.22,233.31 was released and paid to the contractor on 28-9-1985.
This approval was accorded by Superintending Engineer Highways Circle Larkana alongwith other approvals on the recommendation of the Executive Engineer Mr.Soomro.
6. After ten years Mr. Nazar Muhammad Soomro while he was Executive Engineer was served with a show cause No.E-I(C&W)3-11/81 dated 25-7-1985 wherein he was charged with three omission and commissions under Rule 4-A read with sub-rule (3) of the Rule 5 of Sind Civil Servants (E&D) Rules, 1973 (hence forth referred to as E&D Rules). The relevant paras read as under:- The details of his misconduct are as under:-
(a) That in respect of a construction work of Kambar Dos; Ali Road (mile 0/0-5/0) Hard Crust entrusted to M/s. Marwat Construction Co. On 20-10-1973, he allowed a payment of Rs.22,233/- to the contractor on account of cost escalation for, the said work for certain portion/payment etc. Duly sanctioned by the Superintending Engineer, Highways Circle, Larkana This payment was required to be adjusted towards Government dues outstanding against the said contractor. This released amount paid vide Cheque No.00952, 095195 dated 22-1-1975 for Rs.22,233/- was against the rules which caused loss to the Government and made Mr.Nazar Muhammad Soomro responsible.
(b) Mr.Nazar Muhammad Soomro assured his Superintending Engineer vide his letter dated 31-12- 1974 that he had adjusted the said amount of escalation against outstanding secured the amount was neither carried out to minimize the balances of Government dues at the time of report, nor he subsequently adjusted. Accordingly he misguided his superior officer by making a false report and committed misconduct in this regard.
(c) Thus, he is found guilty of sustaining financial loss to the Government for Rs.22, 233/- by allowing undue financial aid to the contractors."
7. Mr.Nazar Muhammad Soomro who was accordingly, put in suspension earlier was called upon to explain his position within fourteen days of the issue of above notice. It is a matter of record that he replied to the charges, which is a six-page document in which he averred that the above escalation of cost was approved by the Superintending Engineer Highway Circle Larkana. His reply is elaborate. He has further averred in his memo of appeal that no loss had been incurred to the Government as all the accounts including those of the secured advances and outstanding advances to the contractors M/s. Marwat Co. Had been completely cleared in the 14th and final running bill of 1979. In his reply to the Department he has further relied upon the affidavit of owner of M/s. Marwat Construction Co. Filed before the Superintending Engineer, Larkana, Circle.
8. On behalf of the Government in their written statement it has been averred and claimed that in spite of very clear instructions escalation cost was released to M/s. Marwat & Company. It has further been stated that there is written evidence that Mr.Nazar Muhammad Soomro misguided the Superintending Engineer Highway Larkana, who accordingly accorded the escalation cost in favour of M/s. Marwat and Company.
9. We have gone through the record available to us, we have also heard in detail the learned counsels for the parties. Executive Engineer and Divisional Accountant Highway Division Larkana were present on the date of hearing to assist the learned counsel for the Government.
10. We shall discuss the merits of the case accordingly in light of the record, and the proceedings before the Tribunal, and the arguments extended by the learned counsel of the parties. We shall focus our attention on the show-cause notice which has been elaborately reproduced in para.6.
The plain reading of the said show-cause notice shows that he has been charged with three omission and commissions under the sub-headings of (a) and (b) and the third charge (c) is a findings based on charges (a) and (b). We shell examine now the material truth of these charges in light of the record produced before us.
11. We shall proceed with a first charge (charge (a)i first. The examination of the record and of the Running Account Bill-14 shows that there is an amount Nil recoverable from M/s. Marwat Construction Company in July, 1979. It is therefore obvious that the amount has been adjusted and all the bad advances outstanding against the contractor i.e. Rs.4,94,909/- have been recovered from the contractor and the file has been completely closed. It is therefore very evident from this 14th Running Accounts Bill of July, 1979 that at the end of July, at least all amounts of the Government which were due had been properly recovered. We have carefully thought over the contemplated "loss of the Government". We 'are convinced and are of the view that there has been no loss to the Government in respect of the recovery of the revenues. This is not a case of embezzlement or, a case of misappropriation. We feel that "there has been no material loss" incurred by the Government, we do appreciate however that advance of the recovery was of course unduly delayed. This view of ours has been shared by all the parties present. We, therefore, do not subscribe to the view that any 'substantial material loss' has been sustained by the Government. This charge of financial loss therefore could not be sustained, in view of our aforesaid reasoning.
12. We now turn our attention the charge (b) of the show-cause notice which relate to para 6 of this document. From the record that we have screened it is abundantly clear that Mr.Nazar Muhammad Soomro wrote a letter No.TC/ESC/A dated 31-12-1974, and this covering letter speaks of two enclosures (i) Statement showing the position of the cases. (ii) The list of the cases.
13. It is the contention of the learned counsel for defence that list of the cases was sent to the Superintending Engineer alongwith the above-stated letter and that the statement relating to position of the cases was not sent to the Superintending Engineer. We regret to say that it is not so.
We seek to differ with him and say that the covering letter enclosed both the position of the cases and the list of the cases separately. In position o the cases item 6 that is which relate to M/s. Marwat Construction Company, Columns 5 and 6 read as under: "Rs.22,233.33. Amount adjusted in Security Advance."
This statement stands verified from the record files on "Advances and outstanding against M/s. Marwat Construction Company".
14. We are, therefore, inclined to hold that an amount of Rs.22,233.33 was got approved from the Superintending Engineer on', clear understanding that amount was adjusted against secured advance. Obviously therefore this charge that the appellant misguided the Superintending Engineer in respect of adjustment of escalation cost against Security Advances is true and stands proved.
15. We now come to quantum of the punishment. We are very clear in our mind that the appellant has been punished on with two penalties (a) recovery of Rs.22,233.33 and stoppage of one increment with cumulative effect. It is our understanding that above penalty of recovery and stoppage of increment with cumulative effect have been imposed keeping in mind that the above-stated two charges stood proved. In our opinion only charge (b) stands proved and other charge (a) has not been proved. As such and firmly believing that quantum of punishment must be in consonance with amount of guilt involve and charges proved, we are therefore, of the view that the present penalty imposed in impugned order does not meet the ends of justice. We, therefore, reduce the penalty imposed to that of censure of the official only. This appeal is, therefore, disposed of in above terms-ordered accordingly.
A.A./1132/Sr.S.