Appellant S.Ghayoor Hassan, Xen, Communication and Works Department has been awarded penalty of withholding his promotion from Grades 18 to 19 for two years by an order, dated 13th September, 1979. After exhausting remedies available to him departmentally, he has preferred this appeal under section 4 of the Sind Services Tribunals Act, 1973.
2. Facts, constituting background of the appeal, briefly stated are, that the appellant was served with a show-cause notice, dated 3 August, 1978. The allegations, inter alia, related to his failure to record measurements of earth work etc. Prior to releasing payments to the contractor for a work executed in connection with construction of Lawari, Mindo Road, District Badin. The appellant furnished reply to the show case on 23rd September, 1978. On 13th September 1978 impugned order was issued imposing aforesaid penalty on the appellant. Aggrieved, he has preferred this appeal in consequence of rejection of his prayer by the competent authority for annulling the orders, stopping his promotion for two years.
3. Mr. Manzoor Ali Khan, learned counsel for the appellant initiated his arguments with the approval of factual position that the appellant stood posted elsewhere at a station other that the one where the work in question was executed approximately six months earlier. He stated that the Super intending Engineer, who had formulated report as head of the five-members enquiry committee, constituted under the orders of the C&W Department vide letter, dated 30th October, 1978 had summed up the performance of the official duties of the appellant relating to the work in question as "satisfactory". He added that the penalty, awarded to the appellant was severer than the charges, alleged to have been committed by him. He asserted that the appellant at the mostrd committed irregularity rather than illegality and as such suffered harsher consequences for his neglect. Learned counsel averred that presence of "puncho" water, local word for rain, on both sides of the road precluded him to record 10% test checks as required under the codal rules of the Department.
4. As regards charge No.2, the learned counsel argued that the appellant safeguarded Government interest by retaining dues and security deposits for possible adjustments in case excessive payments to the contractor surfaced subsequently. Resultantly, he said, that following appellant's precautionary measures; no pecuniary loss whatsoever, was sufferred by the Government on this count.
5. Learned counsel also attacked the discretionary authority of the authorised officer, who had erred in adopting shorter Civil method of dispensing with holding enquiry under sub-rule (3) of rule
(5) of Sind Civil Servants, E & D Rules, 1973 without enumerating the grounds of action against the appellant. In support of his contention he put reliance on Lal Muhammad v. Government of Sind, 1980 SCMR 850. He argued that the grounds of action were vague and irrelevant to warrant any penalty under the aforesaid rule. The learned counsel also delineates appellant's consciousness in discharging his duties faithfully and in support of his contention, he drew attention to the detection of shortage of two furlongs of road, claimed to have been completed by the contractor.
6. Mr. Abdul Ghafoor Mangi, learned A.A.-G. For the respondents, emphasised that the appellant has failed to test check 10% of the earth work as required under West Pakistan. Bidges and Road Department Code. He said that the performance of above duty was mandatory requirement which he could not afford to delay or delete before making; payment to the contractor. He added that the "puncho" water could have been therefor a week or so and that measurements could have been effected early subsequently. He asserted that not only he did't do that but also he could record reasons for not doing that. As for charge No.2 is concerned the learned A . A .-G . Stated that he allowed the payments to be made at full rate for the work, which was sub-standard. He said, he should have availed the facility of laboratory testing rather than relying on primitive method of visual judgment.
7. In his arguments the learned counsel for the appellant has laid undue emphasis on the presence of "puncho" water on both sides of the road with a view to covering up his lapse for not recording test checks, specified in departmental rules, prior to releasing payments, the learned counsel for the appellant seems to have laid unnecessary stress on "puncho" water. On the other hand there appears only casual .And passing reference to the presence of the said water in the report 8f Superintending Engineer and practically no reference in the covering remarks of the Chief Engineer to the Secretary C & W Department A.A.-G's statement that puncho water might have stood at the site for a week or so or that appellant could have recorded reasons in the relevant document for not meeting codal formalities before payment's seems plausible and appealing. No doubt the Government did not suffer any financial loss on this count. But the appellant also did not show his dutifulness either. The glaring lapse of the appellant in not playing his part appropriately, which he was compulsorily required to perform as major calling on his assignment, is uncondonable and cannot be allowed to go un-penalised. To me the only thing that comes to appellant's rescue is the presence of "puncho" water. But for this the charge No.1 prime facie appears to have been rightly substantiated. Be that as it may, the appellant, therefore, deserves to be penalised. The penalty, however, imposed is harsher and merits reduction in view of the evidence coming as it does on the record.
8. Assertion of appellant's counsel that Government interest did not suffer any financial loss owing to non determination of the degree of compaction of the road by way of his visual judgment, is untenable and devoid of sound reasoning. Appellant is appointed by the Government for the purpose of overseeing construction of roads, among others. He has not only to see that the roads are constructed but also ensure, that the quality of construction meets all the specifications laid down on the subject periodically by the Government. The facility of loboratory testing, hordes of subordinate staff both skilled and unskilled, transport etc, are all at his beck and call to ensure that the avowed purpose of building strong and sturdy roads is accomplished in full. Despite this, he simply assessees the degree and quality of compaction only visually in this scientific age and clears payments at full rates, though incidentally no loss occurs to the Government. Chief Engineer in his remarks states "the degree of compaction was reported to be less and over payment made on account of less compaction is easily recoverable from the dues and security deposits of the contractor---------------". From this it necessarily follows that the appellant has failed to ensure sturdity of the compaction which may have effected probably adversely the life span of the road.
The learned counsel's argument that the grounds of action were improperly mentioned, is not relevant. Accordingly, the aforementioned Supreme Court case, as averred by the counsel is inapplicable in the instances appeal. But for the third charge which in fact in the extension of the other two charges, all other grounds are specified, definite and couched in intelligible language.
9. I, therefore, compelled to hold the appellant responsible for the lapse, he committed in the discharge of duties as an employees of the Government. However, the penalty, awarded, does not seem to be the one commensurate with his lapse. Accordingly, I reduce the penalty from withholding his promotion for two years to censure only with no costs.
Given under my hand and the seal of this Tribunal this 3rd day of August, 1986 at Karachi.
A.E./88/Lb/S Penalty reduced.