' CH. HASAN NAWAZ .(MEMBER).---In this appeal under section 4 of the Service Tribunals Act, 1973 filed on 7-2-1987, the appellant now a Junior Research Officer serving with the Water and Power Development Authority, has sought cancellation of orders dated 26-10-1986 and 12-1-1987 passed respectively by respondents Nos. 1 and 2 in the background of the following facts.
2. While serving as Senior Research Officer, the appellant was served with the following letter of explanation dated 2-1-1986 (Annexure-B): "Mr. Muhammad Saleem, Sr: Research Officer.
' Subject: 'EXPLANATION' UNDER RULE 5 OF WAPDA EMPLOYEES (EFFICIENCY AND DISCIPLINE) RULES, 1978 ' You, Mr. Muhammad Saleem, Sr: Research Officer, have been found responsible for the defective construction of bridges at RD 34 + 250, 47 + 860, 60 + 860 & 87 + 349 on Chashma Right Bank Canal in respect of the following aspects:--
(a) The quality of concrete at the bottom of the girders especially in contact with the steel reinforcement is very poor. The girders at that location are mostly hollow and severely honey combed.
(b) The designed mix has not been used in the concrete of the bridge structure.
(c) Segregation of concrete had taken place during placing.
(d) Proper record has not been kept of the concrete pours in the bridge sections.
(e) Laboratory test for concrete samples have neither been taken nor properly maintained.
(2) You were responsible for controlling and checking the concrete mix during mixing and placing and taking test tubes and cylinder of the concrete at the time of actual placement and reporting test results regarding the quality and strength of the concrete but you failed to carry out your duties in respect of bridges at RD 34 + 250, 47 + 860, 60 + 860 and 87 + 349 of CRBC.
(3) You being responsible Supervisory Officer failed to control the above-mentioned irregularities-.
(4) If the above allegations are established, you will be guilty of 'misconduct' as defined in Rule 2 of WAPDA Employees (E&D) Rules, 1978.
(5) You are, hereby, served with this 'Explanation Letter' under Rule 5(iv) of the said Rules to show cause why one or more of the penalties as defined in Rule 4 of WAPDA Employees (E&D) Rules, 1978, be not imposed upon you. You are required to put in your written defence within a period not exceeding 14 days f rom the date of service of this letter stating at the same time, whether you desire to be heard in person.
(6) Your defence reply should reach the undersigned within the above-specified period, failing which, it will be presumed, that you have no defence to offer and an ex parte decision will be taken against you."
3. Explanation in writing (Annexure-C) filed in response was to the following effect: "The General Manager (W) North, WAPDA, Peshawar.
' Subject: EXPLANATION UNDER RULE 5 OF WAPDA EMPLOYEES (EFFICIENCY & DISCIPLINE) RULES, 1978 ' Reference: No GE (W) North/E-215M Saleem/319, dated 21-1-1986.
' Sir, ' I wish to clarify that the Laboratory and its staff were not independent but were under the control of XEN Laboratory at site. The working of the Laboratory at site was accordingly controlled by the XEN who was the controlling officer. The practice at site, for the working of the laboratory was that it would assist the Engineer (Controlling works at site) but will not be controlling the works or working at site. Accordingly the routine of Lab. Working at site was as follows:
(i) The mixing, placing, compacting etc. Of the concrete was the responsibility of the Engineer of the field division at site. Taking cubes or cylinders was as well the routine and responsibility exercised by the field division. This applied to works in progress at CRBC Projects, including the contract for bridges under reference by you.
(ii) Accordingly all samples from the field for the material (Sand, aggtt. And bricks) and construction control samples for the cubes and cylinders were in routine delivered to laboratory by the officers of the field division. Test results of all these samples were in routine communicated to the concerned XEN either through the XEN Laboratory or direct by the laboratory. These were also copied to Superintending Engineer, incharge of the concerned division, in accordance with the routine the slump cone and empty moulds for casting cubes/cylinders were issued to the staff of XEN Bridges and remained in their custody for sampling and supplying them to the laboratory.
(iii) In addition to the above construcion control samplings the laboratory collected random samples of aggtt (fine and coarse) bricks at time intervals but not covering all the consignments supplied to the sites of works. This was intended to provide for assistance of the field divisions, additional information obtained from alternate practice of collecting samples from the field.
Interval between samples so collected varied between one week and two weeks. Gradation test results of all such samples were similarly advised to the Field Executive Engineers.
(iii-a) Quality control of the work conforming to the required specification was the responsibility of the. Field Division Supervising the construction activities. The laboratory was not responsible to stop or control the work at site. The role of the laboratory was clearly to assist and provide test results for the samples as and when provided to the laboratory. The contractors and contract works were being administered by the Field Division who were carrying out the works.
(iv) It is pointed out that progress and review meetings, generally chaired by the Chief Engineer used to be held at site at various times. In these meetings laboratory staff was neither invited or called to attend it. This was done by the XEN Laboratory who was taken as the officer incharge of laboratory working. I have explained the duties and working of the laboratory practised at site for all the works that were in progress. Incidentally this working is also clarified by two letters from XEN- III to XEN Laboratory and XEN Laboratory to XEN III (No, CRBC/DK/XEN-III/438-41, dated 4-3-1984 and No,CRBC/DK/ XEN I/W-13/610-11, dated 13-3-1984 attached as Appendix 1 & 2). That the working of laboratory was controlled by the Executive Engineer Laboratory to whom the Senior Research Officer (myself in this case) was responsible was clarified to me, during another instance by the office of the Superintending Engineer Copy of letter No, CRBC/DK/SE III/W-1/2019, dated 27-5-1984 which is in reply to my representation dated 26-5-1984 are enclosed as Appendix 4 & 5.
' In accordance with the routine of the laboratory set out above, samples were delivered to the laboratory, for testing, by the Field Divisions, results of which were complied and communicated to respective division, in this case, however, samples of Cylinders/Cubes were not delivered to the laboratory. Later however after the departmental enquiry was instituted, and no results of Cubes/Cylinder tests were available, then I was approached by S.D.O. Bridges (Mr. Inayat-ur- Rehman) to test some samples, allegedly stored elsewhere. I explained to him that testing the samples at this late stage would not improve the situation. Also that I would perform the tests, provided some superior officers directed this belated testing. However, after this, no samples were produced for testing. This incidence has since been reported by me verbally to the enquiry committee during its deliberations at site. Under the above facts I wish to submit categorically that all the allegations detailed in your letter No, GM(W)/North/E-215/M Saleem/319, dated 2-1-1986 are not related for explanation by me. Instead these should be explained by the relevant XENs and their field staff, who were responsible for controlling and administering the construction work at site by the contractors.
' I hope that you would find the above satisfactory. However, if there were any more points that you may like me to explain, I will be pleased to do so.
' Enc. Appendix 1 to 2, 4 & 5 forming (attachments of Appeal)
Yours faithfully, (Sd.) (MUHAMMAD SALEEM) 9-2-1986 Sr. Research Officer, DMO, WAPDA, B-C, Bahawalpur House, Lahore."
4. On 15-3-1986 he was given a personal hearing by the General Manager, (Water) WAPDA Peshawar (respondent No,2) (Annexure-D). He was then served with show-cause notice dated 24- 7-1986 (Annexure-E) which is to the following effect: "Pakistan Water and Power Development Authority Phone: 78551 General Manager, (Water) North WAPDA-House, Sakhi Chashma Shami Road, Peshwar.
' No, GM (W) North/E-215/M Saleem/580/86, dated 24th July, 1986 ' Mr. Muhammad Saleem, Senior Research Officer, C/O Chief Engineer (DMO), 8-C, Bahawalpur House, Lahore.
Subject: Show-cause notice ' On consideration of your defence reply to the 'Explanation Letter' No, GM(W)North/E-215/M Saleem/318, dated 2-1-1986 and after giving you personal hearing, I am of the tentative opinion that a penalty be imposed upon you and the penalty is provisionally determined as reduction to a lower post viz. Junior Research Officer.
' You are, hereby served with this notice in terms of rule 5(v) (b) of Pakistan WAPDA Employees (E&D) Rules, 1978, to show cause within a period of fourteen (14) days from the date of receipt of this notice why the above-proposed penalty be not imposed upon you.
' You have the right of personal hearing with reference to the reply to the show-cause notice if you so desire.
(Sd.) (KARIM KHAN) General Manager (W) North, WAPDA-House, Peshawar."
5. After his explanation in writing dated 10-8-1986 had been received, he was reduced to the lower post of Junior Reaserch Officer by respondent No,2 on 24-10-1986 with the following office order.
"Pakistan Water and Power Development Authority General Manager (Water) North WAPDA Wapda-House, Peshawar ' No, GM(W)North/Enquiry-13/3634-39, dated 26th October, 1986 OFFICE ORDER ' Mr. Muhammad Saleem, Senior Research Officer was issued explanation letter under Rule 5(iv) of the "Pakistan WAPDA Employees (E&D) Rules, 1978" applicable to him on the charges of misconduct on account of defective construction of bridges at RD 34+860, 47 + 860, 60 +860 and 87+349 on Chashma Right Bank Canal.
' After careful consideration of the reply of Mr. Muhammad Saleem S.R.O. To the "Explanation letter", hearing him personally and due consideration of his reply to the show-cause notice, I hold him guilty of the charges and being the competent Authority have decided to impose upon him the major penalty of reduction to a lower post viz. Junior Research Officer under Rule 4 of WAPDA Employees (E&D) Rules, 1978.
(Sd.) (KARIM KHAN) General Mangager (Water) North Wapda Peshawar."
' He came to the Tribunal with the present appeal after his departmental appeal was rejected by respondent No, 1 on 12-1-1987.
6. Main ground in support of the relief sought by the appellant, as mentioned in the paragraph 11 (xviii) is that the allegation of fact made in paragraph 1(E) of letter of explanation dated 2-1-1986, repeated in paragraph 2 of the letter," could not have been resolved in a summary manner as it involved disputed questions of facts which could only be determined through a regular and detailed departmental inquiry." It has further been pleaded that no evidence was taken in his presence; that he was not allowed an opportunity to produce evidence in defence and that the proceedings "demonstrated exercise of administrative authority without a fraction of judicial balance." Under the circumstances it was averred that the right to defend has been denied.
7. Pleadings in defence are that appellant was found responsible in consequence of a "preliminary technical inquiry" for having failed to carry out his job properly. It is further pleaded that "he was given full opportunity to defend himself in the shape of explanation letter, personal hearing and show-cause notice, but he failed to prove his innocence of the charges levelled against him."
8. As it has already been mentioned before, reference in support of his case has been made by the appellant only to the allegations in paragraphs 1(E) and 2 of the letter of explanation dated 2-1- 1986. The charge spelled out of these paragraphs is that he failed to maintain and take laboratory tests for concrete samples in spite of the fact that he was responsible for controlling and checking the concrete mix during mixing, placing and taking test tubes and cylinder of the concrete at the time of actual placement and reporting test results regarding the quality and strength of the concrete. However, I feel that even the allegations made in paragraph 1(A)(B)(C) and (D) are also relevant. Certain statements of fact have been made in these sub-paragraphs. They are that quality of the concrete at the bottom of girders, especially in contact with the steel reinforcement is very poor; that the girders at that location are mostly hollow and severely honey combed; that the designed mix has not been used in the concrete of the bridge structure; that segregation of concrete had taken place during placing and that proper record has not been kept of the concrete pours in the bridge sections. In paragraph 1 of the letter it has been alleged that he was responsible for safeguarding against these defects and that they came about in the construction of bridges because he failed to discharge his responsibility,
9. Disciplinary proceedings against. The appellant appear to have been taken under Rule 5(iv) of the Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1978 which provides that if the competent Authority decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall "(a) by order, in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and (b) give him an opportunity to submit a written explanation against the action proposed to be taken within a period of not more than 14 days from the day the explanation letter has been communicated to him, and will also require the accused. To state at the same time in his written explanation whether he desires to be heard in person." This decision is taken under Rule 5(iii) of the Rules which says that "the competent authority shall decide whether in the light of facts of the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in Rule 6 shall apply."
10. Although there is no specific advertence in their pleadings to this aspect of the matter by either of the parties, it may be pointed out that no conscious decision under Rule 5(iii) of the Rules appears to have been taken in this case by the competent authority. Even if any such decision be presumed to have been taken in compliance with the requirements of the Rules, it must have been based on the result of alleged "preliminary technical inquiry". It appears to me that the course adopted by the competent authority in proceeding against the appellant under Rule 5(iv) instead of Rule 6 of the Rules was the result of the findings in the preliminary technical inquiry. There is no denial of the fact that the appellant I was not a party to the preliminary inquiry, with the result that neither any evidence was recorded in his presence nor he was given an opportunity of cross- examining the witnesses against him during the course of this preliminary inquiry. It was an ex parte affair and he was evidently denied the right to defend himself. This being so, I feel no hesitation in saying that the conclusion drawn as a result of this preliminary inquiry could have been legally made the basis of a decision by the competent authority that no inquiry need be conducted in the case, either in the light of the facts of the case or in the interests of justice. I have no doubt in my mind that the expression "facts of the case" used in Rule 5(iii) of the Rules have reference to the facts already available from the record before the conduct of any inquiry either preliminary or otherwise. These "facts of the case" were not to be created in consequence of a preliminary inquiry, but had already to be there to enable the competent authority to make a decision. Any other interpretation of the provisions of this rule would lead us to the obvious result that no regular inquiry would be needed in any case, considering that it will then be possible for the competent authority to make do with the preliminary inquiry in every case, whatever be the nature of the allegation against the accused.
11. It is clear from the letter of explanation that the nature of allegations made against the appellant was such as required a regular inquiry under Rule 6 of the Rules after due service of a charge- sheet, where he could have had the opportunity of cross-examining the witnesses and produce evidence in defence. The summary procedure adopted by respondents was by no means justified under the circumstances of this case and the allegations against him could not be substantiated without production of evidence, either oral or documentary. The letter of explanation clearly suggests that the allegations against the appellant could not, possibly have been substantiated without holding a proper inquiry. I am obliged to hold that in the absence of this inquiry, there is no proof of the fact that he failed to discharge his responsibility in respect of the construction of bridges.
12. Muhammad Arif Goraya v. Secretary to the Government of Pakistan Establishment Division and others 1989 PLC (C.S.) 828 decided by this Tribunal on 6-6-1989 is an authority in support. Rifaqat Ali v. Superintending Engineer WAPDA and others 1990 PLC (C.S.) 533 and Muhammad Aslam ASI v.
Chairman, Electricity Board WAPDA 1989 PLC (C.S.) 221 are also cases in point. Even in those cases, like we have in the present case, the allegations were such as required the production of evidence which could be possible only in the case of regular inquiry on the basis of charge-sheet with statement of allegations. It was held that the summary procedure of service of show-cause notice in terms of Rule 5(iv) of the Rules was not warranted by the relevant circumstances and it amounted to palpable denial of the established right of an accused to defend himself against the proposed action. There are positive allegations of fact against the appellant in this case, which could have been established only by the production of evidence and the obvious result of summary procedure adopted by the respondents cannot be said to have resulted in fair administration of justice.
13. It may also be mentioned that while deciding the case of Rafaqat Ali, apart from its own judgment, the Tribunal was also influenced by the Supreme Court's ruling in the case of Lal Muhammad and another v. Government of Sindh 1980 SCMR 850 where the grievance of the appellants was that they had been condemned on the basis of a report of an Inquiry Committee of which they had no knowledge. The learned counsel's contention based on this aspect of the matter did not find favour with the Tribunal. On finding that the Enquiry Committee's report was part of the material on the basis of which the appellants had been dismissed, it was ruled by the Supreme Court that the view taken by the Tribunal was illegal, because they never participated in the inquiry, and were neither confronted with the preliminary inquiry report, nor was the author of this report made available for cross-examination.
14. Another circumstance appearing from the case of Lal Muhammad and another may also be mentioned with advantage. The main charge against the appellants in that case was that while posted at Kala Kot Police Station, they were negligent in the performance of their duty to control the illicit trade in liquor, which eventually resulted in the use of poisonous country liquor by 52 persons in Karachi in November, 1974, majority of whom died on account of its use. Admitting the fact they were posted at that particular police station, the gist of appellants' defence was that on account of assignment of certain other duties and other such reasons, it was physically impossible for them to perform the duty of controlling illicit trade in liquor. It was observed by the Supreme Court that "a casual perusal of the defences of these appellants would have convinced the most ignorant layman that the appellants would not be able to meet the charges against them unless they were permitted to produce evidence in support of their defence." Here in the present case too, as already pointed out, the appellant set up a positive case in defence and there was no reason why he should not, in the interests of justice, have been allowed to lead evidence to establish this case.
Under the circumstances, therefore, he cannot be deemed to have been given an opportunity to defend himself against the proposed action."
15. In this view of the matter, there is substance in the allegations that a regular inquiry was required under the circumstances of this case and that the summary procedure adopted by the competent authority under Rule 5(iv) of the Rules has resulted in denial of the appellant's right to defend himself against the C action proposed to be taken against him. The competent authority has arrived at a conclusion detrimental to his interests on the basis of an ex parte preliminary inquiry and it is not possible to say that the procedure adopted by the respondents has promoted the ends of justice.
16. For these reasons the appeal is accepted and the impugned orders dated 26-10-1986 and 12-1- 1987 are set aside. The appellant shall stand reinstated to the post of Senior Research Officer with effect from 26-10-1986. The respondents shall, however, be within their right to start the disciplinary proceedings afresh in the light of observations made by us to rectify the procedural mistake. In case such proceedings are initiated, they shall be completed within eight months of the communication of this judgment. The appellant's entitlement to the consequential benefits shall be subject to the result of disciplinary proceedings, started by the respondents afresh. There shall be no order as to costs.
17. Parties to be informed.