ABDUL HAMID KHAN (MEMBER).---The appellant, an Executive Engineer, was charge-sheeted, alongwith another XEN, an S.D.O. And a Sub---Engineer, in respect of the alleged omissions and irregularities detected in the construction of the building of the City Muslim League High School, Lahore which was supervised by him while holding charge of the 4th Provincial Buildings Division, Lahore during his tenure of 1979-1982. The following were the charges against him: "(1) You started the work without preparation of the detailed estimates and Technical sanction thereof by the Competent Authority in violation of the provisions of para. 2.82 of the B and R Code.
(2)You got the foundations of the building constructed without getting the design approved from the authority, competent to accord Technical Sanction and adopted a design which has been found to be ill---conceived, inadequate and defective.
(3) You accepted and allowed payments of work which has been found to be substandard, below specifications and defective
(4) You did not take appropriate steps to arrange the requisite tests at site to ensure adequate control over the quality of construction work.
(5) You failed to adopt appropriate measures to seal the foundations against ingress of water and also failed to make proper arrangements for the drainage of the site to ensure prevention of ingress of water into the foundations which were laid on built-up soil."
2. On the conclusion of the departmental proceedings he was held guilty of charges Nos. 1 and 2 only and was awarded the minor penalties of (a) stoppage of promotion for two years and (b) stoppage of three increments without cumulative effect by the Secretary, C and W Department/respondent No. 1 vide order dated 27-5-1986. Whereas the other XEN and the Sub- Engineer were exonerated, the S.D.O. Was awarded only the minor penalty of censure. The review petition submitted by the appellant was partly accepted vide order dated 1-2-1987 and the penalty of stoppage of promotion, for two years was set aside by the Chief Secretary, Punjab/respondent No. 2. The appellant has impugned before this Tribunal the above two orders in the present appeal.
3. The learned counsel for the appellant has challenged the impugned orders on, among others, the following grounds:
(i) It is against facts on record to say that the project was started without getting the detailed estimates and the design approved by the Competent Authority. These had in fact been approved by the Superintending Engineer, 3rd Provincial Buildings Circle Lahore i.e. The Competent Authority before the work was actually taken in hand. In fact tacit, if not express, approval had also been accorded by him to the technical viability of the project. In any case; the provisions of pare. 2.82 of the PWD Code had virtually become a dead letter and its enforcement impracticable at that time.
(ii) The number of unsanctioned works in hand in the various Departments was enormous. In the North Zone of the Buildings Department alone the number of such works was 2911 with a corresponding expenditure of Rs.69,31,309. There was thus a well-established departmental practice already existing of starting works without Technical Sanction. Even the Public Accounts Committee did not take any serious notice of these lapses and in fact had decided not to take any action against the staff on this account. None of the officers responsible for starting these works without technical sanction was proceeded against. The discriminatory treatment given to the appellant offends against the fundamental right of equality before law.
(iii) If any, it was the Superintending Engineer who was responsible for this omission as he, did not issue technical sanction despite the fact that detailed estimates, DNIT and design had been submitted to him by the appellant in time for this purpose specifically. The former accepted the tenders, approved allotment of work and even 'inspected the project during its execution several times and never took any exception to the work having been started without Technical sanction.
(iv) The fact is on record that the bearing capacity of the soil and propriety of design had been examined by the Superintending Engineer in a series of meetings with experts and other officers of the Department before starting the work.
(v) All this could have conclusively been established had the Superintending Engineer been allowed to appear before the Enquiry Officer but he was deliberately prevented from doing so by respondents 1 and 2 although he had initially been nominated as a prosecution witness. In fact, the Superintending Engineer had acknowledged during the course of the preliminary enquiry that he had approved the design in principle. In the report of the Special Committee set up by him it was clearly stated that the design adopted by the Superintending Engineer was quite in order. In any case, the Enquiry Officer was in no position to express any opinion about the design, which was not made available to him.
(vi)Mr. Ashfaq Ali who was the complainant in this case and on whose report the entire case was initiated against the appellant, was not allowed to be cross-examined by the latter which otherwise was his statutory right.
4. The learned District Attorney vehemently controverted the above contentions of the appellant and placing reliance on the report of the Enquiry Officer and the written objections filed by the respondents prayed that in the light of these documents the appeal be dismissed with costs.
5. From the foregoing it is apparent that the appellant has been punished because (i)he had started the work without preparation of detailed estimates and in the absence of Technical Sanction of the Competent Authority in violation of para. 2.82 of the Public Works Department Code;
(ii) he got the foundations of the building constructed without, getting the design approved by the authority competent to issue technical sanction and instead adopted a design which was inadequate and defective.
6. In the light of the foregoing the following issues have been framed to consider the case in its proper perspective:
(a) Whether any detailed estimates were prepared and if so whether these were prepared and approved before execution of the work?
(b) Whether any technical sanction was accorded by the Competent Authority to these estimates; if not, what are the implications of non-- issuance of the technical sanction?
(c) Who was the Competent Authority in this case?
(d) Whether any design of the foundations. Of the building was approved by the Competent Authority?
(e) If so, whether the design adopted by the appellant was really inadequate and defective?
7. It is also to be kept in view that, while examining these issues we have to confine ourselves within the parameters set by allegations Nos. 1 and 2.
8. The question at (c) above may be answered first. It is admitted on all sides and there is no dispute about the fact, that the Superintending Engineer, 3rd Provincial Buildings Circle, Lahore, hereinafter to be referred to as the Superintending Engineer or we may even use the abbreviation 'SE', was the Competent Authority for according technical sanction and for approving detailed estimates, design etc.
9. As regards approval of the detailed estimates and design our attention has been drawn to Memo. No.W-45/443, dated 1-6-1981 with which the appellant had submitted to the Superintending Engineer the DNTT for this work "for approval and early return as the tender for the work have been invited on 14-6-1981------.." Thereafter, he also submitted to the Superintending Engineer, as desired by the latter, 'detailed estimates with designs for Technical Sanction/approval of DNIT'.
After checking by the Draftsman and the Circle Head Draftsman the DNIT and the detailed estimates were approved by the Superintending Engineer subject to certain observations. .
10. It is thus established beyond any shadow of doubt from the above that the detailed estimates and designs were prepared which were later approved by the Competent Authority before the work on the project was started.
11. The next point to be considered is whether Technical Sanction had been accorded by the Superintending Engineer before construction was actually taken in hand. During his submissions before this Court the learned counsel for the appellant had contended that as a matter of fact the technical sanction had also been given by the Superintending Engineer because while submitting the detailed estimates and the design to the latter he had specifically requested for approval both of the DNIT and of the Technical Sanction and when he received the Superintending Engineer's approval he was justified in presuming that it also included the Technical Sanction. His presumption was based on the fact that since he had submitted all the necessary documents such as detailed estimates, DNIT, design etc., which are required for according technical sanction and since he had pointedly asked for the grant of technical sanction, the Superintending Engineer's approval, therefore, also included the technical sanction.
12. He further stated that approval of the DNIT, detailed estimates and the design and acceptance of the tender by the Superintending Engineer in fact constituted technical sanction as well as permission to start work in anticipation of the issuance of formal technical sanction. The SE accepted allotment of work to the lowest bidder and also allowed the work to be started after satisfying himself of the technical viability of the project. Even during the execution of the work the project was visited .By him several times when he did not take any exception to the design of the work being executed at site. On the contrary, he showed his appreciation of the progress and quality of work. Even in the course of the preliminary enquiry the Superintending Engineer had confirmed that he had granted sanction to the design in principle. It is thus more than evident that the work was started with the approval and consent of the Competent Authority. This really amounted to consensus tollit errorem i.e. The acquiescence of a patty who might take advantage of an error obviates its effect. The funny thing is that while the Department is holding the appellant responsible the Superintending Engineer has never denied his role and responsibility in this transaction. During the course of the departmental proceedings, however, neither any statement was submitted by him to the Enquiry Officer, or may be that he was really not allowed, as alleged by the appellant, by the department to file any statement, nor was he called as witness to verify or deny the stand taken by the appellant. He was initially nominated as prosecution witness but subsequently his name was withdrawn from the list on the plea that his evidence would go against the interest of Government. According to the appellant, it is a cardinal principle of law that when better evidence than that which is offered is withheld, it is only fair to presume that the party has some sinister motive for not producing it which would be frustrated if it were offered. Even Mr. Ashfaq Ahmed Qureshi, the then Superintending Engineer, First Provincial Buildings Circle, Lahore who was the main complainant and had also conducted the preliminary enquiry in this case, was not allowed to be cross-examined by the appellant.
13. He further contended that almost all the works in various departments were at that time being carried out without formal issuance of Technical Sanction. P.W.2 and P.W.5 and the departmental representative confirmed the fact that most of the works in hand in the department were being executed without technical sanction. According to the quarterly statement of unsanctioned works for the period ending 30-6-1984 issued by the Director Audit and Accounts (Works) the number of unsanctioned works in the North Zone of the Buildings Department alone was 2911 with corresponding expenditure of over Rs.69 crore. That means that the total number of such works in the Department should be four times this figure. None of the officers responsible for starting these works without technical sanction in such a large number of cases was proceeded against on this account. In fact, in these days the C & W Department itself had recommended the deletion of para. 2.82 of the Code on the plea that it was impracticable and in actual practice it had virtually become non-existent. While circulating the quarterly statement for the period ending 30-6-1985 the Chief Engineer, North Zone had pointed out that "the number of unsanctioned works is very heavy and need effective and rapid remedial steps for their early sanction". It was through this letter that all concerned were directed that "in future works should not be taken in hand unless the detailed estimates of these works are technically sanctioned by the Competent Authority .........---.
The prefacing of this sentence with the phrase ' in future' clearly meant that all earlier actions of this nature stood validated. "The issuance of the above mentioned directive have put the field staff (of the Building Department) in a very embarrassing position, as many of the works, especially major works, are being executed without proper accord of technical sanction because of the circumstances prevailing at present (Exact from a letter dated 27-12-1983 from the Chief Engineer Buildings South Zone addressed to the Secretary, C&W. If this was the state of affairs all around, then why did they have to pick on the appellant alone? This was an obvious act of discrimination.
The following decisions taken in the meeting of the Public Accounts Committee held on 20-4-1982 lend support to this assumption: "24. Para. 6 page 70 of the Audit Report for the year 1978-79 ---Expenditure incurred on works in anticipation of Technical Sanctions: The Committee noted with satisfaction and appreciation that out of the unsanctioned works totaling 2809 with a total cost of Rs.1,28,99,37,569, only 597 estimates with cost of Rs.26,48,85,125 remained to be regularised. The Committee hoped that this commendable work will be continued and sanction of the remaining estimates would be produced in due course.
The Committee observed that disciplinary action against those officials who were responsible for these lapses in the past need not be initiated at this belated stage."
14, Even if the appellant is considered to be responsible for the omission of having started the work without first obtaining technical sanction the sin was not of such nature as could not be forgiven. If the appellant had committed this irregularity, thousands others were also doing it with impunity.
(This is a crime which is committed in your city as well).
15. For all these reasons we find that the appellant could not be held guilty of Charge No. 1.
16. As regards Charge No. 2 the learned counsel for the appellant has already shown that the design of the building, which must also have included the design of the foundations, had been approved by the Superintending Engineer who was the competent authority in this case. Since this design, even if inadequate and defective, had the approval of the Competent Authority, the appellant could not be blamed for it. The responsibility lay squarely with the Superintending Engineer who had examined the bearing capacity of the soil and propriety of the design in a series of meetings with the Director, Planning and Design of the Chief Engineer's office, in the office of the Chief Engineer (North), Buildings Department as well as with the Chief Engineer himself had even consulted the Building Research Station, Lahore in the matter. The claim that the design was defective or inadequate is also questionable. Before initiation of the preliminary enquiry a Special Committee was set up by the Superintending Engineer, which gave, its report to the effect that the design as adopted was quite in order. While forwarding this report to the Chief Engineer North Zone Buildings Department he had observed that the cracks had "appeared due to local settlement of the corner caused by seepage of water/seismic effect. The quality of work has been found to be of specified standards---Nobody can be held responsible as it is a treacherous site and a local spot has not behaved properly ".
17. The Chief Engineer in his report dated 17-1-1985 addressed to the Secretary, C & W clearly indicated that the "------------.Superintending Engineer approved the DNIT without ascertaining bearing capacity of the soil and without approving the design of the foundations and before issuing Technical Sanction of the estimate The crack occurred due to negligence of the field staff including Executive Engineers as they failed to prevent water from seeping under the foundation.
The Superintending Engineer may not be held responsible because he is expected to inspect such works very occasionally ------------.There are cracks in all the buildings around this school building and because of the old filling in the site, minor cracks in the masonary may appear even in future". In his earlier letter dated 24-8-1984 written by the Chief Engineer to Secretary, C & W it was opined by him that "site inspection has revealed that they are possible due to ingress of rain water in the foundation due to improper/defective drainage at site".
18. Two points emerge from these communications, firstly that according to the Chief Engineer the SE had approved the DNIT and had accepted the tenders without finding out the bearing capacity of the soil and without approving the design of the foundations. Even if this theory is given any credence, who should in that case be held responsible for approving "the DNIT without ascertaining the bearing capacity of the soil and without approving the design of the foundations and before issuing technical sanction of the estimate"? And yet he is being absolved of the responsibility by saying that this was an "irregularity which is generally committed on most of the works because field officers are under great pressure to start the works as soon as funds are received by them --- ---------..."Instead all the responsibility is being placed on the shoulders of the XENs because an SE "is expected to inspect such works very occasionally". If that is the criterion for fixing responsibility then only the S.D.O. And the Sub-Engineer should have been held responsible. Under rule 4.5 of the PWD Code whereas the "S.D.O. Must take all measurements himself for works the estimated cost for which is more than Rs.25,000---------.The Divisional Officer (XEN) must check at least full 24 bills in a financial year or (only) 10% of the total payment whichever is more". It is thus evident that it is not necessary for the XEN to check each and every bill although he is usually incharge of much more than 24 projects in a year.
19. Secondly, according to the Chief Engineer, the cracks had occurred because of the ingress of water into the foundation due to improper/defective drainage at site. That has taken the wind out of the sails of the allegation that it was the defective design, which was responsible for the seepage and the cracks. For this only the lower staff such as the SDO and the Sub-Engineer could be held responsible. His observation that such irregularities which are "generally committed on most of the works because field officers are generally under great pressure to start the works as soon as funds are received by them ....." also lends support to the contention of the appellant discussed above that starting of works in the absence of Technical sanction was the normal practice in those days.
20. It is on record, as per statement of the Assistant Director, Building Research Station, Lahore, made before the Enquiry Officer that the "Executive Engineer (4th Provincial Building Division, Lahore) was intimated that the site is not suitable for construction purposes and as such he may select/propose some alternative site. Subsequently, Superintending Engineer, 3rd Provincial Buildings Circle, Lahore vide his Letter No. 44-Edn/3412/B, dated 12-11-1981 asked to intimate the bearing capacity at 12'-15' depth. Reply was sent to him vide our Letter No. BC-LE-37/3744, dated 28-I1-1991 It was again informed to SE, vide our above-referred letter that site is not suitable for construction purposes". If the SE chose, despite the above advice of the Buildings Research Station, to go ahead with the project construction at its original site, he alone was then responsible for it and for the resultant seepage and cracks.
21. The learned counsel for the appellant has also contended, and the contention has not been controverted, that two authorities on Designing of Civil Structures namely Mian Ziauddin, Prof. Of Structural Engineer, University of Engineering and Technology, Lahore and Mr. Abdur Rehman Niazi, of the Niazi Design Systems, Lahore were examined as DWs. By the Enquiry, Officer. They had both categorically stated that the design as adopted at site including the bearing capacity of the soil was perfectly in order and there was absolutely no deficiency in the design and allied calculations etc. It is a matter of record that the original design was never produced before the Enquiry Officer.
How could he in the absence of the design express any opinion about its correctness or otherwise?
22. SE's approval of DNIT which included detailed estimates and design, his subsequent inspections of the site, consensus with the Special Committee's report and admission during the preliminary enquiry that the design had been approved by him in principle indicate only one thing that the design had his tacit, if not express, approval.
23. Charge No. 2 is thus also not proved against the appellant.
24. There are some contentions of a general or technical nature raised by the appellant, which also deserve to be mentioned here. According to him Charges Nos. 1 and 2 were only of formal and technical nature and were significant only in the context of the substantive Charges Nos. 3 to 5.
Thus if the crucial Charges Nos. 3 to 5 could not be proved it was only logical that the formal Charges Nos. 1 and 2 also lost their significance. The appellant also pointed out that undue importance had been given to a minor crack appearing in the wall. The respondents have also not denied the fact that neither any financial irregularity had been committed by the appellant nor any monetary loss had been caused to Government. It is a settled proposition of law that a civil' servant should not be punished merely on the basis of purely procedural and technical allegations which do not result into any loss to Government. Further, no motive or dishonest behavior has been attributed to the appellant. His entire 24 years service is unblemished. The appellant has clearly been discriminated against inasmuch as the Sub-Engineer and the SDO, his co-accused, had been exonerated and censured respectively. The latter was given a lenient punishment although the charges against him were almost the same as those against the appellant. And in any case, departmental proceedings were not even initiated against the SE who had approved the DNIT, estimates, design etc.
25. For all these reasons we find this to be a case of misreading of evidence and misconstruction of facts. Thus as shown above, even allegations Nos. 1 and 2 have not been established against the appellant. We, therefore, proceed to accept the appeal and. Set aside the impugned orders. There are no orders as to costs.