' NOOR MUHAMMAD MAGSI (MEMBER).---Appellant Zaigham Hussain Asghar has filed this appeal against the impugned Notification dated 3-3-1994, whereby penalties of stoppage of one increment without cumulative effect and recovery of an amount of Rs,5,21,242.27 have been imposed upon the appellant.
2. Brief facts are that in the year 1984, the appellant was working as Assistant Director (Civil) in Civil Works Section of National Training Bureau, Islamabad. 10% of total sanctioned amount of running bill of the contractors was used to be kept by the Drawing and Disbursing Officer (DDO) as security.
One of the contractors M/s. Naeem Trading Company Ltd. Had met the Director-General and requested for conversion of their retention money into interest/profit bearing securities (Defence Saving Certificates). The D.G. Had approved their request, therefore, the appellant proposed that the DDO may be asked to convert the retention money into Savings Certificate as requested by the contractor and approved by the D.G. Accordingly the DDO delivered a bank draft amounting to Rs,17,20,530.19 to the Contractor M/s. Naeem Trading Co. Ltd. Who purchased the Defence Saving Certificates and then deposited the same with the DDO. Similar request was made by M/s. Pakistan Constructors Ltd. In view of earlier precedent of M/s. Naeem Trading Co. Ltd. The appellant made proposal which was approved by the D.G. The DDO in the same manner-handed over a bank draft of Rs,5,21,242.27 to the Contractor M/s. Pakistan Constructors Ltd. For purchase of Defence Saving Certificates, but they did not turn up.
4. The appellant was served with a charge-sheet on 21-5-1987 alongwith statement of allegations, alleging him/have committed acts of misconduct and irregularities mentioned therein. The appellant submitted his reply on 11-61987 denying all the charges levelled against him. Enquiry was conducted by Mr. S. Aqeel Zafar-ul-Hasan. The Enquiry Officer in his report dated 28-41988 held as follows:--
9. In view of the foregoing, no substantial charge is proved against the accused. He may be acquitted".
5. The appellant was again served with a charge-sheet on 27-4-1989 alongwith statement of allegations containing the same allegations. Mr. Abdul Sattar Gill, Director-General, NTP, was appointed as Enquiry Officer. The appellant submitted his defence reply on 23-5-1989 again denying the charges levelled against him. Thereafter, the appellant received show-cause notice dated 18-12-1993 alongwith a copy of the enquiry report. The conclusion of this enquiry report is reproduced below:- "20. The accused Mr. Zaigham Hussain Asghar has admitted charge Nos. (i) to (iii). However, these are statements of facts only and do not involve any;substantial charges. Charge No,IV has been proved against the accused. Charge No,V has not been proved. Charge No,VI is a case of collective negligence of more than one persons and sections including AD(C), DDO and Pre-Audit. No one person can be held responsible for the negligences and irregularities under Charge No,VI.
21. Mr. Zaigham Hussain AD(C) is found guilty for the reason that he submits the files directly to the D.G. And therefore he has assumed the role of incharge of the Section. DDO for the reasons that he has handed over the bank draft and it was in his knowledge before making payments of 5th and 6th running bills that the Defence Saving Certificates were not deposited by the Messrs Pakistan Constructors Ltd., yet Pre-audit for the reason that any audit, worth the name, must bring our such irregularities as the case of retention money before affixing payment order. Management is also faulty for two reasons (a) its inability to evolve a sound and reliable accounting system ensuring that Government does not incur any losses and (b) its succumbing to what seems outside pressure and making payments to Messrs Pakistan Constructions Ltd. Immediately on receipt of bills from him as in the calendar of activities on the page 9 would show."
6. We have heard learned counsel for the appellant as well as Standing Counsel for the respondents and also perused the record. The allegations stated to be proved against the appellants are that he made proposal contrary to the provision of contract agreement and thus he misled the D.G and further that he submitted files directly to the D.G., therefore, he had assumed the role of incharge of the Section. In this connection, the appellant stated that he had not violated any provision of the contract agreement. He stated that on receipt of request from M/s. Pakistan Constructions Ltd. For conversion for their retention money into interest/profit bearing securities (Defence Savings Certificates) the appellant made proposal keeping in view the previous precedent, which the D.G. Had approved and sent it directly to the DDO. The Bank Draft of Rs,5,21,242.27 was delivered directly to the Contractor by the DDO after obtaining the receipt. It was the duty of the DDO to ensure the return of the amount in the shape of Defence Saving Certificates.
The record of recovery and payments was made by the DDO. The appellant could not be held responsible for the lapses on the part of others. Learned counsel for the appellant argued that when the appellant was acquitted by the Enquiry Officer, the issuance of show-cause notice again on the same allegations is illegal and unjustified. The appellant could not be punished twice on the same charges.
7. After hearing both the parties and going through the record, it is established that the appellant could not alone be held responsible for the irregularities. It is evident from the enquiry report that it is a case of collective negligence. No one person can be held responsible for the negligences and irregularities. As per enquiry report, some other persons e.g. DDO, D.G. And Management were also faulty, so the action only against the appellant is quite unjustified, when no action seems to have been taken against others. Appellant was firstly served with a charge-sheet on 21-5-1987 and he was acquitted by the first Enquiry Officer. The issuance of second charge-sheet and consequently punishing the appellant on 3-3-1994 after a lapse of about six years is also uncalled for. Such a long delay in the process of the case against the appellant negates the action taken by the respondents. The appellant could not be punished twice for the same allegation, and that also after such a long period of his acquittal by the first Enquiry Officer. Under the Constitution of Islamic Republic of Pakistan, no one will be double jeopardized for the same cause. Article 13 of the Constitution lays down "No person shall be prosecuted or punished for the same offence more than once." This proposition is also supported by judgment of the Supreme Court in a case of Abdul Razzaq Malik v. WAPDA reported in PLD 1973 Lahore 188, in which it has been clearly held that "none shall be twice vexed for one and same cause". Another ruling on the point is reported as 1989 SCMR 1224 (The Director-General (Field), Agricultural Department, Lahore and others v. Haji Abdul Rehman) in which the Supreme Court has observed that "a civil servant could not be vexed for the same charge twice."
6. Moreover, it was also brought to our notice during the course of arguments that the department had also initiated criminal proceedings against the Contractor M/s. Pakistan Constructors Ltd., which is still pending in the Civil Court for recovery of Rs,5,21,242.27. It is also supported by the impugned Notification dated 3-3-1994 wherein it is mentioned that "in case the contractor remits the amount of the loss on his own, or through the Court, the amount recovered from him will be refunded on reconsideration of the case on merit." "Further 7th running bill of amount to Rs,20,31,612 is still pending with the Department and thus so-called loss can be met from the running bill of the Contractor.
7. The finding of the Enquiry Officer in the earlier proceedings exonerating the appellant, were well- founded. The appellant seems to have done is to follow the practice which was prevalent in the Office. Admittedly there was no specific procedure for conversion for security money into interest/profit bearing securities (Defence Saving Certificates). The proposal made by the appellant was not final. The final authority was equally responsible much more than the appellant to pass whatever orders he though fit on the proposal of the appellant. It is borne out from the evidence of the D.G., that he ordered the handing over of the drafts to the Contractor because in his view. In case the contractor failed to deposit the Defence Saving Certificates, the amount will be deducted from his remaining bills. The appellant himself could not do anything except with the approval of the higher authority. The transaction of bills, bank drafts and securities etc. Were the responsibility of the DDO. Therefore, the appellant could not be held responsible for recovery of amount taken by the contractor. The action taken by the respondents against the appellant is not justified moreso when the same recovery case is pending against the contractor in the Civil Court.
The amount can be recovered from the contractor from his running bill pending with the Department. The recovery should be made from the concerned contractor who violated the contract agreement and not from the appellant who was not at fault.
8. In view of the above, the appeal is accepted and the impugned order dated 3-3-1994 is set aside with all consequential benefits. Any recovery if already made, shall be refunded to the appellant.
9. No order for costs.