MUHAMMAD RAZA KHAN (MEMBER).---The appellant had been serving in WAPDA for a considerable length of time. Finally he had been promoted as Superintending Engineer on 31-10- 1996 and he was posted as Superintending Engineer (Quality Control), Pehure High Level Canal Project, Mardan, where he joined on 11-11-1996. It appears that differences cropped up between the appellant and the Swabi Scarp Consultants, hereinafter called the Consultants, when the appellant pointed out certain defects in the performance of the Contractors and the execution of the Project whereby the nation was supposed to suffer colossal losses. Instead of taking remedial measures to rectify the wrong, the officers of the respondent-Authority initially conducted an enquiry but later on restricted the sphere of the activity of the appellant. However, the Consultants were even then not satisfied and vide an office order dated 30-4-1997 the appellant was relieved of his duties with the direction to report to the Chief Engineer/P.D., Swabi SCARP, for further assignment of duty. The appellant represented against the said order vide several letters, including the one on 3-5-1997 followed by another on 22-5-1997, wherein the appellant offered to be allowed to proceed on L.P.R. with effect from 16-5-1997 as a protest. In the meanwhile, the appellant had also filed a civil suit along with an application for a temporary injunction. Initially the stay order was issued which was later on vacated. Hence the appellant had filed this service appeal on 15-7-1997 with the prayers that the appellant may be allowed to remain posted at the said station to complete the project work and that the impugned orders .relating to his transfer may be set aside.
2. Initially, pre-admission notice was issued to the respondents but after perusal of the pre- admission comments and hearing the parties, the case was admitted for regular hearing on 16-8- 1997. On 16-9-1997 the case was heard in the final hearing. The appellant appeared in person and argued his case whereas the respondent-Authority was represented by Mr. Saadat Hussain, Advocate.
3. In reply to the averments of the appellant in the appeal and the connected documents, the view point of the respondent-Department was that the appellant was posted as the In charge of the Quality Control activity but instead of focusing his attention on the quality control in accordance with the recognized principles, he criticized the design of the project and interfered in several other spheres not falling within the domain of the appellant. It was stated that the appellant tried to create petty problems like that of the allocation of house, provision of transport facility and timely payment of his salary etc. and also created a controversy with the Contractors and the Consultants regarding the designing of the Project, misuse of the funds, lack of administrative check-up and misappropriation. The learned counsel for the respondents while finally arguing the case, stated that the appellant was supposed to perform the Quality Control work and the material used in the construction of the Project but instead of checking the quality of the material used in the stock pile he allegedly used to test the collection of sweeping without the presence of a representative of the Consultants/Contractors. The learned counsel argued that during the entire correspondence made by the appellant in his six months stay at the Project, he had never complained about the specifications of the material to be used or the nature and quality of material which was being actually utilized on the spot. Instead of focusing his attention within the arena of his duties, he agitated about misuse of authority, misuse of funds, defects in the design, intentional misappropriation of funds and the causes whereby the cost of the Project of 3.4 billion was increased to six billion. The learned counsel further added that since the appellant had already moved an application for the grant of L.P.R., the same has been accepted and he has been allowed to proceed on L.P.R. with effect from 16-5-1997, and so from the 16th of May, 1998, he would stand retired on voluntary basis.
3. We have curiously studied the entire record placed on file. The appellant had been clamoring that the funds of the Project were being mutualized thereby increasing the cost of the Project which would resultantly burden the nation. He also pointed certain defects in the designs whereby either the faults have started appearing just now i,e, prior to the completion of the work, or, the appellant further adds, the defects in design will ultimately result in the entire collapse of the Project. He being a senior Engineer having served the Authority for a considerable long period was experienced enough to point out certain deficiencies which may be damaging in the longer run. Not only that the appellant is a qualified and experienced Engineer but he admittedly belongs to the area which will ultimately be beneficiary of the project and, therefore, his sentiments are justified because he feels that the most expensive Project will be useless in practice and its maintenance cost will even be greater than the actual one. The record also shows that the appellant had served the Department diligently and honestly for a considerable long period and his view point, though not strictly relating to his field of activity and the job descriptions, should have been given due weightage. It appears that the complaints/correspondence of the appellant with the relevant authorities had not only created a stir within the administrative protocol of the Consultants and they had taken it ill that an officer attached with them was pointing out certain defects to the higher authorities without following the .proper channel, but, on the other hand, the Department did not take the matter that seriously as the situation had demanded. It appears that mere cursory investigations were ordered as if the appellant was complaining about some matter of secondary importance. The Enquiry Officer/Committee, although sufficiently qualified in the field of engineering, did not investigate the issues agitated by the appellant but merely tried to reconcile the situation for smooth running of the Project. The enquiry had mainly focussed on the events leading to such complaints instead of going deep into the allegations made by the appellant.
During the enquiry proceedings an effort was made to convince the appellant to reconcile with the situation and to perform his functions within the boundaries allocated to him i,e, Quality Control of the material being utilized as per approved designs and specifications. The report mainly refers to the background of the cause of complaint, the attitude of the appellant with the Foreign Consultants and the causes of the alleged emotional eruption of the appellant etc. Some of the complaints of the appellant had also attracted the law enforcing agencies and they had also examined the situation from their own view point to find out whether there was any proof of misappropriation or corruption. Various agencies are processing the matter but the modus operandi of each Investigating Agency is limited to the sphere of its activity instead of evaluating the complaints of the appellant in the larger interest of the nation and the country. The appellant, as stated earlier, is an experienced Engineer and a local resident of the area, feels the shock when he views the utilization of the Project in future. He compares this project with several others completed scores of years ago and working satisfactorily whereas he challenges that the Project suffers from inherent defects in the design as well as in the process of implementation. He also laments about the excessive use of funds in the unnecessary infra-structure and for the misuse of resources by various quarters and functionaries. Thus, we are confident that the appellant has been making hue and cry not only for his "physical or psychological disability" or as a result of "emotional eruptions" as the Enquiry Officer has tried to conclude but we feel that there must be some truth in his statement. If he was making false allegations against the officials and officers of the WAPDA and against the functionaries of the Consultants, legal action can certainly be initiated against him under the normal law of libel, slander or torts. However, if there is the least truth in his allegations then, we feel that, it should not go as a cry in the wilderness. We propose a thorough probe into the design, consultancy and execution of this contract in comparison with similar other jobs already completed and successfully operating and the enquiry into the material being used, the defects noticeable or noticed during the period when the work is in progress and its comparative advantages and disadvantages for the posterity. Such a probe might be ordered by the WAPDA, the Federal Government or at least by the Secretariat of the Wafaqi Mohtasib which is a unique institution in the country to take notice of maladministration of the official agency established or controlled by the Government and the institution of the day being a sample of progressive societies and recognized throughout the world for its effectiveness, impartiality and in- depth probe in the larger interest of the nation.
4. Resuming the attention towards the grievance of the appellant, it may be stated that the appellant was aggrieved by an order dated 30-4-1997 whereby he was relieved of his assignment and directed to report to his Chief Engineer for further posting. Apparently this order was not only arbitrary, capricious and unreasonable but it amounted to flouting the Authority i,e, the WAPDA by its Consultants. Admittedly the appellant was posted with the Swabi SCARP Consultants to check the implementation of quality specifications during the execution of work on the Project. Thus, the appellant was a representative of the Department to watch the proper and honest execution of work. If the Consultants had any grievance about the conduct of such a representative, they could have requested the respondent-Department to replace a particular official but it was not at all justified to have relieved the representative of the Department without their approval. The Department should have taken the order dated 30-4-1997 as a serious interference in the watch and ward functions for the effective completion of the Project. Therefore, we disapprove the spirit and the manner in which the order dated 30-4-1997 was passed. However, the Respondent- Department took it lightly and instead of hesitating the issue, they approved the same and consequently fifteen days thereafter an order was issued on 15-5-1997 whereby the appellant was ordered to be relieved of his duties of Quality Control, Swabi Scarp Consultants, Mardan, and was directed to report to the General Manager with immediate effect. This approval of arbitrary and illegal orders of 30-4-1997 speaks itself of the said state of affairs where the Department has considered itself bound to obey the orders of the Consultants. Transfers are a normal phenomenon during the period of employment, however, transfers of this nature was a unique type and amounted to unfair precedent. However, it is unfortunate that the appellant had offered to be relieved on L.P.R., although under protest, vide his letter dated 22-5-1997 and the same has been accepted by the Department and the appellant has been allowed to proceed on L.P.R. with effect from 16-5-1997. This order is admittedly implemented and the appellant, presently on L.P.R., will stand retired with effect from 16-5-1998. The L.P.R. cannot be cancelled and its effects cannot be nullified although the application for L.P.R. is made under protest. When the application is made and the civil servant concerned has the required length of service to proceed on L.P.R., such an application is the final exercise of choice and the same cannot be retracted or withdrawn.
However, when such a request is accepted by the Department and the civil servant concerned is notified to have proceeded on L.P.R., such orders cannot be rescinded. Moreover, the present appeal was filed on 15-7-1997 and prior to that such orders of L.P.R. were already issued by the Department and the appellant did not challenge the same. Despite indication, he did not move any application for withdrawal of his request for permission to proceed on L.P.R. Thus presently the appellant is considered to be on L.P.R. till 16-5-1998, when he will stand retired from the service of the WAPDA.
5. In view of the above discussion we hold that since the prayer of the appellant was directed against the orders of the Consultants as well as the orders of the respective authorities transferring him from Swabi SCARP Project and the appellant had asked in the prayer clause to retain his posting in the said project but since he is no more in the service, therefore, his posting and transfer can neither be considered nor adjudicated upon. Thus, in view of the retirement having become effective by the publication of notification of his proceeding on L.P.R., the present appeal becomes infructuous which is accordingly dismissed.
6. No order as to costs.
7. Parties to be informed accordingly.