MUNIR A. SHEIKH, J.--- This appeal by leave of the Court is directed against the judgment dated 12.4.1999 of the Punjab Service Tribunal, Lahore through which appeal filed by the appellant against the order of the Departmental Authority of his dismissal from service has been dismissed.
2. The facts of the case shortly stated are that the appellant was working as Executive Engineer, Highway Division, Gujranwala when tenders were invited for the following two categories of works:-
(1) Provincializing, widening/improvement of Tatle Aali Wahndow to Mandiala Taga via Eminabad, Lalupur Road (length 56.72 k.m.) with the administrative approval for Rs. 4,08,49,000/-); (II)(a) Construction of metalled road from Muju Chak to Wandala in Gujranwala District (length 6.37 Miles). Balance work at the risk and cost of M/s Eastern Construction Co. Govt. Contractor 5-Kashmir Block Allama lqbal Town, Lahore.
(b) Construction of metalled road from Landay to Mahal via Sarai Shahpur in Gujranwala District (length 13.00 miles), Balance work at the risk, and cost of M/s Eastern Construction Co. Govt.
Contractor, 5-Kashmir Balock Allama Iqbal Town, Lahore.
(c) Construction of metalled road from Jabboko to Machikey Sindhewan via Dalowal Chak Rehan and Kot Das Raj in Gujranwala District (length 4.90 Miles) Construction of side drain at village Chak Rehan.
(d) Construction of Metalled road from Chaniah to Harey Vian via chak Ajan (length 3.25 miles)
Construction of Nagray link road length. 50 K.Ms.
(e) Construction of metalled road Eminabad Link Road in Gujranwala District length 6.22 kms.
Construction of Nagray link road (length 0.50 kms.).
(0 Construction of metalled road from Trigri to Thatta Dad in Gujranwala District at risk and cost of M/s Abdul Hamid Rana (private Contractor), balance work (length 5.22 miles).
(g) Construction of metalled road, from Bharam Singh to Ferozewala (length 5.43 Kms.)
Construction of Nalu link road length 0.50 kms.).
3. It is an admitted fact that it was the appellant who was to invite- tenders for both classes of work and on the receipt of tenders those falling within the competence of the Chief Engineer, he was to transmit the same to him for passing order for approval or otherwise and for the other seven small works, he was himself competent to give approval or reject the same. According to the appellant himself, these tenders were invited through publication of notices in the newspaper and the dates fixed for the issuance of tender documents to those who were interested to compete were to be issued from his office on 27.3.1993 and the tenders were to he opened on 28.3.1993.
4. The appellant, however, subsequently displayed a notice outside his Office which was to the following effect:- "NOTICE INVITING TENDER POSTPONED TO TENDERS Tenders were invited on 28.3.1993 at 12.00 noon are hereby postponed and now will be received on 6.4.1993 at 11.00 am by the undersigned on the same terms and conditions.
Sd/- Executive Engineer, Highway Division, Gujranwala.
Endst. No. 1720-28/MCB dated 27.3.1993.
A copy is forwarded to the following for information and exhibition on the Notice Board:-
(1) Superintending Engineer, Highway Circle, Gujranwala.
(2) Executive Engineer Highway Division Gujrat/Narowal/Sialkot.
(3) Sub Divisional Officer, Highway Sub-Division, Gujranwala/Hafizabad/Kamoke.
(4) Notice Board and contractors. This is in continuation of this office.
No. M.9/1230-31/MCB dated 7.3.1993 No. 9/1232- 39/MCB dated 7.3.1993.
Sd/- Executive Engineer, Highway Division, Gujranwala."
5. Since it was not made clear that this postponement did not relate to the tenders fall within the competence of the Chief Engineer whereas it cearly showed that all the tenders invited on 28.3.1993 had been postponed, therefore, a number of contractors went back after seeing this notice without receiving the tender documents and competing with others in respect of these works and only few other i.e. Five in number Contractors were issued the tender documents which were sent to Chief Engineer who accorded the approval two out of those and they got the contract.
6. On coming to know two of the other contractors who were in this manner deprived of right to compete with those who had been given the work, made a complaint that fraud had been played in connection with the said tenders on which a show cause notice was issued and the appellant was proceeded against under Efficiency and Discipline Rules. Thereafter, he was issued a charge sheet to the following effect:- "No. SOEH (C&W) 13-55/93 GOVERNMENT OF THE PUNJAB, COMMUNICATION AND WORKS DEPARTMENT.
Dated Lahore, the 22nd March, 1997.
To Mr. Saleem Ahmad Khan, Executive Engineer (H.Q), Highway Mechanical Circle, Lahore.
Sub, CHARGE SHEET.
Whereas I, Abdul Rashid Khan, Secretary to Government of the Punjab, C&W Department as Authorised Officer in your case have been directed by the Authority under Rule 5 of the Punjab Civil Servants (E&D) Rules, 1975 to proceed against you.
And whereas, I consider that in the light of facts of the case and in the interest of justice, it is necessary to hold an enquiry and appoint an enquiry officer.
Now therefore, you Mr. Saleem Ahmad Khan, Executive Engineer (H.Q) H. Mech. Circle, Lhr., are hereby Charged as under:- That while posted as Executive Engineer Highway Division Gujranwala you Committed the following irregularities in calling the tenders and allotment of works regarding Provincialization widening/improvement of Tatle Aali Wando to Mandiala Tega via Eminabad Lalupur (length 56.72 kms).
(1) You signed two notices on 27.3.1993 for seven works, for which the tenders had to be received on 28.3.1993 at 12.00 noon.
On comparison it transpired that the time of 12.00 noon was deliberately omitted in the notice bearing No. 1720-28, dated 28.3.1993, and most of the contractors who visited your office on 27.3.1993 for receiving tenders documents read the postponement of tenders to be opened on 28.3.1993 and they left the office without getting the tender documents by your staff.
(2) By displaying a vague notice of cancellation of tenders you deliberately created confusion to avoid fair competition among pre-qualified contractors.
(3) That issuance of the tender documents to only five out of fifty two pre-qualified contractors and display of vague notice bearing No. 1720-28, dated 27.3.1993 makes the proceeding dated 28.3.1993 doubtful by doing so you deliberately avoided open and fair competition, depriving genuine contractors to participate in the bidding.
And as such you are liable to disciplinary, action under rule 3 of the Punjab Civil Service (E&D) Rules, 1975 which may attract imposition of one or more of the penalties prescribed.
You are hereby required to submit you written defence to the above charges within 14 days of the receipt of this charge sheet explaining as why disciplinary action as aforesaid may not taken against you.
Sd/- (Abdul Rashid Khan)
Secretary C&W Department, (Authorised Officer."
7. The Inquiry Officer after holding inquiry proposed to exonerate the appellant. The Authorised Officer, however, did not agree with his findings and proposed imposition of major penalty of dismissal from service of the appellant. The Departmental Authority after giving personal hearing to the appellant passed an order for his dismissal from service which was challenged before the Service Tribunal through appeal which has been dismissed by the impugned judgment dated 12.4.1999 against which leave to appeal was granted to consider the following questions:- What benefit had accrued to the petitioner and what financial loss had been suffered by the Government on account of alleged irregularities/violation committed by the petitioner, and to what extent the petitioner can be held responsible?
(ii) Whether on account of alleged misconduct the petitioner was liable for imposition of major penalty of dismissal from service?
(iii) Whether the service Tribunal had for legal and Valid reasons discarded the report of the Inquiry Officer holding the petitioner not guilty?
(iv) Whether the documents relied on against the petitioner for declaring him guilty could legally form basis for such a finding".
8. The appellant has argued the case personally. He submitted that no financial loss in terms of specified amount had been proved to have been caused to the State Exchequer due to his said act nor it had been proved that he personally earned any wrongful gain out of the same, therefore, it was a matter of mere irregularity and not such a matter which should have been visited with the penalty of his dismissal from service. According to him, this is apart that no case had been proved against him and the report of the Inquiry Officer should have been accepted, therefore, the appeal should be accepted and he he directed to be reinstated in service.
9. We have examined the record and the judgment of the Service Tribunal and find that on account of the act of the appellant of changing the date through a notice which was displayed on the notice board for the collection of the tender documents and submission of the tenders, out of 55 contractors, only five were allowed to compete, as such, not only the other contractors were deprived of their right to submit tenders, the contest having been limited to a few contractors, the State was deprived of the financial benefits of obtaining, better offers than the offers made by the contesting contractors in case the contest was fairly widened. The reasonings which weighed with the Service Tribunal to hold that the State was made to suffer financial loss in this way, in our view, are based on relevant consideration having logical nexus with the ordinary course of business.
10. There is no denial of the fact that it was the function of the appellant as Executive Engineer to issue notice for inviting tenders in respect of both classes of contracts i.e. One within his competence and those which were within the competence of Chief Engineer and fixed a date for the contractors to receive the tender documents from his Office and deposit the tenders in his Office.
11. The appellant attempted to argue that notice through which changes were made for submission of tenders related to only to those works which were within his competence and not the other class of 'works which were within the competence of Chief Engineer, therefore, the contractors could, not in any manner be said to have been misled in this respect. He pointed out that the impugned order of his dismissal from service has been passed in respect of those works which were within the competence of the Chief Engineer, as such, the Departmental Authorities failed to take into consideration this aspect of the case and proceeded to pass order mechanically of his dismissal from service on the wrong assumption as if the act of the appellant related to those works which were within his competence.
12. The argument as put by the appellant prima facie appeared to have some force but when considered in the light of the documents "placed on the record, the same is found to have no force; rather the appellant again attempted to mislead the Court. The subsequent notice for changing the dates which has been placed on the record by the appellant himself shows that there is no indication in it that the same related to the works which were within his competence and not the others. From bare reading of the notice which has already been reproduced in extensor in the earlier part of this judgment, it is manifest that there is no indication that the same related to only one class of works and not the other; rather it shows that it was a notice in respect of all kinds of tenders which were earlier invited on a particular date but the said date had been changed and the new dates fixed were also indicated therein. The words "after 12.00 noon" are not in the original draft which is typed one whereas the said words had been added by hand by the appellant. The charge that the time was not indicated in the notice itself was rightly held to have been proved which was also an act on the part of the appellant to mislead the contractors so that only few contractors should be allowed to get the works by filing the tender documents behind the back of the others in order to avoid fair competition among them which caused wrongful gain to one group of contractors and loss to the State Exchequer.
13. The questions on which leave was granted were necessarily questions of facts and the appellant could succeed in this appeal only if it had been established that the findings of the Authorised Officer and the Service Tribunal were based on no evidence, suffer from surmises and conjectures or that any evidence was misread. The appellant has failed to establish any such thing, therefore, we are of the calculated opinion that the findings of the Departmental Authorities and inferences drawn by them from the act of the appellant do not suffer from any illegality calling for interference in appeal by this Court.
14. For the foregoing reasons, this appeal has no force which is accordingly dismissed with no order as to costs.
15. We have, however, considered the question of nature of penalty imposed on the appellant and after considering all the attending circumstances of this case and taking lenient view, the penalty of dismissal from service of the appellant is hereby converted into penalty of compulsory retirement. Subject'to this modification, the impugned order of the departmental authorities is maintained.