1. ' ABDUL MAJID KHANZADA (CHAIRMAN).---All the learned advocates for the appellants as well as A.A.-G., were unanimously of the opinion that all these appeals, involved the same questions of law/were outcome of the same disciplinary action/complainant was the same and all-the appellants were awarded the same penalty of 'Dismissal from service' by a common Order bearing No,SOIII (S& GAD) 3-14/94, dated 12-6-1996 by the then Chief Secretary, Sindh and, therefore, all these appeals were heard together and are disposal off by this common judgment. All the Advocates for the appellants named above were quite vocal on the point that Serial No,1 viz. Mr. Shafi Muhammad Saund, the then Superintendent Engineer in the impugned original order, who was the highest ranking accused/overall boss of the appellants has not only been reinstated but also promoted because of the subsequent matrimonial alliance with the then Chief Minister, Sindh, whereas the appellants who were Assistant Engineers/Sub-Engineers were made scape goats which amounted to gross discrimination against these low paid employees. They also submitted that equity, fair play and justice demanded that these appellants may also be reinstated in service.
2. ' The Tribunal was addressed 1st by Mr. Manzoor Ali Khan, Advocate followed by M/s. Nooruddin Sarki, Abdul Latif Channa and M.M. Aqil Awan, Advocates in order of their seniority in profession.
3. ' Mr. Manzoor Ali Khan opened his address with the remarks that it was basically a matter of 'bad luck' that the appellants were posted at relevant time in District Dadu, the home District, of the then Chief Minister, who were perhaps displeased with the appellants on one of his cursory visit to some of the sites, on way to his home town and perhaps because of it, neither the Authorised Officer nor the Authority could, or did exercise their mind judiciously/independently about the alleged facts' or guilt of the appellants or if so, up to what extent? Therefore, the appellants were axed without due diligence. According to him, there were three (3) stero type charges against the appellants who were incharge/ associated with some ongoing works viz:--
(i) Sub-Standard construction.
(ii) Making fraudulent bills.
(iii) Consequent financial loss to the (Prov.) Government.
4. ' These works pertained to the financial year 1990-91. However, the appellants were charge-sheeted in 1994. In the frrst instance, Mr. Abdul Bari, Chief Engineer was appointed as Inquiry Officer (I.O.).
5. Thereafter, Mr. Arbab Ali Shah was appointed as Inquiry Officer who according to the information of the appellants 'exonerated' them. Thereafter, an Inquiry Committee was appointed with Mr. Sahib Dino Memon D.G. Of Chief Minister's Inspection Team as Head and M/s. M.A. Bari and S. Ghayyur Hussain as Members. One of the Members viz. Mr. Bari retired from service before finalization of the departmental inquiry.
6. ' According to him, the Inquiry Committee met for the 1st time on 16-4-1995 in Provincial Building Circle II, Hyderabad where all the accused persons were present. Only two prosecution witnesses were cited namely M/s. Nazar Muhammad Soomro (the formal Complainant) and Abdul Rashid Jatoi XEN. Mr. Jatoi was not examined, Two (2) departmental representatives were also summoned who produced some documents but their statements were not recorded. The Inquiry was adjourned to 21-5-1995 as the defendants denied the charges/allegations. On 7-6-1995, Mr. Bari one of the members of the Inquiry Committee was excluded from the Inquiry by a formal notification due to his retirement from service on 10-5-1995. The said Inquiry Committee, according to him ceased to exist, when one of its notified members, ceased to hold his office, due to retirement. Neither a new member was nominated to the said Inquiry Committee nor it was notified that consequent to the retirement of Mr. Bari, the Committee will comprise of only two members.
7. The appellants were issued final show-cause notice on 25-1-1996 which also enclosed a copy of the inquiry report(Annexure G & H). They, submitted their reply on 10-2-1996. A so-called joint personal hearing was given to the appellants on 30-5-1996 by the then Chief Secretary who did not hear the appellants separately but only asked if the appellants pleaded guilty denied by them. The original final order was issued to the appellants on 12-6-1996, communicated to them on 19-6- 1996, whereunder, by a common order, all the accused persons were dismissed from service including the above said Mr. Shafi Muhammad Saud, the principal accused/later reinstated and promoted. The original order, dated 12-6-1996 is devoid of any reasons/justification. He strongly contended that under section 24(A) of the General Clauses Act it is mandatory on all authorities to record reasons for their order and a non-speaking order, without any reasoning, is no order. Since, the original final order was passed by the Chief Minister the appellants filed a review petition to him with no orders. Hence this appeal.
8. ' Mr. Manzoor Ali Khan argued that the findings of the Inquiry Committee were arbitrary and perfunctory as well as illegal because the inquiry proceedings were conducted by 3 persons but findings are signed by two members only. He also contended that inquiry report is based on the statement of only one person i,e, Mr. Nazar Muhammad Soomro the complainant not corroborated-substantiated by any other witness. The so-called other two prosecution witnesses' evidence was to the extent of production of some record asked by the Committee. He invited our attention to the 1st line of the inquiry report which reads as relying on the evidence of Mr. Nazar Muhammad Soomro. The- observations of the 2nd Inquiry Committee Member Mr. Ghayyur (Chief Engineer) below his signature are:-- "Note:
(1) Loss to Government would not have been possible without mixing up of the contractors who have benefited most, as such all involved contractors are recommended to be black listed in addition to any legal action, the Government may intend to take.
(2) Whenever loss has been recouped, a lenient view may be taken after proper verification by the Building Department."
9. ' He, therefore, contended that out of two (2), one Inquiry Committee Member did not hold the appellant fully responsible of the charges rather according to him, the contractors were the main culprits but the respondents did not take any action against the concerned contractors nor recovered the alleged losses if any leading to the only presumption that there was no actual financial loss to the Government. He contended that at the most-some work might have been delayed for short releases/non-timely releases. He also contended that the Chief Secretary was not the 'authorised officer', in respect of the appellants and as such all the orders regarding the appointment of the Inquiry Officer (s) and Inquiry Committee lacked legal sanctity/force of law. He argued that the change of Inquiry Officers, 3 times showed 'premeditated intention of the respondents that the appellants had to be 'hanged'. He stated that Mr. Bari, one of the members of so-called Inquiry Committee, had actually retired on 21-5-1995 but the respondents specifically issued a notification for his exclusion on 7-6-1995 which leads to the presumption that he was not inclined to oblige the respondents. According to him there was no 'consentious' participation of Mr. Ghayyur, the statement of only one P.W. Viz. Mr. Nazar Muhammad Soomro was recorded whereas the statement of other P.W. Cited viz. Mr. Abdul Rashid Jatoi was not recorded. Even the complaint of the complainant was not brought on record by the Inquiry Committee nor provided to the accused/appellants causing serious prejudice/handicap to them in their proper defence. It is, therefore, obvious, accordance to him, that the inquiry proceedings were not conducted, in accordance with the legal provisios/requirements, thereof.
10. ' As regards the actual charges, he contended that the appellants had followed the same/prescribed procedure, followed by their predecessors-inoffice, who were not made accused or punished. Most of the charges were purely of tech. Nature such as the measurement of running work was not as per running bill or the quality of work was not as per prescribed A.B.C. Categories the correctness or otherwise whereof, could not be ascertained without a proper site inspection but the Inquiry Committee did not visit any site. The Inquiry, according to him was completed in an office at Hyderabad, whereas the sites of concerned works were situated at Dadu District. He specifically stated that in an earlier inquiry conducted by Mr. Syed Arbab Ali Shah, the Inquiry Officer had actually visited the concerned sites/works thereon, who submitted a positive report, in favour of the appellants to the best of their knowledge and belief specifically so mentioned in the memo. Of appeal but not denied by the respondents, in their written statement. Similarly, the appellants have specifically mentioned in the memo. Of appeal that Mr. Jatoi, XEN, a prosecution witness had also visited the site, verified the various facts. He lastly contended that since the respondents have already exonerated/reinstated and even promoted the principal accused, it amounted to gross discrimination because of the universal legal maxim of equality before law. He, therefore, strongly pleaded that the appellants were also entitled to be reinstated in service with all service benefits.
11. ' M/s. Nooruddin Sarki and Abdul Lateef Channa, then agreed to give the floor to Mr. M.M. Aqil Awan, due to his more experience in service matter.
12. ' Mr. M.M. Aqil Awan, opened his arguments with the statement that the charges against the appellants pertain to the years 1989 to 1992. All the concerned relevant sites were in Dadu District.
13. The main charges against the appellants related to contracts executed by the contractors and not by the appellants. There is no denying the fact that execution of works/projects in the supervision of the appellants were the responsibility of the contractors basically. He also stated that as per rules in vogue, there were ample powers under P.W.D. Rules/manuals to the effect that if a contract/project work was not in accordance with the prescribed schedule, it could be got done through anyone else at the risk and cost of the defaulter. The safeguards to Government provided, being:--
(1) Calls deposits (of the contractor)
(2) Performance bond (of the contractor)
(3) Security with Department. The contract awarding authority could exercise either of the options such as forfeiture of Security money, or to get the incomplete work/work not according to schedule done, through any other contractor at the expenses of the defaultering contractors. According to him, what is significant is that none of the contractors of these projects were penalized which leads to the only presumption that the executed works were in accordance with_ the schedules. He also pointed out that when notices (show cause) were issued, all the appellants had already been transferred from their respective posts. Had there been any mission/substandard works, the incoming officer would have reported the matter to the higher ups. Normally speaking no one would stick his neck out for beheading, for the fault of others. Since there was no such complaint from the successors of the appellants, it leads to the same conclusion that there were no defects/discrepancies as alleged by the respondents, in respect of projects/works under their charges. He argued that under Rule 5(2) of, the Sindh Civil Servants (Efficiency and Disciplinary)
14. Rules, 1973, the authorised officer shall decide whether in the light of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. The authorised officer viz. The Chief Secretary initially appointed an Inquiry Officer viz. Mr. M.A. Bari, vide order, dated 5-5-1994, replaced that Inquiry Officer and appointed Mr. Syed Arbab Ali Shah on 4-7-1994 again substituted by Mr. Sahib Dino Memon on 19-12-1994 and finally on 19th February, 1995 appointed as Inquiry Committee comprising of M/s. Sahib Dino Memon D.C. C.M.I.T. (Head), M.A. Bari (C.E.) and S. Ghayyur Hassan Additional Secretary as Members. What is evident is the confusion and non-clearity of mind on part of the authorised officer, if not mala fides, for changes (frequent) on directions from the above.
15. Normally after the retirement of Mr. M.A. Bari, the Inquiry Committee, should have been reconstituted but it was not so done. All these happenings prove only one point that the authorised officer did not apply his own independent mind, judiciously or was not allowed to do so. He pointed out that the Inquiry Committee met for the 1st time on 16-4-1995 and concluded the inquiry on that very day. Is it possible, he posed the question that a departmental inquiry against several appellants could be completed within a few hours and that too without any site inspection of the concerned sites located in Dadu?
16. ' He, therefore, contended that the so-called Departmental Inquiry was a hoax and an eye wash. He argued that since the Inquiry Committee had concluded the Inquiry on 16-4-1995, its report should have been drafted and signed by all the three persons i,e, its Head and 2 Members which was not done which only shows that there was no consensus of opinion between the three. This presumption is magnified, according to him, because Mr. M.A. Bari, retired on 10-5-1995 but on 7-6- 1995, he was specifically excluded from signing of the report leading to the only conclusion that he did not subscribe to the view/findings of the other two, because nothing has been shown in evidence as to what prevented him from drafting/signing the report from 16-4-1995 to 10-5-1995.
17. He pointed out that under Rule 6(5) of the said Efficiency and Disciplinary Rules, the Inquiry Officer or Committee is duty bound to submit the inquiry report within 10 days (of such appointment). If not possible, for any reason whatsoever, authorised officer may be requested and his orders obtained, for extension of time (for submission of the report) not done in the instant case.
18. ' He also stated that charges against the appellants were of such nature where the evidence of incoming officer was necessary who should have been examined/cross-examined to verify the authenticity of the allegation-not done.
19. ' He also argued that all the buildings in questions are 'public buildings' such as hospitals, schools etc. And open to public inspections.
20. ' However, the respondents have failed to produce any complaint of any member of the public that the works done were substandard. As such all allegations against the appellants amounted to hearsay not corroborated by any evidence.
21. ' The main arguments of Mr. Sarki Advocate was that Mr. Shafi Muhammad Saud the principal accused/highest ranking officer has already been reinstated, therefore, all other co-accused/lower subordinates are also entitled to the same relief.
22. ' In support of their arguments appellants' counsel relied upon the following citations:-- ' 1993 SCMR page 1440.
23. (inquiry in violation of Rule 6 of (E & D) Rules is no inquiry). 1996 PLC (C.S.) page 678.
24. (if one concession allowed to an accused are also entitled for the same).
25. PLC (C.S.) 1996 page 826. PLC (C.S.) 1996 page 857.
26. Articles 4 and 25 of the Constitution of 1973.
27. ' Mr. Abdul Latif Channa thereafter addressed the Tribunal. He adopted the arguments of M/s. Manzoor Ali Khan, Nooruddin Sarki and Aqil Awan. He categorically stated that the 1st Inquiry Officer (Mr. Bari) did not proceed in the matter. The 2nd Inquiry Officer viz. Mr. Arbab Ali Shah exonorated the appellants as contended in para. 5 of the appeal filed by him (142 of 1996) at page 11, page 5 not denied by the respondent specifically. The said Inquiry Officer apprised the appellant of this fact as recorded in para. 12 of the appeal also. He, therefore, contended that the respondents were barred under 'Estoppel' to reopen the chapter and appoint another Inquiry Officer or Inquiry Committee subsequently, under approbation and reprobation. In this context he placed reliance on PLD 1971 (S.C.) page 376. PLT 'C'. He also contended that under the Efficiency and Disciplinary Rules of Government of Sindh, there are two procedures prescribed for Disciplinary action i,e, resort to either issuance of a show-cause notice or to a departmental Inquiry one to the exclusion of other for which cogent reasons need to be recorded but the respondents simultaneously resorted to both the procedures which was incorrect. In this context he placed reliance on PLD 1989 SC page
89. He also referred to Rule 7 of the Efficiency and Disciplinary Rules of Government of Sindh which prescribed the procedure of a departmental inquiry. According to him, in such proceedings no oral evidence was permissible but evidence has to be on the basis of affidavits and counter-affidavits, as in civil suits, before a Civil Court - Inquiry Office being deemed to be a Civil Court. He agreed that as in Yousuf Patel's case (PLD 1957 SC page 104 relevant page 117) if one action is wrong, all subsequent actions are also wrong. He also contended that any order passed by corrum non- judice is void and placed reliance on PLD 1976 (SC) 208. He contended that his client was exonerated of charges Nos.1, 3, 5, 14, 17 and 20, and therefore, should have been exonorated in other charges too (evidence in one charge if held unreliable, would meet the same fate in respect of other charges). He alleged that of all the appellants convicted/dismissed from service, only one person viz. Mr. Shafi Muhammad Saud has been reinstated which amounts to discrimination based on 1996 PLC (C.S.) pages 682/683, 832, 859/860:He argued that the so-called Inquiry Committee was 'one man show' and was not a proper departmental inquiry in letter and spirit. He, therefore, strongly pleaded that the (common) impugned order (of all the appellants) needs to be set aside.
28. ' The A.A.-G., argued briefly. He stated that the charges against the appellants related to their 'omissions', 'negligence' and 'over payments'. The complainant was Mr. Nazir Muhammad Soomro who was examined (by the Inquiry Committee) on 16-4-1995. Similarly Mr. A.R. Jatoi, was also examined by the said Committee and it is incorrect to suggest/say that he was not examined. In fact A.A.-G. Had called for the relevant file/record from the respondents and produced the File No,DG/IW/Eng/C&W/DDh on the subject "Proceedings and documents in respect of Enquiry against 33 officers/officials of Communication and Works Department Government of Sindh" which was taken on record. He further stated that it was totally incorrect to suggest that the Inquiry Committee, completed the inquiry that very day on 16-4-1995. In fact, according to him, the inquiry proceedings thereafter, took place on various dates. He also dispelled the allegations of the counsel for the appellants that there has been no physical inspection of the site/projects in hand.
29. According to him, there have been two site inspections of concerned works one by Mr. A.R. Jatoi and other by Mr. A. Majeed which corroborated the prosecution story/version of the respondents.
30. As such, he concluded that the appellants were rightly convicted/dismissed fronf service.
31. ' We have gone through the arguments of all the counsel of appellants as well as the A.A.-G.
32. Carefully, record produced in this case and written statements/citations relied upon by respondents.
33. ' At the very outset, we would like to point out with all due deference to the counsels for the appellants that in the onslaught of their rhetoric all of them pointed out the fact that Mr. Shafi Muhammad Saud, the highest ranking co-accused, though dismissed had been reinstated in service allegedly, because of matrimonial alliance with the then Chief Minister-a hearsay for which no proper foundation was laid before us, and as known to all in legal fraternity mere statement is no evidence till proved corro haratia by direct or indirect documentary evidence. Their common plea that since the principal accused has been reinstated in service, therefore, all others are also entitled to the same relief also does not appeal to us, because of the well known principles of law that two wrongs cannot make one right, an incorrect/illegal order, does not become a legal precedence and every accused's fate is contingent on the merits of his own individual case.
34. ' We are also of the view that the fact of Dadu being the home town of the then Chief Minister and also the place of posting of the appellants has no legal significance. It is just a coincident and does not prove the mala fides of the then Chief Minister against the appellants without laying proper foundation thereof i,e, of previous enmity or animosity between the then Chief Minister and the appellants. Again, the fact that the appellants were dismissed from service by the then Chief Minister has to be seen in its correct prospective i,e, the highest ranking officer and co-accused Mr. Shafi Muhammad Saud being a Superintending Engineer, an officer of BSP.19, in whose case the (competent) Authority is the Chief Minister--he was also the (Competent) Authority in respect of other lower subordinate/co-accused by virtue of the provisions of Rule 5(6) of the Sindh Civil Servants (Efficiency and Disciplinary Rules, 1973 which reads as follows:-- "5(6)If two or more civil servants are proceeded against, jointly, the authority or authorised officer in respect of the senior most civil servant amongst them shall be the authority or the authorised officer, as the case may be, in respect of all such civil servants."
35. ' We have also examined the 'original' file of inquiry submitted in evidence, bearing No,DG/IW/Engg/C&W/DDU, through the A.A.-G. Thoroughly, and observe that the Inquiry Committee met on the following 10 (ten) days:-- {{TABLE}}
(1) 16-4-1995.
(2) 17-4-1995.
(3) 18-4-1995.
(4) 19-4-1995.
(5) 20-4-1995.
(6) 23-4-1995.
(7) 24-4-1995.
(8) 25-4-1995.
(9) 30-4-1995.
(10) 21-5-1995. {{TABLE}} ' Therefore, the submission of the defence counsel that the Inquiry Committee met only once i,e, on 16-4-1995 is incorrect and based on wrong information. We also observe that the Inquiry Committee recorded the statements of as many as 10 (ten) persons shown below:--
(i) Mr. Nazar Muhammad Soomro (Complainant SE.).
(ii) Mr. Indher.
(iii) Mr. A. Rashid Jatoi,(XEN).
(iv) Mr. Pervez Akhtar (Accused/Appellant).
(v) Mr. Ali Muhammad Shaikh XEN.
(vi) Mr. Dilbar Hasan.
(vii) Mr. Jawed Iqbal Memon.
36. (viii)Mr. Rajab Ali Soomro (Accused/Appellant).
(ix) Mr. Muhammad Ramzan (Accused/Appellant).
(x) Mr. Ghulam Shabbir (Accused/Appellant).
37. ' Therefore, the submission of the defence counsel that only the statement of Mr. Nazar Muhammad Soomro SE/complainant was recorded is also incorrect/based on wrong information.
38. ' It is also seen from the file that there are detailed cross-examinations available of the persons, whose statements were recorded by the Inquiry Committee. It is, therefore, also incorrect that the accused/appellants were deprived of their rights of cross-examination vice versa.
39. ' However, what has taken us by surprise is the fact that none of the statements recorded by the said Committee are signed by the deponents. These statements are also devoid of the signatures of all the 3 members of the committee. Even one member has not signed. The usual practice is that after the recording of the statement of a person be he accused, P.W., or D.W. Or Court witness, he is made to read it, accept its correctness and sign it after writing (RO&AC) i,e, "Read over and accepted to be correct." The authority in whose presence the statement is recorded also signs it after writing 'before me'. It is also an accepted practice universal/legal requirement, that all corrections, additions, alterations and deletions etc.Be signed by the deponents as well as the authority recording the statements to establish that bona fides of the same. We have observed that there are score of additions/alterations/deletions in ink as well as by pencil, not signed or even initialed by the deponent' or the Inquiry Committee or even one single member of that Committee.
40. ' We would also like to point out at this stage that the proceedings of a departmental inquiry are deemed to be judicial proceedings under the provisions of sub-rule (2) Rule 7 of the Sindh Civil Servants (Efficiency and Disciplinary) Rules, 1973 which reads as under:-- "7(2)The, proceedings under these rules shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the E Pakistan Penal Code, 1860 (Act XLV of 1860)."
41. ' Therefore, we are of the considered view that on account of these gross blunders, errors or omissions, whatever these may be termed, the entire proceedings of the Inquiry Committee, are null and void in the eyes of law and constitute sufficient grounds to set aside the impugned dismissal order of the appellants. What pains us more is the fact that the said Inquiry Committee, comprised of 3 (three) very senior officers of the Provincial Government viz., Mr. Sahib Dino Memo, D.G.C.M. Inspection Team (Head) and Mr. M.A. Bari and Mr. S. Ghayyor Hassan one Chief Engineer (Communication and Works Department) and the other Additional Secretary (Tech.) of the said Communication and Works Department all of whom were officers of BPS.20 and leads to the only conclusion that despite their long service, top positions in the hierarchy, they did not know a.b.c. Of the proceedings under the abovesaid Efficiency and Discipline Rules to say the least. Normally speaking we would have directed to Provincial Government to initiate disciplinary action against all of them but it is a matter of common knowledge that all of them have already retired from service.
42. ' Without prejudice to the above, it is observed from letters, dated 24-11-1993 and 27-11-1993 written by M/s. Nazar Muhammad Soomro and Abdul Majeed Mir, respectively the then S.E. And C.E.
43. (Superintendent and Chief Engineers) that 1st reference to Chief Engineer was made on 5-11-1993, who referred the matter to the Secretary (C&W) on 21-11-1993 in the words. "The inspection of defaulted works" was carried out by the Chief Engineer (Mr. Mir) alongwith M/s. Nazar Muhammad Soomro, S.E., Ali Muhammad Shaikh XEN Dadu and Habibur Rehman Memon reg. The alleged exclusive and fraudulent payment amounting to Rs,3,53,081 for the following works:-- {{TABLE}}
(1) Construction of A.D.A. Office as Sehwan: Rs,35,758.00
(2) Up-gradation of Intermediate College at Sehwan: Rs,2,933.00
(3) Construction of Basic Health Unit at Baid. Rs,3,14,390.00 Rs,3.53,081.00 ' {{TABLE}} ' We would like to quote the last 3 paras. Of letter, dated 27-11-1993 from the then Chief Engineer:- "I inspected the above work on 22-11-1993 and 23-11-1993 alongwith other works in the company of Mr. Nazar Muhammad Soomro, Superintending Engineer, Provincial Building. Circle-II, Hyderabad, Mr. Ali Muhammad Shaikh, Executive Engineer, Prov. Building Division, Dadu and other field officers and found that during the intervening period of six weeks or so since the initial report was made by Superintending Engineer Provincial Building Circle-II, Hyderabad, most of items of the above works paid excessively or fraudulently as reported previously by the then Executive Engineer, Provincial Building Division, Dadu, appears to be carried out and remaining items being attended to.
44. ' Superintending Engineer and Executive Engineer were requested to carry out detailed inspection of each and every work item to this specially works 1 and 3 above for the amount alleged and report the factual position, immediately with regard to the recorded measurement of the works.
45. ' In view of the latest position of the above 3 works for the items executed during the incumbency of Mr. Habib-ur-Rehman, the then Executive Engineer, Provincial Building Division Dadu, matter is referred to you for consideration and review his case with the recommendation that since most of items pertaining to his period have now been executed and remaining are being attended to, the action against Mr. Habibur Rehman the then Executive Engineer must be held in abeyance till the balance works are completed and fresh detailed itemwise report is received from the field officers concerned.'
46. (Sd.)
47. ABDUL MAJEED MIR, Chief Engineer, Buld.
48. Department, Hyderabad."
49. ' Three points are obvious from this letter i,e,---
(a) Mr. Habib-ur-Rehman Memon, the then XEN was let off the hook, though the principal accused.
(b) Chief Engineer (the then) under his own signatures had certified that most of items had (then) been executed and remaining were being attended to.
(c) Over all situation with matter apparently was not alarming prima facie there were some delays, errors or omissions which by and large had been rectified or were being rectified.
50. ' On 14-2-1994, Mr. Nazar Muhammad Soomro sent another letter, in which he included 8 (eight) more works to the original 3 (three) works reported earlier and the overall picture was summed up as follows:--
(1) Alleged defalcation: as per charge-sheets framed by him. : Rs,32,46,526
(2) Balance as per revised charge-sheet : Rs,22,49,227
(3) Work done in intervening period Rs,17,40,832 ' Release of Deposits NIL ' From this letter it is obvious that more than 51% of the alleged losses had already been recouped and balance was also being recouped.
51. ' It is also a fact that there are ample powers vested in C&W Department that if works are not completed or found substandard, the security deposits can be forfeited/Insurance Bond can be encashed/work carried out at the cost of defaulting contractors-but nothing has been shown to us in evidence that C&W Department resorted to these procedure with the only conclusion that:--
(i) There were delays in execution of certain works, actually carried out later on, such as non- installation of wooden doors, windows refuted by Mr. Farvez Akhtar, Assistant Engineer in his written statement, dated 12-6-1995 comprising of 45 pages and when confronted. Mr. Nazir Muhammad Soormo's reply was that 'when he inspected the site,. These were not there' . Inquiry Committee, before conviction of accused was required to visit the site in the presence of the accused and should have physically verified whether these were fixed or not. It is matter of record that the Inquiry Committee never visited the concerned site. Therefore, in our view, it was a word against word and the conviction of the accused was unjustified. Similarly, the complainant when cross- examined by Mr. Jawed Iqbal Memon in his statement, dated 16-4-1995 at page 3, replied as under:-- "It is a fact that some officers during whose incumbency some lapses had occurred were given a chance by the Chief Engineer to recoupe the lapses and they did really recouped the lapses and that is why their names are not included in the charge-sheet."
(ii) There is yet another aspect in cross to Mr. Indher at page 5 the complainant replied as under:-- "Regarding the Vet. Dis.K.N. Shah question of Mr. Indher that when he visited the site the buildings were occupied by the Rangers and the damage done to the walls and plaster was by Rangers as well as shutters, doors and windows kept in the garrage of the same site were shown to Mr. Nazar Muhammad Soomro. On which Mr. Soomro had replied that shutters had been brought to this site from other site. When I had visited the site I found that it was in possession of Ranger and they had not damaged it besides shutters were not available."
52. ' Again the failure of the Inquiry Committee to visit the site concerned simply placing reliance on the statement of the complainant was not enough for conviction of the concerned accused.
(iii) In the statement of Mr. A. Rashid Jatoi XEN on 16-4-1995 cross to Mr. Shafi Muhammad Saund it is recorded as under:-- "I issued notices to the contractors who had abandoned the work and those who had received overpayments. It is not true that anybody from amongst officers or the Superintending Engineer had asked the contractors not to resume the works. What transpires from the above is that some contractors had abandoned the works--later resumed reasons not recorded. Was it due to bad law and order situation prevalent in Dadu which is reportedly infested with dacoits and thieves, kidnapers for ransom or due to paucity of funds or non- release of the payment to contractors in time?
(iv) What, is more significant in this inquiry file is that most of the , findings are based on the questions put to A.O. (Accounts Officer) concerned and answers given by him reportedly but again in the absence of the signatures of the person making the statement not even named or the natures of the person who out of 3 members did the questioning neither such replies can be treated as 'evidence' within the provisions of Evidence Act nor can be relied upon nor any conclusions derived therefrom can be termed as correct or sound.
53. ' We are of the firm opinion in view of what has been stated above that the conviction, of the appellants, on the charges levelled against them as well as their dismissal from service which, is the highest penalty under Efficiency and Disciplinary Rules, on the basis of a so-called departmental inquiry by the above said Inquiry Committee-which is no inquiry in the eyes of law and which is not an inquiry within the provisions of Rule 7(2) and is not a judicial inquiry but more a piece of fiction, imaginative conjectures, cannot be upheld and therefore, have no 'option but to set aside the impugned order (s). Remand of these appeals back to the respondents for de novo proceedings is not feasible as allegations cannot be substantiated by any physical verification after 5 long years and incriminating evidence, even if any must have been washed away with the passage of time. It is our considered view that the respondents have suffered 'enough' for their error, omission, lapses if any, during the period they remained out of service. They deserve a little compassion also because of the fact that the two principal accused viz. M/s. Habibur Rehman Memon and Shafi Muhammad Saund, were let off easily at various stages i,e, at the time of investigations and in appeal; only weaks were trampled as usual in this country, because some heads must roll in any scandal whether correct or incorrect to show that the concerned higher ups are 'Angles' and would not tolerate any non-sense. In a department where even the officers of such high rank as Chief Engineers are unaware of a.b.c. Of law, it is difficult to cultivate and groom law abiding subordinates. Perhaps it needs complete overhauling for which those who matter neither have the time nor patience.
54. ' Consequent to setting aside of the impugned dismissal order, the appellants' intervening period, shall be treated as 'Leave due'.