' KHAN AKBAR KHAN, CHAIRMAN.---Appellant Engr. Nawab Khan has filed the instant appeal against the direction of respondents 1 and 2 contained in letter dated 15-10-1997 to deposit the sum of Rs,23,38,845 and respondent No.3's letter dated 3-11-1997 for Rs,2,90,136 on the ground of Draft paras. No.676, 680 and 698 and the representation thereagainst rejected by the Appellate Authority.
2. Shortly stated the facts are that respondents 1 and 2 vide Letter No.1119/20-A(i) dated 15-10-1997 and respondent No.3 vide Letter No.3690/7-A(i)D.P dated 3-11-1997 directed the appellant to deposit Rs,23,38,845 and Rs,290,136 respectively pertaining to the tenure of posting of the appellant as Executive Engineer, DIPHE Swabi Scarp Division No.2 Mardan, as allegedly decided by the Public Accounts Committee. Copies of letters and Draft paras are Annexures A, All and B on the file.
Feeling aggrieved, the appellant preferred representation to the Chief Secretary on 11-11-1997. Copy of representation and covering letter are Annexures C & D. The representation in question was rejected on 27-12-1997 and conveyed to the appellant on 2-2-1998 (Annexures E & F). Hence this appeal.
3. The grounds mentioned in the appeal are that the appellant has not committed the irregularities/illegalities as alleged against him; that the works in question had been carried out and payments were made according to law; that no chance of defence is afforded to the appellant before passing the impugned order; that no enquiry is conducted into the matter in the presence of appellant in accordance with E & D Rules, 1973 and that he was condemned unheard.
4. The factual aspects of the case are as under:--
(i) That the work namely "Remodelling of Abbasi Gated Weir" was included within the scope of MARDAN SCARP during its last year of execution i,e, 1991-92 when the work was going to be closed on 30-6-1992.
' Despite strenuous efforts on the part of concerned Engineer of the Irrigation Department, WAPDA was reluctant to consider the remodelling work on Munda Head Works in the initial stages of Project for one reason or the other. During the year 1991-92, a visiting World Bank Mission, agreed in principles, to the provision of remodelling work, pertaining to Munda Head Work, provided the Irrigation Department could manage execution and completion of the related work items, before the target closing date i,e, 30-6-1992. Accordingly the original estimate, covering cost of replacement, of all gates and hosts and repairs to the damaged floor of weir was framed hurriedly for an amount of Rs,4,28,95,000 during the month of September/October, 1992 and was sanctioned by Chief Engineer (Dev.) vide his No.6214-15/Dev./1-M, dated 30-10-1991. It may be mentioned here that this estimate was framed at a time when there was yet considerable flow in the Swat River and exact estimation of quantities of various items pertaining to work, entirely in river bed, was absolutely not possible and any provision, thereof, in the B.O./Estate was mainly based on mere guess work (Annexure-G).
(ii) Abazai Gated Weir, also known as Munda Head Works, is located across Swat River, five miles upstream of village Abazai in Charsadda District. The weir consists of 8 bays each 60 ft. Wide and 56 ft long. Floor of the bay, was constructed in precisely deceased stone, followed by 30 wide stone apron. With the passage of time and during its hundred year of operation, the glass i,e, stone floor got damaged due to rolling boulders or continued process of abration.
(iii) That the flow, through eight bays of the Barrage must be uniform or equally distributed but in actual practice it considerably varies from bay to bay, depending upon the accumulation of river bed material or bar formation in the river bed. The adverse action of river flow was not noticed by the staff of Remodelling Division while framing the original estimate in September, 1991, presuming that there will be uniform flow across each bay or with very slight variation. Another reason for nonuniform flow through all 8 bays of the river and more concentration on the right side, was excessive shingle/gravel deposits on the left side, almost blocking bays, Nos.1, 2 and partially bays Nos.3 and 4.
(iv) That a natural outcome of heavy deposit of shingle/gravel on left side of weir was that bays Nos.7 and 8 received more river flows and, therefore, was rendered vulnerable to flood damages particularly due to severe scouring action just downstream of piers.
(v) That a careful review of the estimates with B.O.Q. Has revealed that the remodelling staff framed their original estimates at a time when the river was yet having high discharge and survey of the bed surface was not possible.
(vi) That at para. 1 of the Draft para. 676, it has been observed by the Audit that the contractor was paid a quantity of 1.269 million cft. Amounting to Rs,20,48,773.50 against the estimated quantity of 13032 cft. (Annexure-H).
(vii) That a perusal of the B.O.Q. In respect of the work i,e, providing stone apron D/S Abazai Weir Bay Nos.3 and 4 would indicate that the quantity of 13032 cft. Actually pertains to the portion of stone apron of bays 3 and 4 only. Whereas the final bill includes, additionally, the quantity of shingle gravel deposits cleared from Bays 1 to 4 in pursuance of WAPDA, Consultants and Chief Engineer Development's instructions. As per revised estimate sanctioned by Chief Engineer (Dev.) vide his No.1555/Dev-1-M, dated 25-5-1992, the provision for the item, in question was increased to 1.269 million cft. Under the items of work i,e, removal of shingle, gravel, boulders D/S of Abazai Weir (Bays Nos.1, 2, 3, 4) and item 4 of work "providing stone apron D/S Abazai Weir (Bays 3 and 4). The quantity sanctioned under these two items are 12,38,050 cft. And 1122 cft. Which when added is equal to 1.269 cft. In view of the peculiar nature of work, requiring completion in a limited time, and pertaining to river early clearance of deposited material from bays 1 to 4 was extremely essential to avoid damages to bed of Bays Nos.5, 6, 7 and 8 where concentration of flow, had posed a serious threat to safety of the structure. The threat of safety of the structure was effectively checked through clearance of Bays 1 to 4 and thus a structure worth billions of rupees, was protected against further damages which could have otherwise, been most detrimental and collosal beyond imagination (Relevant copies are Annexures H/1 to 1/2).
(viii) That in addition, the additional work, executed by the department is duly covered by revised sanctioned estimate (copy enclosed) wherein a quantity of 1.269 M.Cft has been provided at a cost of Rs,20,48,772. The revised estimate inquest was sanctioned by Chief Engineer (Dev.) after he felt satisfied about the work already executed at site. Secondly the work executed by Remodelling Division was subject to verification by the HARZA/NESPAK Consultants and the quantum of work also increased/decreased on their advice in Sunday meetings as evident from the report (Annexure-I). Additionally, highups of WAPDA the G.M (Water) WAPDA and the Chief Engineer, WAPDA also carried out periodical inspection of the work being executed by Remodelling Division, therefore, there seems no reason to raise any doubt against the execution of additional work, as observed in the Draft para. (Annexure-J).
(ix) That as regards audit observation at para. 4 of the Draft para. The contention that the work was measured fictitiously is not covered by any documentary proof in support of the observation and is entirely based on presumptions. The Chief Engineer (Dev.) inspected the site of work on 9-3-1992 (Annexure-K) and he sanctioned the revised estimate on 23-5-1992. The final bill indicates that the work on Bays 1 to 4 was completed on 6-2-1992. Had the item of work, been fictitiously measured as observed by the Audit, the Chief Engineer would not have accorded sanction to the revised estimate and particularly to the item of additional work, pertaining to clearance of Bay Nos.1 to 4 which he inspected before the estimate was sanctioned. The Audit Party during their inspection of the Division in July/August, 1992 also verified the revised estimate sanctioned by the Chief Engineer (Dev.) (Annexure-K/1). It is thus clear that the audit in principle accepted the explanation of the Department but their final observation pertained to the competency of the authority who sanctioned the revised estimate. Now when the Competent Authority to sanction estimate for any amount is decidedly Chief Engineer, therefore, the "'Revised Estimate" after sanction under the Rules has become a legally binding documents and cannot be overruled or bypassed while deciding any issue.
(x) That in Draft Para. No.678 pertaining to the same work i,e, "Remodelling of Abazai Weir", the Audit raised a similar observation to the payment of Rs,9,44,640 but during discussion in the meeting, the Department explained that provisions was duly provided in the revised estimate based on actual completed work, sanctioned by the Chief Engineer on 25-5-1992 which explanation was accepted by the PAC and dropped the para. Now the para in question (676) pertains to another item of work of the same project, sanctioned by the Chief Engineer (Dev.) under the aforementioned Revised Estimate, therefore, to have a consistency in the decisions, the para in question should have been settled as well.
(xi) D.P. No.680 also related to the same work "Remodelling of Abazai Gated Weir" (Sub Work providing stone apron D/S of Abazai Weir Nos.3 and 4 where Draft Paras No.676 and 678 were raised. It was observed by the Audit that higher rates were allowed which has resulted in a loss of Rs,6,83,845 to the Government (Annexure-K/2).
(xii) That Contract No.130 (1991-92) was executed with the contractor with a written order to commence the work on 24-11-1991. The work was completed at a total cost of Rs,28,38,568 on 6-2- 1992. The contractor tendered rates 37% below the B.O.Q. Were approved by the Chief Engineer (Dev.) vide his Letter No.118/Dev/Agreement/rates dated 2-11-1991. The estimate rates, B.O.Q. Rates and actual rates approved by the Chief Engineer (Dev.) would indicate that the approved rates are 21.25% below the estimated rates (Annexure-L). Therefore, there is no overpayment involved as observed by the Audit. A copy of the final bill showing the actual payment (Rs,28,38,568 is Annexure-I). Since the Draft para is entirely based on presumption, therefore, the overpayment pointed out is not justified. As given against the Paras. No.676 and 678, this para is also covered by revised Technical Sanction of the Chief Engineer (Dev.) on the basis of which Para No.678 has been dropped (Annexure-L/2).
(xiii)That in D.P. No.698, the Audit has raised observation regarding sanctioning of special rates under the provisions of clause 12 by the S.E. On 28-6-1990 which according to them has caused a loss of Rs,5,80,272 to the Provincial Government (Annexure-L/3).
(xiv) That the items in question relates to execution of wQrk on "Installation of 10 Nos.Dug-Wells in Tangi Barazai Janoki Area" where during the course of execution of works, strata comprising of shingle and gravel was encountered which was not included in the original estimate, therefore, the Incharge XEN approached the Superintending Engineer vide his letter dated 24-6-1990 to accord sanction to the approval of special rates as the N.I.T. Was not having such rates (Annexure-L/4). In this connection it may be pointed out that the classification of the above mentioned strata was verified by carrying out a test at site which further verified that the strata encountered, comprised of shingle gravel of formation. In the PAC meeting it was observed that "the test was carried out after one year of the commencement of work which created doubts" although the factual position is that the work was started on 20-5-1990 and completed on 5-1-1993 as given in the attached copy of final bill. Carrying out the soil test after one year does not make any difference or any material change in the payment to the contractor as the same further verified the correct classification of the soil strata and being within the currency of the execution of work. There was still no chance of overpayment as the contractor's bill or security etc., were still,at the disposal of Government. However, the test verified the soil strata and the payment made is justified as allowed by the Superintending Engineer. Copies are Annexure M to M/2. It may also be pointed out that the overpayment as pointed out the Audit through Draft para has already been adjusted in the final bill (Annex-M/2) prepared in the light of S.E., Northern Irrigation Circle Mardan letter dated 1-6-1991 wherein revised rates were approved in respect of the item in question. Therefore, the amount as stated in Draft para being already adjusted is no longer outstanding and, therefore, not recoverable from the appellant (Annexure-N). In view of the above, it is prayed that on acceptance of the appeal, the impugned orders may be set aside.
5. Respondents were summoned. They appeared through their respective representative/counsel, submitted reply and contested the appeal vehemently mainly on the ground that the Public Accounts Committee after due consideration held the appellant liable for the recovery of the amount inquestion, therefore, the order of recovery was passed in the light of the decision of the PAC. In rebuttal, the appellant filed his replication.
6. We have heard the arguments of the learned counsel for the appellant and learned P.P. For the State at great length and have perused the record carefully with their assistance.
7. Learned counsel for the appellant submitted that the appellant has not been related properly by the respondents department in the instant case as no proper/regular enquiry as envisaged under the E&G Rules, 1973 in presence of the accused-appellant has been conducted and the so-called enquiry has been conducted in absence of the appellant; that no chance of defence was afforded to the appellant before passing the impugned order and as such he was condemned unheard; that no irregularities/illegalities has been committed by the appellant as alleged against him; that the applicant had obtained proper sanction from the Competent Authority i,e, Chief Engineer about the work inquestion and he carried out the works accordingly and as such he is not at fault; that revised estimate in r/o of the work "Remodelling of Abazai Gated Weir" sanctioned vide letter dated 25-5-1992 was shown to the Committee but it was not considered at all; that the Hon'ble Tribunal has got the jurisdiction to entertain the appeal and that the PAC is not an executive body and it cannot pass any executive order, but it can only make recommendations to the proper/Competent Authority and as such the directions of the PAC and action taken thereon by the respondents department are illegal. In support of his contention, learned counsel for the appellant relied on judgment of the Hon'ble Peshawar High Court, Peshawar passed recently in Writ Petition No.162 of 2000 dated 9-4-2002 in case "titled Nawab Khan Khattak petitioner v. PAC and others".
Learned counsel, therefore, prayed that the directions of the PAC and the impugned order issued thereunder may be set aside.
8. Learned P.P. For the State, on the other hand, argued that proper procedure was adopted by the respondent department before passing the impugned order. Proper enquiry was conducted and chance of defence as provided to the appellant. The PAC has got the powers to give directions of recovery. The recovery has been ordered after due consideration by PAC after detailed discussion and as such the appellant was held responsible for the recovery of the amount inquestion. No further enquiry was required to be carried out and findings of enquiry were considered by PAC. No documentary proof has been provided by the appellant in support of his contention/statement.
The quantum and nature of damages cannot be ascertained at this belated stage. D.P. No.678, 680 and 698 were discussed in detailed in the meeting of PAC. The PAC have the rights/competent forum to make recommendation for recovery against any civil servant on the reports of the D.G.
Audit. Moreover, the appeal of the appellant was correctly rejected after due consideration by the authority concerned. As such the appeal having no legal force may be dismissed.
9. We have given due weight to the arguments of the learned counsel for the parties 'and have gone through the record thoroughly. As is evident from the record, the impugned orders of recovery of the amount inquestion were passed by the respondent-department on the basis of the directions of PAC under Draft Paras. No.676, 680 and 698 on the alleged irragularities/illegalities/ stated to have been committed by the present appellant during his tenure as XEN Swabi Scarp, Mardan. Now the only point for determination in the instant case is, as to whether, the PAC had got the power to issue/give such like directions to the Competent Authority for taking action against the accused official/officer concerned or not. In this connection, we would like to refer to the judgment of the Hon'ble Peshawar High Court, Peshawar, recently passed on 9-4-2002 in Writ Petition No.162 of 2000 of the present appellant wherein their Lordships have clearly observed that the PAC cannot give direction for taking action against a civil servant, but it can make only recommendations to the Department/Authority concerned. So on acceptance of the said writ petition; the directions of the PAC and action taken thereon were declared to be illegal. Under the circumstances, the Tribunal observes that since the PAC is not an executive body and has got no power to issue/give directions or pass any executive order except recommendations, therefore, the action so taken by the respondent-department against the present appellant in the shape of recovery of the amount inquestion from him on the basis of the directions of PAC for the alleged irregularities etc. Is illegal and not warranted by law and as such the appeal can be accepted on this score alone, without touching the merits of the case.
10. Apart from this, Para. No.676 and 680 are related to one and the same project. Para No.676 related to charge of fictitious measurement, while in Draft Para. No.676 the Audit has raised observation mainly on payment of items of earth work excavation in shingle, gravel and boulders formation upto any lead or lift, which according to audit was measured unauthorisedly in excess.
At concluding para of D.P. No.676 the Audit has termed the excess quantity of earth work as fictitiously measured, but in fact, the previous payment made in respect of the earth work or the excess quantity of earthy work was duly covered by a "revised estimate" which was later on sanctioned by the Chief Engineer, Irrigation. According to the relevant rules the revised estimate" had due provision of 12,38,050 cft and 31122 cft of earth work. To cover up the payment made per final bill, the submission of the revised estimate is allowed by rules and para 141 of the P.W.D. Code.
Moreover, as per record, the revised estimate was sanctioned by the Chief Engineer (Dev.) in May, 1992, while the audit was carried out in August, 1992, as such it is incorrect that the revised estimate was sanctioned after the audit.
11. Needless to mention, that in the instant case no codal formalities have been observed as the appellant being a civil servant can be dealt with under the E&D Rules before passing any punishment etc.
12. In view of the above discussion, the appeal of the appellant is accepted by setting aside the impugned order. However, the department/authority concerned is at liberty to proceed afresh strictly in accordance with law, if so wishes. Parties are, however, left to bear their own costs.
13. This order will also dispose of three other appeals of similar nature bearing Nos.597 and 598 of 1998 as well as Appeal No.426 of 1998 filed by Syed Muhammad Anwar Shah of Irrigation Department and Haji Nisar Muhammad Khan of Education Department in the same manner as the points of law and facts are common. Parties are left to bear their own costs. File be cosigned to the record.