' JUSTICE (RETD.) RIAZ KAYANI (CHAIRMAN).---Through this single judgment, I intend to dispose of Appeal No,2904 of 2002 brought by Dr. Nisar Ahmad and 2783 of 2002 by Dr. Muhammad Arshad, both Blood Transfusions Officers, as common questions of facts and of law are involved as well as the order through which penalty was imposed is common. Appellant. Dr. Nisar Ahmad, was serving as Divisional Blood Transfusion Officer in the Allied Hospital, Faisalabad, whereas Dr. Muhammad Arshad was serving as Blood Tansfusion Officer in the same Hospital.
2. Appellants received the order dated 17-4-2000 issued by the Medical Superintendent, Allied Hospital, Faisalabad for starting H.C.V. Screening in blood unit, Allied Hospital, Faisalabad, in pursuance of letter dated 6-3-2000 by the higher authorities and the screening was started on 17- 4-2000 in accordance with the policy of the Medical Superintendent. In the subsequent letter, it was ordered by the Medical Superintendent, Allied Hospital, Faisalabad that all the donors shall have mandatory HBV, HCV & HIV screening on payment basis as for General Patients at Rs,100 and for private patients for Rs,250. The Blood Bank was to issue receipt to the donor and no share had to be given to the laboratory staff or doctors as test was to be done on no profit no loss basis, and lastly; the Divisional Officer was to be made directly responsible for maintenance and quality control of HCV screening in the best interest of the patients. Appellant, Dr. Nisar Ahmad vide letter dated 16-9-2000 wrote to the Incharge Army Monitoring Cell (Health) LOG Area, Lahore Cantonment, that Dr. Pervaiz Haider. Medical Superintendent and Staff Officer to Chief Executive were demanding illegal gratification from the money obtained by conducting HCV test done in Blood Unit, Allied Hospital, Faisalabad and requested for taking action against them. Some other regularities were also brought to the notice of Dr. Yasmin Lodhi, Director Institute of Blood Transfusion Service, Punjab, Lahore by the appellant.
3. On 19-11-2001 Dr. Nisar Ahmad appellant received the charg-sheet containing the following charges:--
(1) Violated the standing instructions issued by DBTS, Punjab on screening of blood donors for Hepatitis 'C' vide BTS/261/2141- 2194, dated 8-4-2000.
(2) Receipt was utilized for procurement of HCV kits and other articles.
(3) An amount of Rs,3,66,460 was incurred on the purchase of HCV & HBS kits without fulfilling codal formalities.
(4) Rules of financial propriety were not observed such as:--
(i) Expenditure was incurred on the purchase of HCV and HBS kits amounting to Rs,3,66,460 without advertisement in the Press to ensure fair competition in violation of Rule 15.2(a) of PFR Vol-I,
(ii) Expenditure was split up to avoid sanction of competent authority in violation of Rule 15.2(c) of PFR Vol.l.
(iii) Sanction was accorded beyond competency contrary to the Rule 15.2(d) of PFR Vol:I.
(iv) There was no inspection of stores to ensure its quality and quantity as required under rule 15.4(a) of PFR Vol.I.
(v) Exorbitant rates were charged in contravention of provisions laid down in Rules 2.31 & 2.32 of PFR Vol. 1 .
(vi) Specifications of kits were never mentioned in contravention of provisions of Purchased Manual Appendix-7.
(vii) No tax at source has been deducted from the supplier as required under Govt. Notification No,S.R.O. 826(I) 91, dated 24-8-1991;
(5) Failed to produced the record pertaining to the period 1-6-2000 to 15-6-2000.
(6) Initial scrutiny of the record reflects a loss of Rs,1,94,733/20 to the Govt. Exchequer due to non- observance of codal formalities.
' On the other hand, Dr. Muhammad Arshad also received almost a similar charge-sheet containing the following allegations:-- ' Now, therefore, you Dr. Arshad, B.T.O. GHQ, Hospital, is hereby charged as under:--
(1) Violated the standing instructions issued by DBTS, Punjab on screening of blood donors for Hepatitis 'C' vide BTS/261/2141- 2194, dated 8-4-2000.
(2) Exercised the powers of DDO whereas the Blood Transfusion Officer is not vested with the powers of Drawing and Disbursing Officer.
(3) Receipt was utilized for procurement of HCV kits and other articles.
(4) An amount of Rs,2,53,450 was incurred on the purchase of HCV & HBS kits without fulfilling codal formalities.
(5) Rules of financial propriety were not observed such as:--
(i) Expenditure was incurred on the purchase of HCV & HBS kits amounting to Rs,1,53,450 without advertisement in the Press to ensure fair competition in violation of rule 15.2(a) of PFR Vol.I.
(ii) Expenditure was split up to avoid sanction of competent authority in violation of rule 15.2(c) of PFR Vol.I.
(iii) Sanction was accorded beyond competency contrary to the Rule 15.2(d) of PFR Vol.I.
(iv) There was no inspection of stores to ensure its quality and quantity as required under Rule 15.4(a) of PFR Vol.I.
(v) Exorbitant rates were charged in contravention of provisions laid down in rules 2.31 and 2.32 of PFR Vol.I.
(vi) Specifications of kits were never mentioned in contravention of provision of Purchase Manual Appendix-7.
(vii) No tax at source has been deducted from the supplier as required under Govt. Notification No,S.R.O. 826(1)/91, dated 24-8-1991.
(6) Initial scrutiny of the record reflected a loss of Rs,1,37,205/75 to the Govt. Exchequer due to non- observance of codal formalities.
4. Dr. Nisar Ahmad, gave a detailed reply denying the charges and stating that on receipt of the letter of the Medical Superintendent. Allied Hospital, Faisalabad to start HCV screening test of blood donors by charging Rs,250 from each donor, he at once referred the matter to the Director, Institute of Blood Transfusion Service, Punjab, Lahore on 4-4-2000 seeking clarification of the order of the Medical Superintendent about charging Rs,250 for HCV test. On his insistence. Rs,10,000 was placed at his disposal in cash to launch HCV mandatory test in the Blood Bank. It was stated that he reminded the Medical Superintendent that charges should be reduced to Rs,100 from every donor for rapid HCV test and explained that Rs,250 can be charged only for Elisa Quantum test, which was not available. To this legislation, the Medical Superintendent agreed and fixed the fee at Rs,100 per donor for the HCV rapid test. It was further stated that Director, Blood Transfusion Service, ordered that funds generated can be utilized to purchase HCV kits on revolving basis. For procurement of kits codal formalities were observed by collecting competitive quotation from different firms, comparative statements prepared, supply orders, issued to lowest bidder and payments made to suppliers after getting receipts/invoices of HCV kits, therefore, no financial irregularity was committed. Since there was urgency to start with HCV blood screening, advertisement for purchase of unit was time consuming and was not resorted to. It was alleged that HCV screening test was sabotaged by Blood Transfusion Officer creating and running parallel administration with the help and backup of Medical Superintendent, Allied Hospital, Faisalabad, in the first week of June, 2000 and this information was given to the Director at Lahore, upon which a meeting was called on 6th and 7th June, 2000 and on the orders of the Director, HCV screening at the Blood Bank, was stopped and was done in Pathology Laboratory in the Hospital. This direction was passed to the Medical Superintendent, Allied Hospital, Faisalabad on 10-6-2000. As regards, loss of Rs,1,94,000 to the Government exchequer due to non-abservance of codal formalities no detailed and break up of the amount was given and in the absence of the detailed split-up, it was not possible to give a proper explanation.
5. Dr. Muhammad Arshad in Appeal No,2783 of 2002 also gave a detailed reply denying the charges and stating that there was no loss to the Government, rather an amount of Rs,65,220 was saved, therefore, allegation of financial irregularity, violation of hospital decourm and breaking the trust of patient was denied. The following additional reply was given:--
(a) 320 positive cases were detected which means saving of at least 320 numbers of innocent patients.
(b) 339 poor-deserving patients were screened free of cost.
(c) 1100 HBSA tests were performed free of cost when the supply from BTS was discontinued.
(d) No share was distributed.
(e) The Government incurred no loss.
(f) A gain of Rs,65,220 was made and the amount deposited in the treasury.
(g) No violation of hospital decorum occurred. All activities were carried under the directions and supervision of the Medical Superintendent DHQ Hospital, Faisalabad.
(h) The patients were facilitated at very economical charges. No complaint from public was received.
(i) The whole exercise brought a good name to the institution, one desk facility was provided at no financial burden to the Health Department.
(j) The undesigned shared extra responsibility in public interest.
6. The Inquiry Officer came to the following conclusion:-
(a) Dr. Nisar Ahmad, DBTO, Allied Hospital, Faisalabad, all the allegations levelled in the charge- sheet stand proved. He is responsible for initiating an unlawful system not based on rules and regulations and in traversion of financial and departmental instructions. He is recommended for major penalty for removal from service.
(b) Dr. Arshad Bashir, BTO, Allied Hospital, charges levelled against him stand proved.
7. Inquiry Officer in his note, recorded at the end of the report, recommended recovery to be made from all the accused as per charge-sheet. However, before signing the report he made the following observations:-- ' The Chief Executive, PMC, Medical Superintendent, Allied Hospital, Faisalabad and Medical Superintendent 'DHQ Hospital, Faisalabad failed to frame a proper policy for the investigation of blood samples in accordance to the Government financial discipline and standing departmental instructions.
' They also failed to bring the issue in the notice of the IMC or other financial forum for proper working of the Blood Bank and observance of fiscal rules.
' Accounts Officer attached with the Chief Executive or his Finance Director equally failed to provide guidance or infrastructure for financial management.
' BTOs made their own decisions for procurement, cash collection, distribution and financial management.
' The Medical Superintendent advanced Rs,10,000 from public exchequer without authority or sanction just on a whim and Chief Executive never took notice of that.
' Medical Superintendent, DHQ Hospital Faisalabad collected cash from the blood bank kept with the cashier and later on deposited without any formal system or internal auditing.
' Government instructions were grossly misinterpreted and office of the Chief Executive/Medical Superintendent never sought clarification from Government to follow official rules and regulations.
8. The authority after affording personal hearing to the appellants imposed major penalty of removal from service plus recovery of Government loss amounting to Rs,1,94,733 upon the appellant Dr. Nisar Ahmad and stoppage of two annual increments without cumulative effect and recovery of financial loss to the Government of Rs,1,37,205/75 upon Dr. Muhammad Arshad, appellant, which orders have been assailed in this appeal.
9. Learned counsel for the appellants contended that the authority did not apply his independent mind while imposing penalty but was influenced by extraneous matters by seeking opinion from the Inquiry Officer as well as Dr. Yasmin Lodhi, Director, Directorate of Blood Transfusion Service.
Punjab, Lahore which vitiated the whole proceedings as nothing more than the inquiry report of the Inquiry Officer could be taken into consideration and view of Dr. Yasmin Lodhi could not be taken into account unless she appeared as a witness and was cross-examined by the appellants. The slipshod and perfunctory manner in which the inquiry was conducted by the Inquiry Officer was also agitated and lastly the penalty of recovery was attacked on the ground that neither any details nor split-up of items to which the Government was to put to loss was mentioned, as such imposition of penalty was not only illegal but totally uncalled for. Learned District Attorney, could not controvert the assertions made by the learned counsel for the appellants.
10. I have heard the arguments in detail and have also perused the record.
11. A bare reading of the inquiry report sounded me that the Inquiry Officer has only reproduced verbatim the defence of the accused/appellants and without giving any reason or logic held them guilty in his conclusion arrived at in few lines. It is probably for this reason that the Authority had to consult the Inquiry Officer and held consultation with Dr. Yasmin Lodhi, Director, Directorate of Blood Transfusion Service, Punjab, Lahore. The Authority undoubtedly could obtain opinion or views of the above-mentioned persons but in the presence of the appellants after ensuring that if any adverse views were recorded against the appellants, they should have been given a chance to 'refute it.
Another factor, which has surprised me is recording of the observation by the Inquiry Officer at the end of the report reproduced in this judgment in the preceding paragraph. Various aspersions upon the working of the Chief Executive, PMC, M.S. Allied Hospital, Faisalabad and M.S. DHQ Hospital alongwith Accounts Officer attached with the Chief Executive has also been cast. These observations show that all was not well in the Hospitals for which the blame, if any, although not succinctly had to be shared by others, apart from the appellants. I also agree with the arguments of the learned counsel for the appellants that the penalty of recovery has been imposed without letting the appellants know as to the item, regarding which financial irregularities have been committed and to what extent, by adducing concrete evidence. Extreme penalty of removal from service passed against Dr. Nisar Ahmad is without any trangible evidence to connect him with the commission of any misconduct.
12. The upshot of the discussion leads me to the conclusion that the proceedings have been conducted in a manner totally bereft of legal norms as such the appeals have to be accepted. I accept the appeals, set aside the order dated 1-8-2002 passed by Secretary to Government of the Punjab, Health Department, Lahore. Dr. Nisar Ahmad, appellant, shall be reinstated in Service, however, the intervening period between removal from service and reinstatement shall be treated as leave of the kind due. The Authority shall constitute an Inquiry Committee comprising of two experts in Pathalogy and a Financial expert, of indepredent repute and integrity to hold a de novo inquiry by leading evidence to prove the charges, allowing the appellants to cross-examine the witnesses and also providing opportunity to the appellants to lead defence, If they so wish, whereafter the matter would be disposed of by the Authority through a speaking order.