' AKBAR M. MEMON, (MEMBER).---The appellant hereinabove who was lastly working as Assistant Director (Enginering) with the respondents has challenged the order dated 20th April, 2001, under which he was removed from service under Special Powers Ordinance 2000, as amended vide Ordinance No,V of 2001 with immediate effect. The order in question is reproduced hereunder:-- OFFICE ORDER ' Having been found guilty of misconduct, in terms of section 3(1) of Removal from Service (Special Powers) Ordinance 2000 (XVII of 2000) as amended vide Ordinance No,V of 2001, the Competent Authority has been pleased to impose major penalty of "Dismissal from Service" upon Mr. Muhammad Ahmed Abro, Assistant Director (BS-17) as per provision contained in section 3(1)(e) of Removal ftom Service (Special Powers) Ordinance, 2000 (XVII of 2000) as amended vide Order No,V of 2001, with immediate effect.
(Sd.)
Brig. (Retd.)
' Parwez Mahmood Khan, S.I. (M), Director General (Admn.)."
2. Mr. Abdul Latif Ansari, learned counsel for the appellant has contended that the appellant was originally appointed as Inspector/Surpervisor in BPS-16 vide appointment order dated 5th April, 1995 and on account of appellant's satisfactory working he was promoted to the post of Assistant Director (Engineering) in BPS-17 on the recommendation of a Departmental Promotion Committee with effect from 30th October 1995 vide Office Order dated 14-11-1995. He has contended that the appellant has put in 10 years service with the respondents and his working was always appreciated by the respondents and that his record remained unblemished as not a single adverse entry was ever earned by him. He has contended that on 23-5-1999, respondent No,3 alongwith other members visited the site of the work where the appellant was working and found that one Chandan Bridge needed immediate diversion, as such, the Deputy Director (Maintenance) was directed to prepare estimate for the said work. Thereafter the said contract was awarded to Messrs Jamali Construction Company by the high officials of the respondents. He has contended that the Assistant Director had no link or role to play in preparation or execution or issuance of the said estimate who being Assistant Director had to look after the work and was required to work under the then Deputy Director (Maintenance). He has contended that on 25-8-i999 the contractual work was complete and when the appellant was at his residence, he received a telephonic call from the Deputy Director (Maintenance) N.H.A. Hyderabad requiring him to reach the Office. On his reaching the Office he was directed to immediately rush to the site and record the measurements. He then made compliance and recorded the measurement in the dark hour of the night. He has contended that though it was dark hour of the night but the appellant recorded the measurement fairly which were sent next day by the Deputy Director to the Director (Maintenance) alongwith the completion certificate and so also bill amounting to Rs,32,51,481. He has contended that the bill was passed and the amount was released to Messrs Jamali Construction Company, according to the official practice. He has contended that later on after re-measurement of the Chandan Bridge, it transpired that the measurement taken by the appellant in dark hours of the night in hurried manner was in excess due to which the contractor was paid excess amount, as such, the appellant reported the mistake of recording of excess measurement to Deputy Director who took a decision that the excess amount collected by the contractor be deducted from his other pending bills. The respondents however did not suffer any financial loss at the hands of appellant and even the appellant was not involved in corruption or misappropriation whatsoever. He has contended that the respondents then called for the explanation of Deputy Director on 20-12-2000 but knowingly the Deputy Director did not offer reply. However he asked the appellant to furnish a detailed report vide letter dated 20-1-2001 which was replied on 12-1-2001, but the respondents were not satisfied, due to which show-cause notice was issued against the appellant on 31-1-2001 which was replied. He has contended that the respondents instead of issuing proper charge-sheet, holding of proper enquiry got investigation done through Director Construction and on the basis of investigation report, the appellant has been removed from service. He has contended that neither the appellant was associated in the investigation nor any enquiry was conducted which shows that the appellant has been condemned unheard. He has contended that the Deputy Director Ghulam Mujtaba was issued the same show-cause notice and on the basis of the same investigation report he was compulsorily retired from service vide order dated 20-4-2001. Against which he also filed Appeal bearing No,172(K)(C.S.)/2001 before this Tribunal and since he has been reinstated on 21-1-2002 due to which the said incumbent Ghulam Mujtaba Memon withdrew his appeal from this Tribunal on 22-8-2002, as such, it would be a case of discrimination. He has contended that the charges against the appellant as well as Ghulam Mujtaba Memon were altogether the same, but the appellant has been dismissed from service, whereas the other incumbent has been reinstated which is in violation of the principles of natural justice, as such, appellant also deserves the reinstatement on the rule of consistency, particularly when no loss has been sustained by the respondents, which fact is admitted by the respondents in their comments at para 19, as such, appeal be allowed and the appellant be reinstated with all back-benefits.
3. Mr. Muhammad Sarwar Khan, learned counsel for the respondents has opposed the appeal. He has contended that due to negligence of the appellant an amount of Rs,6,48,000.38 were paid in excess to the contractor. He has contended that due to inefficiency of the appellant he has been awarded punishment as mentioned above. At the same time he has admitted the fact that another incumbent Mr. Ghulam Mujtaba Memon, Deputy Director (Engineering) who was compulsorily retired from service on the same date in respect of the same charges has been reinstated. Therefore, he has contended that it is for the Tribunal to decide.
4. After hearing the arguments of learned counsel appearing for the parties, we have gone through appeal filed.
5. It is an admitted fact that over payment was made to the contractor on the wrong recording of measurement, On re-measurement, the appellant realizing his mistake of recording excessive measurement in dark hour of night informed Deputy Director and subsequently recovered the amount which was paid in excess to the contractor. This fact has been admitted by the respondents in para 19 of the comments. The relevant para-19 is reproduced hereunder: "19. Denied.----The appellant recorded the excessive measurements of Contract No,EMS-6170 malafidely for ulterior motives willfully. However, after having the knowledge of the inquiry in the matter, the appellant deducted the excessive amount from the pending bill of Contract No,PMS- 5705 of Messrs Jamali Construction Co. To cover his offensive act. The rest of the para is denied.
' Apparently there is no allegation of corruption or misappropriation, nor any document has been produced by the respondents in this regard and since the respondents reinstated incumbent Ghulam Mujtaba. Memon on 21-1-2002 we would like to reproduce the said order as under: "OFFICE ORDER ' In pursuance of the decision given by the Appellate Authority, i.e, Secretary (Communications), conveyed vide MCC&RS O.M. No,4(2) of 1997 Roads dated 15-12-2001, Mr. Ghulam Mujtaba Memon, Dy. Director (Engr) (BS-19/8) who was awarded with a major penalty of "Compulsory Retirement" from service vide Office Order No,Inq/CS/Admn/NHA/119/97/280 dated 20-4-2001 is hereby reinstated in service with immediate effect and is posted as Dy. Director (Maint) NHA HQ Islamabad.
2. The period spent out of service is treated as leave on full pay. His salary will be charged to 1% Establishment Account.
3. This issues with the approval of Chairman, NHA.
(Sd).
(S. Altaf Hussain Bokhari) Dy. Director(C).
6. We are of the view that the case of the present appellant is identical and, as such, rule of consistency has to prevail. Following the rule of consistency, we while allowing the appeal, set aside the impugned order and direct the respondents to reinstate the appellant from the same date when he was dismissed from service. The intervening period be decided on the same lines on which the case of Deputy Director Ghulam Mujitaba Memon was decided.
7. In view of the above facts, appeal stands disposed with no orders as to costs.
8. Parties be informed accordingly.