1984 PLP (C (PLC(CS))

6. On the other hand learned District Attorney has submitted that the institution of second inquiry was within the prerogative of the autho rities, as it was found that the earlier inquiry was perfunctory in nature and did not deal with the entire aspects of this case. According to learned District Attorney there is no prohibition in the rules for a second inquiry and thus the objection taken by the appellant is without any foundation. According to the learned District Attorney the case was processed in accordance with the rules and appellant was given full chance to defend himself by cross‑examination of P. Ws. so recorded by the second Enquiry Officer and was also given full chance to defend himself by the com petent authority. With regard to the merits of the case learned District Attorney has submitted that the perusal of the verdict of the Enquiry Officer with regard to charges Nos. D, E, F, G and J, the action taken by the competent authority was fully justified. At this juncture he has also pointed out that the second inquiry conducted by Lt.‑Col. (Retd.) Muhammad Yusaf, O. S. D. was of an independent nature because the said Enquiry Officer fully considered the aspects of the case and exonera ted the appellant from charges A, B, C, H and I.

7. We have given our anxious thought to the arguments advanced by the parties and would like to reproduce the charges so levelled against the appellant for ready reference:‑ (a) The estimate was not prepared correctly. It was for the supply of stone metal only and their complete description regarding laying and consolidation of sub‑base and base was not given, although their full rates bad been entered in the estimate. (b) The amount of work was above Rs. 5,000 and as such, the work should have been given publicity through the press, but no tender call notice or press cutting is available on the file. (c) The work was originally allotted to Mr. Muhammad Yousaf Alvi, Contractor, who backed out after a period of 4 months but instead of forfeiting his earnest money, it was refunded to him with out existence of any such clause in the agreement. (d) Running bills of stone metal had been made at the reduced rates for which there is no provision in the agreement. The payment should not have been made unless the items of sub‑base and base had checked. (e) In case payment had been made the custody of material should have been ensured. (f) Payment was released for 133,367 cft. against an estimated provi sion of 86,887 cft. of earth‑work. According to the report of Municipal Engineer III, there is approximately a total quantity of 33,500 cft. earth at site and, therefore, there is an overpayment of Rs. 40,000 on this account. (g) A payment for 9,468 cft. of stone metal had been made whereas, as reported by the Municipal Engineer hardly 1,050 cft. of stone metal is lying buried in earth at site. This resulted in excess payment of Rs. 15,000. (h) The length of the road in the technically sanctioned estimate was entered as 1,600 cft. whereas the length of the road at site is only 900 cft. (i) `L' sections of the road had been wrongly prepared while prepar ing the detailed estimate, as after allowing the earth‑work done at site the present road formation level is far lower than whatever had been indicated in the original `L' sections. (j) Payments were released to the Contractor without obtaining exten sion in time limit from the competent authority. As for charges (a), (b), (c), (g) and (i) we need not discuss the same as they have not been proved against the appellant according to the report of the Enquiry Officer. However, we have examined in detail the remain ing charges keeping in view the arguments of the learned counsel for the appellant as well as the reasons given in the Memorandum of Appeal so filed by him and find that the appellant has been guilty of negligence and has failed to perform his duties with regard to his responsibilities as laid down in the agreement with the Contractor as well as under the rules. For example the amount of work so undertaken was above Rs. 5,000, there fore, the appellant was under obligation according to the rules laid down in this behalf to give publicity through press and call tenders or otherwise by local publicity. The appellant failed in this behalf and thus was rightly held negligent in this respect. The Contractor in this case Muhammad Yusaf Alvi according to the evidence on the record, did not fulfil his agreement and vanished after a period of four months but instead of forfeiting his earnest money to the L. M. C. the same was refunded to him while no such clause existed in his favour. We further note that running bills cannot be passed unless and until the work had been com pleted but the appellant evolved a novel method of paying him the money on reduced rates, which was also not provided in the said agreement. The most funny thing what we have noticed in this case that the length of the road in the technically sanctioned estimates was entered as 1,600 R. Ft. whereas the length of the road at the site was 900 R. Ft. This glaring default could not be reconciled by the appellant as it was beyond him to explain such outstanding lapse on his part. It is a matter of common knowledge that the measurement is always initiated by the Assistant Engineer who was the appellant in this case and if the measurement is incorrect, the same would creep into the record and likely to be confirmed ordinarily by the next superior. We have no dispute with the fact that the superiors who confirmed the measurement should also be called upon to explain the same but fact remains that the author would be the principle offender and in no manner could escape from his liability. We have satisfied ourselves from the record that the appellant failed to handle the work carefully right from the preparation of the estimates upto the release of payment without ensuring the safe custody of the material paid for, and was thus responsible for excess payment of Rs. 55,000 to the Contractor. We have pointed out these instances out of the whole case, in order to establish that the result of the inquiry conducted by Lt.‑Col. Muhammad Yusaf was based on cogent material and reliable evidence on the record.

8. The result is, we maintain the minor penalty so imposed upon the appellant but with little variation that no increment can be stopped with cumulative effect under the rules, therefore, stoppage of three increments will be considered as without cumulative effect. With this variation we proceed to dismiss the appeal as being without any merits. There will be no order as to costs. To be communicated to the parties. A. E. Appeal dismissed.