2008 PLP (C (PLC(CS))

JUSTICE (RETD.) RIAZ KAYANI (CHAIRMAN).

Through this single order, I intend to dispose of Appeal 1610 of 2004 brought by Mian Aziz Ahmad, former Project Director; Appeal 1611 of 2004 by Aftab Ahmad Sahu, former Chief Engineer; and Appeal 1612 of 2004 by Mian Allah Bukhsh, former Assistant Engineer, who were all in the service of Bahauddin Zakriya University, Multan (hereinafter to be termed as BZU, Multan), as identical questions of fact and of law are involved, further through a joint inquiry, penalty of dismissal from service vide order, dated 11,-5-2004 was imposed by the Syndicate, BZU, Multan as competent authority while proceeding udder the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000.

2. It was decided by the Syndicate of the University to construct Convocation Hall at the BZU, Multan and the work was entrusted to Messrs Frontier Construction Company (Pvt.) Ltd. On 4-1-2002, one Rana Mehmood Arshad Naeem, Civil Engineer, who was in the employment of the contractors as Site Engineer, his services having been dispensed with during the construction of the Convocation Hall, made a complaint on 11-2-2002 in writing, addressed to the Vice-Chancellor, BZU, Multan bringing to his notice about 13 allegations regarding the defective construction of the Convocation Hall as a result of connivance and negligence of the appellants with the contractor, not only causing a heavy monetary loss to the University, but also endangering human lives. After receiving the complaint, the Vice-Chancellor of the University marked copies of the same to the Deans Committee and the appellants and also to the contractor. The Deans Committee in its meeting held on 26-2-2002, constituted a preliminary Inquiry Committee to look into the complaint and submit its report/events. The Committee recommended that all the construction activities should be suspended immediately, and get examined the complaint in detail with the assistance of University of Engineering and Technology (UET), Lahore, vide orders, dated 1-7-2002, the Syndicate of the BZU, Multan decided to launch disciplinary proceedings against the appellants under the Punjab Removal from Service (Special Powers) Ordinance, 2000, and further suspended all the appellants pending the inquiry. Simultaneously, the Vice-Chancellor of the BZU, Multan requested the Vice-Chancellor, University of Engineering and Technology, Lahore to provide assistant in this regard. The Vice-Chancellor, UET, Lahore constituted a Committee consisting of three Faculty Members of the Civil Engineering Department to investigate the matter/perform necessary testing and submit a report thereof. On the other hand, the Syndicate of the BZU, Multan constituted an Inquiry Committee comprising the Chairman being Professor in the subject of Physics along with two Members, one being professor in Mathematics and the other in Chemistry. The terms of reference were as under:-- "(i) To scrutinize the conduct of the accused persons alleged to have committed acts/omission as required by section 3 of the said Ordinance vide Notification No.PF/19/1-15/Admn., PF/18/1-49/Admn., PF/17/1-111/Admn./1685, dated July 3, 2002 (Exh.1). (ii) To probe into all aspects related to the construction work of Convocation Hall vide letter No. Univ-600/Admn-2012, dated 31-7-2002 (Exh.2). (iii) To communicate the charge-sheets and statements of allegations to the accused persons. (iv) To conduct an inquiry according to the said Ordinance. (v) To submit its findings and recommendations to the competent authority within twenty-five days of the initiation of inquiry." The Inquiry Committee served a charge-sheet accompanied with the following statement of allegations upon each of the appellants:-- "(i) That you were working as Project Director. (ii) That according to rules/financial powers for the execution of construction works of the Bahauddin Zakriya University, Multan (Annexure "I"). (a) You were made responsible to test check all the measurement recorded by the Assistant Engineer with his own hand and completely checked by the University Engineer on the spot. (b) You were made responsible to pass the bills to the Treasurer, after having checked by the University Engineer. (c) You were made responsible to execute all construction work under your direction and approval in all respects, (Clause 24 Tender Documents) (Annexure "II"). (iii) While working as Project Director, you failed to discharge your duties and responsibilities within the meaning of 2(a), (b) and (c) as given because:

(a) The latest approved version of drawing (Drawing No.SW/CH/03) was not referred to in the contract agreement...-Hence, the ascertaining/identifying of relevant drawing became impossible. (b) The excavation indicated in the Drawing No.SW/CH/03 is 5 feet 6 inches (Annexure "III") whereas the MB No.436 pages 2 and 3, shows an excavation of 4 feet (Annexure "IV"). This short excavation resulted in reduction of load bearing capacity, of the foundation, thereby making the building unsafe (Annexure "V"). By doing this, you deviated from the approved design without any authorization of the concerned Committee. (c) You did not arrange the bearing capacity check before the start of civil work, which is against the standard practice. (d) You did not establish the system to check regularly the quality of completed civil work in terms of its strength (concrete along with other materials used in construction). This resulted in the use of very poor quality of concrete whose strength was found to be varying from 600 PSI to 1650 PSI against a standard of 3000 PSI as tested by UET Laboratories, Lahore. It appears that the quantity/quality of materials used was less than the required. (e)(i) You allowed unlawful/illegitimate payment of Rs.11,46,312 (Annexure "VI") on account of purchase of acoustic and thermal lining at the rate of less than 75% of the contractor's rate instead of market rate as required by rules and regulations (Annexure "VII"). This included payment for lining which is a perishable item and is not permissible as secured advance (Annexure. "VII"). (ii) You allowed the purchase of Air-conditioning units 6 Nos. (costing Rs.28,20,000 (Annexure "VIII") which should have been procured at the last stage of the construction. (iii) You allowed the purchase of Electric Generator at a price of Rs.9,00,000 (Annexure "IX") which is normally required after the completion of all civil work. (iv) You allowed the purchase of Electric Distribution Panel amounting to Rs.1,12,500 (Annexure "IX") which is also not the requirement at the first stage of the civil work. (v) You similarly, allowed the early purchase of Hot Water Circulation Units at a price of Rs.2,10,000 (Annexure "IX") in the initial stage of civil work. All the equipment/items mentioned above (i to v) were actually required towards the end of construction. By allowing all these purchases at the initial stage you committed millions of rupees for at least two years in advance, which could have been invested to earn substantial amount as interest. By this action, you not only caused a huge financial loss to the University, but also allowed the warranty period of the equipment mentioned to expire before installation. In addition, the life of equipment also shortened significantly by poor storage and depreciation before installation. This is an example of gross misuse of public fund, bad planning and management. (f) You and your dependents are in possession of property, (houses, bungalows, shops, agriculture land etc.) for which you cannot reasonable account for and which are disproportionate to your known sources of income. (g) You have also a reputation of being corrupt. All the above mentioned omissions/commissions on your part fall within the meaning of inefficiency, misconduct, and corruption of section 3 read with section 2(b) of the Punjab Removal from Service (Special Powers) Ordinance, 2000 (As amended)." Appellants denied the allegations and stated that no lapse or omission was committed by them in the performance of their duties, and further charge was vague and unspecific. As regards charge No.(ii), it was stated that neither exact loss has been pointed out nor the charge was specific. As regards charge No.(iii), the reply was that it was repetition of charge No.(ii). For charge No.(iv), it was denied that the appellants failed to follow the approved design given by the Consultant. It was also pointed out that the depth of foundation as given as 5' 6" could not be attained, for the reason that repeated soil investigation proved that the top strata consisted of very stiff to hard silty clay upto 5 feet below the natural service level and below that the strata was 2' to 4; thick, which consisted of loose silt with some amount of fine sand. Therefore;' the foundation depth was restricted to 3' to 4' so as to raise foundation upon stiff and hard surface, and this methodology was discussed at length and the consensus of opinion reached was approved. Charge No.(v) was denied and in reply, it was stated that the measurements of executed works were in conformity with the designs specifications. Unlawful payment to contractor for the construction work was also 'denied; and it was asserted that proper control was exercised over-payments and the work was occasionally subjected to test checks as required in terms of contract agreement. Regarding the purchases of air-conditioning -unit, electric generator and electric distribution panel and hot water circulation, was kept at the last stage of construction to save costs, the same being in accordance with the codal provision. The Inquiry Committee found all the charges proved and recommended imposition of penalty of dismissal from service. The competent authority after hearing the appellant vide order, dated 11-5-2004 dismissed each of the appellant from service. Their departmental representation to respondent No.3 was not attended to within the statutory period, therefore, recourse has been made through the instant appeals for the redressal of their grievances.

3. Learned counsel for the appellant contended that the complainant was a disgruntled person, who was thrown out of service by the contractor after the commencement of the work of construction of Convocation Hall and neither did he appear when tests were being carried out by the team from the Engineering University, Lahore nor did he give `any statement before the Inquiry Committee, as such commencement of proceedings on a complaint when the complainant was least interested, was uncalled for, and should have been consigned to the dust-bin. It was further submitted with vehemence that the appellants were not associated in the tests conducted and result formulated by the team from the UET, Lahore, so much so that the Inquiry Committee took into consideration the said report as gospel truth without calling the authors of the report or any single member to prove it and allow the appellants to cross-examine the said witnesses, therefore, the appellants were condemned unheard, which has caused failure of justice and required reversal. Learned counsel for the respondents as well as learned District Attorney supported the impugned orders.

4. I have heard the respective counsel at length and also perused the record.

5. The perusal of the inquiry report, a document which runs into 33 pages support the contentions of the learned counsel for the appellant that the Inquiry Committee comprising Professors of Mathematics, Physics and Chemistry heavily depended upon the findings incorporated in the report of the Committee constituted by the UET, Lahore. It is further an admitted fact that neither were the appellants associated at the time when the Committee from UET, Lahore conducted tests and formulated the results nor was their reports put to serious challenge by failure of the Inquiry Committee to summon author or the members or anyone of them to prove the report, thereby depriving the appellants of an opportunity to cross-examine the author or the members of the report. The complainant after making a complaint vanished from scene. The appellants seriously lay challenge to the credibility of the complainant, as he was an interested person having been thrown out from service by the contractor after the work of building the Convocation Hall commenced. An aspersion was cast upon the bona fide of the complainant stating that he was related to the Vice-Chancellor of the University, who' had prompted the complainant to make the complaint. The veracity of this allegation could only be tested on the touchstone of the safeguard provided to the appellants, viz. chance to cross-examine the witnesses; which was denied to them. The complainant, as observed, did not appear before the Inquiry Committee, therefore, the very basis of the complaint was rendered ineffective. Be that as it may, the tests conducted by the team from UET, Lahore could have been given semblance of credibility, had the appellants been invited to form part of the exercise: Once again the Inquiry Committee, asked to inquire into the alleged corrupt practices of the appellants, were non-technical members, unable to appreciate the technical know-how of both the sides and it is for this reason probably that the report of the Committee was considered to be the "be all and end all" of the whole matter. I am convinced in my mind that the appellants were not provided any opportunity, what to speak of an adequate chance to refute the charges, as the only piece of evidence was the report of the Committee comprising the Engineers from the UET, Lahore. Learned counsel for the respondents felt handicapped to controvert the assertions of the counsel for the appellants regarding failure of the Inquiry Officer to take appropriate steps in providing a fair chance to the appellants to meet the case of the prosecution. In these circumstances, it is extremely hazardous to accept the inquiry report as well as the order of the competent authority based upon it, as the harshest penalty available under the law has been imposed upon the appellants. I, therefore, accept the appeal (sic) and set aside the impugned order, dated 11-5-2004 passed by the Syndicate of the 'BZU, Multan, being the competent authority. However, the Authority shall now constitute a Committee comprising three Engineers having sufficient experience and being of independent repute to inquire into the matter de novo. The Committee so constituted can commence its proceedings on the basis of the same charge-sheet and the replies submitted by the appellants. It shall be open to the Committee to get the work examined, but after associating the appellants, and after the submission of the report, to call the Members of the Committee so constituted to prove the report giving fair chance to the appellants to cross-examine the witnesses, and further the appellants shall also be given opportunity to lead defence if they so desire. After the Inquiry Committee submits its report along with the recommendations, the Authority shall provide hearing to the appellants and pass appropriate orders. The whole exercise should be completed within a period of 90 days commencing from the date when the Authority receives the judgment of this Tribunal. The inquiry report along with the order of the Authority should be transmitted to the Registrar of this Tribunal soon after its conclusion. H.B.T./54/PST Appeal accepted.