1981 PLP (C (PLC(CS))

"Now there is no need to change the previous orders." It has been argued by Raja Haq Nawaz on behalf of the appellant that during the enquiry the Enquiry Officer had examined only two witnesses, namely the Assistant Storekeeper Mr. Mehtab and the Assistant Engineer Mr. Amjad Ali Rizvi. That the Assistant Storekeeper had received the goods and they had been examined by the Assistant Engineer Mr. Rizvi. Under the rules the Executive Engineer was required to verify the material and stock by actually examining only 10% of such stock. The learned counsel has further pointed out that the record of the enquiry would show that Mr. Mehtab had made a categorical statement that he had given evidence under duress. Mr. Amjad Ali Rizvi had stated that he had examined the goods and found the goods to be of corrected specification. That since the dealing Officer was Mr. Rizvi, he alone was responsible for examining the goods and not the Supervising Officer, namely the appellant. That the Assis tant Engineer had also been charge‑sheeted and suspended and after enquiry he had been re‑instated after censure while the Supervising Officer had been awarded the major penalty of compulsory retirement at that early age. Regarding charge No. 9 the learned counsel has argued that Agricultural Development Corporation were earning and spending under the Revolving Fund Scheme. That the Revolving Fund for Guddu Barrage was the extent of Rs. 6 lacs. The excess amount spent was merely Rs. 8,000 that this amount was spent on purchase of water pumps. That as agreed by the department it was mere irregularity and not involving moral turpitude. Raja Haq Nawaz has then argued that under emphasis had been laid on the fact that‑ the material had been purchased, bill had been passed and payment made on the same day, namely 6‑12‑1972. He has explained that the order had been placed, after inviting quotations, with local representative of M/s. Auto Land, Lahore. That these are 3 items namely; Bearing 20 Nos., Bearing 10 Nos. and Hydraulic Pump Oil Seals worth Rs. 2,394 only. They were purchased for recovery of the amount spent out of contingency on 7‑12‑1972. That there were nothing unusual or extraordinary giving rise to any adverse inference against the Executive Engineer. The Executive Engineer had been asked to proceed on forced leave from 6‑12‑1972 and he may have signed the bill before leaving but there could be no objection against it. Mr. Haq Nawaz has then argued that the order on the face of it appears to be discriminatory as the real culprit who received the goods bad been let off with a simple censure but his Supervising Officer had been compulsorily retired. That effective opportunity had not been given to the appellant to adduce evidence in defence and argue the case and enquiry had been com pleted behind his back. The perusal of the case papers would show that the order of compulsory retirement has been passed under the belief that the appellant had been found guilty of "corruption". The word "corruption" had been used in the note recorded by the then Chief Secretary. The charge‑sheet however, shows that by purchasing Bearings of different make, which were recondi tioned, a clear case of fraud had been detected for which ultimate responsi bility lay with the Executive Engineer. The Enquiry Officer has not ascer tained the actual difference in price of Ball Bearings of Euclid make and SKF make to judge whether it was a case of fraud. The opinion of the Secretary, Agriculture was that SKF Ball Bearings were common and easily available in the market. That the only default made in this case was that the actual correction in the name had not been made in the specification in the bill. The Bearings had been inspected long after they were fixed in the machines, when it could not be possible to ascertain if they had been originally new or reconditioned. The other charge No. 9 is admittedly a mere irregularity not calling for such exemplary punishment. The penalty inflicted is thus out of proportion to the acts alleged namely lack of proper supervision and irregular purchas ing. The learned Assistant Advocate‑General has frankly proposed that the penalty might be reduced to that of reversion as Assistant Engineer as originally suggested by the Secretary Agriculture Department. We are accordingly of the view that punishment of compulsory retirement for these acts of com mission and omission, is much too severe and has been imposed under the impression that the defaulter had been found guilty of corruption. We therefore, partly accept the suggestion of the learned A. A. G., and reduce the penalty to that of reversion as Assistant Engineer for the period from 7‑7‑1973 to the date preceding his actual resumption of charge. The appel lant may, however, be re‑instated in service as Assistant Engineer and thereafter in the original grade and scale of pay as Executive Engineer from the date of taking of charge. The only question that remains to be determined is whether be should be allowed the arrears of salary as Assistant Engineer for the intervening period from date of suspension until resumption of charge. According to section 18 of the Sind Civil Servants Act, 1973 a civil servant appointed to a post or grade shall be entitled, in accordance with the rules, to the pay sanc tioned for such post or grade; provided that where a civil servant has, under an order which is later set aside, been dismissed or removed from service or reduced in rank, he shall, on the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine. In earlier decisions based on English doctrines, the salary paid to a civil servant was considered as a bounty and the Crown was not found to pay the salary in law. If any salary was paid it was not considered to be under any obligation but was supposed to be ex gratis. The doctrine was based on the rule that the King cannot be sued in his own Court and that the subject can only approach him by a petition of right. This doctrine was followed in State of Bihar v. Abdul Majeed (A I R 1954 S C 245). Therefore, in cases where Courts gave declaration that the plaintiff was still in services on a particular day, the question whether .he was entitled to sue for arrears of pay during the disputed period still remains undecided. In Abbas Ahmed v. Punjab Province (P L D 1955 Lah. 160), it was observed that where rules provided for the payment of salaries it could not be inferred that there was any intention to grant the public servant a right to sue for his salary and without such an intention it could not be said that there was a statutory provision entitling him to his salary. In P L D 1956 S C (Pak.) 331, it was likewise held that all that the public servant was entitled to was to represent to the Government for the payment of arrears of salary, because no suit for the recovery of salary would lie. This controversy was ultimately set at rest in Pakistan by Supreme Court decision in the case of Pakistan v. Mrs. A. V. Isaacs (P L D 1970 S C 415). It was held by the Supreme Court that: (1) If the dismissal is wrongful then it was due to no fault of the servant that he was prevented from serving the State. (2) If be is to be treated by virtue of the declaration given by the Court as being still in service that there is no reason why he should not also be given by way of consequential relief the salary for the period as if he was actually rendering service. (3) If during this period he has accepted other employment or engage in other profitable business then any amount earned by way of salary from such employment or profits should be set off against the salary due for the reason that a Government servant cannot without the permission of the Government serve any other master or engage in any other business, and on general principles a person cannot be allowed to read 4 double advantage. Raja Haq Nawaz made a statement at the bar before the start of the arguments m this case that appellant Mushtaq Ahmad Wahla was not attending the hearings of this appeal because during this period after his suspension and retirement, he has been employed as an Engineer in the Refhan Corn Oil Factory, Faisalabad the Punjab. He also stated that the appellant was not likely to come back to join Government Department because he was already employed on a more lucrative job, and he was pursuing this appeal so that the stigma should be removed from his otherwise promising career. It was even pointed out that the appellant was being offered a highly paid job in Canada. Therefore, on the general principles laid down in Mrs. A. V. Issacs case, the appellant cannot claim his arrears of salary for the interven ing period from the date of suspension to his re‑instatement even though the period be treated as duty, as the appellant was not sitting idle but has been suitably employed and he cannot be allowed to reap a double advan tage. In case any such claim is made by the appellant it is for the Govern ment to determine on the above principles if any arrears of salary are still due to the appellant upto the date of his re‑instatement. The appeal is disposed of in terms of the above order with no order as to costs. G. A. MUGHUL (MEMBER).‑I respectfully disagree with the learned Chairman and my Honble colleague on the point of facts. Out of 9 charges levelled against him, the appellant was found guilty of two charges vii. charges Nos. 1 & 9 by the Inquiry Officer. Orders retiring him compulsorily were, however, issued on the basis of charge No. 1 although there is no mention of it in the formal Notification. Charge No. 2 relates to defrauding Government by purchasing old material as new while charge No. 9 relates to the purchase of spare parts over and above the sanctioned budget. So far as charge No. 2 is concerned, it is a recorded fact that the appel lant proceeds on forced leave on 6‑12‑1972. On the same date i.e. 6‑12‑72, he placed order for the supply of material of T‑100 Bulldozers worth Rs. 2,394 with M/s. Autoland Pakistan, Badami Bagh, Lahore. He is said to have received the goods on the same day from the branch of the above firm and sanctioned the payment of the money on the same date: It is beyond imagina tion that within a few working hours office goods were received and payment was ordered on the name day. No emergency for placing the orders on the day, he was leaving the charge, has been explained nor the departure from normal procedure for making payment, explained. From the order dated 6‑i2‑1972 placed by the appellant with Lahore firm, it further appears that the inspection of the items for which orders was to be done either by the Agriculture Engineer (the appellant) himself or by his representative in addition to the inspection of Assistant Agriculture Engineer Unit 4, Shikarpur. The record does not indicate that the material was inspected by the appellant himself or his representative before making payment. The recorded facts mentioned above make it is abundantly clear that the appellant placed the orders on the date of leaving the charge and made payment on the same date with some ulterior motive. The charge has, thus been established against him. As regards charge No. 9, he has not been absolved of this charge. The charge regarding irregularity committed by him stands proved against him. So far as the quantum of punishment is concerned, no yardstick has been laid down under the Efficiency and Disciplinary Rules. The competent authority can award any of the minor or major penalties. Tri the instant case, the major penalty of compulsory retirement has been awarded. There are no grounds to interfere in the matter. Orders accordingly.