P L D 1998 Quetta 50 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

Petitioners instituted instant Constitutional petition to seek declaration that respondent No. 1 the Divisional Engineer, Civil Works Division of Education, Sibi, awarded contracts for the construction of buildings of various Educational Institutions at different places within Sibi and Naseerabad Divisions, in gross violation of equity, law and justice, as well as without adhering to the process invoked in the department far allocating such contracts for the purpose of construction and therefore, on cancelling the contract works, same be given on merits, after re -advertisement, in accordance with the procedure. In the petition, it was mentioned that all the four petitioners are duly enlisted contractors with Civil Works Directorate of Education Department. The respondent No. l vide Tender Notice, published in Daily ' Jang' on 6th August, 1996, invited sealed tenders for the constructions of following buildings:

(1) Construction of Government Middle School, Ghilgiri. (2) Middle Section Government High School, Sohbatpur. Rs.6,61,322 (3) Government Middle School, Dera Murad Jamali. Rs.6,61,322 (4) Middle School, Pullji, Nasirabad. Rs.6,61,322 (5) Middle School, Badinzai Bolan. Rs.6,61,322 (6) Government Middle School, Chandan Rs,6,61,322 (7) Government Middle School, Ghazi Bolan. Rs.6,61, 322 (8) Middle Section Girls High School Harnai. Rs.6,75,698 (9) Government Middle School, Katal Khan Kohlu. Rs.6,75,698 (10) Government Girls Middle School, Killi Miro Khan Kohlu. Rs.6,75,698 (11) Government Middle School, Nukra Kech, Dera Bugti. Rs.6,75,698 (12) Government Middle School, Nawab Din Colony. Dera Bugti. Rs.6,75,698 Petitioners being interested in aforequoted constructions works, approached the respondent No. 1, for issuance of Tender Forms, but they were intimated that the department has cancelled the Tender Notice for want of availability of funds. In this behalf, notice for cancellation of Tenders was also published in Daily 'JANG', dated 6th and 8th August, 1996. Surprisingly, subsequent thereto, petitioners learnt that the official respondents with mutual understanding of private respondents, had awarded them few works and in this behalf, work orders have also been issued in their favour. As such, petitioners approached to respondents 1 and 2, on 16th or 17th August, 1996, to enquire about the actual position. Initially official respondents concealed the facts from them, but later on they admitted that the works have been assigned to respondents vide works orders, dated 9th September, 1996 for the construction of S.D.E.O. (Male) office at Dera Bugti, Phelewah, S.D.E.O. (Male) office at Sui and two Class Rooms in Middle School, Nukra Kech Dera Bugti. In the petition, the case set up by the petitioners was that although tenders invited on 6th August, 1996 were cancelled vide publication appeared on 8th August, 1996 but the respondents had managed to fictitiously publish a tender notice in Daily ' Mashriq' dated 26th August, 1996 and in fact no Notice was got published in the said newspaper. Contrary to it, official and private respondents, managed to it printed inside separate page No.7, which actually was not the part of regular publication of Daily 'Mashriq' of said date. The fictitious paper obviously was not allowed to be circulated and the official as well as private respondents with criminal misconduct withheld the copies of this paper to ensure that contracts may not be awarded on merits, after competition between the contractors. Notice of petition was given to Director, Public Relations and Protocol, the Editor. Daily ' Mashriq' as well as to respondents. It may be noted that according to Rules, the Tender Notices of various departments are published in the newspaper through Director, Public Relations. In response to the notice, Assistant Director, Muhammad Yousaf Mughal appeared on behalf of D.P.R. and filed certificate, dated 5th May 1997, Confirming that on 21st August, 1996, an advertisement under caption was received from the S.D.E.O., Quetta which was released under P.R (Q) No.501 dated 22nd August, 1996 for publication in Daily ' Jang' Zamana' and Weekly ' Azamana' (Balochi), Quetta. At this juncture, it may also be noted that fictitious/false publication for inviting tenders was also got published in Daily ' Mashriq' dated 26th August, 1996, with reference to P.R.(Q) No.501. It would be appropriate to reproduce photo copy of said notice. for sake of convenience:

A perusal of the contents of above notice, reveals that only period of two days was allowed for receiving tenders, which were previously invited and then cancelled vide P.R. (Q)/286/287/289/290/417 and 322, appeared in different local newspapers. In this notice, no fresh details of the works were mentioned. The respondent editor of daily ' Mashriq' vide Certificate, dated 20th May, 1997 certified that no advertisement from public Relations Department, Quetta, under P.R. (Q) 501 was received or published by the newspaper. It was further certified that the advertisement under P.R.(Q) 501 produced by the Works Education Department before the Court is fictitious and was not published in daily ' Mashriq' Quetta on 26th August, 1996. Parawise comments were also filed by respondent No. 1, wherein the contents of petition were denied being baseless and without substance. However, respondent No.2 Qamaruddin Baloch S.E. South Zone filed parawise comments, clarifying therein that there is no office of Director/Chief Engineer, in the department and in place of such office, two Superintending Engineers are working, one is S.E. South and other is S.E. North Sibi, Kalat and Mekran Divisions are under S.E. South, whereas Naseerabad , Quetta and Zhob Divisions are under S.E. North. He also tried to shift responsibility on respondent No. l by submitting that after completing all the codal formalities, the case was submitted to him for works lying under the jurisdiction of South Zone for concurrence/approval. All the documents as N.I.Ts.; cutting of newspapers and comparative statements were checked by the office. The rates quoted by the lowest contractor found within the ceiling fixed by the P&D Department and concurrence/approval was issued to Divisional Engineer, for further necessary action. It may not be out of context to note here that at the time of awarding contract, Mr. Ahmad Khan Mengal, was the Divisional Engineer, but when this petition was filed, he was already transferred from the South Zone, therefore, new incumbent filed parawise comments, referred to hereinabove. Under these circumstances, notice was issued to Ahmad Khan Mengal, who appeared and admitted that he was the Divisional Engineer in the month of August, 1996, in Sibi, Naseerabad Divisions at Sibi. He also admitted that initially Tender Notice was issued on 28th July, 1996, which was published on 6th August, 1996, but invitation of tenders was cancelled on 8th August, 1996, due to non-availability of funds and advertisement in this behalf was accordingly made. Subsequent thereto, tenders were re-invited vide Notice issued on 22nd August, 1996, to the Director, Public Relations, through Special delivery. Responsibility was entrusted to Mr. Saeed Ahmad (the then Acting Head Clerk, who has committed suicide). The same tender notices were displayed on the Tender Notice Board of the office, as required under the rules. Letter as per usual procedure was addressed to Director, Public Relations dated 22nd August, 1996, regarding publication. It was duly despatched as it is evident from the Despatch . Register. He further explained that he had been demanding from the concerned official of the office for production of newspaper containing notice inviting tenders. Eventually on 25th August, 1996, the concerned official was served with a show-cause notice to do the needful after contacting the office of D.P.R. The concerned official produced the copy of newspaper, containing publication of advertisement and the explanation offered by him appeared to be satisfactory, therefore, in pursuance of this advertisement, the tender forms were duly issued which were purchased by the private respondents and according the works were allocated to them. Petitioners alongwith petition annexed few photographs, which show some of the sites situated at Dera Bughti, for the purpose of construction of building. Mr. Tahir Muhammad Khan, learned counsel for petitioners urged that department had made the payments to respondents despite the fact that neither they started with the work at the site nor any other important type of progress is visible, even in the photographs. He stated that similar situation is prevailing in respect of other sites. Mr. Qamaruddin Baloch, S.E. South Zone, accepted this position and recovered amounts of Rs.2,95,207 and Rs.68,300 paid to respondents 3 and 4 without any consideration, and deposited the same with the department and placed on record, the photostat copies of the challans, for our perusal. This fact was incorporated in the order sheet, dated 21st May, 1997. Keeping in view, all these facts, it was considered proper to constitute a Committee, comprising of following Officers, to carry out a thorough probe into the matter, covering the areas, which were specified in the order:-- (1) Mr. Marjan Khan, Chairman Secretary, Education Department, Government of Balochistan (2) Mr. Ziauddin Leghari, Member, and D.I.-G. Anti-Corruption (3) A qualified Engineer duly Member nominated by the Pakistan Engineering Council, preferably a person, who is employee of the Federal or Provincial Government The Committee was required to enquire as per reference order. reproduced hereinbelow:-- (i) Whether with mala fide intentions tender notices for the work allocated to respondents/contractors and other contractors were published fictitiously in a newspaper on 26-8-1996, purportedly to be the inside page of Daily Mashriq, Quetta; Note.--During enquiry the Resident Editor of Daily Mashriq, Quetta appeared and stated that this portion of the newspaper has not been published by their institution. In this behalf he has also placed a certificate on record. Additionally Muhammad Yousaf Mughal, Assistant Director, Information Department has also placed on record a document indicating that for the publication of the said notice, no request was made to the Daily Mashriq, Quetta by the Provincial Information Department); The Committee shall also be authorised to examine the complete record of the Information Department by summoning any responsible Officer from them; (ii) Whether the work of construction of Schools at different places in Sibi Division and Naseerabad Division have been allocated in accordance with specified rates; (iii) Whether payments to all the Contractors to whom the work was assigned has been made to the extent of work done by them or payment has been made to them without getting completed the work assigned; (iv) Whether the report submitted by the respondent No.2, before the Court regarding completion of work is correct or otherwise; (v) Whether the work has been completed on all the sites according to specifications/standards. The ,Enquiry Committee, headed by Secretary, , Education, submitted Report, which revealed as under:-- A. Tenders notices for these works which purport to have been invited through local Dailies of 26th August, 1996 are fictitious; B. Mr. Kenneth Dass, Head Clerk, admits unambiguously that under the directions of Mr. Ahmad Khan Menghal, the then XEN, and in collaboration with printing press and officials of Director, Public Relations, arrangements were made for bringing out a fictitious paper, in which, so-called notices purport to be published. C. All including contractors had agreed upon these arrangements. The favourite contractors were allotted work at the maxim ceiling and even the fictitious paper was arranged after a period of more than one month. D. The arguments of Mr. Ahmad Khan Mengal that if any irregularity has been committed with regard to the bogus or fictitious publication, it was the responsibility of deceased Mr., Saeed Ahmad Khan, Junior Clerk. This argument of Mr. Ahmad Khan Mengal is not tenable under Rules. Mr. Ahmad Khan Mengal as Divisional Engineer was exclusively responsible for giving wide publicity of the contracted work and he is wholly and solely responsible for these irregularities, as is evident from the statement of Mr. Kenneth Dass, Head Clerk. He is responsible for causing huge losses to the Government as he had obstructed the flow of open competition and allotted the work to his favourite contractors at the maximum ceiling. E. Perusal of the record in respect of each contracted work indicates that practically only one Contractor offered his rate while the remaining so- called competitors are those whose tender forms were got filled in by the official of XEN's office. For example, the record in respect of the award of work regarding construction of office building of sub -Divisional Education Officer (Male) at Phelwagh (Dera Bugti) shows that M/s. Sri Chand, Divan Chand, Assadullah, Narkat Ali and Krishan Ram, have participated in giving their tenders but practically only Mr. Sri Chand had given his tenders and the remaining forms have also been filled in by the officials of the XEN's office. The tender issue Register, Call Deposit Receipt Register, Call deposit payment Register and account of bank are indicative of these forgeries. The statement of Mr. Kenneth Dass collaborates all these facts. It is, therefore, proved beyond doubt that the Government has been caused huge losses on account of this illegal deal. F. Since, tenders for allotment of the contracted work were not invited openly, so, competitive rates were not obtained. As the allotment of work has been manoeuvred, so, the rates so offered by the favourite contractors are not realistic. This proves that healthy competition amongst the contractors had not taken place and the sanctity of the tendering process has been jeopardized. G. Due to poor management and lack of supervision by the Civil Works Directorate, neither quality of work has been achieved nor payments have been made to the Contractors according to work done basis. In many cases, contractors have been paid fully for patially completed items of work, while in some cases, the contractors have been paid for items of works which have not been executed on site. Details in this behalf have also been annexed with the Report. H. Messrs Qamaruddin, S.E. South and Kaleem Nasir S.E. North, have not submitted correct reports before the Court about the completion of works. In this regard, reference was made to the Construction work of Government Middle School, Nukra Kech (Dera Bughti) wherein according to reports of these officers, the roof work was completed but actually the roof work has not been completed and roof material was found lying at Phelawagh located at a distance of about 80 Kms from Dera Bugti. Similarly it has also been incorrectly stated before the Court that work of Government Middle School, Nawabdin Colony, Sui, Dera Bughti, is complete up to door level but actually it is up to plinth level. The Members of the Committee observed that due to poor management and lack of supervision by the Superintending Engineer, Divisional Engineer, S.D.O. and Sub-Engineer, concerned, work done on these sites was not up to the standard. In this behalf detailed informations were also annexed with the Report. It may be noted that Enquiry Committee, associated to all concerned, in carrying out physical inspection of the site, during course whereof, their statements were also recorded and basing on the material whatsoever was collected the detailed report was submitted. All the Engineers i.e. Qamaruddin Baloch, Ahmad Khan Mengal as well as Kaleem Nasir, who were associated with the Committee, did not object on the report, before this Court. After completion of enquiry through Committee, S.E. Qamaruddin Baloch was again called upon to submit progress report, about the construction of work at the sites. Accordingly he submitted report, which indicates that some progress has been made, without verification of same by a responsible officer. The contents of the report, so submitted by him, cannot be accepted, in view of the past conduct of said officer. During pendency of petition, Mr. Qamaruddin Baloch, S.E. information that since this Court had stopped payments to the Contractors, therefore, due to this reason, they could not complete the work. In this behalf, he also submitted an application being Civil Miscellaneous No. Nil of 1997, dated 16-10-1997, praying that directions be made to the Government to release the Funds to the Contractors, so they may complete the work. However, no order was passed on the application, because the case was complete and ripe for judgment. There is another important aspect of the case, which requires to be mentioned at this stage. After the issuance of notices to all concerned, the petitioners on 20th May, 1997, filed Civil Miscellaneous No.665 of 1997, sought permission to withdraw the petition, for the reason that the Court has asked to respondent No. 1, to take necessary action for cancelling the tenders and recovered the excess payment if made to the Contractors. Further S.E. has already taken the correct measures and the petitioners are satisfied with the action, therefore, they pray that permission be accorded to them to withdraw the petition. Notice of this application was given to all concerned and its disposal was postponed, because in view of the detailed deliberations, conducted by the Court, the matter was converted into public interest litigation, as ostensibly huge amount was found to be delinquented by the official as well as private respondents with the .connivance of each other and they were found to have been indulged in classic type of corruption to misappropriate huge amounts belonging to public Exchequer, meant for the development of Educational Projects in the Province. Thus we declined to accord permission to petitioner to withdraw the petition, in view of the law laid down in AIR 1988 SC 2211 and PLD 1993 Lahore

595. Now the question arises that what relief can be given to petitioner, in the circumstances of the case. As we feel that official respondents alongwith other concerned Engineers and the staff of department by indulging in criminal negligence and misconduct have awarded contracts to the private respondents as well as some of the other persons, who are not party before the Court, by committing fraud with the department and in violation to all the prevalent Rules and Regulations and on the other hand. after filing of petition, some of the contractors had also started the construction work. though not in accordance with the specification, as it is evident from the enquiry report, coupled with the fact that the private respondents have also returned the amounts so received by them, because they had not done any work. but had only received the public money from the SE and XENs respectively, therefore, in our opinion, it would not be advisable to cancel all the contracts, at this stage, because if such order is passed then there would be no hope of completing these works by those contractors and the Government will come under another financial burden to re -advertise the works for the purpose of getting them completed at their risk and costs. As such, in the larger interest of general public of the area, where these buildings of Education Department are to be constructed, we left this issue for decision, according to facts and circumstances, by the Government of Balochistan, through Chief Secretary as well as concerned Secretary of the Department, and if after examining all pros and cons of each construction work they conclude that it is in the public interest that the contractors to whom the works have already been assigned, to continue, they would allow him/them to complete the same according to specification and payment in respect of completed works will be made to them accordingly and if in their opinion the' said contractors are not in a position to perform the contract work, according to specification as well as Rules and Regulation then they would be free to take any decision, suitable and proper for the completion of work. However, notice will be given by them to all the contractors, before taking any action against them and after providing opportunity of hearing, their cases will be decided separately. As far as all the Engineers of the Departmental Staff and anyone else, involved in the scam are concerned, they will be dealt with strictly, both by initiating disciplinary departmental action and their prosecution through competent Law Enforcement Agency, separately in respect of each contract and fortnightly progress made in this behalf, shall be intimated by the Secretary, Education, through Registrar of this Court, by sending report, for our perusal in Chamber. Before parting with the Judgment, we would like to place our thanks for the Chairman and Members of the Committee, who had assisted us, in unearthing a case of unprecedented corruption and financial indiscipline in the Civil Works Directorate of Education, because without the report, so submitted by them, it was not so convenient for us, to dispose of the instant petition. For the foregoing reasons and observations made hereinabove, the petition stands disposed of. Since the matter has been treated to be a litigation in public interest, therefore, we pass no order as to costs. A.A./667/Q Order accordingly.