1981 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN). The appellant, Masud Akhtar, has appealed against the order dated 8‑4‑1980 passed by the Secretary, C & W Department (respondent) demoting him from the rank of Sub- Divisional Officer to that of Sub‑Engineer on charges of inefficiency and misconduct. The appellant's representation against the impugned order has not been decided so far. 2. Brief history of this case is that the appellant was originally charge sheeted on 20‑9‑1975 as follows: ‑‑ (i) According to the contract agreement the embankment of Tie Bund at Kalaira distributory was to be made and compacted in accordance with the provisions of para. 411 of Standard Specifications for Road and Bridge Construction of the Punjab Highway Department. The embankment was to be constructed in successive layers of not more than 9 inches in thickness and each layer was to be compacted and its compaction tested according to the specified density before the next layer of fill was placed. The construction of the said bund was not, however, done according to the specifications and the earthwork was not compacted up to the required standard. Thus, you, being the Assistant Engineer Incharge, allowed the work to be done below specifications. (ii) According to the contact agreement the rate of making embankment according to specifications was Rs. 160 per 100 cft. The payment at the rate could be made only if the embankment was made and compacted according to the specifications. The payment was, however, allowed at full rates in all the running bills by the Executive Engineer on the basis of the record entries made by Mr. Nazir Ahmad Khalid, Sub‑Engineer in measurement Book No. 1475/1, at pages 9‑14 which were checked‑measured and passed by you; these entries indicated the work as done according to specifications while in fact it had not been done according to specifications. You passed 'C' & 'B' orders without ensuring that the construction of the bund bad been made according to the specified requirements and the fact that the earthwork had not been compacted in accordance with the specified requirements, also proves that the check measure ments carried out by you, were bogus and done with ulterior motives. He was suspended front service on 15‑9‑1975 and after an enquiry by Mr. Fayyaz Ali Shah, the Chief Engineer, Highways, dismissed from service on 17‑2‑1976. On review the punishment was reduced to reduction in rank as Sub‑Engineer. The appellant challenged this in this Tribunal vide Appeal No. 156/720 of 1976 and the order of reduction in rank was set aside on 4‑9‑1978 on the ground that the accused was not associated with the compaction tests made by the technical experts and that he was not afforded the opportunity to cross‑examine the experts as witnesses. The respondent then ordered another enquiry to be held ; this time by Mian Muhammad Rafi, OSD‑I (Enquiry), S & GA Department, who held the appellant guilty of misconduct and inefficiency in respect of the same two charges. Con sequently, the appellant was again reduced in rank through the impugned order of 8‑4‑1980. 3. The parties were heard at length, and the record of the case perused. The appellant rested his defence on a number of points. On merits his contention was that although the Enquiry Officer (Mian Muhammad Rafi) correctly reported that according to tests conducted by the Research Assistant. concerned, the compaction ranged between 81 % to 90%, the fallacy lay in the application of the standard of the required specification. The rules require that up to the height of 8 feet in a bund the compaction should be 85 %, while between the height of 9 feet to 12 feet the compaction has to be 95 %. At the time the tests were taken, the height of the bund had reached 7.5 feet only and since it was not over 8 feet the standard of 85 % compaction would apply to it. The tests showed that in the three pits made for the purpose, the compaction in Pit No. 1 was the same as required; in Pit No. 2 it was 84 % instead of 85 % and in Pit No. 3 it varied from 84 % to 82 %. He explained this by asserting that, according to rules, one out of 10 tests can be 2 % below the required specification. Moreover, the moisture content in the earth can affect the compaction and since the tests were made in October 1975 and the work had been done 4 months previously there was bound to be some change in the compaction. The essence of the appellant's arguments was that out of 9 tests conducted, 6 were all right, 2 were covered by the deviation in moisture content and the remaining one was covered by the specified 83% limit for every 10th test. The appellant also contended that the tests were not made in his absence and were, therefore, not binding on him. 4. On behalf of the respondent it was maintained that the bund did not fail owing to the impact of flood waters, as contended by the appellant, but because of faulty construction by the appellant and other accused officers. It had been proved by the tests that the compaction was not of the required standard, as it should have been from 85 % to 90 % whereas laboratory tests showed that in some cases it was less than 85 %. As incharge of the sub‑division full responsibility for the bund's failure rested on the appellant, and the tests bad proved conclusively that sub‑standard compaction had been made. This was the most important point to be considered and all other matters included in the grounds of appeal were extraneous. 5. Having heard the parties in extenso we are inclined to base this judgment on the observations already made by this Tribunal while deciding the aforementioned Appeal No. 156/720 of 1976 of the appellant. The de novo enquiry against the appellant was handicapped by the fact that the bund had been washed away and is now almost non‑existent. The conclusions of this enquiry are based upon the technical data collected in connexion with the preliminary enquiry, and now, after the lapse, of so many years, there are no means left to confirm or deny the correctness of that data. Moreover, we cannot but take cognizance of the appellant's plea that he was not associated with these tests. According to this Tribunal's judgment of 4-9‑1978: "The collection of field data was a very crucial evidence which was admittedly used against the appellants to indict them. The non association of the appellants with the collection of field data and keeping them in the dark about the contents of the report by neither supplying them with a copy nor confronting them with the same and not providing them any opportunity to cross‑examine the authors of the report constitute a very serious denial of an opportunity to the appellants to defend themselves. This is violative of principles of natural justice and violation of the established law on the subject through a chain of authorities. During the de novo enquiry the appellant was given the opportunity to cross‑examine the persons who conducted the field tests but that did not in any way remove the lacuna of his non‑association with the tests. We find, therefore, that in the absence of tests which are unquestionable the charge of sub‑standard compaction of the bund is not established. 6. The second charge about payments to contractors can only be taken into account if the charge about sub‑standard compaction is found to be correct. We note, moreover, from the respondent's written reply to the grounds of appeal that final payment has not so far been made to the contractor by the Department, and thus the appellant is absolved of the responsibility of having made the total payment in this behalf. In view of the above we accept this appeal and set aside the impugned order of 8‑4‑1980 as null and void and of no legal avail. There will, however, be no order as to costs.