1988 PLP (C (PLC(CS))

IHSANUL HAQ CHAUDHRY (CHAIRMAN).‑‑The relevant facts for the decision of the present appeal are that the appellant was serving as Sub‑Engineer in the office of Superintending Engineer, Muzaffargarh Canal Circle in the Irrigation Department in the year 1980. The authority noticed certain irregularities in payments made to the contractors for earth work. Therefore, it was decided to initiate disciplinary proceedings against the appellant and Malik Bashir Ahmad, officiating S.D.O. They were accordingly served with the charge‑sheets together with the statement of allegations dated 27‑8‑1980 by the Superintending Engineer as Authorised Officer. Thereafter the Respondent NO‑1 issued another charge‑sheet together with the statement of allegations, recorded the statement of witness and ultimately imposed the penalty for the recovery of Rs.27,089.23 and also withheld one year increment. The order of the Respondent No.l is dated 23‑12‑1984. The appellant assailed the order through Departmental appeal before the Respondent No.2 but the same was dismissed. The decision was notified to the appellant through Memo. dated 29‑1‑1986. The appellant failing to have favourable decision at the Departmental level invoked the jurisdiction of this Tribunal through the present appeal under section 4 ‑of the Punjab Service Tribunal Act, 1974. The appeal came up for preliminary hearing on 17‑9‑1986. It was admitted for regular hearing and the notices were issued to the Respondents, who have appeared and contested this appeal.

2. We have heard learned counsel for the appellant as well as learned D. A. for the Respondents and also scanned the record of the Department. The learned counsel for the appellant has raised following points in support of claim in appeal:‑ (i) Firstly, that the Respondent No. l had no jurisdiction to transfer the disciplinary proceedings to his file and thus to assume the role of Enquiry Officer, prosecutor and Judge. himself; (ii) Secondly, that the proceedings were mala fide; (iii) Thirdly, the Respondent No.2 neither supplied copy of the Enquiry Report nor served with the show‑cause notice, therefore, whole of the proceedings are vitiated; (iv) Fourthly, that the enquiry proceedings were conducted in utter disregard of the rules as well as the principal of the natural justice. So much so the appellant was not allowed to cross -examine the witnesses; and (v) Lastly, that the measurements recorded by the appellant were correctly recorded and the same has been upheld by the Civil Court in the judgment in, the suit filed by the contractor. It is added that' the judgment 'and the decree of the Civil Court was upheld by the appellate Court and the appeal of the Government was dismissed. On the other hand, the learned D.A. has argued that the Respondent No.2 in fact dispensed with the enquiry under Rule 6(3) of the E & D Rules, 1975 and instead proceeded to issue show‑cause notice. It is added that the Respondent No.l directed the Respondent No.2 vide Memo. dated 16‑9‑1983 to act as authority in case of officiating S.D.O. under Sr. No.5 of Delegation of Powers Rules, 1962. It was for this reason chat Respondent No.2 took cognizance of the matter and imposed the major penalty of the recovery of the loss caused to the Government.

3. Now we proceed to decide the points raised by the learned counsel for the appellant with reference to the record and arguments of the learned D.A. The first ground that the Respondent No.2 was not competent to act as Authorised and Enquiry Officer. In this behalf the learned counsel for the appellant has referred to the Irrigation Department Delegation of Powers Rules, 1962 according to which Chief Engineer, Irrigation, is the authority.

4. The Respondent No.2 has taken up the plea in the written objections that he was directed by the Secretary i.e. Respondent No.1 to assume the powers of Authority. The same were the arguments of the learned D.A. The position is clear that the Respondent No.2 was acting as Authority as notified in the rules referred to above; therefore, the Memo. of the Respondent No.l referred to in the written comments did not bring any change. The respondent No.2 had already directed the Superintending Engineer to initiate disciplinary proceedings against the appellant and his co‑accused, who have already been served with the charge‑sheet and the statement of allegations. There was no occasion for the Respondent No.l to ask the Respondent No.2 to issue a fresh charge‑sheet.

5. The Respondents are taking up contradictory pleas. The Respondent No.2 has taken up the plea in para. 3 of the written comments that the Authorised Officer has processed the case and passed on to the Respondent No.l to impose the recovery. But it was the Respondent No.l, who advised the Respondent No.2 to act as Authority. The Respondent No.2 has taken up the plea that enquiry was rightly dispensed with. It is, also, his defence now that he served the appellant with a show‑cause notice and it was wrongly styled as charge‑sheet. The statement of allegations issued by Respondent No.2 is on record and he has signed the same as Authorised Officer. The plea is, therefore, clearly an afterthought and we would say even mala fide. We had a mind to send for the Respondent No.2 to clarify this point and hear him because it was felt that there may be some observation here and there in the judgment which will have its adverse reflections on the Respondent No.2. We did not send for him as we were informed that he had retired from service. Now even if there are adverse remarks or observation then it will not affect his career as civil servant.

6. This is a clear case where the Respondents made a mocker of law and proceeded with the matter in accordance with their whims instead of taking the disciplinary proceedings in accordance with rules. The forwarding letter of the second charge‑.sheet reads as under: ‑ Letter from M.H. Zaidi, Administrative Officer, for. Chief Engineer, Irrigation, Multan, addressed to the S.E. M/Garh Canal Circle, Multan, bearing No.2200/AI/80/20955/128/78, dated 1‑9‑1980; Sub: DISCIPLINARY ACTION UNDER E & D RULES, 1975. Charge‑sheet and statement of allegations (each in duplicate) duly signed by the Chief Engineer as Authorised Officer are sent, herewith. These may please be served on Mr. Muhammad Zamir Khan Sub‑Engineer (under suspension) and second copy each thereof returned to this office duly acknowledged by him promptly. Defence reply to the charge‑sheet may also please be obtained from the accused Sub‑Engineer within the stipulated period and sent to this office for further action. (Sd.)

7. We have noted that neither appellant has dispensed with the enquiry nor there is a word about the proceedings conducted by the Authorised Officer. It is clear from record that he did not conduct these proceedings as an authority but the same were conducted as an Authorised Officer. If position taken in the written objections is correct, then there was no occasion for issuing a fresh charge‑sheet to the appellant. The Respondent No. l had made a complete mess of everything so much so that Malik Bashir Ahmad co‑accused of the appellant was involved only for the work done by M/s. Syed Ghulam Rasul and Co. and not for other works. The respondent instead of initiating two separate proceedings for the different works proceeded to issue one and the same charge‑sheet in respect of different works.

8. The arguments of the learned counsel for the appellant that since Civil Court has clearly held that the measurements recorded are correct and decreed the suit of M/s. Syed Ghulam Rasul and Company Contractor. This decree was upheld and appeal of the province dismissed, therefore, the allegations of the respondents are falsified by decree of the competent Court of jurisdiction. This is not all, but the position is that M/s. Ghulam Rasul and Company executed only a part of the work. It was this work alone for which Malik Bashir Ahmad, S.D.O. was also co‑accused with the appellant. Therefore, the decree of the Civil Court will not completely wipe out the liability of the appellant.

9. The Respondent No.l completed the proceedings as an authorised officer and submitted his recommendation to the Respondent No.2 but the Respondent No.2 informed the Respondent No.l that he is now competent to impose the penalty as an authority. The Respondent No‑1 accordingly acting as authority imposed the penalty of recovery and withholding of one increment. The Respondent No.2 should have ignored the amendment in the rules because the inquiry was on when the rules were amended.

10. We have given our anxious considerations to the entire matter and find that the respondents have proceeded in most illegal manner, which materially prejudiced the defence of the appellant. The appellant was denied the chance of hearing before the authorised officer because the Respondent No.l has acted as authorised officer and then passed the final order as an authority.

11. The upshot of this discussion is that we accept this appeal and remand the case to the Respondent No. l who shall initiate proceedings in accordance with law. We also direct the respondents M.Y.H./210/Sr.p Case remanded.