1988 PLP (C (PLC(CS))

Khan Muhammad Nasir Khan for Respondents. Date of hearing: 8th June, 1987. Petitioner was working as an Overseer in the Cantonment Board, Gujranwala, when he was served with a charge‑sheet dated 12‑3‑1984 alongwith a statement of allegations. The main allegation levelled against the petitioner was that he recommended the final payment to be made to the contractor for laying water supply pipeline in Bazar Area of Gujranwala without checking the whole work done by the contractor which resulted in a loss of Rs.35,163.17 to the Cantonment Board. It was also alleged that the petitioner had failed in his duty to record the measurement of the work done at the site in the measurement book. Petitioner submitted a reply to the charge‑sheet wherein he denied the allegations made against him. He stated in his reply that he had supervised the work upto 5,614 Rft. pipelines which he duly recorded in the measurement book. The remaining pipeline upto 6535 Rft. i.e. pipeline measuring 921 Rft. was checked and measured by Muhammad lqbal Overseer when the petitioner was on leave. Completion report of the work was also signed by Muhammad Iqbal Overseer and the same was duly authenticated by the Cantonment Executive Officer while allowing the payment of Rs.1,25,000 to the Contractor. It was submitted by the petitioner that in these circumstances, there was no reason for him to doubt the correctness of the measurement recorded in his absence and to re‑measure the whole work. It was also pointed out by the petitioner that his action of retaining the security to the extent of 5 per cent "helped the Board in effecting the amount of recovery involved." Petitioner's reply was found unsatisfactory and, therefore, vide show‑cause notice dated 27‑2‑1985 (Annexure E), he was called upon to show‑cause within ten days as to why he may not be dismissed from service. Petitioner submitted reply to the show‑cause notice wherein he reiterated his stand taken in the reply to the charge‑sheet. He pointed out that the responsibility for laying the pipeline from 5614 Rft. to 6535 Rft. devolved upon Muhammad Iqbal Overseer. He also submitted that the amount deducted by him from the contractor's bill on account of security equivalent to 5 per cent had saved the Board from sustaining any loss and litigation for its recovery. It was explained by the petitioner that "the cost of the disputed pipeline had been adjusted out of the security deducted from the contractor's bill and the balance deposited by the contractor. Thus, the Board had sustained no loss."

2. It appears that some inquiry was also held into the aforementioned allegations against the petitioner but he was admittedly not associated with the inquiry. Be that as it may, by letter dated 12‑6‑1985 (Annexure H) Director Military Lands and Cantonments informed the petitioner that as per inquiry report, all the charges against him stood proved and, as such, he was removed from service with immediate effect. Petitioner resorted to departmental remedies but without any success. He has, therefore, approached this Court through the present constitutional petition to assail the validity of his removal from service.

3. I have heard the learned counsel for the parties and have gone through the available record. Admitted position is that the petitioner was not associated with the inquiry held into the allegations levelled against him, yet the inquiry officer found that the explanation submitted by the petitioner was supported by the relevant record. His finding was that "the perusal of the measurement book indicates that irregularities were committed in the absence of Mr. Saleem (Overseer), who was on six days leave from 5‑2‑1983 to 10‑2‑1983. During Mr. Saleem's leave period Mr. Muhammad Iqbal Cantonment Overseer (Jhelum) recorded measurements which were countersigned by the Cantonment Executive Officer. The relevant page of measurement Book shows that the Cantt. Executive Officer crossed the words and figures of the payment of Rs.75,000 (Seventy‑Five thousand) and increased the running payment to the extent of Rs.1,25,000 under his signatures. The payment was made vide Cheque No.594614 dated 7‑2‑1983 (i.e. leave period of Mr. Saleem), Mr. Saleem s conduct and involvement upto this stage is not doubtful." The Enquiry Officer, however, observed that the petitioner's failure to check and correct the wrong and fabricated measurements recorded during his absence/leave period proved him "to be inefficient and indirectly involved in embezzlement". Considering this as an offence of lesser magnitude, the Enquiry Officer recommended in his report (Annexure G) that "a minor punishment might be given to him so that he might correct and improve his official conduct." As against this, strict disciplinary action was recommended against Muhammad Iqbal Overseer who, it was observed, had "managed the whole scheme and finalized within six days i.e. the leave period of Mr. Saleem (Overseer)." Qua him, the finding of the Enquiry Officer was "thus all the charges framed against Mr. Iqbal Overseer stand proved, of which no reasonable explanation has been advanced."

4. The position which emerges from the record and which is not denied by the respondents is that the enquiry was held in the absence of the petitioner and without notice to him. Even a copy of the enquiry .report was not supplied to the petitioner when he was served with a show‑cause notice dated 27‑2‑1985. In their parawise comments, the respondents have admitted that the Enquiry Officer "did not associate the petitioner with the inquiry proceedings nor issued notice thereof". It is also admitted that the findings of the Enquiry Officer were not supplied to the petitioner. It is further admitted in the parawise comments". The Enquiry Officer recommended the minor punishment to enable the petitioner to correct and improve his conduct. "

5. Learned counsel for the petitioner contends that although the entire proceedings against the petitioner stand vitiated in view of the position aforestated, yet the petitioner would be satisfied if the order of his removal is set aside and the Director, Military Lands and Cantonments, respondent No.2 herein is directed to reconsider his case in the light of the report of the Enquiry Officer and the explanation submitted by the petitioner in reply to the show‑cause notice. It is submitted by the learned counsel that respondent No.2 had ordered the petitioner's removal because he had assumed, though erroneously, that all the charges against him stood proved as per enquiry report. Grievance of the learned counsel is that the report of the Enquiry Officer has been misread and the recommendation made therein qua the petitioner completely ignored. His further grievance is that the petitioner's reply to the show‑cause notice wherein he, inter alia, explained that by his action, the Board was saved from sustaining any loss was not given due consideration by respondent No.2 nor was the petitioner afforded proper opportunity of personal hearing. Contention of the learned counsel is that the punishment awarded to the petitioner is not only the result of erroneous assumption but is also arbitrary and harsh.

6. Learned counsel appearing for the respondents has not been able to meet the contentions raised on behalf of the petitioner. In fact, the submissions of the learned counsel for the petitioner are amply supported by the material on the record. Report of the Enquiry Officer (Annexure G) quite clearly shows that the only charge found against the petitioner was that he failed to check and correct "wrong and fabricated measurements" recorded during his absence. The authority passing the impugned order, however, assumed that all the charges were proved against the petitioner. This was evidently mistaken assumption. It appears that respondent No.2 mistook the finding in the enquiry report recorded qua Muhammad Iqbal Overseer as against the petitioner. Not only this, the detailed explanation submitted by the petitioner in his reply to the show‑cause notice is also not shown to have been considered by the competent authority before passing the impugned order. There is yet another relevant aspect of the matter which may be noticed. Petitioner's allegation is that although' he was summoned and he appeared before respondent No.2 for personal hearing but for reasons stated in para. 9 of the writ petition, he was not granted any hearing. The allegation is denied in the parawise comments wherein it is affirmed that the petitioner was heard in person. The fact, however, remains that the petitioner was not supplied copy of the enquiry report. He was thus unaware of the finding against him and as such hearing, if any, could not be said to be a proper hearing. It is also to be noted that notwithstanding the recommendation of the Enquiry Officer that minor punishment be awarded to the petitioner as his offence was lesser in nature, respondent No.2 inflicted the major penalty of removal from service. No material has been placed on the present record to show that respondent No.2 attended to the Enquiry Officer's recommendation and differed with it for good reasons. The respondents have not even filed a Written statement to controvert the averments made by the petitioner in his writ petition. In the circumstances aforementioned, conclusion is irresistible that the impugned order was based on erroneous assumption qua the findings recorded in the enquiry report. The Director, Military Lands and Cantonments appears to have passed the impugned order without proper application of mind to the relevant material on the record particularly the enquiry report, the petitioner's reply to the notice and other attending circumstances. Writ petition is, therefore, allowed, the impugned order removing the petitioner) from service is declared to be without lawful authority and as per the request made by the learned counsel for the petitioner, the case is sent back to the Director, Military Lands and Cantonments who shall re‑examine the question of punishment to be awarded to the petitioner in the light of the report of the Enquiry Officer, the findings recorded and recommendation made therein, of course, after hearing the petitioner in person and attending to his explanation contained in his reply to the show‑cause notice. There will be no order as to costs in the facts and circumstances of the case. M.Y.H./M‑310/L Petition allowed.