1997 PLP 576 (SCMR)

Raja Muhammad Bashir, Deputy Attorney‑General for Pakistan and Imtiaz Muhammad Khan, Advocate‑on‑Record (absent) for Respondents (in C.A. No.693 of 1992). Date of hearing: 30th April, 1995. ZIA MAHMOOD MIRZA, J.‑‑‑This judgment will dispose of the abovementioned two appeals which are directed against the same impugned judgment of the Federal Service Tribunal.

2. Facts relevant for the disposal of these appeals, briefly stated, are that the appellant Ziaul Haq Malik, while employed as Divisional Engineer (Works), Pakistan Railways, Rawalpindi, was served with a show‑cause notice dated 6‑3‑1993 charging him with misconduct, negligence and carelessness as detailed in the accompanying statement of allegations reproduced hereunder:‑‑ "You Mr. Zia‑ul‑Haq Malik, District Controller of Stores Pakistan Railway, Headquarters Office, Lahore, are charged with the following:‑ For serious misconduct in that while working as Divisional Engineer/Works, Rawalpindi you failed to detect shortage of 20,759 Cft of 2" stone ballast supplied by Haji Ghulam Rabbani against Contract No.385 dated 20‑10‑1982. The shortage amounting to Rs.1,20,402 was reported by Permanent Way Inspector, Jhelum when the work was handed over by you to Divisional Engineer No.2, Rawalpindi. Divisional Engineer‑I wrote a letter dated 22‑11‑1992 to Divisional Accounts Officer, Rawalpindi to stop payment of the bill as 10% prescribed check had not been exercised by the Divisional Engineer/Works. You authorised Divisional Accounts Officer, Rawalpindi to make payment on the same day i.e. 23‑11‑1982 stating that the requisite check has been done by you. The check on the relevant Measurement Book was done by you on 26‑11‑1982‑83 days after the authorisation for the payment of the bill. You, therefore, authorised the payment without physical check and have thus caused a pecuniary loss to the Railway amounting to Rs.1,20,402 by excess payment to the contractor."

3. The appellant replied to the show‑cause notice on 26‑3‑1983 stating, inter alia, that 10% check (Counter‑check) required of Divisional Engineer as per para. 5.1 of the same circular was carried out by me on 19‑11‑1982. It appears that no further action was taken on the show‑cause notice and the appellant was served with a regular charge‑sheet dated 31‑8‑1983 containing the same allegations which formed the basis of show‑cause notice dated 6‑3‑1983. The charge‑sheet, it was stated, was in supersession of the said show‑cause notice. Mr. Riaz Mahmood, Chief Engineer/Survey and Construction, Pakisian Railways was appointed as Inquiry Officer who, after holding the inquiry, found the appellant guilty. Thereafter, the appellant was given final show‑cause notice on 28‑6‑1984. He submitted a reply thereto stating that it was an interim reply as he had taken an objection that complete inquiry report had not been supplied to him. Be that as it may, the appellant was afforded an opportunity of personal hearing by the Secretary, Ministry of Railway on 15‑5‑1985 and then by order dated 23‑9‑1990 he was removed from service with effect from 11‑10‑1990. The appellant submitted a review petition addressed to the Prime Minister of Pakistan, which remained undecided for a period of more than 90 days whereafter he preferred an appeal before the Federal Service Tribunal to challenge the order of his removal from service. It appears that apart from challenging the findings of the Inquiry Officer on merits the appellant also took objections regarding the procedure adopted in his case, the competence of the Secretary, Ministry of Railways to act as Authorised Officer and non‑supply of complete inquiry report. Dealing with the first objection, the learned Tribunal held that the Authorised Officer was fully competent to withdraw the show‑cause notice and issue a charge‑sheet for proceeding under Rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1973, and in any case, the decision to proceed under Rule 6 caused no prejudice to the appellant as he was given better opportunity of defending himself. Second objection too was repelled by the Tribunal holding that in respect of the officers of the grade to which the appellant belonged, the Secretary of the concerned Division was designated. as the Authorised Officer and the Prime Minister as the Authority. In respect of the third objection, it was observed that in the memo of appeal, the appellant had himself admitted that the gist of the inquiry report, which consisted of two pages, was supplied to him. On merits the learned Tribunal found "we have examined the enquiry report which is fairly detailed. It is evident from the report that the appellant demonstrated the most irresponsible attitude inasmuch as he did not take due care and caution to detect the shortage of 20,759 Cft. of stone ballast supplied by the contractor, Haji Ghulam Rabbani. This caused a pecuniary loss of Rs.1,20,402 solely due to the appellant's negligence. He authorised the payment without 10 % prescribed check and as a result the Divisional Accounts Officer made the payment. Moreover it appears from the record that the checking certificate on relevant M.B. was recorded by the appellant after three days of the authorisation of the payment of the bill to Haji Ghulam Rabbani. This act of the appellant though cannot be termed as corruption nevertheless it is a gross negligence, and deserves to be penalized accordingly". It was, however, observed by the learned Tribunal that since there was nothing on record to show that the appellant got any unlawful gain, the penalty of removal from service was not commensurate with the lapse. The penalty awarded by the departmental authorities was accordingly converted into one of compulsory retirement from service which, it was said, would meet the ends of justice. The appeal' was thus partly allowed by the Service Tribunal to the extent of reducing the punishment as aforestated. This was vide the impugned judgment dated 30‑7‑1992, which was called in question in two separate petitions, one filed by Ziaul Haq Malik appellant and the other by the Government of Pakistan through Secretary, Establishment Division and 2 others. Leave was granted by this Court in the petition of Ziaul Haq Malik "to consider whether the inquiry report is based on evidence". Leave was also granted to the Government of Pakistan "to consider whether on the facts and circumstances of the present case, the Service Tribunal rightly interfered in awarding penalty of compulsory retirement from service instead of dismissal from service awarded by the competent authority".

4. We have heard the learned counsel for Ziaul Haq Malik, herein described as the appellant as also the learned Deputy Attorney‑General appearing for the Government of Pakistan. The learned counsel for the appellant vehemently contended that the Inquiry Officer did not examine any witness in the presence of the appellant with the result that he was deprived of an opportunity to cross‑examine the witnesses. According to the learned counsel, the report of the Inquiry Officer was based on no evidence and the charge relating to the shortage of material as also other allegations made against the appellant were not duly proved. The contention as will be presently shown is devoid of any merit. The appellant was proceeded against on the following charges:‑‑ (i) That he failed to detect shortage of 20,759 Cft. of stone ballast which shortage was reported by the Permanent Way Inspector, Jhelum when the work was handed over by the appellant to Divisional Engineer No.2, Rawalpindi. (ii) That Divisional Engineer No.1 wrote a letter dated 22‑11‑1982 to Divisional Accounts Officer, Rawalpindi to stop payment of the bill as 10% prescribed check had not been carried out by the appellant. The appellant on the other hand wrote to the Divisional Accounts Officer on 23‑11‑1982 to make the payment as requisite check had been done by him. This statement was factually incorrect as the entry relating to the prescribed check said to have been done by the appellant was made. In the relevant Measurement Book on 26‑11‑1982, i.e. three days after the payment was authorised by the appellant and thus he had authorised the payment without physical check and consequently caused a pecuniary loss to the department in the sum of Rs.1,20,402, i.e. the value of the short supply.

5. As regards the first charge, it is not the case of the appellant that he had detected the impugned shortage. His grievance, however, is that there was no evidence before the Inquiry Officer to substantiate the shortage of 20,759 Cft. stone ballast. The grievance appears to be misconceived. We find from the statement of the appellant recorded by the Inquiry Officer, copy whereof was produced before us that an Enquiry Committee was constituted to probe into the allegations of the shortage in question. The committee recorded the statement of Muhammad Jamil, Inspector of Works who admitted the shortage. It may be pointed out that the Inspector of Works was also proceeded against on the charge of shortage of the stone ballast and was found guilty of the charge alongwith the appellant. In the circumstances, his admission/confession before the Inquiry Committee was a relevant piece of evidence. The statement of the appellant further shows that the Inquiry Committee had also relied upon MAS (material at site) account for the month of January, 1983 which showed the opening and closing balance of the stone ballast at 87,000 Cft. on 16‑1‑1983. This entry was evidently made after taking measurements of the material at the site. The balance shown, it may be stated, was indicative of the shortage in question as the total quantity of the stone supplied by the Contractor, according to the appellant, was 1,07,759 C.ft. It is thus apparent from the statement of the appellant that the report of the Enquiry Committee and the evidence/material forming basis thereof were before the Inquiry Officer. It cannot, therefore, be said that the alleged shortage of the stone ballast was not substantiated by any evidence. Needless to observe that if the appellant wanted to contradict the report of the Enquiry Committee, he could have summoned the Inspector of Works and/or the person/persons who carried out the measurements at the site which he did not do. It may also be noted that it is an admitted position that the Contractor had supplied the stone ballast during the period when the appellant was incharge of the work in his capacity as Divisional Engineer (Works). It is not denied that under para. 5.1 of Joint Engineering, Accounts and Operating Circular No. 1 of 1979, the appellant was required to check measurements of at least 10% of the material supplied. The appellant took the stand before the Inquiry Officer that he had visited the site on 19‑11‑1982 and carried out the measurement of as mans as 140 stacks of ballast which came to 23 % of the total material lying at the spot. This contention was not accepted by the Inquiry Officer who after scrutinizing the evidence on record found that the appellant never went to the site. This finding quite clearly supports the charge that the appellant acted negligently and failed to detect the shortage in question.

6. As to the second charge against the appellant that he wrongfully authorised the payment to the Contractor by incorrectly stating to Divisional Accounts Officer that he had made 10% prescribed check of the material, the position taken by the appellant, as stated above, was that he had visited the site on 19‑11‑1982 and carried out the measurements of 140 stacks which he recorded in his note book and later entered in the Measurement Book on 26‑11‑1982. The Inquiry Officer did not believe this version and for good reasons. It was rightly observed by the Inquiry Officer that it was humanly impossible to measure 140 stacks in one hour as alleged by the appellant. It was also noted that appellant did not show his movement in the T.A. Journal for 19‑11‑1982 although according to his own statement, he was out of Headquarters for almost whole of the day. Yet another circumstance taken note of by the Inquiry Officer was that the appellant entered, his checking/measurements in the measurement book on 26‑11‑1982 while he had authorised the payment to the Contractor three days before i.e. on 23‑11‑1982, in view of the position obtaining of the record, the finding of the learned Service Tribunal that the appellant authorised the payment without making 10% prescribed check as a result whereof, the Divisional Accounts Officer made the payment to the Contractor, is not open to any exception.

7. Upshot of the above discussion is that we find no good ground to interfere with the findings of the Service Tribunal that the appellant did not take due care anal caution to detect the shortage of 20,759 C.ft. of the stone ballast thus causing pecuniary loss of Rs.1,20,402 to the Government and that he also acted illegally in authorising the payment to the Contractor; without making prescribed check of 10% of the material. The appeal (C.A. 693/92) is accordingly dismissed.

8. In the other appeal filed by the Government (C.A. 302/93), it has been pointed out by the learned counsel appearing for Zia‑ul‑Haq, the respondent in the appeal that the said respondent had died on 24‑9‑1993 but the Government did not make any application to bring on record his legal representatives within 90 days as prescribed in Order XV, Rule 7 of the Supreme Court Rules, 1980. We find that the Government has not moved any application in this behalf till today. That being so, we dismiss the appeal (C.A. 302/93) as having abated. A.A./Z‑223/S Appeal dismissed.