2013 PLP 572 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

This judgment shall dispose of Civil Petitions Nos.733-L, 737-L, 755-L, 1988-L, 1989-L and 1990-L of 2012 as these have nexus and are the outcome of the disciplinary proceedings carried out by the Department culminating in the award of various penalties which were challenged in appeals before the Punjab Service Tribunal and the same have been allowed vide the impugned judgments.

2. Facts giving rise to the afore-referred petitions briefly stated are that respondent officials six in number along with three others while working in the Communication and Works Department as Executive Engineers and Sub-Divisional Officers were proceeded against and charges with reference to the respondents were as follows:-- "Mr. Muhammad Riaz, District Officer (Roads), Jhelum (under suspension) Road Section Terhada to District Boundary Chakwal from km 154.40 to 176.29 Length 22 km District Chakwal; (a) That the defects of different nature including rutting, slippage, cracks and reveling etc. have appeared on the newly built road, the causes where of according to the quality evaluation report of Road Research and Material Testing Institute Lahore dated 12-9-2008 noticeably are less quantity of bitumen used both in asphaltic base course and wearing course with reference to Job Mix Formula apart from gradation of aggregate used in both layers generally going beyond JMF control band. (b) The thickness of base course at two locations i.e. Km 10.5 and 15.8 was found to be 9.50 inches and 8.6 inches (left side) against the required thickness of 10 inches. Likewise the thickness of asphaltic base and wearing course at Km 15.80 was found to be 1.69 inches and 1.71 inches against the required thickness of 2 inches respectively. (c) While recording measurement for the work in the measurement book No.6322, work has been shown as "in progress" on 29-8-2007 with record entry closed on 29-8-2007 at page

25. Thereafter, work has been shown as completed on 29-8-2007 at page 26 of the same measurement book while preparing the bill of the same record entries on 2-10-2007, whereas the bill was pre-audited and passed in divisional office on 21-4-2008. This indicates that the contractor has been benefited by antedating the completion resulting into reducing the maintenance period of the work and thus providing monetary benefit to the contractor. Mr. Ikram Ullah, Executive Engineer, Provincial Highways Division, Jhelum (under suspension) Road from Km 176.39 to 216.76 Length 40.37 Km in District Mianwali and from Terhada to District Boundary Chakwal from Km 154.40 to 176.29 length 22 Km District Chakwal" (a) While preparing PC-I/cost estimate and detailed estimate, effective water ways provided at all locations in realigned portion of Musa Khel hilly area in Group-I are inadequate as per report of Director Bridges dated 22-9-2008. Further, hydraulic/ structural stability, operational and maintenance requirement of the structures could not get sight at the time of planning and designing. The site parameters dictate that most of the structures are not capable to be termed as useful. Also no competent forum i.e. Bridge Directorate Punjab Highways Department was consulted from the design of the structures. (b) While preparing PC I/ cost estimate, no provision for land acquisition of private land was provided in the realigned portion in Group-1, which caused delay in execution/completion of project as private land owners got stay orders from the civil court against constructions of road on their land till the compensation of land is paid to them. (c) While posted as Executive Engineer, Provincial Highways Division, Jhelum opportunity was provided by him to the contractor by signing the Form-II on 22-5-2008 of the antedated bill pre-audited and passed by the previous Executive Engineer, resulting into reducing the maintenance period of the work and thus providing monetary benefit to the contractor. Mr. Iftikhar Ahmed Executive Engineer Provincial Highway Division Muzafargarh (under suspension) Road from Km 176.39 to 216.76 length 40.37 Km in district Mianwali (a) In Group 2, defects of different nature including rutting, slippage, cracks and raveling etc. have appeared on the newly built road, the causes where of according to the quality evaluation report of Road Research and Material Testing Institute Lahore dated 12-9-2008 noticeably are less quantity of bitumen used both in asphaltic base course and wearing course with reference to Job Mix Formula apart from gradation of aggregate used in both layers generally going beyond JMF control band. Similarly in group 2, the compaction of sub base of treated shoulders at km 3, 18 and 21 and sub grade in treated shoulder at km 3 and 21 is on lesser side. (b) The crushed stone bajri from Musa Khel quarry has been used both in Asphalt and TST on shoulders instead of the approved source of Kirana hills as provided in the estimate. (c) In Group 1, C.R. Masonry in retaining walls has cracked/ collapsed at some places due to substandard construction. (d) Price variation was paid in Group I and II after expiry of time limit. Qazi Altaf Hussain Deputy District Officer (Buildings) Rawalpindi (under suspension) Road from Km 176.39 to 216.76 length 40.37 Km in district Mianwali (a) In Group 1 and 2 defects of different nature including rutting, slippage, cracks and raveling etc. appeared on the newly built road, the causes whereof according to the quality evaluation report of Road Research and Material Testing Institute Lahore dated 12-9-2008 noticeably are less quantity of bitumen used both in asphaltic base course and wearing course with reference to Job Mix Formula apart from gradation of aggregate used in both layers generally going beyond JMF control bank. The tack coat above bituminous base course was not proper in Group 1 due to which there was deficient bond between ABC & AWC. (b) In Group 1, the compaction of sub base course of treated shoulder in km 5 was on lesser side and quality of TST was not up to the mark. Similarly in group 2, the compaction of sub base of treated shoulders at km 3, 18 and 21 and sub grade in treated shoulder at km 3 and 21 is on lesser side. (c) The crushed stone bajri from Musa Khel quarry has been used both in Asphalt and TST on shoulders instead of approved source of Kirana hills as provided in the estimate. (d) In realigned portion of Musa Khel Hills in Group-I, effective water ways provided at all the locations is inadequate as per report of Director Bridges dated 22-9-2008. Further, the hydraulic/structural stability, operation and maintenance requirement of the structures could not get sight at the time of designing and execution. The site parameters dictate that most of the structures are not capable to the termed as useful. No competent forum i.e. Bridge Directorate Punjab Highways Department was consulted for the design of the structures. (e) In Group 1, C.R. Masonry in piers, abutment of culverts and retaining walls has cracked/collapsed at some places due to inadequate design and substandard construction. (f)) Recovery of useable material has not been made according to the provisions of T.S. estimate and relevant conditions of contract agreement i.e. DNIT and acceptance letter. (g) In Group 1, payment for excavation in hard rock requiring blasting has been made in different reaches in certain running bills which is not justified as there is no evidence of use of explosives, while quarrying the stone. Also the nomenclature of items of excavation, their rates and quantities have subsequently been changed without concurrence of the competent authority which proves mala fide intention during running payments. Mr. Asif Shaheen Khan, Sub Engineer o/o Provincial Highway Sub Division Mianwali (under suspension) Road from Km 176.39 to 216.76 length 40.37 Km in district Mianwali (a) While preparing PCI/cost estimate and detailed estimate, effective water ways provided at all locations in realigned portion of Musa Khel hilly area in Group-I are inadequate as per report of Director Bridges dated 22-9-2008. Further, hydraulic/structural stability, operational and maintenance requirement of the structures could not get sight at the time of planning, designing and execution. The site parameters dictate that most of the structures are not capable to be termed as useful. Also, no competent forum i.e. Bridge Directorate, Punjab Highways Department was consulted for the design of the structures. (b) In Group 1, C.R. Masonry in piers and abutment of culverts, and retaining walls has cracked/collapsed at some places due to inadequate design and substandard construction. (c) Recovery of useable material has not been made, according to the provisions in T.S. estimate and relevant conditions of contract agreement i.e. DNIT and acceptance letter. (d) In Group 1, payment for excavation in hard rock requiring blasting has been made in different reaches in certain running bills which is not justified as there is no evidence of use of explosives, while quarrying the stone. Also the nomenclature of items of excavation, their rates and quantities have subsequently been changed without concurrence of the competent authority which prove mala fide intentions during running payments. (e) While preparing PCI/cost estimate, no provision for land acquisition of private land was provided in the realigned portion in Group 1 which caused delay in execution/completion of project as the private land owners have got the stay orders from civil court against the construction of road on their land till the compensation of land is paid to them. Mr. Amir Ahsan Shah Sub Engineer o/o Provincial Highway Sub Division Mianwali (under suspension) Road from Km 176.39 to 216.76 length 40.37 Km in district Mianwali (a) In Group 1 and 2, defects of different nature including rutting, slippage, cracks and reveling etc. have appeared on the newly built road, the causes where-of according to the quality evaluation report of Road Research and Material Testing Institute Lahore dated 2-9-2008 noticeably are less quantity of bitumen used both in asphaltic base course and wearing course with reference to Job Mix Formula apart from gradation of aggregate used in both layers generally going beyond JMF control band. The tack coat above bituminous base course was not proper in Group 1 due to which there was deficient bond between ABC & AWC. (b) In Group 1, the compaction of sub base course of treated shoulders in km 5 was on lesser side and quality of TST was not up to the mark. Similarly in Group 2, the compaction of sub base of treated shoulders at km 3, 18 and 21 and sub grade in treated shoulder at km 3 and 21 is on lesser side. (c) The crushed stone bajri from Musa Khel quarry has been used both in Asphalt and TST on shoulders instead of approved source of Kirana hills as provided in the estimate. (d) In Group 1, C.R. Masonry in piers, abutment of culverts and retaining walls has cracked/collapsed at some places due to inadequate design and sub standard construction. (e) Recovery of useable material has not been made according to the provisions in T.S. estimate and relevant conditions of contract agreement i.e. DNIT and acceptance letter. (f) In Group 1, payment for excavation in hard rock requiring blasting has been made in different reaches in certain running bills which is not justified as there is no evidence of use of explosives, while quarrying the stone. Also the nomenclature of items of excavation, there rates and quantities have subsequently been changed without concurrence of the competent authority which prove mala fide intentions during running payments. (g) Price variation was paid in Group I and II after expiry of time limit."

3. The Inquiry Committee in terms of its report dated 30-1-2010 recommended minor penalties which were disagreed with by the Competent Authority who awarded the respondents various penalties. Their representations also remained abortive. However, the learned Service Tribunal partly allowed their appeals and converted the penalties in terms of the breakup given below:-- 1 2 3 4 5 Name of respondent Service Appeal Recommendation of Inquiry Committee dated 30-1-2010 Order of competent authority 7-12-2010 Decision of Punjab Service Tribunal C.P.No.733-L of 2012 Ikram Ullah Service Appeal No.1530 of 2011 Minor Penalty of censure Major penalty of reduction to lower post i.e., from Executive Engineer to Sub-Divisional Officer for a period of five years. Minor penalty of censure as recommended by inquiry committee vide its order dated 7-2-2012 C.P.No.737-L of 2012 Iftikhar Ahmad Service Appeal No.1529 of 2011 Minor penalty of withholding of increment for two years Imposed penalty of recovery of Rs.11,06,471 and major penalty of reduction to lower post i.e. from Executive Engineer to Sub-Divisional Officer for a period of five years. (i) Penalty of recovery of Rs.11,06,471 was set aside. (ii) Major penalty of reduction to lower post from Executive Engineer to Sub-Divisional Officer for a period of five years is converted into withholding of annual increment for two years as recommended by inquiry committee vide order dated 17-2-2012. C.P. No.7555-L of 2012 Syed Atta Muhammad Service Appeal No.1797 of 2011 Minor penalty of withholding of increment for one year Competent Authority while disagreeing with the findings of inquiry committee vide order dated 7-12-2010, imposed penalty of withholding of 10% pension. Learned Service Tribunal vide its order dated 7-2-2012 further reduced penalty of withholding of 5% pension for a period of one year only. C.P. No.1988-L of 2012 Amin Ahsan Shah Service Appeal No.1748 of 2011 (i) Reduction of three stages in his pay scale. (ii) Withholding of promotion for three years when due. Major penalty of dismissal from service Set aside all the orders on 11-7-2012 C.P.No.1989-L of 2012 Qazi Altaf Hussain Service Appeal No.1749 of 2011 (i) Penalty of reduction by two stages in pay scale. (ii) Withholding of promotion for three years when due. Major penalty of dismissal from service Set aside all the orders on 11-7-2012 C.P. No.1990-L of 2012 Asif Shaheen Khan Service Appeal No.1796 of 2011. Minor penalty of withholding of two increments for one year is recommended Major penalty of forfeiture of past service for a period of five years. Set aside all the orders on 11-7-2012.

4. Learned Additional Advocate-General seeks leave on the ground that the Service Tribunal did not appreciate that the charges levelled against respondents were rather serious; that they caused huge loss to the public exchequer; that the Competent Authority had the power under section 13 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 to award the penalties, which were awarded and no exception could be taken to it.

5. Mr. Jari Ullah Khan, learned Senior Advocate Supreme Court and Mr. Asif Nazeer Awan, learned Advocate Supreme Court appearing for thr respondents in Civil Petitions Nos.733-L and 737-L of 2012 submitted that the Inquiry Committee in its detailed report had threadbare discussed the charges framed against the respondents in the light of the evidence recorded and the recommendations made are in accord with the said evidence which have been rightly agreed to by the learned Service Tribunal and this Court in exercise of its jurisdiction in terms of Article 212(3) of the Constitution may not interfere with the impugned judgments unless any question of law of public importance has been raised which is not the case in these petitions and that the impugned judgments do not warrant interference.

6. Having heard learned Law Officer and learned counsel for the respondents, we find that a two member committee comprising of senior officials of the C & W Department was constituted to inquire into the allegations levelled against the respondents and the said committee in the detailed report has discussed the role attributed to the respondents in the light of the evidence recorded during inquiry and came to the conclusion in case of respondent in Civil Petition No.733-L of 2012 (Ikram Ullah) that none of the charges stood proved; in case of respondent in Civil Petition No.737-L of 2012 (Iftikhar Ahmed) that some charges were proved and it recommended minor penalty of withholding of two increments for two years; in case of respondent in Civil Petition No.755-L of 2012 (Syed Atta Hussain) that some of the charges were proved and minor penalty of withholding of one increment for one year was recommended; in case of respondent in Civil Petition No.1988-L of 2012 (Ameen Ahsan Shah) that some of the charges were proved, some were partially proved and one charge was not proved and it recommended reduction of three stages in his pay scale and withholding of promotion for three years when due; in Civil Petition No.1989-L of 2012 (Qazi Altaf Hussain Shah) that some of the charges were proved, some were partially proved and one charge was not proved and it recommended penalty of reduction by two stages in pay scale and withholding of promotion for three years when due. Similarly in Civil Petition No.1990-L of 2012 (Asif Shaheen Khan) one charge was proved and four other charges were not proved and it recommended minor penalty of withholding of two increments for one year. The Competent Authority without assigning any reason to disagree with the findings of the Committee with reference to the evidence collected enhanced the penalty and converted the same into major penalties as indicated in column No.4 of the chart referred to in para 3 above. There is no cavil to the proposition that the competent authority on receipt of the report from the inquiry officer of the inquiry committee can proceed in any of the options available to him in terms of subsections (2) to (8) to section 13 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006. However, while doing so, it has to follow the procedure laid down therein and if it proposes to enhance the penalty it has to give reasons germane to the charges levelled and the evidence collected during inquiry and that too with reference to the liability of each of the officers who were inquired into. Unfortunately the Competent Authority did not give any reason whatsoever except that he had gone through the record and the defence pleas of the respondents and had also personally inspected the road, defective construction of which was a moot point during inquiry. Mere deplorable condition of the road at site was not enough to hold each respondent guilty unless the Competent Authority specifically had referred to the role and liability of each one of the respondents in the light of material/evidence collected during inquiry. Learned Law Officer on court query, could not dispute the fact that the competent authority neither gave any reason for enhancing the penalty nor apportioned the liability of each of the respondents specifically. Even the site inspection of the road was carried out, it is not denied by the learned Law Officer, after four years of the completion of the said project and that too in absence of the respondents.

7. In the afore-referred circumstances, we do not find the impugned judgments of the learned Service Tribunal to be against the record or the law declared by this Court. Reference of Mr. Jari Ullah Khan, Senior Advocate Supreme Court to a judgment of this Court in Syed Jamshed Hussain v. Chief Minister Punjab, Lahore (2008 PLC (C.S.) 161) is in order wherein this Court did not interfere with the judgment of the Service Tribunal and observed that "the Tribunal as appellate authority enjoys the jurisdiction to modify the sentence and in the absence of any question of law of public importance it would not be proper for us to interfere in the order of the Tribunal." Similarly in Government of N.-W.F.P. v. Asif Iqbal (2010 SCMR 1345), the afore-referred view of this Court was reiterated. Even otherwise, no question of law of public importance has been raised either to warrant interference.

8. For what has been discussed above, we do not find any merit in these petitions, which are dismissed and leave refused. MWA/S-5/SC Petitions dismissed.