2004 PLP (C (PLC(CS))

Malik M. Azam Rasul, Advocate Supreme Court and Ch. Muhammad Akram Advocate‑on‑Record for Respondent No. 1 (in both cases). Date of hearing: 3rd March, 2003. MUHAMMAD NAWAZ ABBASI, J.‑‑‑These two civil petitions for special leave to appeal filed under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973 against a consolidated judgment dated 8‑11‑2002 passed by the Federal Service Tribunal, Islamabad, in two service appeals involving identical questions of law and fact are proposed to be disposed of through this common judgment.

2. The relevant facts in the background are that Water and power Development Authority (WAPDA), vide agreement dated 11‑9-1999, awarded a contract of supply of single phase A.C. energy meters, to M/s. China National Machinery and Equipment Import and Export Corporation (CNM) of Beijing within six months from the date of contract. Muhammad Ijaz Rabbani, Circle Manager, M&T MEPCO. Bahawalpur and Farasat Zaman, Deputy Director, respondents herein, were deputed to visit China for prototype testing and inspection of the meters. The respondents having carried out prototype testing and inspection of the meters in China from 1‑3-2000 to 4‑3‑2000 as per procedure laid down in the letter dated 9‑2‑2000 issued by the office of the General Manager (Adorn) WAPDA, sent the results alongwith sample meters, approved drawing and inspection certificate to the higher authorities at the head office on 4‑3‑2000. The Chairman WAPDA on receipt of complaints of corruption .in the deal constituted an inquiry committee and the said Committee, vide letter dated 4‑5‑2000 issued under rule 5 of the Pakistan WAPDA Employees (Efficiency and Discipline) Rules 1978, required the respondents to explain their position on the following charges:‑‑ "You despite having understanding of the implication of carrying out pre‑shipment inspection alongwith prototype testing and also having understanding that the sanction issued by WAPDA and the Government of Pakistan was meant only for prototype testing carried out the test and inspection concurrently. As stated by the office, you carried out pre‑shipment inspection of the entire lot of the material and issued a certificate in lieu thereof whereas you had not carried out these tests as laid down in the contract nor you had actually counted the material stacked in the warehouses. By giving acceptance certificate for entire quantity (232.100) instead of for quantities manufactured till then, you have transgressed your mandate thereby saving the manufacturer from possible Liquidated Damages to be levied on the manufacturer. In case material is hot shipped within the stipulated time frame given in the contract. The subject file was deliberately withheld by you after 24 Feb. 2000 and never shown to senior officers."

3. The respondents denied the charges in their written replies and pleaded the performance of functions strictly in accordance with the instructions contained in the letter dated 9‑2‑2000. The department, however, being not satisfied with the reply of the respondents, issued show‑cause notices to them and ultimately, the competent authority vide order dated 5‑8‑2000 dismissed them from service. The respondents after exhausting the departmental remedies, preferred separate appeals before the Federal Service Tribunal under section 4 of the Service Tribunals Act, 1973 and the Tribunal having dilated upon the matter in detail, set aside the order of dismissal of the respondents from service and directed their reinstatement with full back‑benefits. In addition, the Tribunal also directed to the petitioner to pay rupees five thousand to each respondents as costs of the litigation.

4. Learned counsel for the petitioner has contended that the purpose of carrying out prototype testing and pre‑shipment inspection of meters was to ensure the specification of the energy meters, on delivery of supply but issue of inspection certificate in advance for the total quantity of meters required to be supplied under the contract defeated the very purpose of pre-shipment inspection. Learned counsel submitted that, respondents while acting in transgression of their authority watched the interest of manufacturer and that issuing of inspection certificate far the entire quantity of meters yet to be supplied, in violation of the instructions contained in the letter of approval, was not in good faith and it was a clear case of misconduct. The learned counsel has neither been able to substantiate the charge of misconduct through any evidence direct or circumstantial nor could contradict the factual position explained by the counsel who represented the WAPDA in appeal before the Service Tribunal, that prototype testing reports were found in accordance with the specifications and no fault or shortcoming was deducted. Further the total consignment of the meters was delivered within the specified time and that meters were functioning satisfactorily.

5. The departmental proceedings were initiated against the respondents on the ground that they having undertaken the exercise of I prototype testing, issued inspection certificate in respect of the total consignment whereas they were supposed to issue certificate only to the extent of quantity of meters already manufactured. 'The show‑cause notices do not contain any allegation of favour or disfavour for any consideration or commission or omission of an act in violation of the mandate given to the respondents. The concerned authorities in the department, who were responsible to verify the specification and proper functioning of the meters at the time of delivery of supply of the consignment, did not point out any defect in the specification or functioning of the meters, therefore, the negligence if any, on their part could not be shifted to the respondents who issued certificate with inspection report. In any case, the Tribunal haring reviewed the matter in detail, has come to the conclusion that respondents committed no wrong and the finding of fact would need no further debate before this Court. These petitions being devoid of any force, are accordingly dismissed. Leave is refused. M.H./W‑47/S Leave refused.