2001 PLP (C (PLC(CS))

(5) 20-4-1995. (6) 23-4-1995. (7) 24-4-1995. (8) 25-4-1995. (9) 30-4-1995. (10) 21-5-1995. Therefore, the submission of the defence counsel that the Inquiry Committee met only once i.e. on 16-4-1995 is incorrect and based on wrong information. We also observe that the Inquiry Committee recorded the statements of as many as 10 (ten) persons shown below:-- (i) Mr. Nazar Muhammad Soomro (Complainant SE.). (ii) Mr. Indher. (iii) Mr. A. Rashid Jatoi, (XEN). (iv) Mr. Pervez Akhtar (Accused/Appellant). (v) Mr. Ali Muhammad Shaikh XEN. (vi) Mr. Dilbar Hasan. (vii) Mr. Jawed Iqbal Memon. (viii) Mr. Rajab Ali Soomro (Accused/Appellant). (ix) Mr. Muhammad Ramzan (Accused/Appellant). (x) Mr. Ghulam Shabbir (Accused/Appellant). Therefore, the submission of the defence counsel that only the statement of Mr. Nazar Muhammad Soomro SE/complainant was recorded is also incorrect/based on wrong information. It is also seen from the file that there are detailed cross-examinations available of the persons, whose statements were recorded by the Inquiry Committee. It is, therefore, also incorrect that the accused/appellants were deprived of their rights of cross-examination vice versa. However, what has taken us by surprise is the fact that none of the statements recorded by the said Committee are signed by the deponents. These statements are also devoid of the signatures of all the 3 members of the committee. Even one member has not signed. The upual practice is that after the recording of the statement of a person be he accused, P.W., or D.W. or Court witness, he is made to read it, accept its correctness and sign it after writing (RO&AC) i.e. "Read over and accepted to be correct." The authority in whose presence the statement is recorded also signs it after writing 'before me'. It is also an accepted practice universal/legal requirement, that all corrections, additions, alterations and deletions etc. be signed by the deponents as well as the authority recording the statements to establish that bona fides of the same. We have observed that there are score of additions/alterations/deletions in ink as well as by pencil, not signed or even initialed by the deponent' or the Inquiry Committee or even one single member of that Committee. We would also like to point out at this stage that the proceedings of a departmental inquiry are deemed to be judicial proceedings under the provisions of sub-rule (2) Rule 7 of the Sindh Civil Servants (Efficiency anti Disciplinary) Rules, 1973 which reads as under:-- "7(2)The proceedings under these rules shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code, 1860 (Act XLV of 1860)." Therefore, we are of the considered view that on account of these gross blunders, errors or omissions, whatever these may be termed, the entire proceedings of the Inquiry Committee, are null and void in the eyes of law and constitute sufficient grounds to set aside the impugned dismissal order of the appellants. What pains us more is the fact that the said Inquiry Committee, comprised of 3 (three) very senior officers of the Provincial Government viz., Mr. Sahib Dino Memo, D.G.C.M. Inspection Team (Head) and Mr. M.A. Bari and Mr. S. Ghayyor Hassan one Chief Engineer (Communication and Works Department) and the other Additional Secretary (Tech.) of the said Communication and Works Department all of whom were officers of BPS.20 and leads to the only conclusion that despite their long service, top positions in the heirachy, they did not know a.b.c. of the proceedings under the abovesaid Efficiency and Discipline Rules to say the least. Normally speaking we would have directed to Provincial Government to initiate disciplinary action against all of them but it is a matter of common knowledge that all of them have already retired from service. Without prejudice to the above, it is observed from letters, dated 24-11-1993 and 27-11-1993 written by M/s. Nazar Muhammad Soomro and Abdul Majeed Mir, respectively the then S.E. and C.E. (Superintendent and Chief Engineers) that 1st reference to Chief Engineer was made on 5-11-1993, who referred the matter to the Secretary (C&W) on 21-11-1993 in the words. "The inspection of defaulted works" was carried out by the Chief Engineer (Mr. Mir) alongwith M/s. Nazar Muhammad Soomro, S.E., Ali Muhammad Shaikh XEN Dadu and Habibur Rehman Memon reg. the alleged exclusive and fraudulent payment amounting to Rs.3,53,081 for the following works:-- (1) Construction of A.D.A. Office as Sehwan: Rs.35,758.00 (2) Up-gradation of Intermediate College at Sehwan: Rs.2, 933 .00 (3) Construction of Basic Health Unit at Baid. Rs.3,14,390.00 ____________ Rs.3.53,081.00 ____________ We would like to quote the last 3 paras. of letter, dated 27-11-1993 from the then Chief Engineer:-- "I inspected the above work on 22-11-1993 and 23-11-1993 alongwith other works in the company of Mr. Nazar Muhammad Soomro, Superintending Engineer, Provincial Building Circle-II, Hyderabad, Mr. Ali Muhammad Shaikh, Executive Engineer, Prov. Building Division, Dadu and other field officers and found that during the intervening period of six weeks or so since the initial report was made by Superintending Engineer Provincial Building Circle-11, Hyderabad, most of items of the above works paid excessively or fraudulently as reported previously by the then Executive Engineer, Provincial Building Division, Dadu, appears to be carried out and remaining items being attended to Superintending Engineer and Executive Engineer were requested to carry out detailed inspection of each and every work item to this specially works 1 and 3 above for the amount alleged and report the factual position, immediately with regard to the recorded measurement of the works. In view of the latest position of the above 3 works for the items executed during the incumbency of Mr. Habib-ur-Rehman, the then Executive Engineer, Provincial Building Division Dadu, matter is referred to you for consideration and review his case with the recommendation that since most of items pertaining to his period have now been executed and remaining are being attended to, the action against Mr. Habibur Rehman the then Executive Engineer must be held in abeyance till the balance works are completed and fresh detailed item wise report is received from the field officers concerned. (Sd.) ABDUL MAJEED MIR, Chief Engineer, Buld. Department, Hyderabad." Three points are obvious from this letter i.e.

(a) Mr. Habib-ur-Rehman Memon, the then XEN was let off the hook, though the principal accused. (b) Chief Engineer (the then) under his own signatures had certified that most of items had (then) been executed and remaining were being attended to. (c) Over all situation with matter apparently was not alarming prima facie there were some delays, errors or omissions which by and large had been rectified or were being rectified. On 14-2-1994, Mr. Nazar Muhammad Soomro sent another letter, in which he included 8 (eight) more works to the original 3 (three) works reported earlier and the overall picture was summed up as follows:-- (1) Alleged defalcation: as per charge-sheets framed by him.: Rs:32,46,526 (2) Balance as per revised charge-sheet : Rs.22,49,227 (3) Work done in intervening period Rs.17,40,832 Release of Deposits NIL From this letter it is obvious that more than 51 % of the alleged losses had already been recouped and balance was also being recouped. It is also a fact that there are ample powers vested in C&W Department that if works are not completed or found substandard; the security deposits can be forfeited/Insurance Bond can be encashed/work carried out at the cost of defaulting contractors-but nothing has been shown to us in evidence that C&W Department resorted to these procedure with the only conclusion that:-- (i) There were delays in execution of certain works, actually carried out later on, such as non-installation of wooden doors, windows refuted by Mr. Parvez Akhtar, Assistant Engineer in his written statement, dated 12-6-1995 comprising of 45 pages and when confronted Mr. Nazir Muhammad Soormo's reply was that 'when he inspected the site; these were not there'. Inquiry Committee, before conviction of accused was required to visit the site in the presence of the accused and should have physically verified whether these were fixed or not. It is matter of record that the Inquiry Committee never visited the concerned site. Therefore, in our view, it was a word against word and the conviction of the accused was unjustified. Similarly, the complainant when cross-examined by Mr. Jawed Iqbal Memon in his statement, dated 16-4-1995 at page 3, replied as under:-- "It is a fact that some officers during whose incumbancy some lapses had occurred were, given a chance by the Chief Engineer to recoupe the lapses and they did really recouped the lapses and that is why their names are not included in the charge-sheet." (ii) There is yet another aspect in cross to Mr. Indher at page 5 the complainant replied as under:-- "Regarding the Vet. Dis.K.N. Shah question of Mr. Indher that when he visited the site the buildings were occupied by the Rangers and the damage done to the walls and plaster was by Rangers as well as shutters, doors and windows kept in the garage of the same site were shown to Mr. Nazar Muhammad Soomro. On which Mr. Soomro had replied that shutters had been brought to this site froze other site. When I had visited the site I found that it was in possession of Ranger and they had not damaged it besides shutters were not available." Again the failure of the Inquiry Committee to visit the site concerned simply placing reliance on the statement of the complainant was not enough for conviction of the concerned accused. (iii) In the statement of Mr. A. Rashid Jatoi XEN on 16-4-1995 cross to Mr. Shafi Muhammad Saund it is recorded as under: -- "I issued notices to the contractors who head abandoned the work and those who had received over-payment. It is not true that anybody from amongst officers of the superintending Engineer had asked the contractors not to resume the works." What transpires froth the above is that some contractors had abandoned the works-- later resumed reasons not recorded. Was it due to bad law and order situation prevalent in Dadu which is reportedly infested with dacoits and thieves, kidnapers for ransom or due to paucity of funds or non release of the payment to contractors in time? (iv) What is more significant in this inquiry fled is that most of the findings are based on the questions putt to A.O. (Accounts Officer) concerned and answers given by him reportedly but again in the absence of the signatures of the person making the statement not even teamed or the signatures of the person who out of 3 members did the questioning neither such replies can be treated as 'evidence' within the provisions of Evidence Act nor can be relied upon not any conclusions derived therefrom can be termed as correct or sound. We are of the firm opinion in view of what has been stated above that the conviction of the appellants on the charges levelled against them as well as their dismissal from service which is the highest penalty under Efficiency and Disciplinary Rules, on the basis of a so-called departmental inquiry by the above-said Inquiry Committee-which is no inquiry in the eyes of law and which is not an inquiry within the provisions of Rule 7(2) and is not a judicial inquiry but snore a piece of fiction, imaginative conjectures, cannot be upheld and therefore, have no option but to set aside the impugned order (s). Remand of these appeals, back to the respondents for de novo proceedings is not feasible as allegations cannot be substantiated by any physica1 verification after 5 long years and incriminating evidence, even if any must have been washed away with the passage of time. It is our considered view that the respondents have suffered 'enough' for their error, omission, lapses if any, during the period they remained out of service. They deserve a little compassion also because of the fact that the, two principal accused via. M/s. Habibur Rehman Memon and Shaft Muhammad Saund, were let off easily at various stages i.e. at the time of investigations and it appeal; only weaks were trampled as usual in this country, because some heads must roll in any scandal whether correct or incorrect to show that the concerned higher ups are 'Angles' and would not tolerate ally non-sense. In a department where even the officers of such high rank as Chief Engineers are unaware of a.b.c. of law, it is difficult to cultivate and groom law abiding subordinates. Perhaps it needs complete overhauling for which those who matter neither have the time nor patience. Consequent to setting aside of the impugned dismissal order, the appellants' intervening period, shall be treated as 'Leave due'. H. B. T./11/K(Sr. Trib) Appeal allowed.