1999 PLP 1639 (SCMR)

Ch. Bashir Ahmed, Superintending Engineer, LG and RD, Punjab, was appointed as the Inquiry Officer. He conducted due inquiry and submitted his report dated 26-4-1982, As regards Shabbir Ahmed Chughtai XEN, the Inquiry Officer found that he was looking after more than one positions at a time and, therefore, was over-burdened. Still he paid six visits to the site and wrote three inspection notes. Supervision, according, to the Inquiry Officer, was actually that of the District Administrator. As to sub-grade compaction of the base and use of large size stone metal, the Inquiry Officer opined that the XEN could only issue instructions. Besides, the rate allowed from compaction was too low being Rs.20 instead of Rs.50.' In the matter of laying of sand cushion, on account of the intervening period between actual supply and use of sand, according to the inquiry report, "some percentage might have been wasted due to weather inclemanies. " The bricks lying at the site had been rejected by the sub-Engineer and were to be removed by the supplier. There was, according to the Inquiry Officer, no practice of carrying out field laboratory tests. Besides, no apparatus for the same existed. As for the abstinence of services of an engineer by the contractor, it was found that normally contractors did not employ engineers and in any ease it was for the local administration to see that the contractor did the needful. As to charge No.(vi), the seemingly approved defence version was that the District Executing Agency had not acquired the land along the road, the adjoining landowners had cut down the earthen berms/shoulders and that it was for the District Administration to engage labour and extend the berms to the desired width. On these findings it was opined that none of the charges were established against the XEN. As to Farooq Ahmed Khan, Assistant Engineer, the Inquiry Officer reported that he failed to establish his plea that he had reduced t he contents of supply of sand at a number of places. The record did not establish the same. He accepted low quality of sand which though primarily the duty of the Sub -Engineer also reflected on the supervision of the Assistant Engineer. He was exonerated from charge No.(ii) as he was no more incharge during the tarring process. The same applied to receiving and stacking the bricks. Regarding charge No.(iv) it was observed that there was no practice of maintaining inspection register at the site. 'Compaction test apparatus was purchased only during 1980. Exonerating him of charge No.(v) it was stated that normally average contractors did not employ a qualified engineer though on paper they always showed that they did so. As to charge No.(vi) it was observed that Farooq Ahmad Khan had left the charge of the post during the progress of the work and it was difficult to fix his responsibility for deficiency of the width in berms. Assistant Engineer Abdul Ghafoor catered to more than one posts. Laying of earth and construction of culverts had already been completed before his arrival. However, as to charges Nos.(i) and (ii) it was found that supply of ungraded/large size stone metal was partially received and paid for during his tenure and on his recommendations. Such charges were partially proved against him, 'Assistant Engineer Abdul Ghafoor had 'already been transferred when supply of bricks were received. He was exonerated of charge No.(iv) for the same reason as others. The same applied to charge No.(v). Holding charge No,(vi) partially proved, the Inquiry Officer observed that the deficiencies in the width of side berms, could be identified and got increased by him. Pertaining to Riaz Hussain Chaddar, Assistant Engineer, it was observed that he had succeeded Abdul Ghafoor, aforesaid. In spite of efforts this officer did not appear before the Inquiry Officer. Stone metal etc. was mostly received during his tenure and he finalized many of the bills. He failed to effect 100% checking of the material received or to consult the XEN in the matter of supplies so as to arrange them in methodical manner. As to charge No. (ii), it was found that the failure of the road was due to poor compaction and absence of sealing coat over the tarred surface. The officer failed to apply the third coat in time. Being responsible for the deterioration of the road, charge No.(ii) was found proved against him. As regard charge No.(iii), it was observed that the bricks were stacked by the contractor during his time. He should not have allowed the contractor even to stack inferior quality bricks. Such bricks though removed from the site on the initiative of the Sub-Engineer could possibly be used had the GIT not inspected the site. Charge No.(iii) involved lack of supervision of Assistant Engineer, Riaz Hussain Chaddar. The officer was exonerated of charge No.(iv) on the same grounds as others. As to charge No.(v) pertaining to non-employment of an Engineer by the contractor, it was observed that the Assistant Engineer alone was not responsible, the Project Director, the Assistant Commissioner etc., who also knew about the fact took no action. Relevant, to charge No. (vi), it was found that while the earth work had been done before the arrival of Riaz Hussain Chaddar, he should have located the discrepancies including those in respect of road berms. By putting little attention he could render the road safe. In that he failed to do the needful, he was partially responsible. Khadim Hussain, Sub-Engineer, (respondent herein) remained incharge of the work from the beginning to the end, As to charge No.(i), the Sub Engineer took the plea that the sand cushion of the dimension of four inches was laid by him under the soling whereas two inches were to be spread over the soling. The Inquiry Officer dubbed the same as "simply a foolish statement", since use of sand over the soling had "no meaning whatsoever". Likewise, acceptance of ungraded stone metal and its subsequent use in the base was found to be a matter which reflected negligence, carelessness and inefficiency on the part of Khadim Hussain. The Inquiry Officer accepted the statement of Khadim Hussain to the effect that there was a period of nearly one and a half years between supply and actual consumption of sand and for that reason while sand of cushion for six inches was provided, in the meantime, due to wind, rain and pilferage a portion was lost. Hence the shortfall, rendering the sand cushion thinner from six inches to four inches. Even so, the Inquiry Officer did not exonerate Khadim Hussain for accepting ungraded stone metal and failing to get it broken before use in the base course. Charge No.(i) was found proved against Khadim Hussain regarding charge No.(ii), involving deterioration of the road, it was observed that the Sub-Engineer could avoid non-sealing of-the tarred surface and absence of service road. Charge No.(ii) was, therefore, partially proved against him. Relevant to charge No.(iii), it was found that Sub-Engineer Khadim Hussain had already been transferred when bricks for soling the last one mile were brought by the contractor. As to charge No.(iv), the Sub-Engineer was absolved for the same reasons as others. Much the same applied charge No.(v). Charge No.(vi) was proved, upon Khadim Hussain being disbelieved that the Zamindars; had cut down the berms. The last to be proceeded with was Sajjad Hussain, Sub-Engineer. Sajjad Hussain took over when the last one mile portion was being brick soled. Relevant to applicable charge No.(iii), Sajjad Hussain showed to the Inquiry Officer a notice through which he directed the contractor to remove the defective bricks from the site. The G.I.T. did not say that the bricks used in the relevant area for soling were defective. Sajjad Hussain, therfore, was absolved of all the charges. Concluding the report, signed by him on 26-4-1982, the Inquiry Officer made a number of observations, which appear to be an expression of dissatisfaction with the W.F.P. scheme generally. There can obviously be merits and demerits of a scheme. The greatest merit of the same appears to have been deployment of local labour against commodities/cash, something which is very handy and could be of great use in a developing society. The officers should get used to such schemes rather than criticize them. The perusal of the comments of the Superintending Engineer leave a very bad taste in the mouth because the largely motivating factor for the grievance seems to be that the Officers/Engineers no longer remained the pay masters under the scheme. The ostensible reason given for the same is that if they did not have authority to make direct payments, they could hardly control the contractors etc. This kind of faulty approach is too obvious to invite any explicit comment. However, it would be enough to say that no payment could be made by the District Administration except upon verification at the site and due authorization/confirmation by the relevant Engineers. The corresponding observations of he Inquiry Officer, therefore, merit very little consideration. After the submission of the above inquiry report, it was noticed at the level of the Government that, one of the officers proceeded against was a Grade-18 officer who could not be proceeded with except with the permission of the Chief Secretary. This discovery was followed by obtaining regular orders but because Ch. Bashir Ahmad, Superintending Engineer, had already conducted the previous inquiry he was re-appointed per order dated 15-9-1983. On receipt of fresh charge-sheets, four out of the six officers submitted their replies to the Inquiry Officer but the remaining two namely, Farooq Ahmed Khan and Riaz Ahmed Chaddar, former Assistant Engineers, Kasur, did not submit any written defence or put in the requisite appearance. The statements of the officers who joined the inquiry were recorded again but for the most part they stuck to the positions taken during the earlier inquiry. Pursuant to the second inquiry the Inquiry Officer again did not find any of the six charges proved against Shabbir Ahmed Chughtai, XEN . Regarding Farooq Ahmed, Assistant Engineer, charge No.(i) was found to be partially proved, in that the alleged reduction of supply of sand stated to have been ordered by him was not proved and on the contrary it was opined that the same gave "rise to the suspicion that the so-called reductions were made some time after the payment". Likewise, the officer under the same charge was held responsible for the acceptance of low quality sand even though it was only under his supervision that the same had been done by the Sub-Engineer. The officer was cleared of charges (ii) to (vi). Relevant to Abdul Ghafoor, Assistant Engineer, none of the charges were established against him. This was an unexplained deviation from the previous report, as charges (i), (ii) and (vi) were then partially found against him. Pertaining to Riaz Hussain Chaddar, Assistant Engineer, charge No.(i) was found not to relate to him, charge No (ii) was proved, charge No.(ii) involved negligence on his part and, therefore,- was pinned on him. Charge No. (iv) was not proved and so was charge No.(v). Coming to Khadim Hussain, Sub-Engineer, respondent herein, charge No.(i) was proved against him, charge No.(ii) only partially but, charge No.(iii) fell through. On charge No.(iv) he was absolved. Charge No.(v) was not proved but charge No.(vi) was duly established. Coming to Sajjad Hussain, Sub-Engineer, such officer, as before, was absolved of all the charges. Pursuant to the inquiry report, it seems, that Khadim. Hussain, Sub- Engineer, was alone visited the major penalty of compulsory retirement, per order dated 21-2-1985. His departmental appeal was rejected vide order dated 17-2-1987. Khadini Hussain, therefore, appealed to the Service Tribunal, which, on 15-9-1993, coming to the conclusion that he alone was punished and discriminatingly others were largely exonerated, converted the punishment to withholding of two increments and allowed the period upto reinstatement as, leave of the kind available. The Government of the Punjab preferred a leave petition against such order. Leave was granted on 15-8-1994 on the ground that if the charge against the , respondent was proved the so-call "obvious discrimination was no ground to set aside the departmental authority' order and to reduce the punishment from, a major to a minor penalty. We have heard this appeal in some detail. In the first place, the two reports of the Inquiry Officer were inconsistent. That apart, it was wrong on the part of the Inquiry Officer to put the entire burden of supervision on the officers of the Local Administration and to exclude the responsibility of the engineering staff, manifestly, accountable directly. When the two inquiry reports are put side by side and examined it becomes plain that if Khadim Hussian was involved some others were equally so. The glaring inconsistencies in the reports become obvious when it is seen that at one place the Inquiry Officer observes lesser and inferior quantity and quality of sand to have been secured and, at another, finds a portion of such sand to have been lost on account of inclemanies of weather and even pilferage. As it turns out, such loss was to the extent of 1/3rd because 6" cushion of the underlying sand was reduced to 4" only. It is also significant that while the Inquiry Officer has in a case or two fixed the responsibility of narrow berms/shoulders he has exonerated the other officers of the deficiency. The same is true as to tarring sealing etc. of the road surface. The higher officers have obviously remained untouched. In fact all their responsibilities have been, unceremoniously, transferred to the District Administration, where little technical expertise resided. These and others were obvious facts which the authorized officer and the authority should have considered. It is on account of lax attitude of this kind that the quality of the engineering works is going down by the day. In the foregoing circumstances, while the Tribunal was right in holding Khadim Hussain, aforesaid, to have been discriminated against, the Tribunal was in error in not noticing the other associates of Khadim Hussaifi for showing cause as to why the departmental proceeding against them should not revive for appropriate actions(s) in accordance with law. As a result, allowing this appeal, we set aside the order of the Tribunal and remand the case back to it. The Tribunal would issue notices to the other associates of respondent Khadim Hussain and hear them on the question as to why the proceedings against them should not revive. Meanwhile, the Tribunal's order of recall of the major penalty on respondent Khadim Hussain would continue to hold both in the proceedings before the Tribunal and the back reference to the departmental authorities, to abide with a final but consistent result in the revived departmental proceedings. Before parting, we may observe that no further inquiry need be necessary and the requisite steps and departmental proceedings may be taken in hand on the basis of the last inquiry report, as justly supplemented by the previous such report. There will be no costs in this appeal. M.B.A./G-45/S Order accordingly.