2019 PLP (C (PLC(CS)N)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the legality and validity of order dated 30.4.2014 whereby minor penalty of withholding of five increments for five years has been imposed upon him by the Secretary, LG&CD Department/Chairman, Punjab Local Government Board/respondent No.2. He has also assailed the order dated 22.3.2016 of the Chief Secretary, Government of the Punjab whereby his representation/appeal against imposition of the aforesaid minor penalty was rejected with the modification that withholding of five increments for five years was converted into withholding of annual increments for a period of five years.

2. Brief facts of the case are that the petitioner along with others was proceeded against under section 3 of the Punjab Employees Efficiency Discipline and Accountability Act, 2006 on the charges that while posted as T.O. (I&S), Tehsil Municipal Administration Samundri he committed the following irregularities in the "Construction of Metalled Road Chak No.222/RB Faisalabad (LDP-I)":- i. Work was allotted to lowest bidder Mirza Munawar Hussain vide work order No. TMA(S)/I&S/370 dated 06.02.2007 with an estimated cost of Rs.15,00,000/- with the completion of period of 4 months. ii. Two running payments amounting to Rs.6,75,848/- were paid to the contractor against the executed items of earth work, sub-base and two culverts vide MB No.27382 page 15-17 and 29-30 on 05.5.2007 and 10.06.2007 respectively. Whereas as per the work order 6.6.2007 was the completion date of the scheme. iii. After making the 2nd running payment he was transferred from TMA Samundari and handed over the charge to Mr. Muhammad Saeed Akhtar on 19/6.2007. It means he failed to complete the scheme in time during his 1st tenure of posting as T.O (I&S). iv. The escalation in cost Rs.8,24,152/- to Rs.15,30,000/- (i.e. Rs.7,05,848/-) was on account of the difference of M.R.S. due to his negligence, which is to be recovered from the defaulting contractor, on whose risk and cost the remaining work of scheme was executed Mr. Muzaffar Ahmad (B.S.18), Executive Engineer (South), LG&CD Department was appointed as the Inquiry Officer. The petitioner submitted his written reply to the charges levelled against him. The Inquiry Officer submitted his report dated 6.8.2013 according to which the allegations levelled against the petitioner stood proved, therefore, it was recommended that the minor penalty of "withholding of 5 increments for 5 years" may be imposed upon him. In view of the Inquiry Report the petitioner was issued show-cause notice and the Additional Secretary (Dev.), LG&CD was asked to give him personal hearing. After personal hearing, the Secretary LG&CD Department/Chairman, Punjab Local Government Board, vide order dated 30.4.2014, imposed upon the petitioner minor penalty of withholding of five increments for five years. Aggrieved, the petitioner filed appeal under section 16 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, which has also been rejected, vide order dated 22.3.2016, passed by respondent No.1. The petitioner has assailed both the orders dated 30.4.2014 and 22.3.2016 in the instant writ petition.

3. Learned counsel for the petitioner contends that both the impugned orders being contrary to the law and facts on record are not sustainable in the eye of law; that the impugned order dated 30.4.2014 has not been passed by the competent authority as defined in section 2(f) of the PEEDA Act, 2006 and this fact has also been ignored by the appellate authority/respondent No.1; that according to Notification No. SORI(S&GAD)1-30/2003, dated 13.2.2013, issued by Government of the Punjab, Services and General Administration Department (Regulations Wing) the competent authority of employees of an autonomous body is the appointing authority which in the matter of the petitioner is the Punjab Local Government Board; that as the Chairman, Punjab Local Government Board lacked jurisdiction to proceed against the petitioner under the PEEDA Act, 2006, therefore, the impugned order dated 30.4.2014 being illegal and unlawful is liable to be set-aside; that even on merits charges against the petitioner were not proved on record nevertheless he was imposed punishment of withholding of 5 annual increments in an arbitrary manner; that during the inquiry proceedings none of the prosecution witnesses held the petitioner responsible for causing any loss to the public exchequer; that the work at the site could not be completed by the contractor due to non-release of funds; that the contractor was paid 50% of the amount of the contract against which he completed 50% of the work of the scheme; that the contract was awarded to the contractor, vide work order dated 6.2.2007, with the estimated cost of Rs.15,00,000/- and the completion period was four months; that 50% work was completed against 50% funds upto 6.6.2007, therefore, one month time was extended i.e. upto 6.7.2007; that the petitioner was transferred and he left TMA Sammundri w.e.f. 18.9.2007 but again re-posted on 10.7.2008; that the petitioner again issued notices dated 13.8.2008 and 6.10.2008 to the contractor but he did not turn up whereupon the contract was rescinded at the risk and cost of the contractor; that cost of the schemes had not escalated due to any act of the petitioner and it was his co-accused Muhammad Saeed Akhtar, Ex-Tehsil Officer (I&S), TMA Sammundari, who failed to get the project completed during his tenure from 19.9.2007 to 9.7.2008; that the said Muhammad Saeed Akhtar, who is responsible for causing financial loss to the public exchequer has been awarded penalty of only censure, which is a clear cut discrimination; that findings of the inquiry officer are the result of surmises and conjectures on the basis of which no penalty could be imposed upon the petitioner; and that the impugned orders are manifestation of the mala fide on the part of the respondents, therefore, the same are liable to be set-aside. In support of his arguments learned counsel has relied upon the cases of Ali Haider, Ex-Constable No. 2140, Gujranwala v. Additional Superintendent of Police, Gujranwala (PLJ 2016 Tr.C. (Services) 179), Muhammad Ismail Lashari and another v. Addl. Inspector General of Police Karachi, Range Karachi and others (PLJ 2016 Tr.C. (Service) 253) and Mirza Muhammad Sharif v. Chairman, WAPDA, WAPDA House, Lahore and others (2003 PLC (C.S.) 600).

4. Conversely, learned counsel for the respondents as well as the learned Additional Advocate General, Punjab submitted that respondent No.2 initiated disciplinary proceedings against the petitioner in exercise of his executive powers vested in him under the Punjab Local Government Board (Conduct of Business) Rules, 1984; that according to the Rules, 1984 executive powers of respondent No.2/Chairman, Punjab Local Government Board, inter alia, includes appointments of the employees of the Board, therefore, in the matter of the petitioner he has rightly exercised the powers of the competent authority for initiation of disciplinary proceedings against him; that the impugned order does not suffer from any illegality or jurisdictional defect; that the petitioner was awarded only a minor penalty of withholding of increments, therefore, under the Rules in case of major penalty approval of the Board is required; that during inquiry sufficient documentary proof was produced on record to show that cost of the project was escalated due to slackness of the petitioner; that after abandonment of work by the first contractor the matter of issuance of second tender remained pending for almost one year; and that there exists sufficient evidence to hold that due to the conduct of the petitioner a heavy loss was caused to the public exchequer; that a very lenient view has been taken while imposing penalty on the petitioner, therefore, the impugned orders do not suffer from any illegality calling for interference by this Court.

5. Arguments heard. Record perused.

6. The petitioner has assailed not only imposition of minor penalty of withholding of annual increment for five years but has also challenged the legality of the initiation of disciplinary proceedings against him on the ground that the Chairman, Punjab Local Government Board as being not his appointing authority was not authorized to exercise the powers of the competent authority to order the conduct of inquiry against him in view of Notification No. SORI(S&GAD)1-30/2003, dated 13.1.2013, issued by Government of the Punjab Services and General Administration Department (Regulations Wing). Before proceeding with the issue of imposition of minor penalty this Court would firstly like to resolve the issue of exercise of powers of the competent authority by respondent No.2 for passing order of holding inquiry against the petitioner. No doubt under Rule 15(1)(b) of the Punjab Local Government Board (Business) Rules, 1984 appointment of members of the Service has been excluded while vesting executive powers of the Punjab Local Government Board ("Hereinafter referred to as "the Board") in the Chairman, therefore, in the matter of the petitioner the Chairman is not his appointing authority but this fact does not take away his executive powers vested in him by the Rules ibid. For better appreciation of the issue Rule 15(1)(d) & (e) of the same Rules, which are reproduced below: "

15. Executive powers of the chairman.

(1) The executive powers of the Board with regard to the following matters shall vest in and be exercised by the chairman:- (a) Execution of contracts and works on behalf of the Board. (b) The appointments, promotions, suspension and punishment (including dismissal, compulsory retirement, reduction in rank and removal from service). (c) Grant of leave, extension of joining time, sanction of pension/gratuity to the members of the Service and the employees of the Board. (d) Posting, transfer, suspension, holding or ordering departmental enquiries in respect of members of the Service/employees of the Board. (e) Award of punishment to the members of the Service/employees of the Board Provided that the dismissal, removal from service, compulsory retirement or reduction in rank of such servants shall be ordered with the approval of the Board." From bare perusal of the above Rule it becomes clear that the executive powers of the Board are not vested in the Chairman in respect of appointments of "Members of the Service" as has been said in Rule 15(1)(b) of the said Rules but as per Rule 15(1)(e) he can exercise the executive powers vested in him by the Board for awarding punishment to the members of the Service/employees of the Board. However, according to proviso to Rule 15(1)(e) of the Rules, the punishment of dismissal, removal from service, compulsory retirement or reduction in rank of the members of the Service/employees of the Board can be awarded with the approval of the Board. According to section 4(b) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (Hereinafter called as "The PEEDA Act, 2006") the punishment of dismissal, removal from service, compulsory retirement or reduction in rank have been termed as "Major Penalties" meaning thereby the major penalties cannot be awarded without approval of the Board while the powers of awarding minor penalties/punishments vest in the Chairman. In the circumstances, discussed above, this Court is of the view that the Chairman of the Board has rightly and validly exercised his powers as competent authority while passing the impugned order of holding inquiry against the petitioner. In view of holding the Chairman as the "competent authority" the case law relied upon by learned counsel for the petitioner is of no help to the petitioner.

7. Unfortunately, even on merits, the petitioner has no case at all for interference by this Court in exercise of its Constitutional jurisdiction. The main charge against the petitioner which has been made basis for imposition upon him the penalty of 5 annual increments is that due to his negligence the estimated cost of the scheme named "construction of metalled road, Chak No.222/RB, Faisalabad (LDP-I)" escalated from Rs.8,24,152/- to Rs.15,30,000/-. During the inquiry proceedings the petitioner has not been able to disprove this charge against him through any cogent and convincing evidence. On the contrary, it is an admitted fact that during posting of the petitioner as T.O (I&S), TMA, Sammundari, Work Order No. TMA(S)/I&S/370, was issued in favour of the first contractor Mirza Munawar Hussain on 6.2.2007 with completion period of 4 months. The contractor when failed to complete the work within the stipulated period of time of four months which ended on 5.6.2007 he was granted extension of one month time till 6.7.2007. The petitioner till his transfer and posting at some other place on 18.9.2007 had failed to get the work completed by the said contractor. His successor Muhammad Saeed Akhtar who took charge on 19.6.2007 also failed to complete the project during his tenure spreading over a period of more than one year. He has been awarded punishment of withholding of 3 increments for three years. The petitioner was again posted as T.O., T.M.A. Samundari on 10.7.2008. During his second tenure the contract of Mirza Munawar Hussain was cancelled at his risk and cost. He was informed through notices dated 13.8.2008, 6.10.2008 and 5.12.2008 to come on 2.2.2009 for joint measurement. There is no explanation as to why the petitioner had given 2 months time to the contractor for joint measurement when the work had already been delayed for a considerable period of time. Surprisingly, first tender notice for leftover work of Rs.8,24,000/- was published on 10.2.2009 and when no one submitted offer second tender for Rs.13,16,000/- was got published after a lapse of one year i.e. on 8.2.2010. What prevented the petitioner from taking immediate steps for publication of second tender remained unexplained. Even the third tender notice for the leftover work of Rs.15,30,000/- was got published after a delay of six (6) months which became fruitful and the leftover work was given to Qurban and Sons on 2.9.2010. After cancellation of the contract of the first contractor/Mirza Munawar Hussain the petitioner took more than 2 years for award of the leftover work to the said Qurban and Sons. In his reply to the charges the petitioner tried to shift the responsibility of delaying the work and escalation of estimated cost of the project on the Town Nazim by stating that he was not agreeing with his suggestion of taking penal action against the contractor. This ground does not absolve him from his responsibility of taking steps for publication of tender notices after cancellation of contract of the first contractor without further loss of time. Due to the lethargic attitude and conduct of the petitioner the estimated cost of the project was enhanced thereby causing heavy financial loss to the public exchequer. In these circumstances, the competent authority has rightly imposed upon him the minor penalty of withholding of annual increments for a period of 5 years.

8. In view of above, I see no illegality or legal infirmity in the impugned orders calling for interference by this Court in exercise of its Constitutional jurisdiction. Resultantly, the instant petition fails and the same is hereby dismissed. MH/M-78/L Petition dismissed.