2002 PLP (C (PLC(CS))

6. The main contentions of the appellant, inter alia are that the Inquiry Officer held detailed inquiry and after visiting the spot came out with a report which exonerated the appellant of the charges and he had clearly noted in the report that the defects pointed out by the Higher Authorities in Jinnah Hospital Building were constructional ones and did not relate to repairs/maintenance. As for the stoppage of water supply to the Emergency Department it was stated that major repairs of water supply were under progress as such the supply to the Emergency Department was provisionally cut. It was further pointed out that in order to notify to the public of the, closure of water tap a sticker had been fixed at the relevant places. This is how the water tap was non‑functional and as such no fault could have been attributed to the appellant as clearly held by the Inquiry Officer. The Authorised Officer, on the other hand, while disagreeing with the Inquiry Officer had advanced no grounds/reasons for disagreement with the Inquiry Officer and had arbitrarily; most presumably to please the big bosses had made the appellant a scapegoat. It was next contended that the construction of the entire Hospital was full of fault and defects and the defects were declared by the authorities to be major ones. Hence, the appellant could not have been made to suffer for the sins of others.

7. The learned D.A. on the other hand supported the impugned order claiming that the inefficiency, negligence and indifference of the appellant had become obvious when he failed to rectify even a minor defect in the Emergency Department even during the visit of Chief Minister and during subsequent visit of Secretary of Communication and Works.

8. In this case a careful reading of the record would leave no doubt that .the very execution of the contract with M/s. Frontier Construction Company (Pvt.) Limited, 107 Shalimar Link Road, Lahore, smacked of mala fides. The departmental officers had been crying hoarse through various communications that building completed in 1995 was full of major defects and was not worthwhile even after two years of its inauguration. They called upon the contractor to rectify those defects who cared fig for such cries of the departmental hierarchy. It appeared that the departmental officers of that time when the contract was awarded to him and when the contract was executed and the building reached completion stage were also in league with the contractor. They appeared to have designedly allowed the refund of security and all other amounts without ensuring the removal of major defects.

9. It is significant to point that following major defects had been noted by the senior officers of the department:‑ (1) All bath rooms of Jinnah Hospital, Lahore are leaking badly. The leakage has made serious damp on the walls due to which plasters/paints are deteriorated and those are chipped off at some places. (2) The entrance doors of Jinnah Hospital are out of order and the windows also are found defective at some places. (3) The water/waste water is also coming from the floor of the basement which is dangerous as the lot of medical equipments are installed there and two its walls are also full of water. (4) The expansion joints of the building are open and not covered with proper strips on walls and floors also and those look very ugly. (5) The water supply and sewerage lines lying under the floor of the basement and ground‑floor are leaking badly and can damage the building and also foundation." The officers have been continuously requesting, the contractor to remove the aforesaid major defects but he would always pay deaf ear to such useless requests when he had already been paid all the amounts due from the Government and even his security had been released. Reference in this behalf may be made to letters Annexures EE, FF, GG, JJ and also SS.

10. It also appears that stance of the appellant was also supported by the IC S.E. IV‑Provincial Buildings, vide communication dated 8‑9‑1999 in which it was clearly held that leakage, through bath rooms, expansion joints, E.I. points and roof tops was costructional defects and not on account of negligence of the appellant (Annexure‑G) with the main appeal). This was the view of Mr. Muzammal Hussain Jafri, Executive Engineer, in his inquiry report, wherein he comes to the conclusion:‑‑ ‑ "A perusal of the replies of the Departmental Representative attached as Annexure‑III (Sr. No. 8 would show that he too has confirmed the contention of the two accused in connection with the defence at (a) above. As regards (b) above, he vide Serial No‑2 of Annexure‑III has stated that final bill of the contractor has not yet been passed. This obviously means that the contractor is obliged to rectify any defect in construction under the provisions of the contractual obligations. The D.R. vide Serial No. 1 of Annexure‑III has also confirmed that the contractor was served with the notices by the Executive Engineer and the S.D.O. Copies endorsed to Circle Office also, for removal of defects. The undersigned has also visited the site and has personally seen the manhole on the terrace, the service line crossing the expansion joints, and the W.C. on the expansion joints as per drawings provided by the consultant. Since leakage of roof of Emergency Operation Theater through the tube‑light point‑ was evidently due to the defect. in construction of the said manhole, the contention of the two accused who took over charge in December, 1996, i.e. long after the completition/anding over of the Hospital, carries weight. As far as the charge that the water tap of in C.M.O. Office was not functioning, the contention of the two accused has also been confirmed by the D.R. in view whereof the charge cannot be termed to have any force."

11. It would thus be manifestly clear that the contractor and the departmental officers who collaborated with the contractor in deceiving and swindling the Government and thus ensuring huge misappropriation of State Funds through such a clever device whereby a gravely defective building of the Hospital was constructed which is full of major defects were responsible for the rot.

12. In the peculiar circumstances of the case I thought it appropriate no; to place reliance solely on the official version but thought it appropriate not to myself visit the spot and to ensure whether the claim that the Hospital Building was full of major constructional defects 1 visited the Hospital. The last para. of the note recorded by me on this visit was as follows:‑‑ '"The present condition of Building, as shown above shows and shows very clearly that public funds have been swindled, misappropriated by deceitful means through a defective construction and obviously both the contractor and the then responsible officers of the department had shared the booty. I was apprised by Hospital Authorities that these defects have already been notified to the Highest Authorities in the Government of Punjab and some remedial measures are under way. The gravity of the defects indeed calls for stricter and severer measures and it would be most appropriate if the case is registered with the Directorate of Anti‑Corruption against the responsible officers under the relevant provisions of Criminal Law. "

13. As for the responsibility of the appellant, he was surely not responsible for the constructional defects but it appears very difficult for me to exonerate him totally of his responsibility to maintain water supply in the Emergency Department which indeed is a sensitive department and serious patients arc admitted, there on emergent basis where water is one of the essential items. I am constrained to agree with the contention of respondent No. 1 in para.No.2(iii) that the then Chief Minister Punjab as well as the Secretary to the Government of the Punjab Communications and Works Department Lahore had visited the Hospital on the 10th August, 1997. The local staff had prior information of this visit. Water Supply of Emergency Block was stopped six days before this visit to attend to the problems of leakage of water in the store. The problem remained unattended for five days and during this period water supply to the Emergency Block remained discontinued which indicates irresponsible attitude of the appellant and his colleagues who were indeed responsible for this affair. In this view of the matter I partly accept the appeal, the penalty of stoppage of one annual increment is set aside and is substituted with a penalty of 'censure' for the negligent attitude by the appellant.

14. Before parting with the case it may be pointed out that I would be, feeling in my duties to the State to be public and to my own conscience if a direction is not passed to the Secretary Communications and Works Department to immediately get a case registered against the then contractor and against the responsible officers of the Department who collaborated in this wholesale deceit and fraud. A report to this effect shall be submitted to the Registrar of this Court within forthright. INSPECTION NOTE. I visited the Jinnah Hospital alongwith Chief Executive Professor Dr. Eice Muhammad. In almost all the departments, bath‑rooms were found leaking badly. The leakage had made damp on the walls due to which paints/plasters have visibly been deteriorated and have been chipped off at a number of places. Waste water has been found oozing out of the floors of the basement which may prove destructive for the Building and is certainly an health hazard. The expansion joints of the Building are also open at a number of places and make a very ugly look of the walls and floors. The water supply and sewerage lines have been found leaking at a number of places. After witnessing such a poor state of affairs one wonders how the Works and Communications Department had allowed the contractor to go ahead with such defective construction.

2. The present condition of Building as indicated above shows and shows very clearly that public funds have been swindled, misappropriated by deceitful means through a defective construction and obviously both the contractor and the then responsible officers of the department had shared the booty. I was apprised by Hospital Authorities that these defects have already been notified to the Higher Authorities in the Government of Punjab and some remedial measures are under way. The gravity of the defects indeed calls for stricter and severer measures and it would be most appropriate if a case is registered with the Directorate of Anti‑Corruption against the responsible officers/contractors under the relevant provisions of Criminal Law. H.B.T./45‑P(Sr. Trib.) Order accordingly.