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Case No. 207/660 of 1984.

‑‑‑S. 4 ‑Limitation‑‑Departmental appeal‑‑Decision of‑‑Non‑appearance of accused (appellant) for personal hearing before appellate authority does not absolve appellate authority from passing necessary order on merits‑‑Accused not appearing and appellate authority filing appeal‑ Order to "file" appeal, in circumstances, held was tantamount to rejection of appeal‑‑Limitation for appeal before Tribunal, in circumstances, started from date appellant came to know about fact that his departmental appeal had been "filed" by appellate authority.

‑‑‑ Disciplinary proceedings‑‑Departmental enquiry‑‑Conclusion drawn by Enquiry Officer contrary to facts and legal position‑‑Cannot be accepted as sufficient for disciplinary action and imposition of penalty Engineer (appellant) charged for alleged irregularities in construction of road Appellant giving exhaustive explanations with reference to AASHO Specifications known as sub‑grades but Enquiry Officer failing to take into consideration defence of appellant on factual as well as legal side‑ Service Tribunal on basis of exhaustive arguments coming to conclusion that no irregularity committed by appellant‑‑impugned penalty order passed on basis of Enquiry report, in circumstances, set aside by Tribunal‑‑Punjab Service Tribunals Act (IX of 1974), S. 4.

‑‑R. 3‑‑Penalties‑‑Withholding of all benefits of pay, increments, seniority and promotion‑‑Not contemplated by Rules‑‑Not sustainable.

Masud Ahmad Riaz for appellant.

A.G. Humayun, District Attorney for Respondents.

‑Abid. Hussain Qureshi, Deputy Director Inspection, Multan Development: Authority has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Secretary to Government of the Punjab, Communication and Works Department, Lahore and the Chief Engineer, Highways Department, Punjab, Lahore as respondents.

2. By virtue of this appeal the appellant has prayed that the impugned order dated 18‑8‑1982 be set aside and punishments awarded to him be set aside.

3. Brief facts of the case are that the appellant was served with two charge‑sheets which resulted into the impugned order. The appellant was served with a charge‑sheet in respect of Wazirabad‑Daska Road in which five charges were levelled against the appellant as per detail at Annexure 'A'. The appellant submitted his reply which is at Annexure 'B'. The enquiry into the charges was held by Mr. Muhammad Abdul Hayee, Superintending Engineer who conducted enquiry into these charges as well as the charges in connection with Zafarwal‑Shakargarh Road. A copy of the enquiry report is at Annexure 'C'. Charges Nos. 1, 2, 3 and 5 in respect of Wazirabad‑Daska Road, were dropped and appellant was held guilty only of Charge No.4, which related to the excess in the thickness of sub‑base course of that road.

4. In the case of second charge‑sheet regarding Shakargarh‑Zafarwal Road the charge‑sheet (details at Annexure 'D') contained 4 charges. As mentioned above the same Enquiry Officer enquired into these charges as well. The appellant submitted his detailed reply dated 26‑6‑1981 (Annexure 'E'). In the aforesaid enquiry report (Annexure'C' referred to above), the Enquiry Officer held the‑ appellant guilty of charges Nos. 1, 2 and 4 and exonerated him from Charge No. 3. On consideration of the report of Enquiry Officer the Authorised Officer I.e. Chief Engineer, Punjab, Highway Department, Lahore imposed the following penalties upon the appellant vide impugned order dated 18‑8‑1982:‑

(i) Stoppage of annual increments for two years without cumulative effect.

(ii) No previous benefits of salary, service and seniority as Executive Engineer from any previous date would be allowed to him, whenever in future his promotion is sanctioned.

The appellant made an appeal and subsequent reminder to the authority but he did not receive any formal reply. According to appellant's statement made in pare 9 of the appeal, it was learnt by him on 4‑3‑1984 that his appeal has been filed by respondent No.1. Hence he filed this appeal.

5. We have heard the parties i.e. Mr. Masud Ahmad Riaz, counsel for the appellant and Mr. A.G. Humayun, District Attorney, assisted by the representative of the respondents on behalf of the respondents.

6. The learned District Attorney has raised a preliminary objection that the appeal is premature as appellant's departmental appeal has not been disposed of by the appellate authority. He has relied on Para.9 of the parawise comments submitted by the respondents wherein it has been mentioned that the appellant was directed to appear before the appellate authority on a number of occasions but he did not appear before appellate authority. On the other hand the learned counsel for the appellant has submitted that the record of the Office of Secretary C&W Department reveals a different story which makes it clear that the appeal had been filed by respondent No.1 on the plea that appellant did not appear before the appellate authority. Thus, though the appeal has been rejected in the garb of "filing" but the appellant was not informed of the result of the case. Therefore, limitation for the section 4 of the Punjab Service Tribunals Act, 1974 would start from the date of appellant's knowledge about filing/rejection of his appeal. According to the appellant's counsel, the appellant acquired knowledge of this fact on 4‑3‑1984, whereas appeal had been filed in this Tribunal within 30 days i.e. on 13‑3‑1984. Hence, the appeal is within time. We have carefully considered the contention of both the parties and have also perused the record of the C & W Department. The record reveals that appeal of the appellant was "filed" by respondent No.1 as the appellant did not make appearances on different dates before the appellate authority. While this case came up before this Tribunal at Multan Circuit the following order was passed on 8‑10‑1984 which is reproduced as below: ‑

"In case of Abid Hussain Qureshi, Mr. Riazul Haq Section Officer, C&W Department has appeared and has informed this Tribunal that the appellant's appeal before the secretary is still pending. In view of the above it would be imperative that his appeal should be decided at that level in view of the judgment of the Supreme Court of Pakistan filed before this Tribunal for f determination of his right. It has also been revealed that this departmental appeal before the Secretary was filed on 16‑9‑1982 but the same has not been decided so far although more than two years have lapsed.

In view of the above I direct the Secretary, C&W Department (appellate authority) to decide this case before 22nd October, 1984 without fail. This case will be heard at Rawalpindi Circuit on 24th October, 1984. No further adjournment will be granted in this case. To come up on 24‑10‑1984 at Rawalpindi."

It is, therefore, clear that on 8‑10‑1984 the respondents informed this Tribunal that appellant's appeal was still pending, but the actual fact was that the appeal had already been filed. Non‑appearance of the appellant before the appellate authority did not absolve that authority to pass necessary order on merits of the appeal. In view of the circum stances we hold that while respondent No.1 "filed" the appeal, it was tantamount to rejection of the appeal. As the appellant came to know about this fact on 4‑3 1984, the limitation for the purpose of filing this appeal started from that date. The appellant had filed this appeal before this Tribunal on 13‑3‑1984 within a statutory period of 30 days, as laid down in section 4 of the Punjab Service Tribunals Act, 1974, hence we hold that the appeal is within time.

7. As far as merits of the case are concerned the learned counsel for the appellant has submitted that in case 1st charge‑sheet in respect of Wazirabad‑Daska Road, the appellant is not responsible for Charge No.4 that he, at his own, added thickness to estimated thickness of 4" for construction of above road on the embankment of the canal and had incurred extra expenditure to the Government without any prior sanction/ justification. The appellant has contended that the road was being constructed on the canal bank of U.C.C. The soil encountered at site fell in A‑5, A‑7 group of soil classification, which developed shrinkage cracks on drying. Moreover, there was every likelihood of seepage of moisture content into the pavement of the road. It was felt that pavement was under designed with provision of only 4" thick base and sub‑base, without embankment and sand cushion. Now‑a‑days, normally road consists of the following components:‑

(a) Earthwork in embankment (normally of 3 ft. height) done in layers of 9" loose compacted to 6" thick to 95 modified AASHO Specification, known as sub‑grade which forms a firm footing for the road.

(b) Sand Cushion of 7" to 1' thick (subject to site conditions).

(c) Sub‑base 4" or 6" thick.

(d) Base 4" thick or more.

(e) Tripple surface treatment /carpetting (as the case may be).

In this particular case, the road was to be constructed without items Nos. A & B which implies that no earthwork had been done by the Department and the road was being constructed on the bank of canal which had much less compaction than required under specification (i.e. 95 modified AASHO). The bank of canal consisted of less compacted soil where there was a likelihood of the Settlement of the road, if a strong and thicker pavement of sub‑base and base was not provided. Even sand cushion was not provided while letting out the work. The matter was discussed with the Superintending Engineer Highway Circle, Lahore during Inspection of the Road who directed that 6" gravel sub base be used in order to reinforce the thickness of pavement. He had proposed that one foot sand cushion should be used to cut down the capillary action or water and to increase the thickness of pavement. It was further contended by the learned counsel for the appellant that under clause 12 of Agreement of Contract of Work, the appellant being Engineer Incharge was within powers to increase /decrease add or omit or substitute the original estimates in the interest of work in progress. The appellant was competent to meet extra expenditure under rule 2.110 of the B&R Code. According to the appellant since the increased amount did not exceed 5% of the total sanctioned estimates of the scheme, he was competent to incur that expenditure without any approval of the higher authorities. It has also been pointed out by the learned counsel for the appellant that revised estimated cost was also ultimately approved by the Department and as such the matter has been regularised.

8. As far as charge sheet in respect of Shakargarh‑Zafarwal Road (Annexure 'D') is concerned the appellant has been held responsible for Charges Nos. 1, 2 and 4 while he was exonerated from Charge No.3 by the Enquiry Officer/ Authorised Officer. The appellant's counsel has explained the position as follows in support of 3 charges:‑

CHARGE NO.1.

The gravamen of the charge is that he made payment against material at the spot against secured advance of the Contractor. Later on 200 trucks of material was removed by the Contractor. This was brought to the notice of XEN by the S.D.O. at that time but no action was taken. The record reveals that appellant had left his charge in June, 1977 and removal of material was affected later on in December, 1977 as pointed out by the Enquiry Officer him self. This being so the appellant, in no circumstances, can be held responsible for the said removal which was later on recovered. Reliance has been placed on rule 4.446 of B&R Code, wherein the concerned officer is under obligation to report shortage after 3 months. Appellant has claimed that after his transfer Muhammad Sardar Chaudhry took over the charge but he did not report the shortage. Thereafter, Mr. Muzaffar lqbal took over the charge but he also did not report the shortage and so on.

CHARGE N0. 2.

As far as Charge No.2 is concerned it pertains to the allegation that for the work in question he was authorised to make payments strictly in accordance with the Schedule of Rates of 1975, wherein rate of Rs.6 plus 10 premium was allowed for work with stone aggregate only. It has been alleged that the appellant had used brick gravel instead of stone and as such he could not have applied the rates of 1975 Schedule. Instead he should have applied the rates of 1974 Schedule which were meant for the brick gravel. The learned counsel for the appellant has drawn our attention to item No. 17 of the Schedule of rates of 1975. According to column No.6 of this Schedule, aggregate had to be prepared according to the Specification No. 701. Thereafter, the appellant's counsel has invited our attention to Specification No. 701 2.3 which explains the "coarse aggregate". It defines the coarse aggregate as follows:‑

"Coarse aggregates" shall conform to the specification as contained in section 1031."

Then Specification No. 1031 was brought. to our notice which reads as under:‑

"1031‑1 Description.

The work covered in this section consists of supplying coarse aggregates which shall consist of crushed stone or brick or crushed or uncrushed gravel having clean, hard, tough durable pieces, free from injurious amounts at soft, friable, thin, enlongated or laminated pieces, soluble salts, organic or other deleterious matter."

Relying upon all these specifications and Departmental rules, it has been vehemently argued by the learned counsel for the appellant that these permit the use of crushed stone or brick. It has been further pointed out by the learned counsel for the appellant that the stone was not available near the work site and could be brought from miles away and brick material was available near to the site. Being Engineer at the spot, the appellant was empowered to take a decision in the best interest of the public work. Hence, he decided to use brick material in the interest of work in hand. Thus, the action of the appellant which was within the rules should have been appreciated in the interest of public work rather than he should have been punished arbitrarily on the whim and fancy of the respondents.

CHARGE NO. 4.

This charge is regarding construction of more culverts than the sanctioned ones as these culverts carried higher rates. The appellant's counsel has taken a stand that this is a normal practice in the construction of the roads that culverts are to be constructed first otherwise the construction of road goes waste. With regard to the number of culverts in excess to the sanctioned estimate, he has submitted that he did so with the prior sanction of the Superintending Engineer as has been admitted by Enquiry Officer himself. Thus no irregularity has been done by the appellant but he has executed the work strictly in accordance with the orders of the higher authorities.

9, Concluding his arguments it has been submitted by the learned counsel for the appellant that the appellant has been punished arbitrarily at the whim and fancy of the respondents who did not apply their mind to the rules and regulations of the Department and there was no deviation from the rules, therefore, he has not been guilty of any irregularity whatsoever.

10. The learned counsel for the appellant has also objected that the punishment of disallowing the previous benefit of salary, service, seniority and promotion etc., in future is not covered by the Efficiency and Discipline Rules, 1975, and such it is violative of the Rules. He has also submitted that due to this arbitrary and unauthorised punish ment he has been superseded by a large number of juniors. Thus the appellant has suffered a lot due to this unauthorised punishment given by the respondents

11. On the other hand, the learned District Attorney has relied upon the parawise comments submitted by the respondents as well as the enquiry report and has submitted that the Charge No. 4 in case of first charge‑sheet and Charges No.l, 2 and 4 in the case of second charge‑sheet have duly been proved by the Enquiry Officer and thus the appellant has been punished correctly by the Authorised Officer as the misconduct has been duly proved against the appellant and no exception can be taken against the impugned orders which are correct and valid orders.

12. We have given our anxious thought to the arguments of the parties and have also consulted the record, departmental instructions, rules and regulations so referred above by the learned counsel for the appellant. We are inclined to agree with the learned counsel for the appellant that in view of the exhaustive arguments of the learned counsel for the appellant with regard to the facts of the case as well as the legal position, no irregularity has been committed by the appellant in respect of construction work of the two roads in question. Although the appellant had given proper and exhaustive explanations to the Enquiry Officer but the Enquiry Officer failed to take into consideration his defence on factual as well as the legal side. We are, therefore, not inclined to accept the conclusions drawn by the Enquiry Officer as well as the respondents and find that these are contrary to the facts on record as pointed out by the appellant /appellant's counsel in the foregoing paragraphs.

13. We are also convinced that the second punishment regarding withholding of all the benefits of pay, increments, seniority and promotion) awarded to the appellant is contrary to the Efficiency and Discipline Rules which do not at all provide for such punishment. Therefore, this punishment is beyond the powers of the Authorised Officer and cannot A be sustained.

14. The result of the above analysis of the case is that the appeal of the appellant is accepted and the impugned order dated 18‑8‑1982 is set aside as the punishment so awarded is without any jurisdiction.

A . E.

Appeal accepted.

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