Find a Lawyer

Appeal No. 193 (L) of 1983, decided on 30th September, 1986.

‑‑‑S. 4‑‑Misconduct‑ Compulsory retirement‑‑Regular departmental inquiry resulting in acquittal of civil servant from charge of misconduct‑‑Chairman of Establishment disagreeing with resulting acquittal again constituting one man Inquiry Officer and on receipt of his report compulsorily retiring civil servant‑‑Other evidence being unsatisfactory, Inquiry Officer basing his report on evidence of Court witness‑‑Court‑witness, giving evidence generally of his personal assumptions and assertions which failed to prove major points at issue In absence of at least satisfactory evidence which should go to prove charges against civil servant, conclusions of one‑man Inquiry Committee, held, could not be accepted without reservation‑‑In evidence of Court witness there being many doubts which needed clarification it would be in the interest of fair play and justice that evidence of Court‑witness only should not be made basis of proving allegations against civil servant‑‑Service Tribunal while accepting appeal re‑instated civil servant and period for which such civil servant remained out of service was treated as leave extraordinary without pay.

Ch. Mushtaq Masood for Appellant.

Syed Iftikhar Ahmad Shah for Respondents.

Date of hearing: 1st July, 1986.

‑‑The appellant Mr. Khurshid Ahmad, Ex‑Project Director, SCARP Construction Circle, Faisalabad has come in appeal against his compulsory retirement vide impugned Order No. WW‑ADMN‑INQ(96506)‑16/79‑E‑111/10065, dated 21‑12‑1982.

2. The facts and general circumstances of this case are similar to Appeal No. 66(L) of 1983‑‑Syed Murtaza Shah v. WAPDA.

3. The appellant had gone out of country for performance of Haj and charge of the post was handed over to Syed Murtaza Shah, the then Chief Engineer (Water), WAPDA. During his absence an estimate under the caption "The remaining works of Budhi Nala Outfall Drain" was sanctioned by Syed Murtaza Shah, on 1‑12‑1977. When he had left for Haj, the work of construction of Budhi Nala Outfall Drain which was awarded to M . C. P. had been suspended after completing the excavation part since long. The remaining work was put to tender and the allotment had been made to the new Agency for Compaction of Embankment, Dressing of Spoil and Desilting of Outfall Drain. When he came back and took the charge, this work was in progress and was completed by the new Agency in February, 1978. After almost a year when the work had been completed, the WAPDA Authority decided to enquire into the matter on receipt of an anonymous application received in January, 1979 after obtaining reports from various quarters including the appellant. It was decided by the Chairman, WAPDA to charge sheet the four Officers of WAPDA including the appellant on 22‑1‑1980 which is reproduced below:‑

You, Mr. Khurshid Ahad, Director in the office of Managing Director, Project Planning and Review Orgnization, WAPDA, WAPDA House, Lahore, are hereby charged as under:‑

That while posted as Project Director, SCARPS Construction Circle, Faisalabad, you committed the following serious irregularities in regard to execution of "Remaining Works on Budhi Nalla Outfall Drain" (which primarily comprised of two major items i.e. Compaction of Embankment and Dressing of Spoil) and "Desilting of Budhi Nalla Outfall Drain

1.You released payment to the contractor for a content of 50,66,250 cft. compaction of earthwork knowingly that:

(a) There was no need to execute the said work because in response to your request in March, 1977 on the subject of compaction for PRK Drainage system you were conveyed the decision of your Chief Engineer as "it was agreed by M.C.P. that dressing of spoil will be carried out by bulldozers and weight of bulldozers will provide adequate compaction. It was, therefore, agreed that no separate payment for compaction has to be made"

(b) According to the specifications of compaction of embankment it was not desirable and possible to compact the earth which had been originally excavated and placed in position four years earlier by M.C.P. and the drain in this period remained operational.

(c) Site surveys were not carried out either before commencement of the work or after completion thereof meaning thereby that the estimate was not prepared and based on the requisite basic data.

(d) The rate of Rs.211 per 1, 000 cf t each work compaction was neither covered by the schedule of rates in vogue nor approved by the Authority.

(e) The method of taking measurement and making of record entry of compaction is not correct. The contents of compaction should have been‑‑length x breadth x depth but the record entries are just copies of the estimate with a very nominal change meaning thereby that in fact no measurements had actually been made.

(f) The record entries had not been properly check‑measured by the Junior Engineer and Senior Engineer as per standing instructions.

2. You released payment to contractor for a content of 59,51,376 cft. under the item of "Dressing of Spoil" knowingly that:

(a) The earth had been originally excavated and placed in position four years earlier by M . C . P .

(b) The rate paid for was approved only for M.C.P. and not for a private contractor.

(c) The method of taking measurement and making of record entry of dressing was not correct. The contents of dressing should have been‑‑length x breadth x depth but the record entries were just copies of the estimate with a very nominal change meaning thereby that in fact no measurements had actually been made.

(d) The execution of the said work was not necessary at all.

(e) The record entries had not been properly check‑measured by the Junior Engineer and Senior Engineer as per standing instructions.

3. You released payment to the contractor for the work "Desilting of Budhi Nalla Outfall Drain" amounting to Rs.9,40,740 knowingly that:

(a) No site surveys were carried out either before the commencement of work or after completion thereof meaning thereby that the estimates were not based on the requisite basic data.

(b) The method of taking measurement and making of record entry of desilting was not correct. The contents of silt should have been‑‑length x breadth x depth but the record entries are just the copies of the estimate with a very nominal change meaning thereby that in fact no measurements had actually been made.

(c) The record entries had not been properly, check‑measured by the Junior Engineer and Senior Engineer as per standing instructions.

4. The earthwork involving compaction of 50,66,250 cft. Spoil dressing of 59,51,376 cft. and desilting of 40,54,000 cft. allotted to one contractor was completed and paid for within a period of about 50 days which does not seem feasible.

If the above allegations are established you will be guilty of misconduct in the discharge of your official duties calling for one of the penalties as defined in West Pakistan WAPDA Employees (E&D) Rules, 1978, applicable to you.

You are, therefore, hereby required to put in your written defence within fourteen days of the receipt of this charge‑sheet stating at the same time whether you desire to be heard in person.

If no reply is received within the stipulated period it will be presumed that you have no defence to offer and an ex parte action will be taken against you.

A statement of allegations is attached."

After receiving the defence reply by the accused officer a regular departmental enquiry was ordered against the appellant under the West Pakistan WAPDA Employees' (E&D) Rules, 1978. An Enquiry Committee consisting of Mr. Karim Khan, General Manager (W), North, WAPDA, Peshawar as convener and Mr. M.R.Chaudhry, Chief Engineer (Civil) Power Stations, WAPDA, Lahore as Member, was constituted to hold a departmental enquiry. However, the findings of the departmental enquiry which finally resulted in the acquittal of the appellant and other accused officers was not accepted by the Chairman, WAPDA. The conclusion of this enquiry report is given below:

"F. CONCLUSION:

(1) The Committee is of the view that as the enquiry has been initiated on the basis of any anonymous application, it has, therefore, no legal force.

(2) The Committee has observed that the charges have not been framed after detailed scrutiny of the record. Detailed scrutiny may have resulted in deleting many of the unnecessary charges.

(3) The committee has also observed that WAPDA has not been put to any loss as the work has been done at the cost and risk of the M.C.P. at the contract rates sanctioned in favour of M.C.P.

(4) The Committee is further of the opinion that since the work has been handed over to the Irrigation Department who have accepted it in toto without raising any objection, it proves that the work has been carried out according to the plan and profits of the drain."

4. Specifically the Enquiry Committee gave the verdict in favour of the appellant which is reproduced below:‑

"The Committee feels that none of the charges are applicable to Mr. Khurshid Ahmad (appellant) as he had gone out of the country for the performance of Haj. He was neither associated with the framing of the estimate nor the award of contract. When he resumed his duties as Project Director, the work was already in progress and there was no reason for him to stop payment on any account. The Committee, therefore, does not find him guilty of any charge."

The Chairman, WAPDA, therefore, ordered for a one man enquiry and appointed Mr. Qazi Khan, Chief Engineer to be the Inquiry Officer. A detailed enquiry was carried out by Mr. Qazi Khan starting on 25th February, 1982. This was the joint enquiry report which resulted in the findings of the Court in respect of the appellant as follows:‑

"In summary, the findings relative to each of the specific charge, are listed below:‑

Charge No.1:

(a) Not proved.

(b) Not proved.

(c) Not proved.

(d) Not proved.

(e) Stands proved.

(f) Stands proved with benefit of doubt.

Charge No.2:

(a) Not proved.

(b) Not proved.

(c) Stands proved.

(d) Not proved.

(e) Stands proved with benefit of doubt.

Charge No.3:

(a) Not proved.

(b) Stands proved.

(c) Stands proved with benefit of doubt.

Charge No.4:

Stands proved."

5. It was contended by the learned counsel for the appellant that in spite of the best efforts of 'one man' Enquiry Committee with manipulation of evidence as best as it could be done, it was not possible to prove the entire list of charges. Out of the four main charges given out with numerous sub‑charges, they were able to prove only Charge 1(e), Charge 2(c), Charge 3(b) and Charge 4. All the other charges stand clearly 'not proved' or with benefit of doubt to the accused which in fact means that the Inquiry Officer could not make up his mind one way or the other positively.

6. It was submitted by the learned counsel for the appellant that as regards Charge 1(e), the method of taking measurements and preparation of invoice was challenged by the Court witness No. 1 i.e. in brief the method of cross section measurement v. The measurement to be worked out with the formula of "length x breadth x depth". However, the discussion in this case remains totally theoretical. These were not either given out by the Enquiry Committee or the Court Witness No. l so that one could have a clear picture as to the extent of loss sustained by WAPDA in this case. Since this enquiry was conducted after a considerable period after the completion of the remaining work, it was not possible to go beyond the theoretical discussion.

7. Also no public witnesses were examined in this case. The question of proving the charge in this case, therefore, is just as vague as the evidence itself. It is not right to conclude that the charge stands proved on the basis of rather unreliable evidence.

8. As regards Charge 2(d), it was submitted that in view of the statement given by Defence witness No.1, Capt. (Retd.) Nasim Ahmad, Field Engineer, M.P.O. , Mandi Bahauddin that "the excavated earth was placed in the areas designated for spoil. There was no excavated earth placed on areas designated for compacted embankment because according to the specifications the service Road had to be built in layers of 6" after compaction, with uniformly distributed spoil having optimum moisture contents", no evidence to the contrary was brought on record by any other source. The Enquiry Committee was not in a position to give out its verdict as 'proved charge'. It only shows that such a conclusion was based on personal whims rather than on facts.

9. As regards Charge 4, it was submitted that when the appellant came back from Haj and took the charge as Project Director, the work in question was already in progress and in full swing. The Firm, Messrs Kh. Muhammad Tufail and Company is well known to the respondent‑Department and its capabilities are also well known. They have the resources and capability to execute the work and the Firm is financially sound. The work was done during the appropriate season of January and February, 1978. The appellant was fully satisfied with the manner the work was being executed. The Firm employed both the machinery and manual labour to complete the work. The first and final estimate was prepared for the work in question and after observing all the codal formalities the payment was released to the contractor. The period of 50 days was considered sufficient to complete the work under the circumstances. No conclusive evidence was brought on record to prove the case otherwise.

10. The learned counsel for the appellant submitted that undoubtedly it was the prerogative of the Chairman, WAPDA, to accept or reject the recommendations of the three Members Committee appointed to enquire into the circumstances of this case in the first instance. However, it certainly raises doubts in one's mind as to why later on only 'one man' Committee was formed to enquire into the allegations against the appellant Initially the enquiry was started on the receipt of an anonymous application which even under the orders of the WAPDA Authority were not to be taken notice of vide Chairman WAPDA circular letter No. C/78/45227‑45387, dated 25th March, 1978. It is surprising that this very important task of enquiring into such serious allegations according to WAPDA were entrusted to 'one man' Committee whereas ordinarily the course of action opened to the Authority' should have been to appoint another High Powered Committee as compared to the first one. It is obvious indeed that the members of the first Committee were both senior in rank and richer in experience. One is left with the inevitable conclusion that it must have been, somehow, considered essential that the allegations were to be proved at all cost. This is indeed against the established principle of fairplay and justice. The enquiry conducted under normal circumstance must remain neutral beyond any shadow of doubt. In this case, it looks apparently otherwise even to a layman.

11. As a matter of record, it was contended by the learned counsel for the appellant that the Chairman of the 'one man' Committee Mr. Qazi Khan, Chief Engineer has chequered reputation while enquiring into similar case. In the case of an enquiry conducted by Mr. Qazi Khan against Mr. Muhammad Saeed, Project Director, Canal Construction Circle, Ahmadpur East, District Bahawalpur, the conclusions arrived at by him against strikingly similar allegations were entirely different. As a matter of fact, he absolved the officer concerned of all the charges levelled against him vide the enquiry report dated 6‑4‑1983 as an Inquiry Officer. Would it not be safe to presume that Mr. Qazi Khan was detailed to head this enquiry in the case of the appellant only to manipulate facts to prove the allegations

12. A close study of this case would cast enough light on the factor of reliability and the element of neutrality which Mr. Qazi as Chairman of the enquiry was expected to enjoy.

13. It was further contended that the said Drain had been handed over to the user Department eversince. They had raised no technical objection or any other observation on the works completed in this respect. The Department concerned took over the works according to the terms and conditions prescribed in the contract without raising an eyebrow. The proof of the pudding is in eating. Why, therefore, should WAPDA raise such a hue and cry on any annonymous letter which was received such a long time after the works were completed or handed over

14. We have gone through the enquiry report by Mr. Qazi Khan as the Inquiry Officer very carefully and considered the evidence given by various witnesses in detail. On balance we have found that evidence given by P.W.1, Mr. Muhammad Younus, Divisional Head Draftsman, Mandi Bahauddin, evidence given by P.W.2, Mr. Ghulam Muhammad, Divisional Head Draftsman, Office of the Project Director, SCARP Construction Circle, Sargodha and the statement given by Defence witness No.1 Capt (Retd.) Nasim Ahmad, Field Engineer, MPO, Mandi Bahauddin have nothing substantial or otherwise to prove anything against the appellant. The only evidence, therefore, on which Mr. Qazi Khan, the Inquiry Officer has based his conclusions is that of Court witness, Choudhry Muhammad Sharif, Chief Engineer (Water), Faisalabad. Basically the Court witness has generally talked about his personal assumptions and assertions which failed to prove the major points at issue.

15. We have given our anxious thoughts to the evidence produced before us but we cannot escape the inevitable conclusion that in the absence of at least satisfactory evidence which should go to prove the guilt of the appellant, the conclusions of the 'one man' Enquiry Committee cannot be accepted without reservation. In fact there are too many doubts which need clarification. In the absence of any reliable answer to clarify these doubts, it is only in the interest of fairplay anti justice that we are forced to conclude that the evidence of the Court Witness No.1 only cannot be made the basis for proving the allegations levelled against the appellant. It is our considered opinion that 'one man' Enquiry i.e. conducted by Mr. Qazi Khan has not reached a correct conclusion. It is totally unacceptable for us to hold that on the basis of such doubtful evidence and unproven facts the appellant should have been held responsible and punished. We, therefore, accept the appeal and re‑instate the appellant in service. The period for which the appellant remained out of service will be treated as leave extraordinary without pay.

16. No order as to costs.

A. A./351/Lb/S

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.