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صرف 1000 روپے میں 10 وکلاء تک کی براہِ راست رابطہ تفصیلات حاصل کریں اور کال یا واٹس ایپ کے ذریعے موزوں قانونی ماہر سے رابطہ کر کے اپنا معاملہ پورے اعتماد کے ساتھ آگے بڑھائیں۔
Appeal No.362(R) of 1974, decided on 13th August, 1977.
‑‑‑R.9(2)(a)‑‑Civilian employees in defence services‑‑Inquiry Officer, competency to investigate‑‑Investigation against a civilian employee of defence services, held, could be ordered‑‑Inquiry Officer, would be competent to interrogate and call for explanation of various officers‑ Letter of appointment of Inquiry Officer if conformed to requirement of R.9(2)(a), held. could not be objected to.
‑‑R.9‑‑Appointment of Investigation Officer‑‑Validity of‑‑Chairman of Establishment, held, is competent to appoint Investigating Officer to enquire into charges against its employees‑‑Investigating being not mandatory, its insufficiency or irregularity would not detract from effectuality of formal inquiry.
(c) Civilian Employees in the Defence Services (Classification, Control and Appeal) Rules, 1961‑‑‑
‑‑R.9‑‑Inquiry, necessity of‑‑Exemption‑‑No extenuating circumstances, held, could be pleaded to do away with necessity of any inquiry.
‑‑‑R.9‑‑Initiation of Inquiry‑‑Competency of‑‑Where there were detailed notes by Secretary of a Division leading to President of Pakistan's orders relating to intitiation of Inquiry against civil servant, whosoever signed communication of inquiry order, held, would not affect validity of orders, where Rules of Business disclosed and authorized such practice.
‑‑‑R.9‑‑Inquiry report, submission of‑‑Non‑submission of such report within specificed time‑‑Effect‑‑A longer period, held, could be allowed by designated authority for submission of Inquiry Report‑‑Time limit prescribed for submission of report establishes a right to demand, but does not fetter discretion of designated authority to allow long period for submission of such report‑‑Late submission of report would not weigh against its authenticity nor would justify adverse inference.
(f) Civilian Employees in the Defence Services (Classification, Control and Appeal) Rules, 1961‑‑
‑‑‑Rr. 9 & 11‑‑Inquiry Report‑‑Want of recommendation as to penalty‑ Effect of comma occurring in R.11 after words "recommendation for penalty"‑‑Comma in R.11 after phrase "Recommendation for penalty", held, makes the Rule, a single phrase and use of words, thereafter, held, clearly governs the entire recommendation inclusive of penalty‑‑To make a recommendation for penalty, would be the discretion of Inquiry Officer‑‑In absence of recommendation for penalty, inquiry report would not become inoperative‑‑Recommendation of Inquiry Officer, is not binding in nature‑‑Competent authority was empowered to accept or reject it.
‑‑‑Ss. 3, 4 & 6‑‑Word "establish", connotation of‑‑Word "establish" used in S. 3, Service Tribunals Act, 1973, held, refers to date of Notification‑‑President, could by Notification in official Gazette, establish one or more Service Tribunals‑‑"Establishment" means technical notification made by President under S.3, Service Tribunals Act and is not dependent on date of report of any particular member‑‑Service Tribunal stood established as per statutory Rules or orders on 22nd February 1974‑‑Appeal before Service Tribunal not filed within ninety days of its establishment would be barred by limitation.
‑‑‑S. 6‑‑Service Tribunals Act (LXX of 1973), S. 4‑‑Pending proceedings before establishment of Service Tribunals‑‑All pending proceedings in service matters would suffer statutory abatement from date of passing of Ordinance‑‑Service Tribunals Act re‑enacted identical provisions without reviving abated appeals, referring or modifying earlier clause of abatement‑‑Appeal having been abated by Ordinance XV of 1973, would not be deemed to be pending on date the Service Tribunals Act, 1973 was passed‑‑Pending appeals before Service Tribunal Under Service Tribunals Ordinance, 1973, however, were to be tagged to S.4 of Service Tribunals Act which enlarged time sufficiently to deprive plea of its stringency.
‑‑‑S. 4‑‑Limitation Act (IX of 1908), S. 5‑‑Condonation of delay in filing appeal before Tribunal‑‑Constitutional petition against dismissal of civil servant abating on enforcement of Service Tribunals Ordinance, 1973 from 15th August, 1973‑‑Service Tribunals Act although not reviving abated appeal yet allowing ninety days to file appeal against dismissal from its establishment‑‑Appeal which had abated while pending in High Court filed three days after period allowed by S.4 of Service Tribunals Act, 1973, held, would attract provisions of S.5, Limitation Act for condoning delay of three days.
(j) Civilian Employees in the Defence Services (Classification, Control and Appeal) Rules, 1973‑‑
‑‑‑R. 9‑‑Inquiry‑‑Finding based on admission of fact‑‑Effect‑‑Where charge against civil servant was of over‑payment which was admitted by civil servant, finding of Inquiry Officer based on such admission, held, would not be unjustified.
‑‑R.9‑‑Service Tribunals Act (LXX of 1973), S. 4‑‑Appeal against dismissal from service‑‑Punishment, quantum of‑‑Where charge of over payment was established against civil servant, such over‑payment being not caused by inefficiency alone‑‑Other patent motives behind such payments and unruly conduct of civil servant, held, would not justify Service Tribunal to interfere in quantum of sentence passed against him‑‑Major penalty of dismissal was upheld by Service Tribunal‑‑Arrears due to earned increments till dismissal of civil servant, however, held, could not be denied to him without inquiry‑‑Such arrears were ordered to be paid to civil servant.
‑‑Appellant Mr. Muhammad Asghar has filed this appeal against order of his dismissal from service dated 18th May, 1971, confirmed in review by the President on 9th January, 1973.
The appellant is a civil servant within the meaning of section 2 of the Civil Servants Act, 1973. He entered service as an Engineering Apprentice in 1935, was sent to Hewett Engineering School, Lucknow in 1936 wherefrom he obtained an Overseer's Certificate. During his training he surveyed U.P. Industrial and Agricultural Exhibition, Lucknow for study and preparation of building plans. The achievement earned him a commendation Certificate.
Training period was followed by his appointment as Apprentice against a permanent vacancy in N . W . R . which came to a close in 1941. During World War he was enlisted in the Royal Indian Engineers as Warrant Officer Class I, remaining there till 17th October, 1945, making himself useful in construction of bridges. Then he was released and reverted to Railways on 18th September, 1946. He undertook some work in Irrigation Department, Haveli Circle, Multan and returned therefrom in November, 1949 for absorption, as Assistant Bridge Inspector. He remained there till 1953.
He resigned from the Railways on 1st May, 1954, joined the Pakistan Ordnance Factories as Assistant Section Officer Class II (Gazetted), was promoted as a Foreman Class II on 4th April, 1962 to continue as such for four and half years. He was again promoted on 10th December, 1966 Assistant Works Manager‑‑a Class I Post. November 1967 found him posted to P.O.F. Joydebpur, Dacca for Civil Engineering Project falling under the Project Division.
Project Division according to the appellant was directly under the Chairman, P.O.F. Wah Cantt through a Controller of Project and Director of Industrial and Commercial Relations, Wah Cantt. The site control was under the Project Director and Works Manager, P.O.F., Dacca (Pakistan Ordnance Factories).
It is asserted that throughout his service career, the appellant enjoyed enviable reputation by dint of hard work and efficiency. His reputation remained untainted till he joined Joydebpur, Dacca where Mr. A.R. Alvi was the Works Manager. The said officer being inimical to the appellant for more than one reason, tried to tarnish his unblemished career. He has enumerated two incidents which incited ill‑will of the Works Manager, Mr. A.R. Alvi. Both of them occurred in 1954 when Mr. A.R. Alvi was Incharge of the appellant in his capacity as Assistant Works Manager. They are:‑
(a) pointed out shortages of lime to the detriment of Mr. Alvi; and
(b) misappropriation of Jaffery‑wood by him.
The said incidents did not make the appellant popular with Mr. A.R. Alvi. Yet he was transferred to Joydebpur, Dacca in the year of 1967 to work under the same officer. Besides, East Pakistan, then rife with unrest against Mr. Ayub Khan's regime did not readily accept West Pakistanis. Employees openly gave vent to provincial prejudices and even refused to co‑operate with the West Pakistan Officers. Amongst such officers was Mr. Zahur‑ul‑Islam, the Project Director of P.O.F., Dacca. He is said to be known for his ill‑temper and deep‑rooted prejudices against West Pakistanis.
Appellant's arrival at such a juncture; in P.O.F. Dacca was not only resented by Mr. A.R. Alvi, the Works Manager but also by Mr. Zahur‑ul‑Islam, the Project Director. Both the Officers were ill‑disposed to him for different reasons and joined forces to keep him away from work. He was given no file, in consequence, when he reported on 28th November, 1967. No specified duty, as per appellant, was entrusted to him. Mr. M.R. Chaudhry another Assistant Works Manager continued to hold charge of work. The appellant was simply required to assist the said officer. According to him neither any officer nor any staff assisted him in execution of work. So much so that he was not even allowed to enter office and was asked to leave when he made any effort to contact his superiors. The fact was reported by him by a Telegram (Annexure 'H/1').
Besides, work was being hurried through by Works Manager and Project Director as a policy decision, entailing haphazard and irregular payments to the contractors. To cover up these irregularities, they wanted the appellant to be kept away from supervision. He had to force enter his duties on 9th February, 1968 at the instance of Controller of Project, yet necessary staff, requisite documents, contract agreements were not made available to deprive him from factual control.
Duties entrusted were of checking contractor's bills vide letter No. 4829/1/W.M.C.P., dated 16th May, 1968. Appellant claims to have done his work in the best traditions of honesty without fear or favour. In doing so, he annoyed the Works Manager and Project Director to earn adverse remarks in his Annual Confidential Report for the year 1968. Remarks evidently mala fide were incited by ill‑will gravitated by appellant's honest effort to point out defective nature of construction work by Dadhoo Mian, the pet; Messrs Northern Engineers headed by Mr. M. Moosa a close associate (in work of Store‑building and School building) and rejection of R.C.C. posts erected by the nephew of Project Director.
As to Mr. A.R. Alvi, the Works Manager, his old wounds were reopend when Sigma Construction Company's under‑specification Sewerage pipe were discovered to him and Superintendent Civil Engineer, for which payment was made. The objection did not endear the appellant to Mr. Alvi who already had a prejudiced mind.
Mr. C.M. Sharif, Superintendent Civil Engineer another officer associated with the preliminary Inquiry was also prejudiced because he wanted the appellant to endorse an estimate of Rs.60,000 for removal of defects in shop No. C‑12 P.O.F. As the same defect had been cured by the appellant earlier he refused to append his signatures to the fresh estimate engendering change of design. This worked up the ire of Mr. C.M. Sharif who got the appellant transferred to the Explosive Factory under a charge‑sheet for alleged misbehaviour.
It is thus, crystal clear, why his increment due on 10th December, 1968 was withheld and subsequent increments vide letter No.4119/1683/OF‑1/B, dated 26th October, 1970 were stopped.
Mr. C.M. Sharif later Chief Engineer Works was detailed by the P.O. F. Chairman in May, 1969 to hold an investigation about construction work of Ordnance Factories. It was fact finding in nature yet his hostility afforded Mr. C.M. Sharif a weapon to use against the appellant. He called explanation of the appellant, though not so authorised. His letter in this respect is dated 30th May, 1969. Then other irregularities were discovered to strengthen his hands. Letter No. 1800/5/CEW, dated 6th June, 1969 is to the point, showing keenness of the Enquiry Officer to shift guilt to the appellant.
Written explanation called for was submitted on 5th June, 1969 Additional explanation was afforded subsequently to explain against irregularities. What the recommendations were is not evident yet the charge‑sheet dated 23rd February, 1970 served on the appellant on 5th March, 1970. (Copy Annexure 'S' and statement of allegation Annexure 'S/I') confines itself to only one charge running as under:‑
MISCONDUCT:
"While employed as Assistant Works Manager in POF JOYDEBPUR Dacca, he signed payments documents and certificates for material necessary to authorize security advances which led to over‑payment of Rs.76,426.
Statement of allegations 'S/1' elucidates the charge by affirming:
"according to the Civil Engineering Works procedure the contractors are allowed payment against non‑perishable material like steel, Bricks, Shingle and crushed stone etc. brought by them to the site of the work for incorporation in the works Payments against such materials brought on the site is called secured advances. Mr. Asghar has signed documents and certificates for materials which led to over‑payments and secured advances to the contractors which is as under:‑
| C . A . No. and Party | Payment Document | Amount Over paid |
| (a) 9/67/68/M/s Sabir Ahmed Chaudhry and Co. | 2nd RAR No. 56/SE, dated 9‑12‑1968 | Rs.31,002 |
| (b) 11/67‑68 M/s. Sabir Ahmed Chaudhry and Co. | Hand Receipt No.71/SE, dated 19‑12‑1968. | Rs.45,424 |
It was considered that only two possibilities would lead to over payment; either the material was not brought on site in full quantity discovering fraudulent certificates; or deficiency was caused by misappropriation from site. In either of the two cases responsibility according to the department squarely rests on the officer incharge, because the Store had become the Govt. property.
Simultaneously with issuance of the charge‑sheet signed by the Deputy Secretary to the Ministry of Defence, an Inquiry Officer was nominated without waiting for explanation of the appellant in response to the charge‑sheet. In fact, the charge and explanation were communicated by the same letter signed by the Deputy Secretary, Govt. of Pakistan.
The 1st objection of the appellant is that Deputy Secretary neither being the appointing authority nor designated authority had no right whatsoever to charge‑sheet the appellant.
All the same his reply was submitted on 18‑3‑1970. Copy is Annexure 'T'. On receipt of the said reply Court of Inquiry consisting of Mr.M.Shafi was convened assisting by Mr. C.M. Sharif, Chief Engineer, Works. It is said that no intimation was given to the appellant about Inquiry Officer or the prosecutor.
Inquiry proceedings commenced on 8‑5‑1970 to continue till 10‑6‑1970 at Dacca. During the Inquiry Lt.‑Col. A.A. Farooqi, Technical Examiner, Chief Engineer's Office, M. E. S., G. H. R., Rawalpindi, attended proceedings to advise the inquiry Officer on technical matters. The appellant's grievance is that Mr. A.A. Farooqi subordinated and overshadowed the Enquiry Officer to influence his mind in the determination of issues as well, The other grievance made out is that the appellant was not allowed to defend himself by a counsel of his choice though a verbal request in this behalf was made. At one stage an application for summoning two witnesses was also filed but none of them was summoned further prejudicing case of the appellant.
1st objection as to non‑representation by a counsel being against the provision of rule 9(6) of the Civilian Employees in the Defence Services (Classification Control and Appeal) Rules, 1961, the ground was shifted to alleged prohibition imposed by Inquiry Officer against consultation. However, weight of both the objections will depend on the evidence/findings on record.
After conclusion of the Inquiry, the report was submitted to designated authority not within 10 days as enjoined by Rule 11(4) of the above cited rules. In fact six months elapsed between conclusion of the Inquiry and submission of report‑‑an illegality which according to the appellant is incurable.
The Inquiry Report did not propose any penalty contemplated by Rule 11(4) ibid. Yet despite the reservation, appellant was given a show‑cause notice dated 6th January, 1971 Annexure 'V' to submit a reply within fourteen days why he should not be dismissed from service. The reply dated 27th January, 1971 is Annexure 'W'. This is another violation seriously viewed by the appellant.
The proceedings were finalised by the special order dated 20th May, 1971 copy Annexure 'X'. It was again signed by Deputy Secretary, Ministry of Defence who according to the appellant was not authorised to do so, neither being the appointing nor designated authority. On 16th November, 1971 a review petition was filed as provision to Rule 17 of the Civilian Employees in Defence Services (Classification Control and Appeal) Rules, 1961. The same was dismissed. Intimation to the appellant vide letter dated 9th January, 1973 Annexure 'Y' was received on 12th January, 1973. Thereafter present appeal was filed on 25th May, 1974 under section 4 of the Service Tribunals Act, 1973.
Conclusions of investigation /preliminary Inquiry and final inquiry are being questioned by the appellant on varied grounds. First objection is to the appointment of Mr. C.M. Sharif as investigator of the cause. Being prejudicially inclined, investigation concluded by final Inquiry would be ab initio void both for, ill‑will and want of proper authority. Rest of the grounds, enumerate want of proper application of mind by the designated authority; hurried formal charge‑sheet being delivered without obtaining explanation under Rule 9(4) of the aforementioned Rules; absence of formal approval of the charge‑sheet by competent authority and insufficiency of fourteen days allowed for preparation of defence. Moreover the charge‑sheet, show‑cause notice etc. signed by Deputy Secretary, suffer from lack of competence and authority so also the appointment of Inquiry Officer simultaneously with issuance of charge‑sheet. Other objections include, inter alia, illegal appointment of Inquiry Officer, denial of appellant's right to consult the counsel, association of Lt.‑Col. A.A. Farooqi with the proceeding to prejudice the mind of the Inquiry Officer and appointment of Mr. C.M. Sharif, who already was biased; as prosecutor in the case. Non‑summoning of witnesses and non‑submission of Inquiry report within ten days, want of suggestion as to penalty to be imposed are other contentions raised by the accused. Vagueness of the charge and non‑apportionment of responsibility amongst accused have also been placed on the anvil.
On facts, the appellant alleged to be partly responsible, the extent of his guilt was not specified, nor the burden of his responsibilities, leaving the charge vague. Break down of the amount of the secured advances, kind and quality of material involved, dates of incidents etc. should have been elaborately mentioned as provided by Rule 9(5) which specifically enjoins:‑
"For each fault or shortcoming there shall be separate charge under sub‑rule 3(4). Each charge should be written and specified and will state clearly the nature, time, occasion, place, person amount etc. concerning the fault or shortcoming."
It is also denied that secured advances were given on short material or that safe custody was responsibility of the appellant. Chowkidar was not appointed and if there was any shortage it was due to non‑appointment of Chowkidar by the Project Director despite request of Works Manager. Besides, sanction for secured advances is said to be entirely the concern of Superintendent Civil Engineer and the paying authority is designated to Project Director. The procedure being that contractor makes a request to the Works Manager detailing the material available at the site in his application. Works Manager may reject the application or mark the application to the site Incharge for preparation of necessary documents. Needful being done, the contractor claims advances for work done on Running Receipt Accounts and other advances on hand receipt for material on site. The documents prepared and signed are sent to the Assistant Works Manager who checks the same alongwith contractor's bills. His check includes (a) quality of work done as entered into the measurement book; (b) comparison of measurements with work done; (c) checking the deviation work if executed; (d) check the debits on account of water, electricity and tools and plants supplied by the department. After making this inquiry he signs the necessary documents and passes them on to Works Manager. Works Manager after satisfying himself appends a certificate for availability of material and forwards the same to the Superintendent Engineer. It is said that unless it was certified by the Works Manager, no advance could have been made. Responsibility, therefore, it is said, squarely lies on Mr.A.R. Alvi and not on the appellant.
Other point made out by the appellant is that no loss was sustained by the Government on account of anything done by him. Secured advances were issued on C.A. No. 9/67‑68 of Messrs Sabir Ahmed Chaudhry for steel and bricks. Steel weighing 20 tons and bricks account of 3.5 lakh. Similarly in C.A. No. 11/67‑69 advances were made against 31 tons steel and of 2 lakh of bricks. Subsequent shortage of bricks can be accounted for as under:‑
| Steel T.C.W.T. | Bricks. QR.LBS. | |
| (i) Consumed by the defaulting contractor in C . A . No. 9 and 11 and on current work in C.A. Nos. 5 and 6 by the same contractor (this consumption was done on the written permission of the then Superintending Engineer Mr. A . R. Alvi. | 7‑15‑1‑23 | 0.59 lakhs (issued only against C.A. No. 9). |
| (ii) Issued to risk and cost contractors. This is shown in the contract‑documents which are in the custody of Civil Section, Projects, P.O.F, Wah. | 51‑7‑0‑0. | 0.42 lakhs, (issued only against C.A. No. 9). |
| (iii) Stolen by Messrs Sigma & Co. 4 Later recovered and credited to the account of the defaulting contractor. | 0.38 lakhs (Credited to the account of C . A . No. 9) . | |
| Total: | 59‑2‑1‑23 | 1.39 Lakhs. |
| Balance: | Nil | 4.11 Lakhs. |
As per appellant it clearly indicates that steel was consumed and the balance of 4.11 lakhs bricks was adjusted from available credits of the defaulting contractor under the provisions of para. 414 M.E.S. Regulations and clause 67 PAFW‑2249. Hence no loss can be referred to the appellant, to award him a major penalty. The appellant has also agitated disturbed conditions of East Pakistan for the loss of bricks taken by the Sigma Company. That want of loss is admitted by the department as well, is said to be apparent from Annex. 'Z' prepared by the department as final account. Despite the fact that they do not show shortages the accounts are anything but true. Defects are evident in Column 3 against C.A. No. 9 showing short value of 10,000 rupees as against its assessed value at the time of handing over to the Risk and Cost Contractor. Relevant page of the agreement with risk and cost contract is Annexure 'Z/1'. Similarly miscellaneous figures in column 7 against C . A . No. 9 is said to have been worked out erroneously. The miscellaneous included 3 items:
(i) Two per cent penalty amount to Rs. 16,096
(ii) Damage due to cyclone and defective work . Rs. 24,804
(iii) Electric charges and water charges etc. Rs. 1,354
Total: Rs. 42,254.
As the penalty was imposed for period between 1‑4‑1969 to 14‑4‑1969 the amount could not have been adjusted in secured advances. Similarly damage caused by cyclone on 19th April, 1969 could not be foreseen. Such haphazard accounting was resorted to, for placing guilt on the appellant. The appellant ignoring non‑admission of cyclone losses; concludes that if damage is properly referred to its due causes while responsibility for defective work to defaulting contractors at whose cost Risk and Cost contractors executed the work to required specification, debits would not amount to what has been calculated by the department. Credits of the contractor came to Rs.4,11,527, while total damage amounted to Rs.3,60,500 leaving a surplus of Rs.51,027 and not Rs.16,608. The balance, thus, exceeds the requisite amount of retention money which came to Rs.35,234.
As regards C.A. No. 11/67/68, it is averred that work done as per column No. 2 does not include cost of earth work carried out by the contractor and payable to him. The following amount i.e. 16,490 and 10,630 totalling Rs.27,110 were due to him. The credit when added to the other dues will bring the total to Rs.2,40,697 as against 2,13,587 shown in column No. 2 of the statement.
Similarly debits of Rs.31,401 shown in column 7 representing defective and damaged work should not be debited against him because of its completion at the cost of the contractor himself. If these items are given due consideration plus balance of Rs.46,609 instead of‑‑balance of Rs.53,901 available, will not leave any substance in the case. For the reasons, appellant states that his dismissal was illegal and unjustified, stoppage of increments for the years 1968‑69 and 1970 arbitrary for want of compliance with due rules and adverse entry in his A . C . R. for 1968 is the result of conspiracy between Mr. A.R. Alvi, Mr.C.M. Sharif and Mr. M. Zahurul Islam. He, therefore, prays that he be restored to his former position after vacating the order of dismissal, and adjudging existence of vested right to increments, by vacating adverse entries in his Annual Confidential Reports.
In their written objections respondents have admitted the capacity of the appellant as civil servant, his various appointments and final posting to Joydebpur on 19th November, 1967. Certain irregularities were discovered in the execution of work and as such adverse remarks recorded for the year l968 which were duly countersigned by the Chairman, P.O.F. The report was communicated but no representation‑ being made till after 16 months of such communication, present urgings are barred for late submission of representation‑‑the available remedy going unexplored.
With respect to stoppage of increments, it is said that as the work executed by the appellant was under inquiry of the Chief Engineer, increment dependent on satisfactory performance, was withheld till after the result of the Inquiry was available. Since the appellant was served with charge‑sheet by the Ministry of Defence under the order of President and his explanation to the charge‑sheet was with the Ministry of Defence, it was not possible to grant him increments during pendency of the proceeding and, thereafter, the question did not arise. His representations dated 18th February, 1,970 and 2nd October 1970 were disposed of accordingly.
As to the preliminary Inquiry/investigation under rule 9(8)(a) of the Civilian Employees of Defence Services (Classification, Control ' and Appeal) Rules, 1961, no charge was given to the appellant at the time. It was a probe into the affairs of P.O.F. and results would also determine guilt to point out the defaulter. Only at that stage objections would be entertainable.
The character of Mr. C.M. Sharif as prosecutor was denied. He was departmental representative being Chief Engineer of the Division. Lt.‑Col. A.A. Farooqi was detailed at the request of the Inquiry Officer to advise him on technical matters.
According to the respondents no rules were violated by attendance of Mr. C.M. Sharif or assistance of Mr. Farooqi.
Right of the appellant to be represented in the Inquiry proceedings was denied by virtue of Rule 9(6). It is asserted that appellant was given full opportunity to defend himself and to procure evidence in his favour. Record does not support filing of any application for summoning witnesses, verity of the plea was, therefore, denied.
Although the rule requires submission of Inquiry Report within ten days of its completion (Rule 11(4)(a), there is no bar against its acceptance nor any provision to justify delay to the appellant, according to respondent.
Respondents denied want of recommendation the Inquiry Report at the same time asserting proper determination of penalty by the President. In fact, they admitted no procedural flaw in the meticulously concluded enquiry, conclusions whereof according to them are fully supported by evidence on record. They as such sought dismissal of appeal.
The copious narration of facts affords a background even if it clouds the real issues involved. Details were unavoidable because they reflected character of the dispute and nature of issues determinable. Essential requirement, however, are very simple. Regular Inquiry was precipitated by investigation into working of P.O.F. staff, Jodebpur. The accused, found implicated in certain irregularities as, charge‑sheeted and in final inquiry, found guilty. He was dismissed from service against which he filed a writ petition. The same abated under section 6 of the Service Tribunals Act, 1973, giving rise to present appeal registered on 25th of May, 1974.
The appellant cavils against all the steps taken towards preliminary inquiry /investigation and every move made thereafter. He questions validity of preliminary investigation; has quarrel with appointment of Mr. C.M. Sharif as investigator; doubts vires of the order calling for his explanation, to assail signing of the charge‑sheet and final orders by a Deputy Secretary of the Ministry of Defence. These are the technical‑ hurdles raised. Other aspersions aim at negating value of the report on merits which allegedly was motivated by Mr. C . M . Sharif the prosecutor and Mr. Farooqi, the technical advisor.
Respondents on the other hand deny merit of the objections and take refuge under plea of limitation prescribed by section 6 of the Service Tribunals Act, 1973. The controversy thus, boils down to discovered technical defaults,' and possibility of the view accepted by the Inquiry Officer. These objections shall have to be examined under separate heads in their true context.
To visualise fully the nature of objections, we need to have a comprehensive picture of the provisions of the Civilian Employees in the Defence Services (Classification. Control and Appeal) Rules, 1961, specially those clauses which were pin‑pointed during the course of arguments. 1st provision is contained in Rule 7 which pertains to grounds for penalty. Its relevant portion runs as under:‑
"Where a Government servant, in the opinion of the appointing authority or the designated authority:
(1) is inefficient...
(2) is guilty of misconduct; or
(3) is corrupt, or may reasonably be considered corrupt... the appointing authority may impose on him one or more major penalties, or the designated authority may impose on him one or more of the minor penalties."
Major penalties are given under Rule 8 (d to h) and include dismissal from service.
The procedure for disciplinary action in the case of inefficiency and misconduct is contained in Rule 9. Its pertinence is reflected from protested applicability.
It runs as under:
"Where a Government servant is to be proceeded against under clauses (1), (2) or (3) of Rule 7, the procedure in the following sub‑rules shall be observed."
2. Investigation:
(a) The designated authority may, if it thinks fit, appoint another officer serving in the office or department of the accused, or a Court of Inquiry, to investigate to call for explanation and to report on the allegations against the accused, to enable the designated authority to decide whether a formal charge should be framed against the accused. The Officer Commanding of the establishment in which the accused is serving even if he is not the designated authority, may investigate and call for the explanation or order another officer to do it.
(b) The designated authority, after the aforesaid investigation or without such investigation, shall decide whether a formal charge‑sheet be framed against the accused, and whether, the charge, if proved, would call for a minor penalty or a major penalty.
In the present case major penalty being awarded further procedure prescribed by sub‑rule 4 has also to be examined:
(a) In cases calling for a major penalty the designated authority shall call for an explanation and frame a charge and communicate it after obtaining the approval of the appointing authority to the accused together with a statement of the allegations on which it is based.
(b) The designated authority shall require the accused, within a reasonable time, which shall not be less than seven days, from the date the charge has been communicated to him to put in a written defence, stating, at the same time whether he desires to be heard in person.
(c) If the accused so desire, or if the designated authority with the approval of the appointing authority so directs, an Inquiry Officer to be appointed under Rule 11 shall hold an oral inquiry at which oral evidence shall be heard as to such of the allegations as are not admitted, and the accused shall be entitled to cross -examine the witnesses against him, to give evidence in person and to have such witnesses called in defence as he may wish, provided that the Inquiry officer may, or reasons to be recorded in writing, refuse to call a particular witness or to summons or admit particular evidence.
(d) ................................................................
(e) When the designated authority, having considered the report, has arrived at a provisional conclusion as to the penalty to be imposed, it shall so inform the accused, and supply him with a copy of the report, and call upon him to show cause within a reasonable time, which shall not be less than seven days nor more than fourteen days, why the penalty proposed should not be imposed. The designated authority shall complete the case and submit it to the appointing authority for orders. The latter shall take into consideration any cause shown by the accused before passing orders.
Explanation to the sub‑rule is extremely relevant because of an objection that designated authority was deprived of its rights to exercise its mind independently. Explanation squarely meets the objections. Explanation:
"Notwithstanding the delegation, the appointing authority may, whenever deemed necessary, itself exercise the powers conferred on the designated authority under sub‑rules (2), (3) and (4) of this Rule and under Rule 11."
Explanation clearly reflects that delegation does not terminate, it only suspends powers of the delegating authority which can resume it at will.
Sub‑rule(5):
for each default or shortcoming there will be a separate charge under sub‑rules (3) and (4). Each charge will be written and specified and will state clearly the nature, time, occasion, place, person, amount, etc., concerning the fault or shortcoming."
The only other relevant rule is No.6 which debars representation by another.
Rule No.11 was also referred, to stress and highlight certain limitations imposed on the inquiry Officer; his qualifications of seniority to the accused, and approval of his nomination by the authority. Its sub‑rule 4 was relied upon to discover necessity of timely submission of report and imperative nature of requirements envisaging a recommendation of penalty. The said sub‑rule runs as under:‑
"The Inquiry Officer shall, within ten days of the conclusion of the proceedings, or such longer period as may be allowed by the designated authority, submit his findings with grounds thereof, and recommendation for penalty, if any, to the designated authority, who on receipt o the report shall take further action as laid down in Rule 9(4)(e)."
These were the relevant rules which have attracted attention of the appellant's counsel in his lengthy arguments assailing their proper application. The 1st technical point raised by the learned counsel was that a named accused was sine qua non of such investigation under Rule 9. When there is none, no proceeding could be started under Rule 9(2), essentially so when its applicability is confined to employees only. As no civil servant was involved at the stage, no order could be passed under Rule 9 or for that matter under the said rules of 1961, nor could any explanation of the accused /appellant obtained.
A lot of breath and much more time could have been saved if counsel for the parties had developed their arguments on circumstances obtaining in the case. The letter of appointment of Mr. C.M. Sharif as Investigating Officer would have disabused them from presumptions, forming basis of their contentions. The letter P.O.F. Board (OF‑1/B), dated 13th May, 1969 clearly conforms to the requirement of Rule 9(2)(a). Its relevant portion lucidly mentions presence of irregularities/lapses pertaining to Civil Engineering Project of P.O.F., Dacca and Chairman s decision to conduct a preliminary Inquiry in terms of Rule 9(2)(a) of Civilian Employees in Defence Services (Classification, Control and Appeal) Rules, 1961. The Inquiry Officer was authorised to interrogate, call for explanation of various officers upto the rank of Superintendent below directly to Mr. Zahur‑ul‑Islam, Project Director and even if latter's explanation was required, to do so through the Chairman. He was directed to complete Inquiry within two weeks and to specify definite charges against Mr. A.R. Alvi and any other officers who were involved. This. alleged grievance addressed against imagined default of not naming an accused, does not stand to the light of the aforementioned appointment letter. Investigation could be ordered under Rule 9(2)(a) ibid when Mr. A.R. Alvi and others were in view, and there was suspected misconduct on their part. Their explanation could be obtained too as directed. The only objection, of accused not being indicated, falls through. It is ephemeral in nature, and melted away on close scrutiny.
A light hearted objection as to the authority of Chairman to appoint an Investigating Officer was also pressed into service, but even cursory reading of rules, will show its inefficacy. Besides, investigation is not mandatory. Its insufficiency or irregularity will not detract from effectuality of the formal inquiry.
Simultaneous framing of charge, calling of explanation and appointment of Inquiry Officer, has been similarly subjected to adverse comment, calling for. an inference as to non‑application of mind. According to learned counsel it reflects pre‑judging of issue by the Officer concerned. The sequence of rules; it was insisted; entailed an explanation in answer to charge, and appointment of Inquiry Officer, if necessary, after due consideration of the explanation. The learned counsel for the respondents on the other and is of the view that casualness of these events was only to save time of the competent authority. Argument ostensively unconvincing has some merit. In the present case explanation of the appellant /accused had already been obtained by Mr. C.M. Sharif whose Inquiry/investigation report was also before the competent authority. In these circumstances appointment of Mr. Shafi an Inquiry Officer was not pre‑mature. It had resulted from necessity envisaged by investigation report drawn after full consideration of earlier explanation. Second explanation was only to complete the formality enjoined by rules of formal inquiry. No extenuating circumstance could be pleaded to do away with necessity of any enquiry. In the peculiar circumstances, therefore, no prejudice could be caused by mere agreement of President to appointment Mr. Shafi as Inquiry Officer who was inducted into the job only after the explanation was considered. In this respect relevant dates of charge, explanation and starting of the inquiry by Mr. Shafi will surely determine merits/demerits of the; charge of pre‑judging. First explanation called by Mr. C.M. Sharif (Annexure 'Q' is dated 30th May, 1969. Additional explanation Exh.'Q/1' is dated 6th June, 1969. The explanation was submitted on 2nd July, 1969 EXh.'R'. Charge‑sheet was given on 30th February, 1970 which was accompanied by statement of allegations. Explanation to the charges was submitted on 18th March, 1970 Annexure 'T'. The 1st step taken by Inquiry Officer in the proceedings is dated 24th April, 1970. Sufficient time separated formal submission of explanation and the first step taken by the Inquiry Officer to negate the allegation of casualness. If the competent authority was satisfied with the formal explanation, it could have withdrawn the order of Inquiry, leaving the Inquiry Officer with no commission. The order of appointment would have automatically ceased to be operative, clearly indicating fallacy of the asserted condemnation before determination. In the context resort to time saving device, pleaded by the respondents' counsel would be unexceptionable, when no prejudice was caused to the accused.
That a Deputy Secretary initiated the Inquiry is equally devoid of force. We have had recourse to the original files. It bears detailed notes by Secretary of the Division leading to President's orders. Whosoever signed the communication will not affect validity of the orders, when rules of business do disclose and authorise such a practice. An attempt was made to diversify the objection, by bringing in later compilation of record with an end in view, but President Yahya Khan's signatures could not be obtained now, and even the Secretary being a new incumbent, the objection is unwarranted and probe in the dark or fishing for non‑existing failures. Official actions are deemed to be taken in due course. Nothing being proved contrary to the presumption, authenticity of the record cannot be doubted. The unrebutted presumption also affords complete answer, to the similar unfounded assertion, directed against letter of appointment of Mr. Sharif as Investigating Officer.
Delayed submission of report also rhymes with foregoing objections and may be dealt with here. Precise objection is that report was to be submitted within ten days of conclusion of the proceedings yet six months separate the two events. It being against imperative provisions of rule 11, no punishment could be awarded on such belated conclusions. The learned counsel has made a fetish of the mandatory provision, under‑playing the relaxation contemplated by the succeeding clause. A longer period could be allowed by the designated authority. Record not being available we are not aware if timely permission was obtained, yet acceptance of the Inquiry report clearly vindicates stand‑point of the respondents' counsel that tacit permission could be implied. Besides, time limit prescribed for submission of report establishes a right to demand, but does not fetter discretion of the designated authority. Corresponding right is nowhere contemplated entitling early disposal at the behest of the accused, considered so because time consumed depends upon the nature of Inquiry and attending circumstances, which the designated authority alone can take into consideration for condoning delay or granting extension. No harm has been done by inordinate delay, even if so termed, when the authority ignored delay to accept the report. Late submission of report does not weigh against its authenticity nor would justify an adverse inference.
The last point is want of recommendations as to penalty. It will again justify reference to the relevant rule which requires a report within ten days of conclusion of the proceedings including findings with the grounds thereof and recommendation for penalty, if any. The comma in the rule occurring after recommendation for penalty, makes it a single phrase and use of words if any thereafter, clearly govern the entire recommendation inclusive of penalty. It leaves the choice open. It is left to the Inquiry Officer to make a recommendation for penalty, but if he does not choose to do so, the report will not become inoperative. The interpretation seems to be correct because recommendation is not binding in nature. Competent authority may or may not accept it. That is why it has not been made obligatory in the rule itself. This being the position of rules, the argument of the learned counsel was much about nothing. It is, therefore, rejected.
Insufficiency of 14 days to prepare defence is challenge to provision of the rule itself prescribing minimum as well as maximum time limit. The maximum being allowed, grievance militating against the statutory prescription cannot be countenanced, when it does not negate or counter any other established right.
Three points raised are mixed questions of law and fact. They include vagueness of the charge; enmity of Messrs C.M. Sharif and Alvi with Mr. Zahur‑ul‑Islam and appointment of Lt.‑Col. A.A. Farooqi with Mr. C.M. Sharif as departmental representatives /advisors. A reference to the charge will take wind out of the sails of first contention. Requirement that for each default and shortcoming, there shall be a separate charge has been observed to its very letter. The charge read "while employed as Assistant Works Manager in P.O.F. Joydebpur, Dacca, he signed payments documents and certificates for materials necessary to authorised security advance which led to over‑payment of Rs.76,426." The statement of allegations further elucidates procedure and the shortages of material on which advance was secured. The appellant assumed charge a month earlier and had only two contracts Nos. 9 and 11 under his supervision. The contractors are named payment documents RAR No.26 and Hand Receipt No.71 are also disclosed in the statement of allegation. Consequently no misunderstanding was created by conciseness of the charge. The commission and omission led to over‑payment of specific amount details whereof appear in the statement of allegations. The objection, therefore, is not well taken to require serious consideration.
Allegations of ill‑will against Messrs C.M. Sharif, A.R. Alvi and Zahur‑ul‑Islam do not materially affect the Inquiry proceedings. Mr. Sharif held only an informal Inquiry which is not a must under the rules. It was in the nature of preliminary probe to determine any irregularities in works executed or under execution and to pin‑point persons responsible for final arrangement after explanation of Mr. Alvi and others. Similarly, Mr. Alvi being co‑accused alongwith Mr. Zahurul Islam, did not prejudice the cause. Formal Inquiry was actually conducted by an independent official namely Mr. Shafi, from a different department altogether. He had no private axe to grind nor was he amenable to departmental pressure. Thus an independent Inquiry conducted by Mr. Shafi cannot be presumed to suffer from bias.
Other point that Mr. Lt.‑Col. A.A. Farooqi and Mr. C.M. Sharif were over‑lords of the Inquiry Officer or were appointed advisors without consultation and without taking into consideration the animosity of Mr. Sharif, is jaundiced appreciation of the development. Technically there was only one Inquiry Officer. Department could choose to be represented by one or dozen persons without any say so from an accused. The capacity of these two persons, therefore, as departmental representatives would not be exceptionable nor would it derogate from true worth of the Inquiry. As already pointed out Mr. Shafi did not belong to Engineering Department of the P.O.F. and would not be influenced or over‑awed by presence of senior departmental representatives whose technical knowledge he could share if needed. Nothing is proved or said against him personally to require an adverse finding. The points were frivolously raised. No misjudgment or misapprehension being caused, they are decided against the appellant.
Conclusions with respect to nature of appointment of Lt.‑Col. A.A. Farooqi are even supported by the official file No. 9/8/D‑8(B)/70, wherein on page 27, following noting appears at No.86:
"I have anticipated the difficulties which would be encountered by this Inquiry Officer and had requested for a technical officer to be entrusted with this enquiry. The difficulties mentioned by Mr. Shaft in the preceding paragraphs are extremely genuine. I would, therefore, strongly recommend that E‑in‑C may be requested to make available the services of a suitable Engineer Officer to serve as technical advisor to the Enquiry Officer."
Challenge is not to the appointment itself. Technical Advisor has to be made available and there is nothing against it in law. Exception claimed, is from the departmental approach imparted, by the appointment of a senior officer, whose lowering rank sufficiently proved the damage that could have been caused. A good phantasy but the argument ignores, disinterested character of Mr. A.A. Farooqi who was not from P. 0. F. and as such not influenced from departmental rivalries and prejudices. Besides, even the inquiry officer was sufficiently senior not to be overawed. The spell breaks when we note that he was from a third department altogether. Antagonism of Lt.‑Col. A.A. Farooqi and Mr. Shafi or any pre‑existing prejudices are matters of fact and need proof as such. There being no indication of any bias, the argument turns against the appellant.
On behalf of the defence, it was urged that appeal was barred by three days in view of section 6 of the Service Tribunals Act of 1973. The provision referred to prescribes ninety days from the establishment of an appropriate Tribunal as limitation for abated appeal. The learned counsel for the appellant contends that as one of the Members joined in the month of March, the Tribunal could not stand established on 22nd February,"1974 to justify argument of respondents' counsel. In this respect, we have to refer to the wording of section 6 of the Service Tribunals Act, 1973. Its proviso, relevant to the point involved, runs as under:‑
"Provided that any party to such a suit, appeal or application may, within ninety days of the establishment of the appropriate Tribunal prefer an appeal to it."
Establishment referred to in the proviso is engendered by S.R.O.243(1)/74. It establishes the Tribunal contemplated by sections 3 and 6 of the Service Tribunals Act of 1973.
"In exercise of the powers conferred by section 3 of the Service Tribunals Act, 1973, President is pleased to establish a Service Tribunal consisting of xx xx."
Thus, the word "establish" used in sections 3 and 6 of the Service Tribunals Act, 1973 refers to date of Notification. Section 3 makes it clear by laying down that President, may by Notification in the official Gazette, establish one or more Tribunals. Establishment thus, means the technical notification made by the President under section 3 and is not dependent on date of report of any Particular member. The Tribunal stood established as per statutory rules or orders referred to above, on 22nd February, 1974 and from that date the appeal is barred by limitation of three days.
All the same another question which has not been adverted to either by the appellant or respondent's counsel may have effect on the time lag. It is admitted that when Service Tribunals Ordinance, 1973 was enforced on 15th August, 1973, writ petition of the appellant was pending before a High Court. Section 6 of the Ordinance enforces statutory abatements from the date of passing of the Ordinance. Al1 the appeals etc. would, thus, stand abated on the date of enforcement of the Ordinance on 15th August, 1973. Succeeding Act LXX of 1973, passed on 29th September, 1973, re‑enacted identical provision, without reviving the abated appeals, referring or modifying earlier clause of abatement or to postpone the date to 29th September, 1973. The position that thus, emerges is that no appeals were pending on 29th September, 1973 to attract provisions of section 6 of the Act No.LXX of 1973, while Ordinance being repealed by section 9 of the Act, future fate of Service Tribunal Appeals will be tagged to section 4 of the Act, which enlarges the time sufficiently to deprive the argument of its sting.
Anyway, whatever, the final interpretation as to provision of law, applicable, sufficient complications existed, to cloud the issue. No clear finding on this point is available even today. Writ petitions pending, remained so till August, 1974 blurring the picture altogether. In this context of doubt and uncertainty, section 5 of the Limitation Act would be attracted for ignoring or condoning petty delay of three days.
That certificate endorsed by him on 7th December, 1961 was incorrect, is admitted. Explanation of pursuation by the S.E/Civil, does not make up for its non‑genuineness. He had certified physical presence of stores though not available at site. Pursuation, pressures, prayer or promises of the contractor, will not mitigate the failure nor induce us to ignore persistent plea of guilty when reaffirmation is found on page 61, about 20% shortage. On the same page defective work during his tenure was also admitted. He wanted to wriggle out of it in answer to another question by stating that it came to his notice after payment of Hand Receipt, pin‑pointing yet another of his inadvertent or wilful oversight.
It is also evident from the observations of the Inquiry Officer that construction account was not maintained properly, that it being in same ink and hand was prepared at one and the same sitting. Consequently, we do not have to go into the detailed account of what was and was not available and whether the loss was made up by the contractor or not. The charge being of overpayment and the same being admitted, findings of the Inquiry Officer based thereon could not be said to be unjustified. Any reasonable man or rather every man would have accepted face value of the statement, to hold the appellant guilty of inefficiency which led to overpayment. Other motives could also be read into certification of Hand Receipt and none of them helpful to the appellant's cause. The Inquiry Officer rightly held him guilty. r The finding is upheld.
It is averred that despite evident proof of guilt, punishment is too excessive. We are not inclined to agree because overpayment may not be caused by inefficiency alone, other patent motives cannot be lost sight of. His earlier unruly conduct antagonising all and sundry also constrains us to abstain from interference.
When major penalty of dismissal is upheld, there is no need to opine on validity of objections against Annual Reports but denied increment, does not fall in the same category. Stoppage of increment could not be without inquiry or order and as there is none, arrears due for earned increments, till dismissal should be worked out and paid to the appellant. As appellant has partly succeeded, there is no order as to costs.
A.A./323/Lb/S
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