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Appeal No. 364(L) of 1983, decided on 8th October, 1986.

‑‑‑S. 4‑‑West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978 R.4‑‑Compulsory retirement from service‑‑Inquiry Officer basing his conclusion on evidence of Court- witness‑‑Evidence of such witness based on his personal assumptions and assertions, held, failed to prove charge of misconduct against civil servant‑‑On basis of doubtful evidence and unproven facts, civil servant could not be held responsible and punished‑‑Setting aside compulsory retirement of civil servant, Service Tribunal ordered his re‑instatement in service.

Nisar Qutab for. Appellant.

Syed Iftikhar Ahmad Shah for Respondents.

Date of hearing: 1st July, 1986.

‑‑The appellant, Mr. Munir Ahmad, Ex‑Senior Engineer, Drainage Division Wapda, SCARP Construction Circle, Mandi Bahauddin has come in appeal against his compulsory retirement vide impugned order No.,GM(WC)Co/Enqy./ MBD‑2/6619‑24, dated 9th May, 1983.

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

3. The learned counsel for the appellant contended that while serving as Senior Engineer in the Drainage Division, Mandi Bahauddin, the progress of work by 'MCP on the Mangat Drainage System was frequently reviewed by him. The Chief Engineer(W), Faisalabad Region had directed the Project Director and the appellant to get the completion of the remaining works expedited from MCP. However, MCP did not pay much attention towards the completion of the remaining works such as compaction of embankment, dressing of spoil and construction of dowel and ditch. The Chief Engineer (Water), Faisalabad had also issued instructions vide his letter No.7784, dated 29‑8‑1977 to the Project Director regarding deletion of the remaining works of the scope of MCP's contract and get these works completed through Private Contractor as provided for in the conditions of contract.

4. In response to the long‑outstanding correspondence resting with the matter for an early completion of the remaining works, MCP expressed their inability regarding completion of the outstanding remaining work vide their letter, dated 14‑11‑1977. The Chief Engineer (Water), Faisalabad Region designed as "Engineer" under the contract was apprised of the whole situation immediately in detail and the Chef Engineer directed the appellant verbally to go ahead to get the remaining works completed immediately so that the said Drain could be handed over to the Provincial Irrigation Department by 30‑6‑1978. This was considered essential in order to avoid any further delay in completion of the remaining works and any further accumulation of interest and overhead on the capital cost of the Project till the Drain was handed over to the Operating Agency. During the last week of November, 1977 the appellant informed the Chief Engineer (Water), Faisalabad telephonically that the estimate for the remaining works were prepared and ready for necessary approval by the competent authority and further, written confirmation of his verbal orders issued earlier in this respect was also sought. In response, the Chief Engineer informed the appellant that he would be in Lahore on 1‑12‑1977 and the letter with full background be submitted to him by the appellant for written confirmation of his verbal orders issued earlier in respect of the works in question. He was further advised to depute some responsible person to get the estimate checked and sanctioned immediately from the Office of the Project Director S.C.C. Faisalabad so as to put the remaining works to tender and got them completed. As already decided since all necessary arrangements with regard to preparation of the estimate, survey of the site etc. had already been carried out, the appellant detailed Sub‑Engineer of the Division on 30‑11‑1977 evening to take the said estimate to Faisalabad on 1‑12‑1977 to have it checked by Drawing Staff. The appellant personally presented Letter No.1804/21‑W, dated 1‑12‑1977 to the Chief Engineer at his residence at Lahore for necessary approval. As a result, it was contended, it was only the written confirmation of the Chief Engineer's verbal orders issued earlier in this respect.

5. 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 28‑1‑1980. The extracts of the charge‑sheet issued to the appellant on 28‑1‑1980 duly sanctioned by the competent authority are given below:‑

You, Mr. Muneer Ahmad, Senior Engineer, NESPAK, Wapda Consultants for SCARP‑VI, Intl. Hotel, Shahrah‑e‑Quaid‑e‑Azam, Lahore are hereby charged as under:

That while posted as Senior Engineer in Drainage Division Wapda, Mandi Bahauddin, you committed the following severe irregularities in regard to execution of "Remaining works on Budhi Nalla Outfall Drain" and "Desilting of Budhi Nalla Outfall Drain".

(1)Through your Letter No.1804/21‑W, dated 1‑12‑1977 (Apparently issued from Mandi Bahauddin) you sought permission of your Project Director to take up the work of "Remaining Works on Budhi Nalla Outfall Drain" by the department at the risk and cost of MCP indicating that the estimate is under preparation and will be submitted in due course of time. On the same date i.e. 1‑12‑1977 the Project Director while camping at Lahore vide his letter No. Camp‑Lahore/1, dated 1‑12‑1977, conveyed his approval to your proposal and directed you to invite tenders. It is strange enough to note that the Project Director sanctioned the estimate on the same date vide his Sanction Memo No:SCC/51 WiiB/2759‑A, dated 1‑12‑1977 apparently issued from Faisalabad. It is not understood as to how did you manage to get the estimate prepared and submitted to the office of Project Director at Faisalabad and also arranged his approval on one and the same date i.e. 1‑12‑1977. This process appears to be unrealistic and impracticable meaning thereby that the intention was somehow to complete the preplanned paper work.

(2) Through your Letter No.1804/21‑W, dated 1‑12‑1977, apparently issued from Mandi Bahauddin, you also sought approval of your Project Director for invitation to tenders for desilting of Budhi Nalla Outfall Drain. In response the Project Director while camping at Lahore vide his Letter No. Camp‑Lahore/1, dated 1‑12‑1977, conveyed his approval to your proposal and you sanctioned two estimates for disilting of the drain on the same date i.e 1‑12‑1977. This process appears to be unrealistic meaning thereby that the intention was somehow to complete the preplanned paper work. Further, as required by the Project Director in his aforementioned letter, dated 1‑12‑1977 you did not send the tenders for desilting of the drain to him for approval.

(3) You got prepared an estimate "Remaining Works on Budhi Nalla Outfall Drain" and recommended it to your Project Director for its sanction. Two of the major items of the estimate were "compaction of embankment" and "dressing of spoil". L‑Section and X‑Section were not observed and plotted either prior to undertaking the work or after completion thereof. It means you recommended for sanction this estimate knowingly that it was not based on the requisite basic data.

(4) As there was no unit rate for compaction of embankment you wilfully applied and recommended the unit rate approved by the Authority for MCP only for "Excavation Unclassified in Borrow Area". Further, for dressing of spoils instead of adopting schedule rates you wilfully applied and recommended a very high unit rate of Rs.52 per 1,000 cft. which the Authority approved for MCP only.

(5) From the following it appears that "Remaining works on Budhi Nalla Outfall Drain" were not actually and physically carried out at site:

(a) In the estimate you meant the compaction of earth‑work of embankment on both sides of the drain upto the designed water level in the drain. The excavation of the drain was originally carried out by means of Draglines. The excavated earth was spreaded, levelled and dressed by Dozers of MPO/MCP during the period July, 1972 to November, 1974. The excavated earth work, paid to MCP, was considered 2/3 as dry/wet and 1/3 as slush. After a lapse of 4 years it was not necessary to compact the embankment which was in continuous use and had undergone at least four Moosoon durations.

(b) In the same estimate you meant to dress the earth placed as spoil 4 years ago by MCP. It was not necessary at all to dress the earth placed as spoil by MCP by means of Dragline 4 years earlier.

(c) The work involving compaction of 50,66,250 cft. earth‑worlk and dressing of spoil to the tune of 59,51,376 cft. allotted to one contractor on 24‑12‑1977 was completed and paid for within a period of about 50 days only which apparently does not seem feasible.

(d) The record entries were simply the copies of the estimate with very nominal changes, meaning thereby that no measurements had actually been made.

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

(6)(a) You got prepared and sanctioned the following two estimates on one and the same date of two adjoining reaches of Budhi Nalla Outfall Drain.

Desilting of Budhi Nalla Outfall Drain

(a) 0+000 to 9+000 Rs.4,70,140 1‑12‑19777

(b) 9+000 to 18+500 Rs.4,70,600 1‑12‑1977

L‑Section/X‑Section were not observed and plotted either prior to undertaking the work or after completion thereof, meaning thereby that you sanctioned the estimates which were not based on the requisite basic data.

(b) Later on you allotted both of the works to one contractor. By doing so you meant to get the jurisdiction of allotment of works under your control which is against the procedure and rules of the Authority.

(c) You did not send the tenders for the said works to the Project Director for approval as required by him in his letter No. Camp Lahore/1, dated 1‑12‑1977.

(7) From the following it seems that the work of Desilting of Budhi Nalla 0utfall Drain was not physically and actually carried out at site.

(a) These two works involving 40,54,000 cft. earth‑work were also started, completed and paid for to the same contractor within a period of about 50 days as mentioned in 5(c) above, which apparently does not seem feasible.

(b) The method by which record entries of silt contents was arrived at is not correct. The contents of silt should have been = length x breadth x depth. But the record entries were the copies of the estimates with very nominal changes meaning thereby that no measurements had actually been made.

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

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 the WAPDA (E&D) Rules, 1978, applicable to you.

You are, therefore, hereby required to put in your written defence within 14 days of the receipt of his charge sheet stating at the same time whether you desire to be heard in person.

If no reply 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 enclosed."

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 convenor and Mr. M.R. Chaudhry, Chief Engineer (Civil) Power Stations, WAPDA, Lahore and Syed Sibtul Hassan, SP‑I, C&I Directorate, WAPDA, Lahore as members, 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:

(1) The Committee is of the view that as the enquiry has been initiated on the basis of an 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 MCP.

(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 profile of the drain."

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 as follows:‑

"In summary, the position that emerges regarding findings relative to each of the charge, is as under:‑

6. It was contended by the learned counsel for the appellant that a close analysis of the wording of all the charges brings one to conclusion that these charges are basically the same as that of S. Murtaza Shah, v. Wapda (Appeal No.66(L)/1983). In nutshell whereas three more charges have been added in the case of the appellant i.e. charges Nos. 5, 6 and 7 but it does not go to change the main context of the charge‑sheet served on Syed Murtaza Shah. A joint enquiry was conducted by Mr. Kazi Khan, the Inquiry Officer. The statement of witness both the defence and prosecution are the same as in other cases. The line of arguments is also similar. We, therefore, do not intend to repeat the arguments given in the case of Syed Murtaza Shah v. Wadpa. A copy of that judgment (Appeal No. 66(L)/83) shall form an appendix to this order also.

7. In addition, however, it was contended by the learned counsel for the appellant that in the case of Charge No.3, the appellant is alleged to have recommended for sanction the said estimate to knowing that it was not based on the requisite basic data. This charge appears to have been framed on the basis of a report of the Chief Engineer (Water), Faisalabad, (Court Witness No.1 Ch. Muhammad Sharif), dated 6‑11‑1979 who had stated that:

"The field book/level book having the basic data are also not available in the Senior Engineer's Office. X‑Section and L‑Section of the completed work are not traceable as well."

8. The Court witness (Ch. Muhammad Sharif, Chief Engineer, (Water), Faisalabad) in his earlier report, dated 28‑10‑1979 had stated that:

"The relevant measurement books and leveling books have been taken in hand and are under study. Some of the X‑Section available in the Divisional Office at Mandi Bahauddin have also been taken in hand, but still some of the basic data is missing, which is essential for the basis of record measurement."

"The concerned Sub‑Engineer is presently posted at Mangla who has been called to recollect or otherwise the L‑Section/X‑Section if any, prepared at the time of preparation of the estimate and at the time of record measurement. After hearing from the concerned Sub‑Engineer, a detailed report will be submitted at the earliest. "

9. It was urged by the learned counsel for the appellant that it was evident from these letters that the record of the Divisional Office was taken over by the Chief Engineer but no details of the record taken over was provided. However, it would be noted that the quantities of this estimate are very close to the quantities given by Messrs T&K and an estimate, dated 22‑4‑1974; as evident from the comparative statement of two major items of works given below for this system of which Budhi Nala Outfall Drain is a part drain:

10. On the basis of the above‑mentioned facts and figures, it is only true that the estimate prepared, dated 1‑12‑1977 is correct. It also makes evident that an estimate could have been prepared on the basis of available data but the estimate in question was prepared and recommended on the basis of correct and fresh surveyed data.

11. As regards Charge No. 4, it was strongly contended that the unit rate for the item of compaction of embankment at Rs.211/1,000 cft. is not high as compared to the unit rates allowed to various contractors in the Faisalabad Circle/Region for the same items which are given below:‑'

12. It was argued that anyone of the above rates could have been used for the preparation of this estimate in the light of the Authority's Office Order No. F'OI(W)XV(94)2049‑62, dated July 7, 1975 which would have definitely increased the total cost of the work in this estimate. Since the work in question was to be got executed/ completed at the risk and cost of M . C . P. , a lower rate was applied keeping in view the interest of the Authority.

13. It was argued by the learned counsel for the appellant that Charge 6(a) is in fact repetition of Charge 1. It has been proved beyond any shadow of doubt that the work on the preparation of the estimate started with receipt of a letter, dated 4‑10‑1977 from the MCP and not as generally assumed on 1‑12‑1977. The intervening period of approximately two months is more than enough to prepare any estimate where the basic data and other details are both available ,and other necessary details could be worked out as required. It was contended that the splitting .of the whole drain into two parts regarding the work of desilting of drain under reference was resorted to in order to get the said work completed through competition amongst the contractors. However, as a result of bidding by the tenderers, the one and the same contractor was the lowest bidder in this case. After the opening of the tenders, the comparative statement of the bids received were got approved from the competent authority in order to regularise the matter and thus the orders of the Authority in this respect were not violated at all. The tenders alongwith the comparative statement of the works in question were got duly approved from the competent authority in accordance with the instructions contained in the Project Director's letter No. Camp‑Lahore/1 dated 1‑12‑1977. These facts have not been challenged by the respondent‑department.

14. With regard to Charge 7(a) and (b), it was contended that the method of making measurements as stated by Court‑witness No. 1 is incorrect and prohibited by the Chairman, WAPDA vide his Office Order No. C/79/SO(Coord)/1(1106)A/13560‑660, dated 3‑4‑1979. Moreover the method advised by the Court witness 1, is not practicable in the flood drains where the discharge is not constant throughout because of the fact that breadth and depth of silt can never remain constant in any region at all.

15. Finally, it was strongly contended by the learned counsel for the appellant that the work in question was physically done on site within the prescribed period of 50 days. The site was visited and the progress was checked by the appellant and the other officers concerned regularly. The capabilities of the firm which carried out this work are well‑known to WAPDA and no evidence had been brought to the contrary to prove that the work could not have been completed with the known capabilities of the firm.

16. 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 an anonymous letter which was received such a long time after the works were completed or handed over

17. 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, Matidi 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, M. P.O. 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.

18. 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 and 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' inquiry 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.

19. No order as to costs.

A. A. /350/Lb. /S

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