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Appeal No. 66(L) of 1983, heard on 29th January, 1986.

‑‑‑S. 4‑‑Civil Servants Act (LXXI of 1973), S. 4‑‑Appeal against compulsory retirement‑‑Departmental inquiry‑‑Inquiry Officer basing his conclusions on evidence of Court witness‑‑Evidence of Court witness not factual but presumptive‑‑Effect‑‑Evidence of a witness based on his personal assumptions and assertions, held, would fail to prove points at issue.

‑‑‑S. 4‑‑Civil Servants Act (LXXI of 1973), S. 4‑‑Compulsory retirement‑‑Charge of misconduct against civil servant‑‑Extent of loss supposed to have been sustained by establishment by act of civil servant not given out‑‑'Measurement books' maintained by establishment and demanded by Service Tribunal not produced‑‑Establishment, held, failed to provide satisfactory answers to quarries sought out by Tribunal‑ Information supplied to Tribunal about responsibility of civil servant remained vague and non‑committal‑‑Establishment failed to prove case against civil servant by cogent evidence‑‑Evidence of Court‑witness alone which was based on his personal assumptions and assertions could not prove misconduct against such civil servant‑‑Service Tribunal setting aside compulsory retirement of civil servant which was based on unproved facts and doubtful evidence and re‑instating him with back benefits.

Nisar Qutab for Appellant.

Syed Iftikhar Ahmad for Respondent No. 1.

Dates of hearing: 28^th and 29th January, 1986.

‑‑The appellant Syed Murtaza Shah, Ex‑Chief Engineer, WAPDA has come in appeal against his compulsory retirement vide impugned order No. C/AD(E‑IA)/1(590) Admn/1319‑30, dated 23rd/24th October, 1982.

2. The facts of the case which led the appellant to come in appeal before this Tribunal are that in December, 1977, the appellant as Chief Engineer (Water) WAPDA, Faisalabad was also holding the additional charge of the post of Project Director SCARP Construction Circle. Faisalabad. The incumbent Mr. Khurshid Ahmed had gone out of the country for performance of Haj. During this period, the appellant sanctioned an estimate under the caption 'The remaining works of Budhi Nala Outfall Drain' on 1‑12‑1977. At the same time the appellant allowed the work to be put to tender. Sanctioning of the estimate and permission to put the work to tender, was done on the same date at Lahore i.e. 1‑12‑1977.

3. 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 14‑1‑1980. The extracts of the charge‑‑sheet issued to the appellant on 14‑1‑1980 duly sanctioned by the competent authority are given below:‑

"That you, while posted as Chief Engineer (Water), Faisalabad and holding the additional charge of the post of Project Director, SCARPS Construction Circle, Faisalabad, committed the following irregularities by sanctioning an estimate and approving the tenders therefor in December, 1977 for the work of 'Remaining Works on Budhi Nalla Outfall Drain' which primarily comprised of two major items i.e. 'Compaction of Embankment' and Dressing of Spoil':‑

(i) The Senior Engineer, Drainage Division, Mandi Bahauddin, vide his letter No. 1804/21‑W, dated 1‑12‑1977 (apparently issued from Mandi Bahauddin) sought your approval 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. You on the same date, while camping at Lahore, vide your letter No. Camp‑Lahore/1, dated 1‑12‑1977 conveyed your approval to the proposal of the Senior Engineer and directed him to invite tenders. It is strange enough to note that approval of the estimate of the said work was accorded by you on the same date i.e. 1‑12‑1977 vide your sanction memo. No. SCC(51 -WiiB12759‑A, dated 1‑12‑1977, apparently issued from Faisalabad and impracticable meaning thereby that the intention was somehow to complete the preplanned paper work.

(2) Site surveys were not carried out before commencement of work. This means you sanctioned an estimate which was not based on the requisite basic data.

(3) In the estimate you sanctioned the item of 'Compaction of Embankment' at a very high unit rate of Rs.211 per 1,000 cft. of earthwork which was neither covered by the schedule of rates in vague nor approved by the Authority. Likewise in the estimate you sanctioned the item of spoil dressing of earthwork at a very high unit rate of Rs.52 per 1,000 cft. which was not based on the schedule of rates in vogue. In pursuance thereof a content of 50,66,250 cft. and 59,51,376 cft. earthwork which had originally been excavated by M. C. P. about four years earlier were paid by your Project Director to the Contractor.

(4) There was no justification for execution of the said work because:

(a) In a similar case of compaction of embankment and upon a request from your Project Director, SCARPS Construction Circle, Faisalabad for the sanction of unit rate of compaction in March, 1977 you decided as under:‑

"It was agreed by M.C.P. that dressing of spoil will be carried out by Bulldozers and weight of bulldozers will provide adequate compactions. It was, therefore, agreed that no separate payment for compaction has to be made.

(b) The earth had been excavated and placed in position four years earlier by M. C . P. and the drain in this period remained operational.

(c) The embankment had been in continuous use for a long period of four years.

(d) According to the specifications of compaction of embankment it is not desirable and possible to compact the earth in view of (b) and (c) above.

(5) Spoil dressing of earth work to the tune of 59,51,376 cft. originally excavated four years earlier by M . C . P. was sanctioned by you for payment to a private contractor not M.C.P. on the unit rate approved by the Authority for M.C.P.. This work was not necessary at all."

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&: Directorate, WAPDA, Lahore as members, was constituted to hold departmental enquiry. However, the findings of the departmental enquiry which finally resulted in the acquittal of the appellant and other accuse officers was not accepted by the Chairman, WAPDA. The conclusion o this enquiry report is given below:‑

"F. Conclusion

(1) The Committee is of the view that as the enquiry has bees 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 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 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 25^th February, 1982. This was the joint enquiry report which resulted in the findings of the Court as follows:

In summary, therefore, the findings in seriatum are as undgr:‑

Charge No. (1) Stands proved.

Charge No. (2) Stands proved

but with benefit of doubt.

Charge No. (3) (a) Stands proved.

(b) Not proved.

(c) Stands proved.

(d) Stands proved.

(e) Stands proved.

(f) Stands proved.

(g) Not proved.

Charge No. (4) (a) Stands proved.

(b) Stands proved."

4. The learned counsel for the appellant argued that the following moot points which were basic to the charge‑sheet needed clarification:

(a) Whether it was at all feasible to prepare the said estimates and obtain sanction in one single day i.e. on 1‑12‑1977

(b) Whether the estimate should have been prepared on the schedule list of 1974 (Earthwork, Excavation and Embankment) issued by WAPDA or as per already sanctioned rates for M.C.P. should have been accepted as the base line particularly when the remaining work was being done at the risk and cost of the M.C.P.

(c) Whether there was any justification at all for the excavation of the remaining works of Budhi Nala Outfall Drain

5. The learned counsel for the appellant submitted his arguments at length regarding the above points. It was contended that on 5‑i1‑1970 a contract based on the detailed study conducted by Messrs Tipton and Kalmbach, Consultants, No. 2‑225 was signed between the Project Director (SCARPS) Construction Circle, Faisalabad and Messrs M.P:O. The contract provided for the following works:‑

(a) Excavation of Drain.

(b) Compaction of Embankment.

(c) Dressing of Spoil.

(d) Construction of Dowel.

The detailed study of the works included all necessary technical data, maps, sketches, etc. based on the study provided by the said firm. The M.C.P., however, did not complete the work till November, 1977. Out of the four items mentioned above, only excavation had been carried out to the tune of 30.323563 M. cft. and paid for accordingly. Similarly they were paid for a quantity of 4.838406 M. cft. of Dressing of Spoil.

6. In early October, 1977 the M.C.P. confirmed in writing that the remaining works may be carried out at their risk and cost because the firm was not in a position to complete the work as envisaged in the contract vide their letter No. M.C.P./Chaj/M‑5/1973, dated 14‑11‑1977. The extract of the said letter is given below:‑

"Sub: Remaining work of Spoil Dressing and Service Road Filling of Budhi Nala Outfall Drain.

Ref: Your letter No. 1176/21‑W, dated 4‑10‑1977.

Kindly refer to your letter quoted above read in context with your previous correspondence on the subject. It is suggested that the work performed by M.C.P.L. as yet may please be verified for payment and the remaining work may please be got done at your end at the risk and cost of M.C.P. as we are not in a position to finalise the said work on the subject drain.

(Sd.) Waheed Qazi

Project Engineer M.C.P."

It was argued that on the basis of this request by the M.P.C., it was decided that the remaining works be got completed at the earliest so that the drain could be handed over to the Irrigation Department as they were pressing hard. Therefore, to presume that from the time the letter was received till the sanctioning of the estimate i.e. on 1‑12‑1977, this time was not available to prepare the necessary data for the estimate does not stand to reason. It was further brought out that the estimate of the work is a simple document involving only three items namely; Dressing of Spoil, Compaction of Embankment and De‑silting of Nala. With the data available through survey already carried out, it will not take more than a few hours to make an estimate, have it checked and be ready for sanction. There definitely was an element of hurry in the matter, but it cannot be presumed humanly impossible to prepare a letter and go to Lahore with draft letters already made for the signatures of the Chief Engineer. Moreover, all the persons involved in the preparation of the estimates were already in the know of the entire case and they were working in the same Division which was holding the charge of the drain construction for a considerable period.

7. It was further contended that in the case of works to be completed at the risk and cost of the firm, it is generally required that these works should be completed without further delay. In such cases it is normal that the basic data is already available and the works is required to be done as to ascertain the extent of the remaining work. In this case when the Senior Engineer, Drainage Division, Mandi Bahauddin was already holding charge of the said works and had the relevant data available in the record, it could be safely presumed that the connected staff who had to prepare the said estimate were in picture about most of the requirements. It is a pity that in this case the Sub‑Engineer who is supposed to have carried out the necessary survey and provided the sketches for the remaining works is no more in service and could not be contacted. Therefore, in the absence of a reliable witness, the conclusion regarding the completion or otherwise of fresh survey cannot be reliable either. One has to, therefore, remain satisfied on the assumption which may go to make the case either way.

8. As to the fact whether the WAPDA schedule for 1974 should have been taken as the only ready‑reckoner for preparing the estimate, one is left to assume once again whether the rates of 1974 given in the said schedule or the one to be accepted as a result of tendering with an inflation formula are to be applied to make the estimate look more reasonable and realistic after as many years. It is an admitted fact that the rates of inflation in the earlier seventies due to reasons like the de‑valuation of Pakistan currency and also the phenomenal rise in the oil prices could not be ignored. Since WAPDA has itself allowed inflation rate of 19% to the schedule rate of 1974 cft., the application of this percentage would bring the desired result close to the rates given in the estimate. The extract of the WAPDA letter on the subject is given below:‑

"This is to certify after verifying the records of the office, that the contract for 'making of service road dressing of spoil and construction of ditch and dowel on Pandowal Drain' as the remaining works left over by M.C.P. (Previously M.P.O.) was awarded to Messrs Ali Construction Company during 1975 who were the lowest bidders and their contracted rates were 19% above the schedule of rates (1974)."

In fact all that one has to do was to accept the contract rates of M‑C.P. as a base‑line in cases where the work was to be completed at the risk and cost of the firm. In this case the tendered rates incidentally are the same as that of the M. C.P. rates. WAPDA is not placed at any disadvantage. No additional payments were made. It, however, could be objected in case the tendered rates were higher than the contract rates. M.C.P. has not objected to the payment in this case because it was their rates which were accepted finally.

9. 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 circumstances must remain neutral beyond any shadow of doubt. In this case, it looks apparently otherwise even to a layman.

10. As a matter of record, it was contended by learned counsel for the appellant that the Chairman of the 'one‑man' Committee Mr. Qazi Khan, Chief Engineer has chequered reputation while enquiring in similar cases. 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

11. 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.

12. In the case of the main court‑witness Ch. Muhammad Sharif, Chief Engineer (Water), Faisalabad, it was proved on more than one occasion by referring to his statement while answering the questions put to him by the appellant that he relied more on assumptions and conjectures rather than on actual facts as regards the working procedure under WAPDA. The answers given by this court‑witness regarding the availability of the measurement books and the entries made therein were based purely on theoretical knowledge. The respondent‑Department, when asked, failed to produce even one 'measurement book which was maintained as given out by the court‑witness. The relevant record of the said Drain was taken over by the court‑witness himself according to his own statement but did not contain the measurement books which are the most important part of the record. No list of documents taken over by him was produced to prove whether the 'measurement books' were at all taken over or were missing at the time of seizer of record by the court‑witness. This fact was left in a very loose form for anyone to make any conclusion that suited either party.

13. Finally, it was brought out 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. TJ1e Department concerned took over the works according to the terms and conditions prescribed in the contract without raising an eye‑brow. 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 workers 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 Muhammad, 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. The following are the main questions which arise as a result of the analysis of the evidence:

(i) M.C.P. was a large organization which had enough resources at its disposal to carry out the task of compaction of embankment of the drain but still preferred to abandon the job. If this task could be completed with a lesser effort as generally presumed by WAPDA why M.C.P. did not do it themselves

(ii) Although the rates of contract approved by WAPDA in favour of M.C.P. were 'preferential' still M.C.P. was not prepared to complete the remaining works of the Budhi Nallah Outfall Drain. Why was it so

(iii) The rates approved in favour of M.C.P. related to a time at least 3 to 5 years in the past. These very rates when accepted by the new Contractor, who later completed the remaining job of Budhi Nallah Outfall Drain, were disputed in spite of high inflation index during that period. How for is that fair

(iv) If the method of site measurement and preparation of invoice was challenged by the court‑witness i.e. in brief the method of cross‑section measurement vs. the measurement‑to be worked out with the formula of length x breadth x depth', then why the exact differences were not worked out and given out by the Enquiry Committee or court‑witness so that one could have a clear picture as to the loss sustained by WAPDA in this case

(v) Since this enquiry was conducted after a considerable period after the completion of the remaining work, why some other witness; for example, the important members of the public in the area and also the Senior Engineers of the M. C . P. were not examined.

15. In our considered opinion, the respondent‑Department was not able to provide satisfactory answers to the above questions. In fact they failed to make out the case in view of the non‑availability of the information sought out in answer to the above questions. Some of the answers given to the questions put to the respondent‑Department remained just vague and non‑committal. For example, it was never made clear as to why M.C.P. had to leave the remaining job at Budhi Nallah Outfall Drain incomplete Was it uneconomical or otherwise The extent of loss supposed to have been sustained by WAPDA was never given out. In view of the very clear statement of the defence witness No. 1 regarding the depositing of spoil being excavated at the designated places, no contradictory evidence was produced to prove it otherwise. At no stage the respondent‑Department was able to produce any documents which should have been maintained according to court‑witness. For example, we asked to produce the 'measurement books' maintained by any Division in WAPDA which were maintained/ filled according to the procedure given out by the court‑witness No. 1 but it was never done.

16. 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' 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.

17. No order as to costs.

A. A. / 353/ Lb/S

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