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Petitioner: NOOR MUHAMMAD VS Respondent: CHIEF SECRETARY, GOVERNMENT OF SINDH
2001 P L C (C
2001 P L C (C.S.) 1108
[Sindh Service Tribunal]
Before Abdul Majid Khanzada, Chairman, S. Nasim Haider, Senior Member and Bahauddin Sirhindi, Member
NOOR MUHAMMAD and others
Versus
CHIEF SECRETARY, GOVERNMENT OF SINDH and 2 others
Appeals Nos. 132, 133, 138, 142, 144, 145, 146 and 153 of 1996, decided on 4th June, 1999.
(a) Civil service---
---- Dismissal from service---Reinstatement---Civil servant including principal accused, who was highest ranking officer, were dismissed from service on certain charges of misconduct against them, but said principal high ranking officer was not only reinstated, but was also promoted---Other civil servants had contended that principal accused/high ranking officer having been reinstated, they who were subordinates, were also entitled to the same relief---Contention of other civil servants was repelled because fate of every accused/civil servant was contingent on merits of his own individual case-- Two wrongs could not make one right and an incorrect/illegal order would not become legal---Other civil servants/co-accused could not be reinstated simply because one of the accused, though he was principal accused had been reinstated especially when mala fides in the reinstatement had not beer proved.
1993 SCMR 1440; 1996 PLC (C.S.) 678; 1996 PLC (C.S.) 826; 1996 PLC (C.S.) 857; PLD 1971 SC 376; PLD 1989 SC 89; Yousuf Patel's case PLD 1957 SC (Pak.) 104; PLD 1976 SC 208; 1996 PLC (C.S.) 682; -1996 PLC (C.S.) 832 and 1996 PLC (C.S.) 859 ref.
(b) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973----
----Rr.5, 6 & 7(2)---Sindh Service Tribunals Act (XV of 1974), S.4-- Dismissal from service---Reinstatement---Civil servants were dismissed from service after holding enquiry against them on certain allegations of misconduct---Findings of Enquiry Committee were arbitrary and per functory as well as illegal, because enquiry proceedings were conducted by three persons, but findings were signed by two members only---Enquiry report was based on statement of complainant only which was not corroborated---Statements of civil servants and witnesses from either side were not recorded by Enquiry Committee in accordance with rules and various additions, alterations, and deletions in enquiry report and statements made by civil servants and witnesses, were not signed or even initialled by any of the members of Enquiry Committee---Proceedings of Departmental Enquiry were deemed to be judicial proceedings under provisions of R.7(2) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1974---Entire proceedings of Enquiry Committee on account of said gross blunders/errors or omissions were null and void in the eyes of law and would constitute sufficient grounds to set aside dismissal order passed by the Authorities against civil servants.
M.M. Aqil Awan for Appellants (in Appeals Nos.132, 133, 144 and 146 of 1996).
Manzoor Ali Khan for Appellant (in Appeal No. 138 of 1996).
Abdul Latif Channa for Appellant (in Appeal No. 142 of 1996).
Nooruddin Sarki for Appellant (in Appeals Nos. 145 and 153 of 1996).
S.M. Sayedain Zaidi, A.A.-G., Sindh for Respondents.
Date of hearing: 5th May, 1999.
JUDGMENT
ABDUL MAJID KHANZADA (CHAIRMAN). ---All the learned advocates for the appellants as well as A.A.-G., were unanimously of the opinion that all these appeals, involved the same questions of law/were outcome of the same disciplinary action/complainant was the same and all the appellants were awarded the same penalty of 'Dismissal from service by a common Order bearing No. SOIII (S& GAD) 3-14/94, dated 12-6-1996 by the then Chief Secretary, Sindh and, therefore, all these appeals were heard together and are disposal off by this common judgment. All the Advocates for the appellants named above were quite vocal on the point that Serial No. l viz. Mr. Shaft Muhammad Saund, the then Superintendent Engineer in the impugned original order, who was the highest ranking accused/overall boss of the appellants has not only been reinstated but also promoted because of the subsequent matrimonial alliance with the then Chief Minister, Sindh, whereas the appellants who were Assistant Engineers/Sub-Engineers were made escape goats which amounted to gross discrimination against these low paid employees. They also submitted that equity, fair play and justice demanded that these appellants may also be reinstated in service.
The Tribunal was addressed 1st by Mr. Manzoor Ali Khan, Advocate followed by M/s. Nooruddin Sarki, Abdul Latif Channa and M.M. Aqil Awan, Advocates in order of their seniority in profession.
Mr. Manzoor Ali Khan opened his address with the remarks that it was basically a matter of 'bad luck' that the appellants were posted at relevant time in District Dadu, the home District, of the then Chief Minister, who were perhaps displeased with the appellants on one of his cursory visit to some of the sites, on way to his home town and perhaps because of it, neither the Authorised Officer nor the Authority could, or did exercise their mind judiciously/independently about the alleged facts' or guilt of the appellants or if so, up to what extent? Therefore, the appellants were axed without due diligence. According to him, there were three (3) stero type charges against the appellants who were incharge/associated with some on going works viz:-- .
(i) Sub-Standard construction.
(ii) Making fraudulent bills.
(iii) Consequent financial loss to the (Prov.) Government.
These works pertained to the financial year 1990-91. However, the appellants were charge-sheeted in 1994. In the first instance, Mr. Abdul Bari, Chief Engineer was appointed as Inquiry Officer (1.0.). Thereafter, Mr. Arbab Ali Shah was appointed as Inquiry Officer who according to the information of the appellants 'exonerated' them. Thereafter; an Inquiry Committee was appointed with Mr. Sahib Dino Memon D.G. of Chief Minister's Inspection Team as Head and M/s. M.A. Bart and S. Ghayyur Hussain as Members. One of the Members viz. Mr. Bari retired from service before finalization of the departmental inquiry.
According to him, the Inquiry Committee met for the 1st time on 16-4-1995 in Provincial Building Circle II, Hyderabad where all the accused persons were present. Only two prosecution witnesses were cited namely M/s. Nazar Muhammad Soomro (the formal Complainant) and Abdul Rashid Jatoi XEN. Mr. Jatoi was not examined, Two (2) departmental representatives were also summoned who produced some documents but their statements were not recorded. The Inquiry was adjourned to 21-5-1995 as the defendants denied the charges/allegations. On 7-6-1995, Mr. Bari one of the members of the Inquiry Committee was excluded from the Inquiry by a formal notification due to his retirement from service on 10-5-1995. The said Inquiry Committee, according to him ceased to exist, when one of its, notified members, ceased to hold his office, due to retirement. Neither a new member was nominated to the said Inquiry Committee nor it was notified
that consequent to the retirement of Mr. Bari, the Committee will comprise of only two members. The appellants were issued final show-cause notice on 25-1-1996 which also enclosed a copy of the inquiry report (Annexure G & H). They submitted their reply on 10-2-1996. A so-called joint personal hearing was given to the appellants on 30-5-1996 by the then Chief Secretary who did not hear the appellants separately but only asked if the appellants pleaded guilty denied by them. The original final order was issued to the appellants on 12-6-1996, communicated to them on 19-6-1996, whereunder, by a common order, all the accused persons were dismissed from service including the above said Mr. Shaft Muhammad Saud, the principal accused/later reinstated and promoted. The original order, dated 12-6-1996 is devoid of any reasons/justification. He strongly contended that 4 under section 24(A) of the General Clauses, Act it is mandatory on all authorities to record reasons for their order and a non-speaking order, without any reasoning, is no order. Since, the original final order was passed by the Chief Minister the appellants filed a review petition to him with no orders. Hence this appeal.
Mr. Manzoor Ali Khan argued that the findings of the Inquiry Committee were arbitrary and perfunctory as 'well as illegal because the inquiry proceedings were conducted by 3 persons but findings are signed by two members only. He also contended that inquiry report is based on the B statement of only one person i.e. Mr. Nazar Muhammad Soomro the complainant not corroborated-substantiated by any other witness. The so -called other two prosecution witnesses' evidence was to the extent of production of some record asked by the Committee. He invited our attention to the 1st line of the inquiry report which reads as relying on the evidence of Mr. Nazar Muhammad Soomro. The observations of the 2nd Inquiry Committee Member Mr. Ghayyur (Chief Engineer) below his signature are:--
"Note:
(1) Loss to Government would not have been possible without mixing up of the contractors who have benefited most, as such all involved contractors are recommended to be black fisted in addition to any legal action, the Government may intend to take.
(2) Whenever loss has been recouped, a lenient view may be taken after proper verification by the Building Department."
He, therefore, contended that out of two (2), one inquiry Committee Member did not hold the appellant fully responsible of the charges rather according to him, the contractors were the main culprits but the respondents did not take any action against the concerned contractors nor recovered the alleged losses if any leading to the only presumption that there was no actual financial loss to the Government. He contended that at the most-some work might have been delayed for short releases/non-timely releases. He also contended that the Chief Secretary was not the 'authorised officer', in respect of the appellants and as such all the orders regarding the appointment of the Inquiry Officer (s) and Inquiry Committee lacked legal sanctity/force of law. He argued that the change of Inquiry Officers, 3 times showed 'premeditated intention of the respondents that the appellants had to be 'hanged'. He stated that Mr. Bari, one of the members of so-called Inquiry Committee, had actually retired on 21-5-1995 but the respondents specifically issued a notification for his exclusion on 7-6-1995 which leads to the presumption that he was not inclined to oblige the respondents. According to him there was no 'consentious' participation of Mr. Ghayyur, the statement of only one P.W. viz. Mr. Nazar Muhammad Soomro was recorded whereas the statement of other P.W. cited viz. Mr. Abdul Rashid Jatoi was not recorded. Even the complaint of the complainant was not brought on record by the Inquiry Committee nor provided to the accused/appellants causing serious prejudice/handicap to them in their proper defence. It is, therefore, obvious, accordance to him, that the inquiry proceedings were not conducted, in accordance with the legal provision/requirements, thereof.
As regards the actual charges, he contended that the appellants had followed the same/prescribed procedure, followed by their predecessors in office, who were not made accused or punished. Most of the charges were purely of tech. nature such as the measurement of running work was not as per running bill or the quality of work was not as per prescribed A.B.C. categories the correctness or otherwise whereof, could not be ascertained without a proper site inspection but the Inquiry Committee did not visit any site. The Inquiry, according to him was completed in an office at Hyderabad, whereas the sites of concerned works were situated at Dadu District. He specifically stated that in an earlier inquiry conducted by Mr. Syed Arbab Ali Shah, the Inquiry Officer had actually visited the concerned sites/works thereon, who submitted a positive report, in favour of the appellants to the best of their knowledge and belief specifically so mentioned in the memo. of appeal but not denied by the respondents, in their written statement. Similarly, the appellants have specifically mentioned in the memo. of appeal that Mr. Jatoi, XEN, a prosecution witness had also visited the site, verifies the various facts. He lastly contended that since the respondents have already exonerated/reinstated and even promoted the principal accused it amounted to gross discrimination because of the universal legal maxim of equality before law. He, therefore, strongly pleaded that the appellants were also entitled to be reinstated in service with all service benefits.
M/s. Nooruddin Sarki and Abdul Lateef Channa, then agreed to give the floor to Mr. M.M. Aqil Awan, due to his more experience it service matter.
Mr. M.M. Aqil Awan, opened his arguments with the statement that the charges against the appellants pertain to the years 1989 to 1992. All the concerned relevant sites were in Dadu District: The main charges against the appellants related to contracts executed by the contractors and not by the appellants. There is no denying the fact that execution of works/projects it the supervision of the appellants were the responsibility of the contractor basically. He also stated that as per rules in vogue, there were ample power; under P.W.D. Rules/manuals to the effect that if a contract/project work way not in accordance with the prescribed schedule, it could be got done through anyone else at the risk and cost of the defaulter. The safeguards to Government provided, being:--
(1) Calls deposits (of the contractor)
(2) Performance bond (of the contractor)
(3) Security with Department. The contract awarding authority could exercise either of the options such as forfeiture of Security money or to get the incomplete work/work not according to schedule done through any other contractor at the expenses of the defaulter in contractors. According to him, what is significant is that none of the contractors of these projects were penalized which leads to the only presumption that the executed works were in accordance with the schedules. He also pointed out that when notices (show cause) were issued, all the appellants had already been transferred from their respective posts. Had there been any mission/substandard work, the incoming officer would have reported the matter to the higher ups Normally speaking no one would stick his neck out-for beheading for the fault of others. Since there was no such complaint from the successors of the appellants, it leads to the same conclusion that there were no defects/discrepancies as alleged by the respondents in respect of projects/works under their charges. He argued that under Rule 5(2) of the Sindh Civil Servants (Efficiency and Disciplinary) Rules, 1973, the authorised officer shall decide whether in the light of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. The authorised officer viz. the Chief Secretary initially appointed an Inquiry Officer viz. Mr. M.A. Bari, vide order, dated 5-5-1994, replaced that Inquiry Officer and appointed Mr. Syed Arbab Ali Shah on 4-7-1994 again substituted by Mr. Sahib Dino Memon on 19-12-1994 and finally on 19th February, 1995 appointed as Inquiry Committee comprising of M/s. Sahib Dino Memon D.G. C.M.I.T. (Head), M.A. Bari (C.E.) and S. Ghayyur Hassan Additional Secretary as Members. What is evident is the confusion and non-clearity of mind on part of the authorised officer, if not mala fides, for changes (frequent) on directions from the above. Normally after the retirement of Mr. M.A. Bari, the Inquiry Committee, should have been reconstituted but it was not so done. All these happenings prove only one point that the authorised officer did not apply his own independent mind, judiciously or was not allowed to do so. He pointed out that the Inquiry Committee met for the 1st time on 16-4-1995 and concluded the inquiry on that very day. Is it possible, he posed the question that a departmental inquiry against several appellants could be completed within a few hours and that too without any site inspection of the concerned sites located in Dadu?
He, therefore, contended that the so-called Departmental Inquiry was a hoax and an eye wash. He argued that since the Inquiry Committee had concluded the Inquiry on 16-4-1995, its report should have been drafted and signed by all the three persons i.e. its Head and 2 Members which was not done which only shows that there was no consensus of opinion between the three. This presumption is magnified, according to him, because Mr. M.A. Bari, retired on 10-5-1995 but on 7-6-1995, he was specifically excluded from signing of the report leading to the only conclusion that he did not subscribe to the view/findings of the other two, because nothing has been shown in evidence as to what prevented him from drafting/signing the report from 16-4-1995 to 10-5-1995. He pointed out that under Rule 6(5) of the said Efficiency and Disciplinary Rules, the Inquiry Officer or Committee is duty bound to submit the inquiry report within 10 days (of such appointment). If not possible, for any reason whatsoever, authorised officer may be requested and his orders obtained, for extension of time (for submission of the report) -not done in the instant case.
He also stated, that charges against the appellants were of such nature where the evidence of incoming officer was necessary who should have been examined/cross-examined to verify the authenticity of the allegation-not done.
He also argued that all the buildings in questions are 'public buildings' such as hospitals, schools etc. and open to public inspections. However, the respondents have
failed to produce any complaint of any member of the public that the works done were substandard. As such all allegations against the appellants amounted to hearsay not corroborated by any evidence.
The main arguments of Mr. Sarki Advocate was that Mr. Shafi Muhammad Saud the principal accused/highest ranking officer has already been reinstated, therefore, all other co-accused/lower subordinates are also entitled to the same relief.
In support of their arguments appellants' counsel relied upon the following citations:-
1993 SCMR page 1440.
(inquiry in violation of Rule 6 of (E & D) Rules is no inquiry)
1996 PLC (C.S.) page 678.
(if one concession allowed to an accused are also entitled for the same)
PLC (C.S.) 1996 page 826.
PLC (C.S.) 1996 page 857.
Articles 4 and 25 of the Constitution of 1973, Mr. Abdul Latif Channa thereafter addressed the Tribunal. He adopted the arguments of M/s. Manzoor Ali Khan, Nooruddin Sarki and Aqil Awan. He categorically stated that the 1st Inquiry Officer (Mr. Bari) did not proceed in the matter. The 2nd Inquiry Officer viz. Mr. Arbab Ali Shah exonorated the appellants as contended in para. 5 of the appeal filed by him (142 of 1996) at page 11, page 5 not denied by the respondents specifically. The said Inquiry Officer apprised the appellant of this fact as recorded in para. 12 of the appeal also. He, therefore, contended that the respondents were barred under 'Estoppel' to reopen the chapter and appoint another Inquiry Officer or Inquiry Committee subsequently, under approbation and reprobation. In this context he placed reliance on PLD 1971 (S.C.) page 376. PLT 'C'. He also contended that under the Efficiency and Disciplinary Rules of Government of Sindh, there are two procedures prescribed for Disciplinary action i.e. resort to either issuance of a show-cause notice or to a departmental Inquiry one to the exclusion of other for which cogent reasons need to be recorded but the respondents simultaneously resorted to both the procedures which was incorrect. In this context he placed reliance on PLD 1989 SC page 89. He also referred to Rule 7 of the Efficiency and Disciplinary Rules of Government of Sindh which prescribed the procedure of a departmental inquiry. According to him, in such proceedings no oral evidence was permissible but evidence has to be on the basis of affidavits and counter affidavits, as in civil suits, before a Civil Court Inquiry Office being deemed to be a Civil Court. He agreed that as in Yousuf Patel's case (PLD 1957 SC page 104 relevant page 117) if one action is wrong, all subsequent actions are also wrong. He also contended that any order passed by corrum non-judice is void and placed reliance on PLD 1976 (SC) 208. He contended that his client was exonerated of charges Nos. 1, 3, 5, 14, 17 and 20, and therefore, should have been exonorated in other charges too (evidence in one charge if held unreliable, would meet the same fate in respect of other charges). He alleged that of all the appellants convicted/dismissed from service, only one person viz. Mr. Shafi Muhammad Saud has been reinstated which amounts to discrimination based on 1996 PLC (C.S.) pages 682/683, 832, 859/860. He argued that the so-called Inquiry Committee was 'one man show' and was not a proper departmental inquiry in letter and spirit. He, therefore, strongly pleaded that the (common) impugned order (of; all the appellants) needs to be set aside.
The A.A.-G., argued briefly. He stated that the charges against the appellants related to their 'omissions', 'negligence' and 'over payments'. The complainant was- Mr. Nazir Muhammad Soomro who was examined (by the Inquiry Committee) on 16-4-1995. Similarly Mr. A.R. Jatoi, was also examined by the said Committee and it is incorrect to suggest/say that he was not examined. In fact A.A.-G. had called for the relevant file/record from the respondents and produced the File No.DG/IW/Eng/C&W/DDh on the subject "Proceedings and documents in respect of Enquiry against 33 officers/officials of Communication and Works Department Government of Sindh" which was taken on record. He further stated that it was totally incorrect to suggest that the Inquiry Committee, completed the inquiry that very day on 16-4-1995. In fact, according to him, the inquiry proceedings thereafter, took place on various dates. He also dispelled the allegations of the counsel for the appellants that there has been no physical inspection of the site/projects, in hand. According to him, there have been two site inspections of concerned works one by Mr. A.R. Jatoi and other by Mr. A. Majeed which corroborated the prosecution story/version of the respondents. As such, he concluded that the appellants were rightly convicted/dismissed from service.
We have gone through the arguments of all the counsel of appellants as well as the A.A.-G: carefully, record produced in this case and written statements/citations relied upon by respondents.
At the very outset, we would like to point out with all due deference to the counsels for the appellants that in the onslaught of their rhytoric all of them pointed out the fact that Mr. Shafi Muhammad Saud, the highest ranking co-accused, though dismissed had been reinstated in service allegedly, because of matrimonial alliance with the then Chief Minister a hearsay for which no proper foundation was laid before us, and as known to all in legal fraternity mere statement is no evidence till proved corro haratia by director indirect documentary-evidence. Their common plea that since the principal accused has been reinstated in service, therefore, all others are also entitled to the same relief also does not appeal to us, because of the well known principles of law that two wrongs cannot make one right, an incorrect/illegal order, does not become a legal precedence and every accused's fate is contingent on the merits of his own individual case.
We are also of the view that the fact of Dadu being the home town of the then Chief Minister and also the place of posting of the appellants has no legal significance. It is just a coincident and does not prove the mala fides of the then Chief. Minister against the appellants without laying proper foundation thereof i.e. of previous enmity or animosity between the then Chief Minister and the appellants. Again, the fact that the appellants were dismissed from service by the then Chief Minister has to be seen in its correct prospective i.e. the highest ranking officer and co-accused Mr. Shafi Muhammad Saud being a Superintending Engineer, an officer of BSP.19, in whose case the (competent) Authority is the Chief Minister--he was also the (Competent) Authority in respect of other lower subordinate/co-accused by virtue of the provisions of Rule 5(6) of the Sindh Civil Servants (Efficiency and Disciplinary Rules, 1973 which reads as follows:--
"5(6)If two or more civil servants are proceeded against, jointly, the authority or authorised officer in respect of the senior most civil servant amongst them shall be the authority or the authorised officer, as the case may be, in respect of all such civil servants."
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