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Petitioner: SHAFIQUE AHMAD CHAUDHRY VS Respondent: CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHOREHonorable Justice Justice (R) Muhammad Jahangir Arshad (Chairman)Pervaiz Inayat Malik,Humayun Akhtar Sahi
2012 P L C (C.S.) 68 [Punjab Service Tribunal] Before Justice (R) Muhammad Jahangir Arshad (Chairman) SHAFIQUE AHMAD CHAUDHRY Versus CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and another
Service Appeals Nos.1387, 1400, 1462, 1492 to 1496 and 1447 to 1458 of 2010, decided on 21st February, 2011.
(a) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---
----Ss. 3, 5, 6 & 10---Imposition of penalties---Appellants serving as Store Keepers, were proceeded against departmentally being guilty of misconduct and negligent in the performance of their duties under Punjab Removal from Service (Special Powers) Ordinance, 2000---Allegation against the appellants was that they incurred huge and excessive expenditure during the financial year without any lawful authority and proper control/check which had resulted in misappropriation and embezzlement---Inquiry Committee duly constituted, after completion of probe submitted its report and recommended penalties to be imposed upon appellants---Competent Authority extended penalty of reduction to the initial stage in pay scale along with recovery of 1/8th of the loss, despite the fact that none of the appellants were either deputed for the job of excavation, operation of excavation machine, checking of quality and quantity of purchased material---Job of appellants was only to enter the purchased material in the goods receipt sheet as well as stock register---Huge and excessive expenditure during the disputed financial year without any lawful authority was neither the function of store keepers to purchase spare parts nor same were purchased by the appellants without calling tenders, but despite that Inquiry Committee as well as competent Authority held the appellants guilty of said charges---While holding appellants guilty of misappropriation, neither the Inquiry Committee nor the competent Authority looked into the glaring omission about any evidence to that effect---Departmental Representative as well as Deputy District Attorney, had conceded that the only evidence on the question of financial loss to the public exchequer was the statement prepared by Executive Engineer without any corroborative evidence---Such like evidence could not be considered as a valid evidence---None of the appellants, in circumstances, could be held responsible for the acts committed by their high-ups---No evidence was on record to prove that any of the appellants made entry without verifying vouchers/receipts, regarding purchase of relevant material---Charges against the appellants/store keepers, were not only irrelevant, but also not proved through sufficient evidence---No allegation was available against the appellants that either they themselves purchased the material or they were found guilty of embezzlement as alleged by competent Authority---Appellants were exonerated from the charges levelled against them, in circumstances.
(b) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---
----Ss. 3, 5, 6 & 10---Constitution of Pakistan, Arts.4 & 25---Imposition of penalty---Discriminatory penalty/punishment---Appellant along with two other Executive Engineers, was proceeded against on the charge of inefficiency, misconduct and corruption arising out of committing financial/codal irregularities, under provision of Punjab Removal from Service (Special Powers) Ordinance, 2000---All three persons, after completion of inquiry were recommended by the Inquiry Officer for dismissal from service as well as recovery of 1/4th of financial loss---Competent authority on receipt of inquiry report and after affording opportunity of hearing through final show-cause notice imposed penalty of withholding of promotion for a period of three years along with recovery of 1/4th of loss upon the appellant---Through a separate order, despite holding other two persons guilty of the charges of negligence and loose administrative control etc., imposed penalty of stoppage of two annual increments only upon them---No special reason or justification was given for imposing different penalties upon the appellant as well as on said two persons of the same status---Appellant was extended discriminatory treatment by the authorities in the matter of punishment which was violation of Arts.4 & 25 of the Constitution---Counsel for the appellant had successfully made out a case of discrimination in the matter of punishment---Penalty of recovery of amount imposed on the appellant being without evidence, same was set aside, whereas in line with the order of competent Authority imposing penalty as stoppage of annual increment for two years as corrected by Chief Secretary, being appellate authority in his order, the penalty of withholding of promotion for three years, as imposed on the appellant, was converted into penalty of withholding of increment for two years, without cumulative effect.
(c) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---
----Ss. 3, 5, 6 & 10---Constitution of Pakistan, Arts.4 & 25---Imposition of penalties---Discriminatory penalty/punishment---Four appellants serving as 'Sub-Divisional Officers' were proceeded against on charges of inefficiency, misconduct and corruption under Punjab Removal from Service (Special Powers) Ordinance, 2000---Inquiry Officer, after completion of inquiry, recommended for imposition of penalties of dismissal from service as well as recovery of 1/4th financial loss---Competent authority after affording opportunity of hearing, through final show-cause notice, imposed various penalties on three appellants, but through a separate order despite holding one of the appellants, equally guilty of the charges, imposed penalty of stoppage of two annual increments only upon him---Neither any special reason nor any justification was given by the competent Authority to have imposed different penalties upon three appellants and on said fourth appellant after holding all of them equally guilty of negligent---Discriminatory treatment by the competent Authority in the matter of punishment, was in violation of provisions of Arts.4 & 25 of the Constitution---No evidence was on record to attribute the charge of causing financial loss to public exchequer, except statement prepared by Executive Engineer, who neither appeared in the court nor was subjected to cross-examination---Counsel for the appellants had successfully made out a case of discrimination in the matter of punishment---Penalty of recovery of amount imposed on the appellants being without evidence, same was set aside; while in line with the order of competent Authority imposing penalty of stoppage of annual increment for two years as corrected by the Chief Secretary being Appellate Authority in his order, the penalty of withholding of promotion/reduction in initial stage, imposed on the appellants, was converted into the penalty of withholding of increment of two years, without cumulative effect---Period of posting of appellant being only one day, canons of justice demanded the penalty as imposed on him by the competent Authority and maintained by Appellate Authority, was reduced into 'censure' only.
(d) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---
----Ss. 3, 5, 6 & 10---Constitution of Pakistan, Arts.4 & 25---Imposition of penalty---Discriminatory penalty/punishment---Eleven appellants, serving as 'Sub-Engineers' along with another, were proceeded against under Punjab Removal from Service (Special Powers) Ordinance, 2000, on the charge of inefficiency, misconduct and corruption arising out of committing financial/codal irregularities---Appellants, after completion of inquiry, were recommended by the Inquiry Officer for imposition of penalty of dismissal from service as well as recovery of 1/4th of the financial loss---Competent Authority on receipt of said report and after affording opportunity of hearing to the appellants, through final show-cause notice imposed various penalties upon said eleven appellants, but through separate orders, despite holding one appellant equally guilty of the charges, imposed penalty of stoppage of two annual increments only upon him---Neither any special reason, nor justification was given by the competent Authority to have imposed different penalties upon the appellant as well as on the other one, after holding them equally guilty of negligence etc.---Appellants, in circumstances, were extended discriminatory treatment by the competent Authority in the matter of punishment, which was in violation of Arts.4 and 25 of the Constitution---No evidence was on record to attribute the charge of causing financial loss to the public exchequer, except the statement prepared by Executive Engineer who neither appeared in the court nor was subjected to cross-examination---Penalty of causing financial loss was also imposed in discriminatory manner and without considering the length of posting of each appellant, during the disputed period---Appellants having succeeded to make out a case of discrimination, in the matter of punishment, as penalty of recovery of amount imposed on the appellant was without evidence, was set aside; while in line with the order of competent Authority imposing penalty of stoppage of annual increments for two years as corrected by the Chief Secretary, being Appellate Authority, penalty of withholding of promotion/reduction to initial stage, imposed on appellants, was converted into penalty of withholding of increments for two years without cumulative effect. 2009 SCMR 187 and 2005 SCMR 445 rel. Pervaiz Inayat Malik for Appellants (in Appeal No.1387 of 2010). Mian Inam-ul-Haq for Appellant (in Appeal No.1400 of 2010). Masud Ahmad Riaz for Appellants (in Appeals Nos.1462, 1492, 1493, 1494, 1495 and 1496 of 2010). Asif Nazir Awan for Appellants (in Appeals Nos.1447, 1448, 1449, 1450, 1451, 1452 and 1457 of 2010). Muhammad Yasin Bhatti for Appellant (in Appeal No.1458 of 2010). Babar Murtaza Khan for Appellants (in Appeals Nos.1453, 1454, 1455 and 1456 of 2010). Humayun Akhtar Sahi, Deputy District Attorney and Muhammad Aslam Sipra, Deputy Secretary, I&P Department, Lahore for Respondents. Date of hearing: 21st February, 2011.
JUDGMENT
JUSTICE (R) MUHAMMAD JAHANGIR ARSHAD (CHAIRMAN).--- As common questions of law and facts are involved in the following appeals, hence the same are being disposed of through this single order:--- (i) Shafique Ahmed Chaudhry v. Chief Secretary, Government of the Punjab, Civil Secretariat, Lahore and others (Service Appeal No.1387 of 2010); (ii) Khalid Iqbal v. Chief Secretary, Government of the Punjab, Civil Secretariat, Lahore and others (Service Appeal No.1400 of 2010); (iii) Ashfaque Cheema v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1447 of 2010); (iv) Muhammad Ilyas v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1448 of 2010); (v) Tahir Mehmood v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1449 of 2010); (vi) Amir Sami Khan v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and (Service Appeal No.1450 of 2010); (vii) Ehsan Qadar v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1451 of 2010); (viii) Tariq Rasheed v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1452 of 2010); (ix) Ahmad Khan Khokhar v. Chief Secretary, Punjab, Civil Secretariat, Lahore and others (Service Appeal No.1453 of 2010); (x) Farman Ali v. Chief Secretary, Punjab, Civil Secretariat, Lahore and others (Service Appeal No.1454 of 2010); (xi) Muhammad Saeed v. Chief Secretary, Civil Secretariat, Lahore and others (Service Appeal No.1455 of 2010); (xii) Salamat Hussain v. Chief Secretary, Punjab, Civil Secretariat, Lahore and others (Service Appeal No.1456 of 2010); (xiii) Javed Anwar v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1457 of 2010); (xiv) Muhammad Ashraf Shahid v. Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1458 of 2010); (xv) Ghulam Murtaza Balouch v. Secretary to Government of Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1462 of 2010); (xvi) Mahboob-ul-Hassan v. Secretary to Government of Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1492 of 2010); (xvii) Akhtar Ali v. Secretary to Government of Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1493 of 2010); (xviii) Waseem Ahmad v. Secretary to Government of Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1494 of 2010); (xix) Rana Khalid Mahmood v. Secretary to Government of Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1495 of 2010); (xx) Haider Zaman Khan v. Secretary to Government of Punjab, Irrigation and Power Department, Lahore and others (Service Appeal No.1496 of 2010); 2. All the appellants who are employees of Irrigation and Power Department, Government of Punjab were proceeded against departmentally being guilty of misconduct and negligent in the performance of their duties under Punjab Removal from Service (Special Powers) Ordinance, 2000. Although each appellant was served separate charge sheet yet the gist of charge against all the appellants is that on account of their inefficiency, misconduct and corruption arising out of financial and codal irregularities and embezzlement the Government had to suffer huge financial loss. All the appellants through separate replies denied the charges against them. An Inquiry Committee consisting of Mian Abdul Ghaffar, Chief Engineer (Power)/Convener Enquiry Committee, Mr. Moin-ud-Din Shah, Superintending Engineer, UJC, Jhelum and Ch. Asghar Hameed, Executive Engineer, Samundri Drainage Division, Faisalabad, as Members of Inquiry Committee was constituted. The said Inquiry Committee after completion of probe submitted its report and made recommendation against each appellant as follows:--- (i) Recovery of the loss proportionately (ii) Dismissal from service except (a) Mr. Khalid Iqbal, appellant in Appeal No.1400 of 2010, (b) Mr. Akhtar Ali, appellant in 1493 of 2010 and (c) Mr. Mehboob-ul-Hassan, appellant in Appeal No.1492 of 2010, who were recommended penalty of compulsory retirement. 3. On receipt of above noted report of Inquiry Committee, the competent authority namely Secretary to Government of Punjab, Irrigation and Power Department, Lahore issued final show-cause notice to all the appellants and also afforded them opportunity of personal hearing through a properly Constituted Committee. Consequently the competent authority vide order dated 16-9-2009 imposed various penalties on each of the appellant per details given below:---
Sr. No.
Name of the appellant
Appeal No.
Penalty imposed
1.
Ghulam Murtaza Baloch, Executive Engineer
1462 of 2010
Withholding of promotion for a period of three years along with recovery of 1/4th of the loss of Rs.99,64,379.41
2.
Mr. Shafique Ahmed, SDO
1387 of 2010
Withholding of promotion for a period of three years along with recovery of 1/4th of the loss of Rs.51,05,927.48
3.
Mr. Haider Zaman Khan, SDO
1496 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs.74,38,467.65
4.
Mr. Khalid Iqbal, SDO
1400 of 2010
Withholding of promotion for two years along with recovery of 1/4th of the loss of Rs.4,28,608
5.
Mr. Ashraf Shahid, SDO
1458 of 2010
Withholding of promotion for three years along with recovery of 1/4th of the loss of Rs.64,38,882.00
6.
Mr. Tahir Mehmood, Sub-Engineer
1449 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs.28,32,517.91
7.
Mr. Amir Sami Khan, Sub-Engineer
1450 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs.25,58,739.58
8.
Mr. Akhtar Ali, Sub-Engineer
1493 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs.9,19,616.66
9.
Mr. Mehboob-ul-Hassan, Sub-Engineer
1492 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs.3,15,387.50.
10.
Mr. Wasim Ahmad, Sub-Engineer
1494/2010
Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs.1,84,490.60
11.
Mr. Muhammad Ilyas, Sub-Engineer
1448 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs.27,21,715.24
12.
Mr. Ehsan Qadir, Sub-Engineer
1451 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs.25,08,301.80
13.
Mr. Javed Anwar, Sub-Engineer
1457 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs.15,48,302.28
14.
Mr. Ashfaq Cheema, Sub-Engineer
1447 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs.13,08,493.63
15.
Mr. Tariq Rasheed, Sub-Engineer
1452 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs.13,03,077.44
16.
Rana Khalid Mehmood, Sub-Engineer
1495 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/4th of the loss of Rs.11,54,324.85
17.
Mr. Farman Ali, Store Keeper
1454 of 2010
Recovery of 1/8th of the loss of Rs.66,68,175.15
18.
Mr. Muhammad Saeed, Store Keeper
1455 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/8th of the loss of Rs.61,85,255.11
19.
Mr. Ahmad Khan Khokhar, Store Keeper
1453 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/8th of the loss of Rs.61,85,255.11
20.
Mr. Salamat Hussain, Store Keeper.
1456 of 2010
Reduction to an initial stage in pay scale along with recovery of 1/8th of the loss of Rs.1,90,62,310.67
4. However, it would not be out of place to mention here that in its own wisdom and for unknown reasons, same competent authority i.e. Secretary to Government of Punjab, Irrigation and Power Department, Lahore on 15-9-2009 through a separate order imposed penalty of stoppage of two annual increments upon Rana Asif Mehmood, Executive Engineers, Mirza Aslam Baig, Executive Engineer, Mr. Muhammad Ashraf Sindhu, SDO and Mr. Irshad-ul-Haq, Sub-Engineer whereas exonerated Mr. Shafique Ahmad Khan, Sub-Engineer from the charges although all the above noted civil servants were recommended by the Inquiry Committee penalty of dismissal from service along with recovery of 1/4th of the financial loss. All the appellants filed departmental appeals separately against the above mentioned order of competent authority but the same were dismissed by the Chief Secretary, Government of Punjab, Lahore on 20-4-2010 being the appellate authority. 5. All the present appeals comprised following four sets of employees i.e. Executive Engineer, Sub-Divisional Officers, Sub-Engineer and Store Keepers and the same are being decided as follows:--- Store Keepers
Sr. No.
Appeal No.
Name of appellant
Designation
1.
1453 of 2010
Ahmad Khan Khokhar
Store Keeper
2.
1454 of 2010
Farman Ali
-do-
3.
1455 of 2010
Muhammad Saeed
-do-
4.
1456 of 2010
Salamat Hussain
-do-
6. All the above noted four appellants were performing their respective duties as Store Keeper and all were proceeded against on the following charges:---- (1) Huge and excessive expenditure incurred during financial year 2002-2003 without any lawful authority and proper control/check. (i) You, with the connivance of Executive Engineer and SDO have managed to procure stock articles in bulk and huge quantity of spare parts and POL in excessive of the actual requirement for machines/vehicles etc. which resulted in misappropriation and embezzlement of this material. Moreover there was no such capacity for proper storages, especially of P.O.L. POL procured Rs.1,47,00,262 (ii) You, with the connivance of Sub-Engineer/SDO/XEN managed to issue huge & bulk quantity of POL worth Rs.1,53,73,669/78 Ps during the year 2002-2003 resulting in heavy loss to manufacture account and leading to embezzlement of this material. This factitious issue of spare parts/POL booked to machines, which was finally withdrawn and placed in Misc. Advance of officers/official to conceal misappropriation and embezzlement. 2. The following documents were found incomplete and incorrectly maintained. (i) The scrap of spare parts issued have not been properly taken on scrap register as per details/units of issued material. In many cases the scrap have been accounted for/taken on scrap register in weight instead of original unit (in number) of material issued from stock register just to conceal the huge quantum of material issued which in fact have been embezzled/misappropriated. The scrap material have neither been put to physical verification nor the scrap register was produced, which clearly indicates that these are merely paper transaction to embezzle/misappropriate Government funds. (ii) The practice of annual physical verification and preparation of yearly and half yearly returns of Stock, scrap and T&P articles have not been exercised at all, which is the formost obligations under codal rule to check misappropriation and excessive purchase/issue and pilation of stock, a crime according to Account Code. 3. Storage of POL was in-appropriate and does not tally with the storage capacity. Storage of POL was not properly maintained. Huge and Excessive quantity of POL have been managed to procure un-necessarily without consideration of storage capacity and monthly consumption, whereas it is all the time readily available in the market. Thus providing chances for misappropriation/ embezzlement leading to a huge loss to public exchequer. The withdrawal of the excessive expenditure originally booked to machines and finally placed in the Misc. Advances of Officers/ Officials is merely paper transaction to conceal the embezzlement, which also certifies these corrupt and malpractices prevailed therein. 4. The POL stores at Sub-Divisional Headquarter were poorly maintained at the residences of Storekeeper/in the field without any lawful authority and without keeping in view the storage capacity, security and watch and ward for safe custody of consumable items and same is the position regarding other material at site and scrap parts in the field and at the residences at Sub-Divisional Headquarters which is a serious slackness and resulted in heavy loss to public exchequer. 5. The Sub-Division has done purchase of spare parts and POL without calling tenders. (i) With connivance of SDO/XEN a huge and excessive quantity of lubricants (which are not rate contract items), appearing in the books of account for the year 2002-2003 have been shown purchased and payments are made without calling tenders,/ quotations. (ii) Similarly huge and excessive quantity of spare parts have been procured with your connivance, without calling tender and publishing in Newspaper for wide publicity for competitive rate, violating all the Codal Rules. (iii) You, with the connivance of SDO/XEN managed to purchase bulk material/spares parts by splitting to avoid tendering and giving proper publicity to favour the contractors. (iv) Moreover one and same items have been purchased with different nomenclatures to avoid exceeding the limit of financial powers of purchase of each item under rules." 7. The Inquiry Officer as well as the competent authority treated all the above Store Keepers/appellants on the same footing along with other appellants who were either Executive Engineers, Sub-Divisional Officers or Sub-Engineers and were extended penalty of reduction to an initial stage in pay scales along with recovery of 1/8th of the loss notwithstanding the fact that none of these persons were either deputed for the job of excavation, operation of excavation machines, checking of quality and quantity of purchased material and their job was only to enter the purchased material in the goods receipt sheet as well as stock register. If there was huge and excessive expenditures during the disputed financial year without any lawful authority etc. neither it was the function of Storekeepers to purchase spare parts nor the same were purchased by the appellants without calling tenders but the Inquiry Committee as well as competent authority held present appellants/ Storekeepers guilty of said charges. Another important factor is that while holding appellants guilty of misappropriation neither the Inquiry Committee nor the competent authority looked into the glaring omission about any evidence to this effect. On court query Departmental…
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