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Petitioner: MUHAMMAD ASGHAR VS Respondent: PAKISTAN Through Secretary, Ministry Of Defence, Rawalpindi And Another
Court Name: Federal Service Tribunal Judge(s): Muhammad Daud Khan, G. D. Memon, N. A. Choudhury Title:MUHAMMAD ASGHAR vs PAKISTAN Through Secretary, Ministry Of Defence,
Rawalpindi And Another Case No.: Appeal No.362(R) of 1974 Date of Judgment:1977-08-13 Reported As: 1987 PLC (C.S.) 239 Result: Order accordingly Judgment ORDER MUHAMMAD DAUD KHAN (CHAIRMAN).--Appellant Mr. Muhammad Asghar has filed this appeal against order of his dismissal from service dated 18th May, 1971, confirmed in review by the President on 9 January, 1973. The appellant is a civil servant within the meaning of section 2 of the Civil Servants Act, 1973. He entered service as an Engineering Apprentice in 1935, was sent to Hewett Engineering School, Lucknow in 1936 wherefrom he obtained an Overseer's Certificate. During his training he surveyed U.P. Industrial and Agricultural Exhibition, Lucknow for study and preparation of building plans. The achievement earned him a commendation Certificate. Training period was followed by his appointment as Apprentice against a permanent vacancy in N . W . R . Which came to a close in 1941. During World War he was enlisted in the Royal Indian Engineers as Warrant Officer Class I, remaining there till 17th October, 1945, making himself useful in construction of bridges. Then he was released and reverted to Railways on 18th September, 1946. He undertook some work in Irrigation Department, haveli Circle, Multan and returned therefrom in November, 1949 for absorption, as Assistant Bridge Inspector. He remained there till 1953. He resigned from the Railways on 1st May, 1954, joined the Pakistan Ordnance Factories as Assistant Section Officer Class II (Gazetted), was promoted as a Foreman Class II on 4th April, 1962 to continue as such for four and half years. He was again promoted on 10th December, 1966 Assistant Works Manager--a Class I Post. November 1967 found him posted to P.O.F. Joydebpur, Dacca for Civil Engineering Project falling under the Project Division.th
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Project Division according to the appellant was directly under the Chairman, P.O.F. Wah Cantt through a Controller of Project and Director of Industrial and Commercial Relations, Wah Cantt. The site control was under the Project Director and Works Manager, P.O.F., Dacca (Pakistan Ordnance Factories). It is asserted that throughout his service career, the appellant enjoyed enviable reputation by dint of hard work and efficiency. His reputation remained untainted till he joined Joydebpur, Dacca where Mr. A.R. Alvi was the Works Manager. The said officer being inimical to the appellant for more than one reason, tried to tarnish his unblemished career. He has enumerated two incidents which incited ill-will of the Works Manager, Mr. A.R. Alvi. Both of them occurred in 1954 when Mr. A.R. Alvi was Incharge of the appellant in his capacity as Assistant Works Manager. They are:- (a) pointed out shortages of lime to the detriment of Mr. Alvi; and (b) misappropriation of Jaffery-wood by him. The said incidents did not make the appellant popular with Mr. A.R. Alvi. Yet he was transferred to Joydebpur, Dacca in the year of 1967 to work under the same officer. Besides, East Pakistan, then rife with unrest against Mr. Ayub Khan's regime did not readily accept West Pakistanis. Employees openly gave vent to provincial prejudices and even refused to co-operate with the West Pakistan Officers. Amongst such officers was Mr. Zahur-ul-Islam, the Project Director of P.O.F., Dacca. He is said to be known for his ill-temper and deep-rooted prejudices against West Pakistanis. Appellant's arrival at such a juncture; in P.O.F. Dacca was not only resented by Mr. A.R. Alvi, the Works Manager but also by Mr. Zahur-ul-Islam, the Project Director. Both the Officers were ill- disposed to him for different reasons and joined forces to keep him away from work. He was given no file, in consequence, when he reported on 28 November, 1967. No specified duty, as per appellant, was entrusted to him. Mr. M.R. Chaudhry another Assistant Works Manager continued to hold charge of work. The appellant was simply required to assist the said officer. According to him neither any officer nor any staff assisted him in execution of work. So much so that he was not even allowed to enter office and was asked to leave when he made any effort to contact his superiors. The fact was reported by him by a Telegram (Annexure 'H/1'). Besides, work was being hurried through by Works Manager and Project Director as a policy decision, entailing haphazard and irregular payments to the contractors. To cover up these irregularities, they wanted the appellant to be kept away from supervision. He had to force enter his duties on 9th February, 1968 at the instance of Controller ~!Of Project, yet necessary staff, requisite documents, contract agreements were not made available to deprive him from factual control. Duties entrusted were of checking contractor's bills vide letter No. 4829/1/W.M.C.P., dated 16th May, 1968. Appellant claims to have done his work in the best traditions of honesty without fear or favour. In doing so, he annoyed the Works Manager and Project Director to earn adverse remarks in his Annual Confidential Report for the year 1968. Remarks evidently mala fide were incited by ill-will gravitated by appellant's honest effort to point out defective nature of construction work by Dadhoo Mian, the pet; Messrs Northern Engineers headed by Mr. M. Moosa a close associate (in work of Store-building and School building) and rejection of R.C.C. Posts erected by the nephew of Project Director. As to Mr. A.R. Alvi, the Works Manager, his old wounds were reopend when Sigma Construction Company's under-specification Sewerage pipe were discovered to him and Superintendent Civil Engineer, for which payment was made. The objection did not endear the appellant to Mr. Alvi who already had a prejudiced mind. Mr. C.M. Sharif, Superintendent Civil Engineer another officer associated with the preliminary Inquiry was also prejudiced because he wanted the appellant to endorse an estimate of Rs.60,000 for removal of defects in shop No. C-12 P.O.F. As the same defect had been cured by the appellant earlier he refused to append his signatures to the fresh estimate engendering change of design.th
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This worked up the ire of Mr. C.M. Sharif who got the appellant transferred to the Explosive Factory under a charge-sheet for alleged misbehaviour. It is thus, crystal clear, why his increment due on 10th December, 1968 was withheld and subsequent increments vide letter No.4119/1683/OF-1/B, dated 26th October, 1970 were stopped. Mr. C.M. Sharif later Chief Engineer Works was detailed by the P.O. F. Chairman in May, 1969 to hold an investigation about construction work of Ordnance Factories. It was fact finding in nature yet his hostility afforded Mr. C.M. Sharif a weapon to use against the appellant. He called explanation of the appellant, though not so authorised. His letter in this respect is dated 30th May, 1969. Then other irregularities were discovered to strengthen his hands. Letter No. 1800/5/CEW, dated 6th June, 1969 is to the point, showing keenness of the Enquiry Officer to shift guilt to the appellant. Written explanation called for was submitted on 5th June, 1969 Additional explanation was afforded subsequently to explain against irregularities. What the recommendations were is not evident yet the charge-sheet dated 23rd February, 1970 served on the appellant on 5 March, 1970. (Copy Annexure 'S' and statement of allegation Annexure 'S/I') confines itself to only one charge running as under:- MISCONDUCT: "While employed as Assistant Works Manager in POF JOYDEBPUR Dacca, he signed payments documents and certificates for material necessary to authorize security advances which led to over-payment of Rs.76,426. Statement of allegations 'S/1' elucidates the charge by affirming: "according to the Civil Engineering Works procedure the contractors are allowed payment against non-perishable material like steel, Bricks, Shingle and crushed stone etc. Brought by them to the site of the work for incorporation in the works Payments against such materials brought on the site is called secured advances. Mr. Asghar has signed documents and certificates for materials which led to over-payments and secured advances to the contractors which is as under:-
C . A . No. and Party Payment DocumentAmount Over paid (a) 9/67/68/M/s Sabir Ahmed Chaudhry and Co.2nd RAR No. 56/SE, dated 9-12-1968Rs.31,002 (b) 11/67-68 M/s. Sabir Ahmed Chaudhry and Co.Hand Receipt No.71/SE, dated 19-12- 1968.Rs.45,424
It was considered that only two possibilities would lead to over--payment; either the material was not brought on site in full quantity discovering fraudulent certificates; or deficiency was caused by misappropriation from site. In either of the two cases responsibility according to the department squarely rests on the officer incharge, because the Store had become the Govt. Property. Simultaneously with issuance of the charge-sheet signed by the Deputy Secretary to the Ministry of Defence, an Inquiry Officer was nominated without waiting for explanation of the appellant in response to the charge-sheet. In fact, the charge and explanation were communicated by the same letter signed by the Deputy Secretary, Govt. Of Pakistan. The 1st objection of the appellant is that Deputy Secretary neither being the appointing authority nor designated authority had no right whatsoever to charge-sheet the appellant. All the same his reply was submitted on 18-3-1970. Copy is Annexure 'T'. On receipt of the said reply Court of Inquiry consisting of Mr.M.Shafi was convened assisting by Mr. C.M. Sharif, Chief Engineer, Works. It is said that no intimation was given to the appellant about Inquiry Officer or the prosecutor.th
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Inquiry proceedings commenced on 8-5-1970 to continue till 10-6-1970 at Dacca. During the Inquiry Lt.-Col. A.A. Farooqi, Technical Examiner, Chief Engineer's Office, M. E. S., G. H. R., Rawalpindi, attended proceedings to advise the inquiry Officer on technical matters. The appellant's grievance is that Mr. A.A. Farooqi subordinated and overshadowed the Enquiry Officer to influence his mind in the determination of issues as well, The other grievance made out is that the appellant was not allowed to defend himself by a counsel of his choice though a verbal request in this behalf was made. At one stage an application for summoning two witnesses was also filed but none of them was summoned further prejudicing case of the appellant. 1st objection as to non-representation by a counsel being against the provision of rule 9(6) of the Civilian Employees in the Defence Services (Classification Control and Appeal) Rules, 1961, the ground was shifted to alleged prohibition imposed by Inquiry Officer against consultation. However, weight of both the objections will depend on the evidence/findings on record. After conclusion of the Inquiry, the report was submitted to designated authority not within 10 days as enjoined by Rule 11(4) of the above cited rules. In fact six months elapsed between conclusion of the Inquiry and submission of report--an illegality which according to the appellant is incurable. The Inquiry Report did not propose any penalty contemplated by Rule 11(4) ibid. Yet despite the reservation, appellant was given a show-cause notice dated 6th January, 1971 Annexure 'V' to submit a reply within fourteen days why he should not be dismissed from service. The reply dated 27th January, 1971 is Annexure 'W'. This is another violation seriously viewed by the appellant. The proceedings were finalised by the special order dated 20th May, 1971 copy Annexure 'X'. It was again signed by Deputy Secretary, Ministry of Defence who according to the appellant was not authorised to do so, neither being the appointing nor designated authority. On 16th November, 1971 a review petition was filed as provision to Rule 17 of the Civilian Employees in Defence Services (Classification Control and Appeal) Rules, 1961. The same was dismissed. Intimation to the appellant vide letter dated 9th January, 1973 Annexure 'Y' was received on 12th January, 1973. Thereafter present appeal was filed on 25th May, 1974 under section 4 of the Service Tribunals Act, 1973. Conclusions of investigation /preliminary Inquiry and final inquiry are being questioned by the appellant on varied grounds. First objection is to the appointment of Mr. C.M. Sharif as investigator of the cause. Being prejudicially inclined, investigation concluded by final Inquiry would be ab initio void both for, ill-will and want of proper authority. Rest of the grounds, enumerate want of proper application of mind by the designated authority; hurried formal charge-sheet being delivered without obtaining explanation under Rule 9(4) of the aforementioned Rules; absence of formal approval of the charge-sheet by competent authority and insufficiency of fourteen days allowed for preparation of defence. Moreover the charge-sheet, show-cause notice etc. Signed by Deputy Secretary, suffer from lack of competence and authority so also the appointment of Inquiry Officer simultaneously with issuance of charge-sheet. Other objections include, inter alia, illegal appointment of Inquiry Officer, denial of appellant's right to consult the counsel, association of Lt.- Col. A.A. Farooqi with the proceeding to prejudice the mind of the Inquiry Officer and appointment of Mr. C.M. Sharif, who already was biased; as prosecutor in the case. Non-summoning of witnesses and non-submission of Inquiry report within ten days, want of suggestion as to penalty to be imposed are other contentions raised by the accused. Vagueness of the charge and non- apportionment of responsibility amongst accused have also been placed on the anvil. On facts, the appellant alleged to be partly responsible, the extent of his guilt was not specified, nor the burden of his responsibilities, leaving the charge vague. Break down of the amount of the secured advances, kind and quality of material involved, dates of incidents etc. Should have been elaborately mentioned as provided by Rule 9(5) which specifically enjoins:-
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"For each fault or shortcoming there shall be separate charge under sub-rule 3(4). Each charge should be written and specified and will state clearly the nature, time, occasion, place, person amount etc. Concerning the fault or shortcoming." It is also denied that secured advances were given on short material or that safe custody was responsibility of the appellant. Chowkidar was not appointed and if there was any shortage it was due to non-appointment of Chowkidar by the Project Director despite request of Works Manager. Besides, sanction for secured advances is said to be entirely the concern of Superintendent Civil Engineer and the paying authority is designated to Project Director. The procedure being that contractor makes a request to the Works Manager detailing the material available at the site in his application. Works Manager may reject the application or mark the application to the site Incharge for preparation of necessary documents. Needful being done, the contractor claims advances for work done on Running Receipt Accounts and other advances on hand receipt for material on site. The documents prepared and signed are sent to the Assistant Works Manager who checks the same alongwith contractor's bills. His check includes (a) quality of work done as entered into the measurement book; (b) comparison of measurements with work done; (c) checking the deviation work if executed; (d) check the debits on account of water, electricity and tools and plants supplied by the department. After making this inquiry he signs the necessary documents and passes them on to Works Manager. Works Manager after satisfying himself appends a certificate for availability of material and forwards the same to the Superintendent Engineer. It is said that unless it was certified by the Works Manager, no advance could have been made. Responsibility, therefore, it is said, squarely lies on Mr.A.R. Alvi and not on the appellant. Other point made out by the appellant is that no loss was sustained by the Government on account of anything done by him. Secured advances were issued on C.A. No. 9/67-68 of Messrs Sabir Ahmed Chaudhry for steel and bricks. Steel weighing 20 tons and bricks account of 3.5 lakh. Similarly in C.A. No. 11/67-69 advances were made against 31 tons steel and of 2 lakh of bricks. Subsequent shortage of bricks can be accounted for as under:-
Steel T.C.W.T.Bricks. QR.LBS. (i) Consumed by the defaulting contractor in C . A . No. 9 and 11 and on current work in C.A. Nos. 5 and 6 by the same contractor (this consumption was done on the written permission of the then Superintending Engineer Mr. A . R. Alvi.7-15-1- 230.59lakhs (issuedonly againstC.A. No. 9). (ii) Issued to risk andcost contractors. This is shown in the contract- documents which are in the custody of Civil Section, Projects, P.O.F, Wah.51-7-0- 0.0.42lakhs, (issuedonly againstC.A. No. 9). (iii) Stolen by Messrs Sigma & Co. 4Later recovered and credited to the account of the defaulting contractor.0.38lakhs (Creditedto the account of C . A .No. 9) . Total:59-2-1- 231.39Lakhs. Balance: Nil 4.11 Lakhs.
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As per appellant it clearly indicates that steel was consumed and the balance of 4.11 lakhs bricks was adjusted from available credits of the defaulting contractor under the provisions of para. 414 M.E.S. Regulations and clause 67 PAFW-2249. Hence no loss can be referred to the appellant, to award him a major penalty. The appellant has also agitated disturbed conditions of East Pakistan for the loss of bricks taken by the Sigma Company. That want of loss is admitted by the department as well, is said to be apparent from Annex. 'Z' prepared by the department as final account. Despite the fact that they do not show shortages the accounts are anything but true. Defects are evident in Column 3 against C.A. No. 9 showing short value of 10,000 rupees as against its assessed value at the time of handing over to the Risk and Cost Contractor. Relevant page of the agreement with risk and cost contract is Annexure 'Z/1'. Similarly miscellaneous figures in column 7 against C . A . No. 9 is said to have been worked out erroneously. The miscellaneous included 3 items:-- (i) Two per cent penalty amount toRs. 16,096 (ii) Damage due to cyclone and defective work .Rs. 24,804 (i.e) Electric charges and water charges etc.Rs. 1,354 Total:Rs. 42,254. As the penalty was imposed for period between 1-4-1969 to 14-4-1969 the amount could not have been adjusted in secured advances. Similarly damage caused by cyclone on 19th April, 1969 could not be foreseen. Such haphazard accounting was resorted to, for placing guilt on the appellant. The appellant ignoring non-admission of cyclone losses; concludes that if damage is properly referred to its due causes while responsibility for defective work to defaulting contractors at whose cost Risk and Cost contractors executed the work to required specification, debits would not amount to what has been calculated by the department. Credits of the contractor came to Rs.4,11,527, while total damage amounted to Rs.3,60,500 leaving a surplus of Rs.51,027 and not Rs.16,608. The balance, thus, exceeds the requisite amount of retention money which came to Rs.35,234. As regards C.A. No. 11/67/68, it is averred that work done as per column No. 2 does not include cost of earth work carried out by the contractor and payable to him. The following amount i.e. 16,490 and 10,630 totalling Rs.27,110 were due to him. The credit when added to the other dues will bring the total to Rs.2,40,697 as against 2,13,587 shown in column No. 2 of the statement. Similarly debits of Rs.31,401 shown in column 7 representing defective and damaged work should not be debited against him because of its completion at the cost of the contractor himself. If these items are given due consideration plus balance of Rs.46,609 instead of--balance of Rs.53,901 available, will not leave any substance in the case. For the reasons, appellant states that his dismissal was illegal and unjustified, stoppage of increments for the years 1968-69 and 1970 arbitrary for want of compliance with due rules and adverse entry in his A . C . R. For 1968 is the result of conspiracy between Mr. A.R. Alvi, Mr.C.M. Sharif and Mr. M. Zahurul Islam. He, therefore, prays that he be restored to his former position after vacating the order of dismissal, and adjudging existence of vested right to increments, by vacating adverse entries in his Annual Confidential Reports. With respect to stoppage of increments, it is said that as the work executed by the appellant was under inquiry of the Chief Engineer, increment dependent on satisfactory performance, was withheld till after the result of the Inquiry was available. Since the appellant was served with charge-sheet by the Ministry of Defence under the order of President and his explanation to the charge-sheet was with the Ministry of Defence, it was not possible to grant him increments during pendency of the proceeding and, thereafter, the question did not arise. His representations dated 18th February, 1,970 and 2nd October 1970 were disposed of accordingly.
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As to the preliminary Inquiry/investigation under rule 9(8)(a) of the Civilian Employees of Defence Services (Classification, Control `' and Appeal) Rules, 1961, no charge was given to the appellant at the time. It was a probe into the affairs of P.O.F. And results would also determine guilt to point out the defaulter. Only at that stage objections would be entertainable. The character of Mr. C.M. Sharif as prosecutor was denied. He was departmental representative being Chief Engineer of the Division. Lt.-Col. A.A. Farooqi was detailed at the request of the Inquiry Officer to advise him on technical matters. According to the respondents no rules were violated by attendance of Mr. C.M. Sharif or assistance of Mr. Farooqi. Right of the appellant to be represented in the Inquiry proceedings was denied by virtue of Rule 9(6). It is asserted that appellant was given full opportunity to defend himself and to procure evidence in his favour. Record does not support filing of any application for summoning witnesses, verity of the plea was, therefore, denied. Although the rule requires submission of Inquiry Report within ten days of its completion (Rule 11(4) (a), there is no bar against its acceptance nor any provision to justify delay to the appellant, according to respondent. Respondents denied want of recommendation the Inquiry Report at the same time asserting proper determination of penalty by the President. In fact, they admitted no procedural flaw in the meticulously concluded enquiry, conclusions whereof according to them are fully supported by evidence on record. They as such sought dismissal of appeal. The copious narration of facts affords a background even if it clouds the real issues involved. Details were unavoidable because they reflected character of the dispute and nature of issues determinable. Essential requirement, however, are very simple. Regular Inquiry was precipitated by investigation into working of P.O.F. Staff, Jodebpur. The accused, found implicated in certain irregularities as, charge-sheeted and in final inquiry, found guilty. He was dismissed from service against which he filed a writ petition. The same abated under section 6 of the Service Tribunals Act, 1973, giving rise to present appeal registered on 25th of May, 1974. The appellant cavils against all the steps taken towards preliminary inquiry /investigation and every move made thereafter. He questions validity of preliminary investigation; has quarrel with appointment of Mr. C.M. Sharif as investigator; doubts vires of the order calling for his explanation, to assail signing of the charge-sheet and final orders by a Deputy Secretary of the Ministry of Defence. These are the technical- hurdles raised. Other aspersions aim at negating value of the report on merits which allegedly was motivated by Mr. C . M . Sharif the prosecutor and Mr. Farooqi, the technical advisor. Respondents on the other hand deny merit of the objections and take refuge under plea of limitation prescribed by section 6 of the Service Tribunals Act, 1973. The controversy thus, boils down to discovered technical defaults,' and possibility of the view accepted by the Inquiry Officer. These objections shall have to be examined under separate heads in their true context. To visualise fully the nature of objections, we need to have a comprehensive picture of the provisions of the Civilian Employees in the Defence Services (Classification. Control and Appeal) Rules, 1961, specially those clauses which were pin-pointed…
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