ABDUL GHANI Versus GOVERNMENT OF THE PUNJAB
This petition is directed against the judgment dated 15-12-1983 passed by the Punjab Service Tribunal, whereby the petitioner, a Sub-Engineer (Mechanical) in the Irrigation Department, was held responsible for a partial shortage of stock and T.P. articles. The core legal question was whether the Service Tribunal could base its judgment on a re-checking and scrutiny of stock conducted by an Executive Engineer during the pendency of the appeal without formally associating the petitioner with the inquiry. The Supreme Court held that the petitioner having welcomed and acquiesced to the course of re-checking adopted by the Tribunal and having benefited from the reduction of liability, cannot subsequently turn around and challenge the procedure when it does not entirely set aside the recovery order. The key principle laid down is that a party who acquiesces in a procedural course adopted by a tribunal and derives benefit therefrom cannot subsequently challenge that same procedure to avoid the remaining adverse consequences.
- Can a party challenge a procedural course adopted by a tribunal in appeal after acquiescing to it and deriving partial benefit therefrom?
- Whether the Service Tribunal has the authority to order re-checking of stock during the pendency of an appeal to determine the correctness of allegations?
ORDER
NASIM HASAN SHAH, J.‑‑ This petition is directed against the judgment, dated 15‑12‑1983 passed by the Punjab Service Tribunal.
2. The petitioner, while working as Sub‑Engineer (Mechanical) in the Irrigation Department, was transferred in the year 1967 to work as Sub‑Engineer (Mechanical) at Headworks Sulemanki.
3. He was charge‑sheeted by the Superintending Engineer Head quarters Irrigation on 8‑2‑1974 on the charges that he was responsible for some shortage of materials, namely shortage of stock and T. P. articles amounting to Rs.1,15,209.90. The Inquiry Officer found that the charges against him stood established. A show‑cause notice was, therefore, issued to him and ultimately, vide order, dated 14‑9‑1981, the Superintending Engineer held him as well as one Sarwar Javid, Sub‑Engineer (who was one of his predecessors in office) jointly responsible for the shortage of stock and T.P. articles worth Rs.1,15,209.90. Consequently, recovery proceedings for half of the said amount, namely, Rs.57,604.95 were initiated against him.
4. Feeling dissatisfied with the order of the Superintending Engineer, Headquarters Irrigation, the petitioner filed an appeal before the Punjab Service Tribunal alleging that he was not responsible for the shortage at all. Before the Tribunal, it was also argued that the shortage in the stock articles for which the petitioner was being held responsible included some items which had outlived their utility or had already been consumed and did not exist in stock when the petitioner was posted as Sub‑Engineer at Headworks Sulemanki. It appears that the Tribunal, in order to determine the correctness of this allegation, allowed Mr. Muhammad Saeed Khokhar, Executive Engineer to re‑check the stock and the latter, after scrutiny, found that out of the shortage of stock and T.P. articles shown short against the petitioner's stores worth Rs.29,100 could not be attributed to him and was remissable while the petitioner was responsible for the loss amounting to Rs.28,504.95 only, which had occured due to his negligence/ embezzlement.
5. The learned Tribunal found that the account presented after scrutiny and re‑checking by Mr. Muhammad Saeed Khokhar portrayed the correct position and, accordingly accepted the appeal partially and modified the impugned orders to the extent that recovery of Rs.28,504.95 be made from him instead of fis.57,604.95 as directed in the impugned order. The petitioner now seeks leave to appeal against the afore mentioned order passed by the Tribunal.
6. The only contention raised before us by Ch. Mushtaq Masood, learned counsel for the petitioner, was that the Tribunal could not base its judgment on the basis of the scrutiny and re‑checking carried out during the pendency of the appeal by Mr. Muhammad Saved Khokhar, Executive Engineer, especially as the petitioner was not associated with the said inquiry carried out by the Executive Engineer aforesaid.
7. We find no force in this plea. It is quite evident that not only was the petitioner agreeable to the course adopted by the Tribunal of having the stores etc. re‑checked by Mr. Muhammad Saeed Khokhar he welcomed it. He raised no objection to the inquiry while it was being done nor claimed the facility of being associated with the scrutiny carried out by him. After deriving the benefit of his finding that he was liable for only less than the half of the amount earlier found against him he now wishes to take a further benefit of having the whole order set aside on account of the course adopted by the Tribunal, without reallsing that if his plea is accepted he would be liable to pays Rs. 57, 604.95 and not merely Rs.28, 504.95.
8. This petition is misconceived and without merit. It is, accordingly, dismissed.
M. I. Petition dismissed.