ABDUL RAUF QURESHI Versus DIRECTOR-GENERAL, AUDIT AND ACCOUNTS WORKS, LAHORE

CH. HASAN NAWAZ (MEMBER).‑‑‑ The appellant who was in service as Divisional Accountant under the Respondents, was compulsorily retired from service with immediate effect by order dated 26‑4‑1989 in consequence of proceedings under the Government Servants (Efficiency and Discipline) Rules, 1973. By that time, he had already completed more than 30 years qualifying service for pension. On departmental appeal, the competent authority converted the penalty of compulsory retirement from service into reduction to one lower stage in Pay Scale for a period of three months by order dated 27‑9‑1990. His pay was accordingly reduced from Rs.2,585 to Rs.2,514 for a period of three months from 27‑4‑1989 to 26‑7‑1989.

2. The validity of Border dated 27‑9‑1990 has been challenged in the present appeal under section 4 of the Service Tribunals Act, 1973 after fulfilment of statutory requirements of section 4(1)(a) of the Act.

3. The appellant was served with charge‑sheet dated 3‑3‑1987 accompanied by statement of allegation which is to the following effect:

"STATEMENT OF ALLEGATIONS AGAINST

MR. ABDUL RAUF OURESHI, DIVISIONAL ACCOUTANT

During his incumbency as Divisional Accountant in Provincial Buildings Division, Toba Tek Singh he is alleged to have committed the following irregularities in connection with the execution of the construction work of "Commercial Training Institute, Toba Tek Singh".

(i) that he failed to detect the fictitious payment of Rs.17,21,039 made to Javid & Co. up to 7th running bill in Vr. No.4, dated 12‑10‑1986 for providing/laying of 4" I/D G.I. Pipeline over a length of 15,000 Rft. without any provision as described in the administrative approval and the contract agreement while pre‑auditor the bills;

(ii) that during the course of pre‑audit, he recorded two separate pre -audit and passed orders, one after the other on pages 11 to 13 of Measurement Book No. 2882/719 for different amounts without any cogent reasons and without raising the objections called for in such cases;

(iii) that he attempted to destroy the proof of his guilt in connection with fraudulent payment referred to above, by tampering with the entries in the Measurement Book and mutilated some of them by application of Liquid;

Prima facie, he appears to be guilty of the charge of inefficiency and misconduct and is charged accordingly

(Sd.)

DEPUTY DIRECTOR (I)."

4. The appellant denied the correctness of these allegations in his explanation in writing dated 14‑7‑1987. However, an Inquiry Officer was appointed and he found him guilty of commission of acts constituting a basis for the first two charges. He was exonerated of the third charge.

5. As we have already noticed, the first charge against him was that he failed to detect fictitious payment of Rs.17,21,039 to the Contractor. As a matter of fact, as we see from the material on record and the Inquiry Officer's report, the alleged fictitious payment was to the extent of Rs.8,93,227.50. The basis of Inquiry Officer's report was that this payment was made regardless of the fact that no work had been done at the site and that, therefore, the measurements and payment were fictitious.

6. We feel that there is substance in the arguments that as an Accountant or Auditor the appellant ,had nothing to do with the position which actually existed at the site. He was not supposed to know whether the work had actually been completed or executed in accordance with the contract. There is also force in the contention that it was exclusive and sole responsibility of the concerned Engineering Staff and that the appellant was not required to go to the site and verify the fact of actual execution, after a certificate had been furnished by the Sub‑Engineer, SDO and Executive Engineer concerned in respect of the execution and completion of the work at site. There is nothing on the record to show that the appellant was bound under the rules to go to the site and satisfy himself about the completion of the work after necessary certificate had been furnished by the concerned Engineer who were supposed, in the performance of their duties to know whether the needful had been done in. accordance with the terms of the agreement.

7. There is another aspect of the matter. The record shows that an inquiry was held against the Executive Engineer and other members of the Engineering Staff by the concerned authorities in consequence of the disciplinary proceedings. In those proceedings the XEN and the SDO concerned were exonerated of, the same charge by the Inquiry Officer who reported that charge regarding fictitious payment had not been established. His finding was that there was no evidence to show that the requisite work had not been completed or executed at the site. It was held that payment of Rs.8,93,727 was rightly made to the Contractor. Now if the work at site had been completed and the payment of aforementioned amount was thus justified, we fail to understand what offence was committed by the appellant. The Inquiry Officer's report and the exoneration of the Engineering Staff from this charge left absolutely nothing to be relied upon for a finding that the appellant was guilty of the commission of any offence. We hold that the exoneration of the Engineering Staff in the other case took away the very basis of an adverse finding against the appellant in this case.

8. The second charge in respect of two separate pre‑audit and pass orders is not of any consequence, considering that no excess payment was made. The competent authority signed one of the pass orders and the other was allowed to stay on another page by mistake which in fact appears to have been pointed out by the appellant. Given the fact that two separate pre‑audit and pass orders were passed, no punishment was justified under the circumstances of this case. It may be mentioned that even this charge has been levelled against the XEN concerned and that he was exonerated by the Inquiry Officer in his report. This being so, there was absolutely no reason why any penal action should have been taken against the, appellant.

9. For these reasons we accept the appeal and set aside the impugned order‑27‑9‑1990 with all consequential benefits. There will be no order as to costs.

A.A./794/Sr.F Appeal accepted.