' NAZAR MUHAMMAD SHAIKH (MEMBER).---Appellant has filed this appeal under section 4 read with section 2A of the Service Tribunals Act of 1973 to assail the ex parte orders of his dismissal from service dated 31-1-2002 passed by the Respondent No,2. Appellant filed departmental appeal on 12-2-2002 followed by another supplementary appeal dated 2-3-2003. Failing to receive any response, Appellant has approached this Tribunal through this appeal on 10-5-2002.
2. Brief facts of the case are that the Appellant had rendered about 19 years' service and was last posted as Guard Grade-II at Jacobabad when he was served with a Show Cause Notice bearing No, 59-SAC/72/2001 dated 26-1-2001 containing the following allegations: "Statement of allegations ' For serious misconduct inasmuch as that you Mr. Nazar Mohammad Conductor Guard, Headquarter Jacobabad, while working 70 Dn (Sukkur Express) dated 23-8-2001, committed the following serious irregularities as detected by the Vigilance Team:--
1. On arrival of the train at Rohri Station, you were handling economy class charts and allocating seats/berths to passengers without issuing SRTs/BRTs and the amount collected from passengers against such tickets was not deposited in the Government treasury.
2. The detail of passengers accommodated and the amount illegally pocketed is given as under: {{TABLE}} Name Ticket No, S.No, Amount i) Mr. M. Azam S/o Allah 016478 43/15 Rs,20.00 Dino, R/O Goth Ashraf Mahar Distt: Ghotki ii) Mr. Asghir Ali S/o 805160 83 & Rs,40.00 Akbar Ali, with another 84/15 Passenger RIO Bahawal Naghar. {{TABLE}}
3. That you confessed your guilt in writing to the Vigilance Team.
4. That you have ceased not only to be an efficient employee, but are also corrupt aS reflected in this act of pocketing Railway money."
Appellant submitted his response on 7-11-2001 denying the allegations and requested for inquiry.
3. Learned counsel for the appellant forcefully arguing the appeal has stated that appellant's career in the Respondent Organization was unblemished and without any enquiry or charge-sheet.
He stated that the appellant had been punished in violation of principles of natural justice and in disregard of the rulings of the Hon'ble Supreme Court. He stated that the respondent while issuing show-cause notice issued to the appellant dispensed with the holding of regular enquiry without giving any detailed reason. He further pointed out that the appellant was issued charge-sheet on 7-9-2000 which was cancelled vide show-cause notice issued on 26-10-2001. He further argued that the Hon'ble Supreme Court has now made it obligatory that major penalty of dismissal should not be imposed without holding formal regular enquiry and in this regard he has placed reliance on rulings reported in 1997 SCMR 1543 = 1997 PLC (C.S.) 817, 2003 PLC (C.S.) 353, 1977 PSC 539, 2003 SCMR 104, PLD 2002 SC 667, 2002 SCMR 57 and 2003 PLC (C.S.) 395/514. He further pointed that the Appellant's response to the show-cause notice was refused to be received by the Respondent No,4 and Appellant was told that his case had already been sent to the Headquarter for ex parte decision. He pointed out that the Appellant dispatched his written response to the show-cause notice to the General Manager Railways. Respondent No,2 vide TCS on 20/11-2001 yet it was not considered and he was imposed the major penalty of dismissal from service. He further pointed out that the Appellant was not afforded any personal hearing and he had been condemned unheard in gross violation of the principles of natural justice. In this regard he relied on rulings reported in 1977 PLC (C.S.) 333, 2001 PLC (C.S.) 419 and PLJ 2001 Tr.C. (Service) 319. He further argued that the Appellant has been awarded major penalty of dismissal from service for an allegation of pocketing Rs,60.00 received from the passengers. He stated that the gravity of the alleged offence did not warrant such major and harsh punishment and in this regard he placed reliance on rulings reported in 2003, TD (Service) 117, 2002 and 2002 SCMR 692 and SCMR 690. He further contended that the Appellant has been punished on the direction of the Joint Director, Vigilance, Pakistan Railways, dated 27-8-2001 which cannot be done as per ruling laid down by Hon'ble Supreme Court in its decision reported in PLD 2002 SC 667. He further pointed out that the Respondnets have not submitted Counter-Affidavit which means that they have accepted the entire defence of the Appellant. In this respect he cited rulings reported in 1986 CLC 1408 and 1998 Tribunal Cases Service
114. Learned Counsel for the Appellant further contended that in identical cases of Falak Naz, Liaquat Masih, Hameed Rajpar, Jamil Akhtar, Sardar Ahmed Shaikh and M. Salim Khan the Appellants were reinstated in service. He also argued that Appellant had not written the confessional statement as alleged by the Respondents and that that the Army Vigilance Cell obtained his signatures on blank paper and wrote the contents of the so-called confessional statement.
4. Learned Counsel for the Respondents opposed the appeal and stated that the Appellant was rightly punished in accordance with the rules and procedure and further stated that the Appellant had himself signed the confessional statement which cannot be denied at this stage. He further stated that a complaint was also received from the passengers and in view of such overwhelming documentary evidence there was no need to hold further enquiry in the light of Hon'ble Supreme Court ruling reported in 2000 SCMR 435. He also pointed out that personal hearing was not necessary when written confessional statement was made by an accused civil servant. He also further contended that since the appellant had not submitted his reply to the show-cause notice, it was recommended that ex parte decision be taken against him. He further contended that the rulings cited by the appellant's learned counsel were distinguishable from the present case insofar as no confessional statement was available in those cases. He further pointed out that the submission of Reservation Chart at this stage when it was not relied upon in Written Statement in departmental appeal cannot be accepted. He further pointed out that Appellant had chequerred career and his performance was not satisfactory and that he had been awarded punishment on eleven (11) occasions during the years 1985 to 1994. Concluding his arguments he stated that the appellant had been proceeded against strictly in accordance with the provisions of Removal from Service (Special Powers) Ordinance 2000 and, as such, his departmental appeal was not maintainable.
5. After hearing the learned counsel for the appellant and on perusal of record and citations, it transpires that the appellant was charged for pocketing Rs,60 for Seats Nos.83 and 84 which were already reserved for Mr. Arjan Das and Mrs. Arjan Das against Ticket Nos. 76817 and 76818 and Seat No,43 reserved for one Mr. Shahzad by allocating these Seats to Mr. M. Azam and Asghar Ali and Akbar without issuing SRTs/BRTs. The record also indicates that there is confessional statement duly signed by the Appellant. Appellant's counsel contended that his signature was obtained on a blank paper by the Army Vigilance Team and that its contents were written by the Vigilance Cell.
This plea is an afterthought as he did not raise this issue in his response to the show-cause notice which was the appropriate state to protest. This contention that the confessional statement was not seen by the appellant and that he had given his signature on a blank paper is, therefore, misconceived. As regards personal hearing, appellant was asked through show-cause notice issued on 26-10-2001 whether he wishes to be heard in person but appellant did not care to request for personal hearing in his response to the show-cause notice. We tend to agree with the learned Counsel for the Respondents that personal hearing was not necessary in view of the confessional statement and the ruling cited by him referred to earlier in this judgment lend support to this contention. As regards contention of the learned counsel for the appellant that Army Vigilance Cell cannot give direction for taking action against the appellant is misplaced. In support of his contention he has cited ruling reported in PLD 2002 SC 667. That case is distinguishable from the present case and insofar as in that case Army Vigilance Cell had issued specific direction that the accused civil servant be terminated from service and the said direction has been reproduced in that judgment reads as under: "Terminate him from service."
6. Learned counsel for the appellant had also assailed the impugned order on the ground that the respondents have accepted the contents of Memo. Of Appeal as they have failed to file Counter- Affidavit. The non-filing of Counter-Affidavit may have been an omission, but the fact is that the respondents have formally contested the appeal and nominated Standing Counsel and also filed written objections denying the contents of the Memo. Of Appeal, it cannot be said that the Memo.
Of Appeal had peen accepted. We. Are, therefore, unable to subscribe to this plea of the -learned counsel for the appellant. The cases cited by the learned counsel 'for the appellant stating that in the identical case accused employees were reinstated was denied by the respondents as in those cases confessional statement was not there. As regards Appellant's plea that the major punishment of dismissal from service imposed on the appellant was not commensurate with the gravity of the offence is not acceptable because the appellant had indulged in misappropriation of Rs, 60, though this amount is small but it indicates the character of the appellant who stopped low enough to pocket this paltry sum which clearly indicates that his integrity is absolutely untrustworthy and that he is dishonest to the core. If we take the back-ground of the fact that the appellant had been punished eleven (11) times in span of eight years, it clearly indicates that appellant is totally an undesirable character who cannot be retained in any organization. We are surprised that the appellant had been punished so many times in the past but has been retained in service to commit yet another illegal act.
8. The above discussion clearly indicates that the appellant was rightly proceeded against and we do not find any merit in the proceedings to warrant our interference. The appeal being without merit is therefore, dismissed. We leave the parties to bear their own cost and they may be informed accordingly.