QAZI MUHAMMAD HUSSAIN SIDDIQUI, MEMBER.- -While the appellant was posted as AS1 (Assistant Sub- Inspector) in Pakistan Railways, he was compulsorily retired from service, vide order dated 24.6.2001. He preferred departmental appeal to the Inspector-General, Railway Police, on 21.7.2001, but having received no reply thereof, he preferred the appeal before this Tribunal under Section 4 read with Section 2 of the Service Tribunals Act of 1973, on 13.10.2001.
2. Briefly the facts leading to this appeal are that the appellant having entered in the Pakistan Railways Police service. As Constable on 23.10.1970 was gradually promoted to the post of Sub- Inspector but his order of promotion as Sub-Inspector was withdrawn by the respondents on 20.1.2000. Consequently, he was reverted to the post of Assistant Sub-Inspector; that while he was posted as Assistant. Sub-Inspector in Multan Division at ROP Bahawalpur, a show-cause notice containing the following allegations was issued to him:-- "(i) That you were awarded with the punishment of Censure in the years 1971, 1980, 1996, 1998 2001, WITs for one year each in 1992 and 1997 of various charges of in-efficiency, misconduct and corruption.
(ii) That your working was reported as Average in the ACRs of 1991, 1996, 1998, 1999 and 2000.
(iii) That you enjoy bad reputation/inefficient and as such you may reasonably be considered as corrupt."
3. The appellant replied the show-cause notice but his reply did not find favour with the Authorized Officer, who vide order dated 17.4.2001, awarded to the appellant punishment of forfeiture of 3 years approved service with immediate effect. The appellant filed the departmental appeal against such punishment, but the appellate authority imposed a penalty of compulsory retirement upon the appellant on the ground that in his considered view the punishment of forfeiture of approved service for three years is muchless than the activity of his misconduct, inefficiency and "bad reputation as is indicated from his record and his retention in service is in no way beneficial for the Department.
4. The appellant prayed to set aside the impugned order of punishments of compulsory retirement as also of the forfeiture of Ws three years approved service and to reinstate him in service with all back benefits or in the alternative remand the case to the department for de novo action as per rules.
5. Subsequent to the filing of the appeal, the appellant filed an application under Section 5 of the Limitation Act for condonation of the delay.
6. The learned counsel for the appellant, at the very out-set,: pointed out that no such punishment as forfeiture of approved service has been prescribed in Government Servants (Efficiency and Discipline) Rules, 1973 or in the Removal from Service (Special Powers) Ordinance, 2000; hence, such punishment awarded to the appellant by the Authorized Officer was illegal. Further that there is no provision of Authorized Officer in the Removal from Service (Special Powers) Ordinance, 2000 under which the punishment of forfeiture of service has been imposed upon the appellant, as such, the said punishment was patently illegal and liable to be set aside. The learned counsel for the respondents could not rebut that position. The award of punishment of three years forfeiture of service under Removal from Service (Special Powers) Ordinance, 2000 was not doubt patently illegal; hence, such punishment could not have been sustained.
7. So far as the punishment of compulsory retirement of the appellant is concerned, the learned counsel for the appellant argued that such punishment was imposed upon the appellant on the basis of stale minor punishments, which had lost their force and there was no fresh incident or event on which any minor or major punishment could be imposed on the appellant subsequently making the same as an example of inefficiency. The learned counsel stated that if, the plea of inefficiency of the appellant on that score were allowed, it would amount to "double jeopardy' and vexing the appellant twice for the punishments he -had already undergone. The learned counsel relied on 1995 PLC (CS) 547, 1989 SGMR 1224, PLD 1973 CS 188. PLJ 2004 Tr.C. Service-1, SBLR 2004 Tr.
273, 1995 PLC (CS) 547, 1989 SCMR 1224, 1998 PLC (CS) 648, 2002 PLC (CS) 738, 1991 PLC (CS) 33 and 1995 PLC (CS) 666. The learned counsel further argued that the average reports of the appellant for the years, mentioned in the show-cause notice, could not be a ground for holding the appellant inefficient. He relied on PLD 1962 SC 144. The learned counsel for the appellant further argued that there was no evidence about th appellant allegedly enjoying bad reputation or bein inefficient or to be reasonably considered as corrupt. That these being a very serious charges and the appellant having denied such charges, it was incumbent upon the respondents to have proved, such allegations by means of a regular inquiry, giving the appellant full chance to defend himself, but that was not done, therefore, by no stretch of imagination, such charge could be said to have been proved against the appellant for imposing on him major penalty of compulsory retirement from service. The learned counsel relied on 1984 PLC (CS) 641, 1986 PLC (CS) 894, PLD 1994 SC 222, 1985 PLC (CS) 245, 2004 SCJ 455, 2004 SCMR 1662 and KLR 2004 L&S.C. 230.
8. The learned counsel for the respondents contended that the appeal was the-barred and it was to be dismissed for that reason alone. He further stated that the application for condonation of the delay merited to be dismissed because the rulings cited by the learned counsel for the appellant were not applicable to the case of the appellant. He further contended that the punishments, mentioned in the show-cause notice indicated that the appellant had ceased to be efficient and such punishments amounted to misconduct. According to him, the appellant was rightly punished by the appellate authority by observing all the necessary legal formalities.
9. We have carefully considered the arguments of both sides and the authorities cited at the bar.
10. So far as the delay in filing the appeal is concerned, we are inclined to condone the delay for the reason that the departmental appeal was not rejected on the ground of delay and no objection was raised by the respondents in their written comments. On the contrary, the appeal was admitted on no objection given by the learned counsel for the respondents On the other hand, the two punishments, imposed upon the appellant, being illegal and void for not drawing the disciplinary proceedings in accordance with law, delay in filing the appeal is condoned accordingly.
11. All the authorities cited by the learned counsel for the appellant are fully applicable in connection with- the points, raised by him in his arguments. We agree with the contentions of the learned counsel for the appellant that basing the major punishments of compulsory retirement on stale minor punishments, which had lost their force, amounted to double jeopardy and vexing the appellant twice. We also find that there is no evidence in support of the proof of any corruption or reputation of corruption against the appellant, in our view imposing of major penalty upon the appellant without resorting to the departmental inquiry and without giving a chance to the appellant to defend himself was absolutely illegal. No Govt, servant can be punished without any cogent and convincing evidence against him of any charge of inefficiency of corruption. We hold that the charges/allegations against the appellant, as continued in the show-cause notice dated 19.3.2001, have not been proved, therefore, we allow the appeal, set aside the impugned order of his compulsory retirement and we direct the respondents to reinstate the appellant in service from the date of his compulsory retirement with all back benefits for the period he was not gainfully employed elsewhere, for the proof of which he shall submit an affidavit before the competent authority. The respondents shall, however, be at liberty to initiate *fresh inquiry against the appellant oh the charges of inefficiency or corruption, if they are so advised. No order as to costs.
12. Copies of the judgment be sent to the parties under registered cover and to the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974.