AKBAR M. MEMON, MEMBER.-Appellant herein above, who was lastly working as Constable with the respondents has challenged the order dated 31.8.2001, whereby he was awarded punishment of dismissal from service with effect from 31.8.2001. The order in question is reproduced hereunder:-
Constable No. 565 Liaquat Ali of MYP was issued show- cause notice No. 816-S/1-PAF, dated 9.8.2001 on the following allegations:- That you were awarded stoppage for increment for three years in 1995 and for one year in 1998.
His reply of show-cause notice was not received in this office till date. Therefore, ex parte action taken against him and he be awarded the punishment of Dismissal from Service w.e.f, from 31.8.2001. -Sd- (Superintendent) for Pakistan Railways Karachi
2. Mr. Sanaullah Noor Ghauri learned counsel for the appellant has contended that the appellant joined Railway Police as Constable Karachi Division on 4.5.1998, where his entire record remained unblemished. He has contented that the appellant was lastly posted as Constable at MYP on 6.8.1999 and while posted as MYP, he proceeded on leave for 30 days which was sanctioned vide order dated 30.7.2001. He has contended that the appellant after availing one month's leave reported for duty on 30.8.2001, when he was handed over show-cause notice dated 9.8.2001, indicating certain punishments to the discredit of the appellant and also that he was not enjoying good reputation and that he might reasonably be considered as corrupt. He has contended that the appellant' was preparing himself to offer reply to the show-cause notice, when on the next day the impugned order was passed. He has contended that the show cause notice dated 9.8.2001 was not at all served upon him, though his home address was available to the respondents and after proceeding with the matter ex parte, the impugned order was passed against the appellant against which he filed departmental appeal on 4.9.2001 which remained un responded, hence this appeal. He has contended that the impugned order is based on an action in which the appellant was not associated, as such, the same is not sustainable in law. He has also contended that the impugned order whereby major penalty of dismissal from service was imposed by the respondents is not sustainable in law as no inquiry whatsoever was conducted by the respondents. At the same the, he has contended that in the show- cause notice, regular inquiry was dispensed with, but no proper order for dispensing with the inquiry was passed by the respondents, as such, the impugned order is not legal. He has further contended that the punishment of dismissal from service has been awarded on the basis of past punishments for which the appellant was already punished, as such, it would be a case of double jeopardy and the same is in violation of Article 3 of the Constitution of Islamic Republic of Pakistan. Lastly he has contended that the order has been passed without affording chance to the appellant of personal hearing, as such, on this score. Also, the order is not liable to be sustained, in support of his contentions, he has placed reliance on 2001 PLC 489, PLD 1994 222, 1997 TD (Service) 346, 2002 PLC (CS) 391, PLJ 2002 (SC) 1059 and PLJ 1997
(SC) 1393. He has also cited cases of Sadder Ahmed Sheikh Jam eel Kantar in Appeals Nos. 211 (K)
(CS) 2001 and 162 (K) (CS) 2001 decided by this Tribunal.
3. Mr. Latif Saghar learned counsel for the respondents has opposed the contentions raised by the learned counsel for the appellant. He has contended that the appellant was having bad service record which is evident from the fact that he was awarded stoppage of increments for three years in the year 1995 and also for one year in the year 1998, as such, he has rightly been punished, whereby penalty of dismissal from service was imposed by the respondents. He has contended that appeal has no merits, as such the same is liable to be dismissed.
4. After hearing the arguments of learned counsel appearing for the parties we have gone through the appeal file.
5. Record shows that the appellant has been dismissed from service on the basis of previous punishments. At the same the, neither any inquiry was conducted nor proper chance was afforded to the appellant to put up his case. Even the show-cause notice issued by the respondents on 9.8.2001 was not served upon the appellant, through his address- was available with the respondents. The notice could have been sent to the appellant at his home town address as he was on leave for one month, but this was not done. Even no elaborate order was passed by the respondents while dispensing with the regular inquiry. This shows that the appellant has been condemned unheard. Show- cause notice was handed over to him when he returned back to join his duty and when he was preparing to offer reply to the show- cause notice, the impugned order was issued on the very next day. in an identical situation, Bench of this Tribunal while setting aside impugned order had reinstated the appellant therein from the date when the impugned order was passed with further direction to initiate fresh disciplinary proceedings within four months.
Paragraphs 5 and 6 of the said judgment in Appeal No. 211 (K) (CS) 2000 are reproduced hereunder:- "5. During the course of the arguments the learned counsel for the respondent conceded that no departmental inquiry was conducted by the department but submitted in the same breath that it was not considered necessary to hold the inquiry due to incriminating evidence available against the appellant. However, no reasons or basis was recorded for dispensing with the inquiry proceedings in compliance with the provision of section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000 as referred to above. The learned counsel also contended that the appellant was compulsory retired ' from service as a result of disciplinary proceedings commenced with the show-cause notice dated 30.3.2001 and the major penalty of compulsory retirement from service imposed on him was nothing to do with the charge-sheet served to the appellant on 27th of November, 2000. However, he could not give a satisfactory reply to the observation that why a charge at serial No. (d) of the Statement of Charges annexed with show- cause notice of 30.3.2001, investigated during a previous inquiry initiated in the wake of Charge- Sheet of 27.11.2000 and eventually dropped, inter alia, due to the exoneration of the appellant vide Notification of 1.3.2001 was again included in his Statement of Charges enclosed with the show- cause notice dated 30.3.2001.
6. Based on the afore-mentioned discussion, the impugned order dated 30.4.2001 of compulsory retirement of the appellant is set aside and consequent thereof the appellant is reinstated into service with effect from the date of his compulsory retirement i.e. 30.4.2001. The respondent department is further directed to initiate fresh disciplinary proceedings against the appellant within four months of the date of this order as per law, removing the legal and procedural infirmities as detailed above. Back benefits and appellant's further retention in service will depend on the findings of the de novo disciplinary proceedings as directed."
6. Similar view was taken by us in Appeal No.162(K)CS/2001. Following the judgment of our own Tribunal in Appeal No. 211(K)CS/2000 and Appeal No.162(K)(CS)/2001, we set aside the impugned order dated 31.8.2001 and direct the respondents to reinstate the appellant on the same position from which he was dismissed from service. The respondents are further directed to initiate fresh disciplinary proceedings against the appellant within four months from the date of this judgment as per law. The question of back benefits and further retention of the appellant in service would depend on the findings of the Inquiry Report.
7. Appeal accordingly Stands allowed with the above observation with no orders as to cost.