QAZI MUHAMMAD HUSSAIN SIDDIQUL MEMBER.-- The appellant, who had been serving the respondents- Railways in the capacity of Train Examiner, was issued the following show-cause notice:- PAKISTAN RAILWAYS Divisional Office, Quetta No. DS/Misc./2002 Dated: 2/3/2002 SHOW-CAUSE NOTICE
1. Whereas you are charged with serious misconduct as per statement of charges attached.
2. And whereas on the basis of documentary evidence available it is not considered necessary to have formal inquiry against you and that proceedings are being initiated under Section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000 which might entail imposition of a major penalty of "dismissal from service" as specified in Section 3 of the said Ordinance.
3. Now, therefore, you are required to show cause within seven days from the date of receipt of this notice as to why the proposed action should not be taken against you.
4. If no response is received from you within the the stipulated above, it would be presumed that either you have no defence to offer and/or you have wilfully declined to do so. The case shall then be decided ex parte without further reference.
Sd /- (IQBAL SAMAD KHAN)
General Manager/Operations, Pakistan Railways, Headquarters Office, Lahore."
Alongwith the show-cause notice, following statement of allegations was appended. The appellant replied the show- cause notice denying the allegations, levelled in the statement of charges:- "STATEMENT OF CHARGES You Mr. Maqsood Ahmed, TXR under ITXR/KLR are charged for gross misconduct and inefficiency for the following allegations and other relevant circumstances:-
(1) You have encroached Railway Land in front of your Bunglow No. 32-A Zarghoon Road, Quetta and have constructed a house thereon; where your brother Mr. Mansoor Ahmed (Sub- v Engineer, in B&R Department) is residing.
(2) You had also provided illegal electric connection from your house No. 32-A to above- mentioned encroached house.
(3) You were allotted accommodation at Kolpur and were ordered to vacate House No. 32/A immediately, but you failed to vacate the same till January, 2002. Instead you are approaching various authorities to pressurize the administration for retention of said house.
(4) You have rented out your servant quarter to Mr. Abdul Rehman who is working in Daud Jang, Quetta, ln order to mislead the administration you have obtained a bogus affidavit from one Mr. Abdul Rehman whereas an information report has been received hat the above-named outsider was residing in your servant quarter on monthly payment of Rs.1,000/-.
(5) On account of your irresponsible and inefficient working you are awarded minor punishments for seven times on different cases and also awarded the major punishment of reduction to lower grade by 3 steps for two years in another case in which you were involved in smuggling of contra- banned goods. Inspite of that you have not improved your conduct.
(6) You also enjoy bad reputation.
You are therefore, being proceeded against under Removal from Service (Special Powers)
Ordinance, 2000.
Sd/ (IABAL SAMAD KHAN)
General Manager/Operations, Pakistan Railways, Headquarters Office, Lahore".
2. After receiving the reply of the appellant, the competent authority passed the order of dismissal of the appellant dated 2.4.2002. The appellant filed a departmental appeal dated 22.4.2002 against his dismissal from service, which was not replied to by the respondents. Consequently, the appellant filed this appeal before the Tribunal on 6.3.2002 under Section 4 of the Service Tribunals Act of 1973 praying to set aside the impugned order and to reinstate him in service with all consequential benefits.
3. The respondents filed the parawise comments in which they have mentioned the allegations against the appellant taking the plea of bar of limitation in filing the appeal.
4. We have heard the learned counsel for the parties and perused the record.
5. So far as the limitation is concerned, the appellant was dismissed vide order dated 2.4.2002.
Thereafter, he filed the appeal on 6.8.2002 after waiting for the reply of the respondents. The appeal should have been filed within 90 days of the dismissal from service in accordance with the provisions of the Removal from Service (Special Powers) Ordinance, 2000. The appeal having been filed after 103 days of the dismissal of the appellant from service means that the appeal is barred by a delay of 13 days. An application for condonation of the delay in filing the appeal was filed by the appellant, wherein plea had been taken by the appellant that the delay was due to illness of his wife at Quetta. Such plea is supported by his affidavit and a medical certificate, which we have perused. We have considered the question of limitation, ln our view, this appears to be a genuine ground for condonation of the delay. Apart from this, it being a case of major penalty of dismissal from servie, which 'penalty had been imposed without holding any regular inquiry. We condone the delay for deciding the appeal on merit.
6. The show-cause notice, as pointed out by the learned counsel for the respondents, shows that the competent authority had given proper reasons for dispensing with the regular inquiry. May that be so, but we find that the serious allegations of fact levelled against the appellant had not been admitted by him and these had been denied by him, necessitated regular inquiry for bringing home the allegations to the appellant, lt has been held by the apex Court in a number of authorities that where serious allegations of fact are denied by the appellant/employee, regular inquiry is absolutely necessary for proving the same and in that inquiry appellant has to be given chance to defend himself. Further that after the inquiry a show-cause notice about the proposed penalty has to be given to the appellant and he is also to be heard personally, but we find that all these things are missing in the proceedings against the appellant.
7. We therefore, allow the appeal, set aside the impugned order of dismissal of the appellant from service, reinstate the appellant in service and remand the case to the respondent for de novo inquiry against the appellant on the same charges/allegations. The inquiry is to be initiated and completed within a period of four months from the date of the "receipt of a copy of this judgment.
The question of back benefits for the period the appellant remained without any gainful employment shall depend upon the result of the inquiry. No order as to costs.
8. Announced in open Court.
9. Copies of Judgment be sent to the parties under registered cover and to +he relevant quarters, under Rule 21 of Service Tribunal (Procedure) Rules, 1974.