RASHID ALI MIRZA, MEMBER.- Appellant had been serving akistan Railway for the last 32 years. Lastly he was posted as A.S.I, at Railway Out post Habib Court. Then he was dismissed from service vide order dated 22/12/2001 by Respondent No.2. Against this he preferred departmental appeal on 28/12/2001 which remained unreplied, hence he filed appeal before this Tribunal on 22/02/2002 under section 4 of the Service Tribunals Act, 1973 with a prayer to set aside the impugned order of his dismissal from service and to reinstate the Appellant to his post with full back-benefits.
2. The disciplinary proceedings against the Appellant had been initiated by a Show Cause Notice dated 22/11/2001. Alongwith the above Show Cause Notice the Statement of Allegations was also issued to the Appellant which reproduced below: "OFFICE OF THE SUPERINTENDENT PAKISTAN RAILWAYS POLICE SUKKUR.
Head Constable No.415 Mohammad Aslam (Working as AS1 of PCV/Nabikot was served upon with Show Cause Notice No.561 -E/1-FAP, dated 22.11.2001 under Removal from Service (Special Powers)
Ordinance 2000 as amended by (Amendment) Ordinance No.V of 2001 on the following misconduct.
1. Awarded 6 different punishments viz:
(i) Warned for sending application this office in year 1974.
(ii) Reduction in pay by two stages in year 1975 for accepting illegal gratification.
(iii) Consured in 1982 for absence.
(iv) WIT/2 year with final warning in 2001 for his lose control as reported by JDV.
(v) Warned in future for absence in 1908.
(vi) Warned for future in 1994 for failed in such circumstance in subject law.
2. Enjoys bad reputation.
On receipt of his defence reply, he was heard in person on 21.12.2001 to vindicate himself from the charges but he failed to satisfy the undersigned with his explanation. He is therefore, removed from service with immediate effect.
Debits if any against him should be collected accordingly.
Sd/- (SYED MOHAMMAD HASNAIN)
Superintendent, Pakistan Railways, Police"
Sukkur
3. The Appellant replied to the Show Cause Notice wherein he denied the allegations levelled against him in the Statement of Allegations. The Respondents did not consider the defence of the Appellant taken up in the reply to the Show Cause Notice and he was dismissed from service after a so called personal bearing in which no heed was paid to the submission made, by him. The Appellant preferred departmental appeal but the Respondent kept it pending and till date the Respondents have not responded.
4. Respondents filed the Written Comments stating therein that the allegation are based on documentary evidence, having been denied by the Appellant in his departmental appeal, the same could be substantiated without recording any evidence, hence the competent authority has correctly dispensed with the regular enquiry by exercising power vested under sub-clause (4) of section 5 of Removal from Service (Special Power) Ordinance 2000.
5. We have-heard the learned Counsel for both parties and have gone through the record of the case.
We have observed that the Respondents have imposed major penalty in number of cases on the Railway employees on the basis of past minor punishment awarded to such employees on the general allegations of inefficiency and corruption without holding any enquiry in such allegations, in this appeal inter alia two important points arise for determination which are:
(i) Whether minor penalties awarded to. The Appellant in the past could be made basis for imposing major penalty of dismissal from service on the Appellant?
(ii) Whether a major penalty of dismissal could by imposed on the Appellant without holding enquiry into the allegations levelled against him.
7. In a number of identical cases, this Tribunal on the basis of law as laid down by the Apex Court answered both the points in the negative. Reference can be made to two identical cases bearing Appeal No.490(K)(CS)/2002, 42 to 45, 50, 51,61 and 62(K)(SC)/2002, Sher Muhammad and others vs. Pakistan Railway and 25(Q)(CS)/2002-Khurshid Nadir vs. Pakistan Railway.
8. The seriousness of the charges against the Appellant is evident from the above charge which has been made basis for the dismissal of the Appellant, in fact there is no to cogent evidence in support of the allegations of the Appellant having persistent reputation of being corrupt and of ceasing to be an efficient employee. The Respondents for proving these two charges relied on six minor punishments. No detail of such minor punishment had been given in the Statement of Allegations. These punishments were awarded during a period from 1974 to 1994. As per clause (iv) of Pakistan Railway Personal Manual-I, the minor punishments awarded under Efficiency & Disciplines Rules should be written of, if the employees do not commit any irregularity for two years after the expiry of the punishments, it is an admitted position that the last punishment awarded to the Appellant was in the year 1994 and. The disciplinary proceedings against the Appellant were initiated in November 2001 which means that the minor penalties awarded to the Appellant had already expired. This has neither been rebutted not controverted by the Learned Counsel for the Respondents. As such, the minor punishment which Appellant had already suffered and which have become a chapter past and closed cannot be used to vex the Appellant twice. Vexing the Appellant twice would fall within the principles of double jeopardy. This is supported by authorities reported in 1989 SCMR 1224, 2002 PLC (CS) 738 and PLJ 2004 Tr.C. (Service)
1. We therefore, hold that the minor punishment awarded to the Appellant cannot be used even as a corroborative basis of evidence because the Appellant was not alleged to have committed any act or omission amounting to misconduct after the year 1998 when his minor punishments had lost their force.
9. Coming to the second point we have to say that he Apex Court has consistently held in a number of cases identical and otherwise, that no major penalty could be imposed in disciplinary proceedings against the employees without holding regular enquiry into the serious allegations of fact which were denied by such employees and the same needed to be proved by recording of evidence, through regular enquiry providing the accused/employee full opportunity to cross- examine the departmental witnesses and to bring on record his defence and thereafter also providing an opportunity of personal hearing. Needless to say that in the instant case also the allegation of corruption and inefficiency needed to be proved by means of a regular enquiry with providing an opportunity to the Appellant to cross-examine the departmental witnesses and to put up his defence also. That having not been done, the Respondents cannot go to prove their allegation of inefficient and corruption against the Appellant.
10. In the above view of-the matter, we have no hesitation in accepting the appeal. We accordingly accept the appeal, set aside the impugned order dated 22/12/2001 and direct the Respondents to reinstate the Appellant in service to the post he was dismissed from service with all back-benefits for the period he was not gainfully employed elsewhere for which he shall file an affidavit before the competent authority. However it will be open to the Respondents to hold a de novo enquiry against the Appellant in accordance with law within a period-of four months. No order as to costs.
11. Copies of the judgment be sent to the parties and to the relevant quarters under registered cover under rule 21 of Service Tribunal.