' AKBAR M. MEMON (MEMBER).---The appellant hereinabove who was lastly serving as conductor guard with the respondents has challenged the order dated 17-8-2001 passed by the respondents whereby he was removed from service with immediate effect. The order in question is rproduced hereunder:-- "You are hereby informed that the explanation received in response to Notice No. Even dated 16-4- 2001 has been carefully considered by Dy. DSI and in accordance with his Order the following penalty has been imposed on you with effect from (sic) ex parte decision is being taken and keeping in view nature of offence, you are unfit for performing duty, hence you are hereby 'removed from service with immediate effect.
(Sd)
' Divl. Personnel Officer)"
' P.R. Karachi
2. Mr. Laeeq Ahmed Jafri learned counsel for the appellant has contended that the appellant was employed as guard with the respondents and in that capacity he had put in service of more than 20 years to the entire satisfaction of his superiors. He has contended that he served the respondents quite satisfactorily and had maintained unblemished record throughout his career.
He has contended that on account of hardwork. With honesty and devotion, he, earned promotions and increments from time to time and he was lastly working as conductor guard till 20-8-2001. He has contended that on 28-2-2001 the appellant was called by the Comniercial Inspector for recording his statement with regard to complaint dated 27-6-2000 and since the appellant had no knowledge-of the complaint and also considering the fact that the enquiry was being conducted after nine months of the alleged incident, the appellant requested the Commercial Inspector to call the complainant but his request was not acceded to. At the same time he has contended that the appellant was not even provided with a copy of the complaint. He has contended that after ten months of the alleged complaint, the appellant was charge-sheeted vide No.573 KAC/6/12172000 on 16-4-2001 where charges of serious misconduct and fraudulent working were mentioned. He has contended that from the charge-sheet it revealed that on 27-6-2000 while working in 103-UP (Super Express) one passenger who was allegedly occupying Seat No.17, Coach No.4, requested for reservation of one seat, whereupon the appellant is alleged to have taken Rs. 20 from the said passenger but he did not issue any reservation ticket and had also misbehaved with the passenger' on repeated requests for issuance of reservation ticket. The appellant was required to explain as to why drastic action should not be taken against him for pocketing Rs.20 being reservation fee and causing loss to the department whereby he tarnished the image of the Pakistan Railways. He has contended that on 25-5-2001 after the lapse of 11 months, the appellant was called by the Divisional Transportation Inspector fore enquiry without calling the complainant, thus keeping, the appellant in complete dark. Subsequently the- appellant was informed of the ex parte decision whereby the appellant was removed from service. The appellant then filed his departmental appeal mentioning therein that the appellant had raised objection before the Enquiry Officer that without examining the complainant it was an enquiry of no evidence. However, the appellant come to know that some person had lodged such complaint in the name of Mian Muzaffar Hussain Abbasi of Ranipur. The appellant then approached the said Mian Muzafar Hussain Abbasi by going to Ranipur, where the appellant was stunned to know that he had never met the said Mian Muzaffar Hussain Abbasi, who on hearing the story wrote a letter to the respondent No.2.
Clearly mentioning the fact that the 2ppellant has been victimized, as according to him, the appellant was not the person, against whom he had lodged the complaint. The appellant's departmental appeal was not taken into consideration, therefore, he served notice upon D.S. Pakistan Railways through his counsel, whereupon he came to know that on 27-11-2001 his departmental appeal was already rejected on 11-9-2001 and both the letters were delivered to him on 30-11-2001, as is evident from Annexure-R/3, filed with the comments. He has contended that the enquiry report is based on conjectures and surmises, as the complainant, on whose complaint the charge-sheet was issued, had written a letter to the respondent No.2 and had filed an affidavit that the appellant was not the same person against whom he had lodged complaint, then too, without examining the complainant, the Enquiry Officer has held him guilty which is in violation of the principles of natural justice. In such circumstances, he has contended that the ex parte proceedings without examining the complainant were not of any legal consequences, as such, his removal order be set aside and he be reinstated in service with all back-benefits.
3. Mr. Muhammad Asghar, learned counsel for the respondents has at the very outset contended that the appeal is barred by limitation, as the appellant ought to have filed his service appeal when his departmental appeal was not responded within the mandatory waiting period of ninety days.
He has contended that the appellant ought to have filed appeal within 120 days and in case his departmental appeal was not responded and according to law he was required to have made enquiry as has been held in case of Government of Pakistan through Secretary Establishment v.
Bashir Ahmed Khan, reported in PLD 1985 (SC) 309. Coming to the merits, he has contended that the appellant's act of fleecing the passenger of Rs.20 in the name of reservation fee has given bad name to the respondents, as such, he has rightly been removed from service.
4. After hearing the arguments of learned counsel appearing for the parties, we have gone through appeal filed and also the case-law cited by Mr. Muhammad Asghar learned counsel for the respondents.
5. It is an admitted fact that the appellant was issued charge-sheet which was based on the complaint of one passenger Mian Muzaffar Hussain Abbasi of Ranipur who had alleged that while travelling in 103-Up (Super Express), he had approached the conductor guard for reservation of Seat No.17, Coach No.4, whereupon the appellant received Rs.20 from him but did not issue reservation ticket. On his repeated requests, the appellant misbehaved with him. The said charge- sheet was replied, Subsequently enquiry was conducted, where the main objection of the appellant was that the enquiry be conducted in presence of the complainant, but the Enquiry Officer without examining the complainant proceeded with the matter. It was therefore, that the appellant did not associate himself in the enquiry, due to which, the enquiry was conducted ex parte, which culminated in the removal of the appellant. On the other hand, the appellant @n coming to know that the complaint was made by one Muzaffar Hussain Abbasi of Ranipur, approached him who on coming to know about the real fact wrote a letter to respondent No.2, stating therein that it was not the appellant, against whom he had lodged this complaint. At the same time, the complainant Mian Muzaffar Hussain Abbasi, had filed such affidavit also. This shows that the very basis on which the enquiry was conducted was not in the field. In case the objection of the appellant was taken into consideration, then the position of the case could have been otherwise, as the complainant has stated in candid terms that he had not lodged his complaint against the present appellant:--
6. At the same time, considering the objection raised by Mr. Muhammad Asghar, learned counsel for the respondents about limitation, we are of the view that Mr. Muhammad Asghar has lost the sight of the document filed by him as Annexure-R/3 along with his comments. The said letter is dated 21-12-2002 which reads as under:-- FROM: SS/KYC TO: D.S/KYC No. CL-GD/M.S.K./Kyc Dated: 21-12-02 Sub: Mr. Saleem Khan s/o Shamsher Khan Guard Gr-III/Kyc. Ref: Your L/No.573-KAC/6/121/2000, Dt.
11-9-2001.
In reference to your letter quoted above the employee was untraceable and attend office on 30-11- 2001 and he received the above letter on 30-11-2001.
' This is for your information please.
' (Sd)
' Station Superintendent, Pakistan Railways ' Karachi City.
' This letter shows that the appellant was untraceable and he had attended office on 30-11-2001 when he received the letter dated 11-9-2001 on the said date. If this letter is taken into consideration, then the objection raised by Mr. Muhammad Asghar has no force, and the authority cited by him would be of no help to the respondents. On receipt of the letter for first time on 30-11- 2001, the appellant has filed his service appeal on 28-12-2001, as such, his service appeal before this Tribunal is well within time. Even otherwise, letter dated 11-9-2001 was addressed to the appellant through Station Superintendent, Karachi City and it was the duty of the Station Superintendent to have made arrangement to get same delivered to the appellant, but this was not done. In such a way, the objection raised by Mr. Muhammad Asghar regarding limitation, is devoid of any force.
7. In view of the above discussion, we are of the firm view that the enquiry itself was conducted without examining the complainant Mian Muzaffar Hussain Abbasi of Ranipur and at the same time, considering the fact that the said complainant had made a candid statement in his letter addressed to respondent No.2, that he had lodged his complaint against somebody else and not the present appellant we are of the view that the appellant has wrongly been held guilty of the offence which was not committed by him, as such we while allowing the appeal in hand, set aside the impugned order and direct the respondents to reinstate the appellant in the same position from which he was removed from service with all back-benefits.
8. In view of above discussion, appeal in hand stands allowed with no orders as to costs.
9. Parties be informed accordingly.