' NAZAR MUHAMMAD SHAIKH. (MEMBER).---The background of the case is that the appellant joined the respondents-Organization as cleaner on 16-10-1980 and after undergoing training as Apprentice Cleaner at Walton Railways School, Lahore, he was posted at Karachi. Later, he was promoted as Fireman and transferred to Loco Shed Kotri. On 22-5-2002, appellant was served with a show-cause notice wherein he was charged with stealing and mis-appropriation of three oil drums on 29-2-2002 near Railway Station Braudabad at KM No.64. Appellant submitted his reply to the show-cause notice on 3-6-2002 denying all the charges. Respondents, however, did not consider his reply satisfactory and imposed major penalty of removal from service. Appellant filed departmental appeal on 8-7-2002 which has remained unresponded despite lapse of prescribed statutory period.
2. 'The learned counsel for the appellant strenuously argued appeal and stated the appellant has been awarded major punishment of removal from service on the basis of F.I.R. No.5 of 2000 dated 29-2-2000. He further stated that the appellant who was arrested in pursuance of this F.I.R. Was on bail now. He also argued that the show-cause notice has been issued by an incompetent authority as Divisional Superintendent Pakistan Railway was not one of the prescribed competent authorities for issuing of show-cause notice in terms of the provisions of Removal from Service (Special Powers) Ordinance, 2000. He further pointed out that summary procedure has been adopted by the respondents to award major penalty of removal from service on the basis of preliminary inquiry which was in violation and principles enshrined in the rulings of the Hon'ble Supreme Court reported in 2004 SCMR 294. He contended that the appellant has been exonerated by the Inquiry Committee. He also asserted that holding of inquiry was dispensed with without recording any reason and in disregard of the rulings reported in PLJ 2004 Tribunal cases (Services)
1. He also argued that in view of fact that the Appellant had denied the allegations, holding of regular departmental inquiry was mandatory and in this regard he relied on the rulings reported in 1986 PLC (CS) 894 and PLJ 2003 Tribunal Cases 231. He further pointed out that the appellant was also not afforded personal hearing which was in violation of the principles of natural justice and in disregard of the ruling of the Hon'ble Supreme Court reported in PLD 2004 SC 441. He further stated that the impugned order was a non-speaking order and in fact it was a cyclostyled order in which appellant's name and particulars were filled in which was in negation of the rulings reported in 2003 Tribunal Decisions (Service) 247 and 410. He also alleged that the Establishment Division's instructions contained in Notification dated 21-9-2001 wherein detailed procedure for taking action against the accused civil servant was violated under Removal from Service (Special Powers)
Ordinance, 2000. He further asserted that the appellant had been discriminated against as one of the co-accused Rehmatullah nominated in the F.I.R. Has already been reinstated by the FST vide its judgment dated 7-6-2004 in Appeal No.379 (K)(CS) of 2002,
3. The learned counsel for the respondents opposed the appeal and read out the statement of allegations and stated that the appellant was found involved in stealing of oil drums and misappropriation. He further stated that admittedly regular inquiry was not held and requested the Tribunal to remand the case to respondents for de novo proceedings 'against the appellant.
4. We have heard the learned counsel from both sides and perused the record and citations. The facts clearly state that the appellant had denied that allegations of misappropriation and stealing of oil drums and it would have been only proper and just that a regular inquiry as mandated by the Hon'ble Supreme Court in its various rulings cited by the learned counsel for the appellant was held to conclusively establish Appellant's guilt. It would be relevant hereto reproduce the statement of allegations, which reads as under:- "No. E-1013/5/119 May 22,2002 STATEMENT OF CHARGES
1. Whereas you Mr. Qalandar Bux, Fireman Kotri are charged with misconduct, inefficiency and corruption for the following charges and other relevant circumstances:--
(a) It was reported that HSD Oil was being stolen from the Diesel Locomotives near Braudabad Railway Station. On 29-2-2002 Mr. Muhammad Ramzan, Station House Officer, Railways Police Station, Kotri raided at site and recovered three drums, out of which two drums were half loaded with HSD Oil and one drum was empty, two plastic cans, one of them containing HSD Oil and two pieces of pipes measuring about 17 to 18 feet with one drum opening key. All these items were lying at KM No.64 between Down Outer and Home Signals of Braudabad Railway Station. You have been found involved in misappropriation of 5461 liters HSD Oil with the connivance of Mr. Muhammad Ayub, Station Master, Braudabad.
(b) It has been reported that you enjoy bad reputation.
2. You are, therefore, being proceeded against under Removal from Service (Special Powers)
Ordinance, 2000-2001.
(Sd.)
(Abdul Wahah Awan) Divisional Superintendent, Pakistan Railways, Karachi."
' The reading of the allegations does not fully establish that the appellant was really guilty of the allegations and even the evidence or documents on the basis of which it has been concluded that the appellant was guilty have not been referred to in the statement of allegations. The allegation that the appellant enjoys bad reputation has also not been substantiated by any specific mention of lapses in this regard. It would be also relevant to point out that the preliminary inquiry report conducted by the respondents clearly establishes that the appellant was not involved in the theft.
Findings of the Inquiry Committee and its conclusion are as under:-- "Finding:- F/man Mr. Qalandar Bux HQ, KPT.
' After the statements Cross-examinations, it was found that the fireman was on three days' causal leave from 25-2-2000 to 27-2-2000, and then he worked DN.KMR Spl; with the driver Mr. Ali Mardan of HQ KOT on 28-2-2000 and the crew returned from KC to HQ KOT as spare on 29-2-2000.
' Hence the Inquiry Committee finds the Fireman innocent for the theft case of HSD Oil from the fuel tanks of the locomotive between down outer and home signal of BKB Station.
' Responsibility.
' From the finding, it is concluded that the Fireman Mr: Qalandar Bux of HQ KOT is not responsible in the theft case of HSD oil from the locomotive in fuel tank between down outer and home signal of SKB Station, on 27-2-2000 and 29-2-2000."
' Furthermore the aforementioned arguments of the learned counsel for the appellant could not be rebutted by the respondent's learned counsel and as stated earlier he volunteered that the case may be remanded back to the respondents for holding de novo inquiry.
5. The above discussion clearly brings out legal infirmities in the proceedings against the appellant which have not been rebutted by the respondents and that the Inquiry Committee has exonerated the appellant, we feel that the respondents have acted with malice and unjustly penalized without conclusively proving him guilty. Appellant was also on casual leave on 29-2-2000. We, therefore, set aside the impugned order and reinstate the appellant in service from the date of issuance of the said order with full consequential benefits.
6. No order as to costs. Parties be informed accordingly.