RASHID ALI MIRZA, MEMBER.- Appellant has filed this appeal under section 4 read with section 2-A of the Service Tribunals Act, 1973 to contest Respondent's order dated 26.04.2002 whereby he has been imposed major penalty of dismissal from service in terms of the provisions of Removal from Service (Special Powers) Ordinance, 2000 on the following charges: STATEMENT OF ALLEGATIONS
1. Whereas you Mr. Tariq Mahboob, Ex: IOW/Wapda Works, presently IOW/MYP are charged with misconduct, inefficiency & corruption for the following charges and other relevant circumstances:- -
(a) In all estimates of LBOD/ROBD Bridge works including the realignment/raising of existing track a provision of 30,000 cft ballast per kilometer length of track was made and accordingly ballast was procured. This provision is fixed for broad guage territory section rather than meter guage section for which 25,5780 CFT ballast was required, as such excess ballast was procured causing loss to the Government.
(b) As, IOW/Wapda Works, you incurred excess expenditure on engaging temporary labour than the provision in the sanctioned estimates of various Wapda Works.
(c) All the expenditure on engaging the TLA was incurred on Bridge No. 81 at KM No. 76/7-8 on MPS- PHO Section, whereas neither the girders had been placed on new Bridge nor the track had been laid over the new alignment. Thus your are guilty of mis-appropriation of Government money in- terms of temporary labour.
2. You are, therefore proceeded under Removal from Service (Special Powers) Ordinance, 2,000.
Sd/- (Iqbal Samad Khan)
General Manager (Operations)
Pakistan Railways, Headquarters Officer, Lahore The said impugned order was passed on the ground that the Appellant incurred excessive expenditure on temporary labour and was also found responsible for irregularities in the procurement of ballast. Appellant filed departmental appeal on 10-5-2002 denying the allegations and also stated that he has been made victim on false charges. No response was given to the Appellant of his departmental appeal, hence this appeal.
2. The facts are that the Appellant while posted as IOW Pakistan Railways MYP in Karachi Division on 13- 12-2002 was served with show-cause notice by respondent No. 2 with Statement of Charges alleging there in that the Appellant while posted as IOW/WAPDA Works procured the excess loss to the Government, incurred excess expenditure by engaging temporary labour than the provision of the sanctioned estimates, the expenditures were incurred at Bridge No. 81 at KM No. 76/7-8 on MPS- PHO section, whereas neither the girders were placed on the new bridge nor the track had been laid over the new alignment and thereby misappropriated the Government money m terms of temporary labour. On 26-2-2002 the Appellant submitted his reply to the said show-cause notice and denied all the charges levelled against him. He stated that he had never worked in RBVOD.
Prior to his posting in LBOD, the estimates were sanctioned by the competent authority, in all the said projects, there had been no provision of 30,000/- CFT of Ballast per kilometer. He stated that he had saved the Government exchequer and had not incurred extra expenditure. The amount for the labour was provided to the tune of Rs. 1,42,443/- and he incurred the expenditure to the tune of Rs. 1,01,898/- thus he saved Rs. 40,545/-. He stated, that putting up of girder and track had been the duty of the concerned IFX or PW1 and not of the Appellant but inspite of that he was removed from service by Respondent No. 2 vide Notification which was conveyed to him on 26-4-2002 against which he filed departmental appeal to Respondent No. 1 on 10-5-2002, but the Appellant did not find any reply of his departmental appeal from Respondent No. 1, therefore, after waiting for 60 days with effect from 10-5-2002 to 10-7-2002, he preferred service appeal within next 30 days before this Tribunal.
3. The learned Counsel for the Appellant assailed the impugned order as being illegal and in violation of the rules. He stated that while passing the impugned order, Respondents had not considered the unblemished record of 27 years service of the Appellant. He further contended that the Appellant had denied the charges of misappropriation and corruption and it was, therefore, mandatory on the Respondents to hold regular departmental inquiry as laid down by the Hon'ble Supreme Court in rulings reported in 1997 SCMR 1543, 1993 SCMR 603, PLD 1994 SC 222 and 2003 SCJ 150. He also pointed out that the show-cause notice did not formally dispense with holding of regular inquiry which is mandatory in terms of rulings reported in PLJ 1997 SC 1393 and 1997 TD(Service) 346. He also argued that the Appellant was imposed punishment without supplying him the copy of fact finding inquiry and failure to do so rendered the impugned order as illegal and void in the light of rulings reported in PLD 1981 SC 176, 1987 PLC (CS) 528 and 1990 PLC(CS) 835. He further argued that the Appellant was imposed major penalty of dismissal from service without providing chance of personal hearing which is in negation of the principles of natural justice as laid down in the rulings reported in 1986 PLC(CS) 419, PLJ 2002 SC 1059 and 2001 SCJ 248. He also stated that if the penalty was imposed upon the appellant on the basis of any documentary evidence which was not supplied to the Appellant seriously prejudicing (is service right and in this regard he placed reliance on the ruling reported in 2003 PLC(CS) 353 and PLJ 2004 Tr.C. (Services) 1.
4. The learned Counsel for the Respondents opposed the appeal and stated that the contentions raised by the learned Counsel for the Appellant were not correct. He also pointed out that the proceedings against the Appellant1 were conducted strictly in accordance with the rules and provisions of Removal from Service (Special Powers) Ordinance, 2000.
5. We have carefully considered the submissions made by the Counsel from both sides and perused the record and citations flagged by the learned Counsel for the Appellant.
6. The Appellant was served with a show-cause notice and proceedings were initiated against him under section 4(4) of Removal from Service (Special Powers) Ordinance, 2000. h was observed In this notice by the Competent Authority, that formal inquiry was not needed. The Appellant was never provided the details of available documentary evidence to enable him to rebut the same.
The notice, therefore, suffers from a legal infirmity and the penalty imposed upon the Appellant on its basis cannot be upheld. The Competent Authority had dispensed with a formal inquiry by passing a mechanical order. He did not pass a speaking order containing reasons. The Appellant should not have been condemned on the strength of a mechanical order. Similar view has been expressed by the Federal Service Tribunal, Islamabad in its judgment dated 16.2.2003 passed in Appeal No. 816(R)(C.S.)/2002 where it was held that "the respondents had not passed a legal and valid order for dispensing with a formal inquiry. The Appellant was also not given a right to rebut the documentary evidence stated to have been available against him. He was not given the details of those documents. The omission on the part of the respondents to give details ef the documents and the supply copies of such documents on demand resulted into miscarriage of justice. If it was not possible to give copies to the Appellant he should have allowed the inspection."
7. The above discussion clearly brings out the infirmities which has seriously impaired the service rights of the Appellant. Respondents have also not contradicted the Appellant's contention that he had rendered unblemished 27 year's service, in view of the above facts we set aside the impugned order dated 26.4.2002 which has been passed in violation of rules and principles of law established by the Hon'ble Supreme Court and reinstate the appellant in his original position from the date of issue of the impugned order with ail back benefits from the period he was not gainfully employed elsewhere for which he shall furnish an affidavit to the competent authority with documentary proof of his earnings. Respondents are, however, free to initiate de novo proceedings against the Appellant strictly in accordance with the rules. No order as to costs.
8. Copies of the judgment be sent to the parties (under registered cover) and to the relevant quarters under rule 21 of-Service Tribunal.