' RASHID ALI MIRZA (MEMBER)---Appellant who was Commercial Clerk in Pakistan Railways was issued a show-cause notice dated 9th October, 2001 for misconduct for which major penalty of dismissal was proposed as per statement of allegations. The appellant had committed the following acts of misconduct.
' Mr. Ghulam Nabi, SCA/Booking, Hyderabad.
No, E1013/5/57 Date: 9-10-2001 STATEMENT OF ALLEGATION UNDER REMOVAL FROM SERVICE (SPECIAL POWERS) ORDINANCE, 2000 ' The present government has time and again reiterated its commitments to revive the working of Railways so as to provide efficient service to the travelling public. To achieve this the employees, especially those involved in public dealing and commercial working, are required to come up to the required standards. In this regard, your present working and past record was scrutinized and found that you have ceased to be efficient, besides having reputation of being corrupt. The service record given below shows your inefficient working.
1. WIT One year on 17-3-1982.
2. Reduction by one step for one year.
3. Reduction by two steps for two years.
4. WIT Two years on 17-3-1,992,
5. WIT One year on 16-10-1993.
6. WIT Three years on 21-9-1993.
7. WIT Three years on 9-5-1993.
8. WIT 26-2-1994.
9. WIT Three years on 8-5-1996.
10. Censure-Seven times.
' The above punishments have been imposed in various cases involving overcharging misappropriation, misconduct etc., and reflect on your poor and unproductive working.
(Sd.)
(ABDUL WAHAB AWAN) Divisional Superintendent/KYC Competent Authority.
2. The Appellant submitted his reply dated 22-11-2001 to the show-cause notice against him wherein he stated that the enhancement of punishment by the competent authority under the powers vested to him does not however constitute a second punishment for the same offence even if two or more penalties are combined. That the minor punishments enumerated in the Statement of allegations had already lost their force under rule 5.7 Chapter-V of Commercial Manual. The respondents such minor punishments stood waived of.
3. The reply of the appellant did not find favour with the respondents authority and they imposed major penalty upon the appellant of dismissal from service under Removal from Service (Special Powers) Ordinance 2000.
4. Being aggrieved and dissatisfied with the punishment imposed upon him the appellant preferred departmental appeal to the respondent which was not responded to hence the present appeal.
5. The respondents filed their comments wherein they stated that the past record of the appellant was scrutinized and found that he had ceased to be an efficient as he was awarded 19 minor/major punishments during his service. As such he was issued show-cause notice along with Statement of Charges. The respondents have stated that there was no need of holding enquiry under section 5(4)(6) of the Ordinance.
6. We have heard the learned Counsel for the parties and have also perused the record.
7. The learned counsel for the appellant very strenuously argued the appeal and stated that since the appellant had been punished for his past lapses, therefore, these punishments cannot be involved and made the basis of imposing another penalty as it would tantamount to "double jeopardy" and in this regard he has cited rulings reported in 1989 SCMR 1224, 1998 PLC (C.S.) 648; 2002 PLC (C.S) 738 and 1991 PLC (C.S.) 33 and also 1995 PLC 666. The appellant's counsel further stated that the punishment imposed upon the appellant was not indicated in the show-cause notice and, as such, it had rendered the impugned order as void and in support cited the ruling reported in 1985 TD (Service) 396.
8. The learned counsel for the appellant in this regard argued that the Appellant cannot be said to be inefficient as since the date of his joining he has been continuously receiving his promotions and during his service he was promoted from BPS-7 to PBS-11 in the month of June 2001 which belies the contention of the respondents that he was inefficient. He further referred to the Railway Rules whereby minor penalty imposed upon any Railways Employee shall lose its significance if no further punishment is imposed within the next two years.
9. The learned counsel for the appellant stated that although it was mentioned in the show-cause notice that there was no need of holding a formal inquiry, but the appellant having denied the serious allegations of corruption and inefficiency, the respondents were required to hold regular inquiry into such allegations providing full opportunity to the appellant to put up his defence, but that was not done. The learned counsel stated that this discrepancy alone was sufficient to discard the case of respondents against the appellant in view of the authorities of the Hon'ble Supreme Court in many cases. He cited 2004 SCMR 316 = 2004 PLC (C.S.) 344, 1984 PLC (C.S.) 610, 1429 PLD 1986 SC 162, PLD 1996 SC 207, 1996 PLC (C.S.) 1539 and 868, 1993 PLC (C.S.) 100 and 1989 PLC (C.S.)
7671, 1997 PLC (C.S.) 873, 1993 SCMR 683, PLD 1994 SC 22, 1985 PLC (C.S.) 219 and 245 and 1990 PLC (C.S.) 745. The learned counsel for the appellant further argued that while dispensing with holding of the regular inquiry the show-cause notice does not indicate any cogent reason which is mandatory and in this respect he relied on the rulings reported in 1997 SCMR 1543 = 1997 PLC (C.S.)
817, PLD 2002 SC 667 and 1980 SCMR 850. He also stated that there was no incriminating evidence against the appellant while major punishment was awarded in a summary. He alleged that the appellant was also not provided proper chance of self-defence. In this regard, he placed reliance on rulings reported in 1993 SCMR 603, 1997 SCMR 1543= 1997 PLC (C.S) 817, 2001 PLC (C.S.) 296 and 1988 PLC (C.S.) 886. He also pointed out that minor punishments imposed upon the appellant loses; its significance after a period of two years and that they were also otherwise not considered at the time the appellant was promoted. In support of his contention appellant also relied on the ruling of the Federal Service Tribunal in Appeal No,25(Q)/(C.S.) 2002 and Nos.42 to 45, 50, 51, 61 and 62(Q)(C.S.) of 2002 and No,485(P)(C.S) 2001 which relate to the employees of Pakistan Railways.
The learned counsel further stated that since the appellant had undergone minor punishment, same could not be used to punish him on the principle of "double jeopardy" specially when last punishment awarded to him was in the year 1996 i,e, about 6 years prior to the initiation of these disciplinary proceedings against him. The learned counsel further stated that under page 769 of Railways Personnel Manual, minor punishments not followed by any other punishment within a period of two years after the last punishment stood waived off. On the point of double jeopardy, the learned counsel relied on KLR 2004 Labour and Service Cases 201, 1989 SCMR 1224, 2002 PLC (C.S.)
738 and 2004 PLC (C.S) 959.
10. The learned Counsel additionally urged that since major penalty of removal from service was imposed upon the appellant second show-cause notice should have been issued to him prior to imposing the said penalty. He relied on KLR 2004 Labour and Services cases 221, finally, the learned Counsel argued that no opportunity of personal hearing was given to the appellant which meant that the appellant was condemned unheard. He relied on 1994 SCMR 2232 and PLD 2004 SC 44r.
The learned Counsel urged that in view of the glaring discrepancies in the disciplinary proceedings against the appellant, the impugned order was liable to be set aside and the appellant was entitled to be reinstated in service with all back-benefits.
11. The learned counsel for the respondents stated that since the allegations against the appellant were based on documentary evidence, no regular inquiry was needed in this case. He also contended that there was no provision of second show-cause notice or personal hearing in the Removal from Service (Special Powers) Ordinance, 2000 itself. His last argument was that the inefficiency of the appellant was proved from the minor penalties imposed upon him.
12. We have carefully considered the above arguments of both sides. In view of the arguments of the learned counsel for the appellant, which arguments are duly supported by the authorities of the Hon'ble Supreme Court, we are not impressed by the arguments of the learned counsel for the respondents. It has been repeatedly held by the Hon'ble Supreme Court in a number of cases that where serious allegations of fact are denied by the delinquent employee, regular inquiry is 'absolutely necessary wherein chance has to be given to such employee to meet the allegations against him, but in the instant case, no inquiry was held and no opportunity was given to the appellant to defend himself. The contention of the learned counsel for the respondents about the minor punishments does not appeal to us as such punishments stood waived off under Railway Personnel Manual and they cannot be made basis of any other punishments under the principle of "double jeopardy". As to the question of second show-cause notice and personal hearing, the contention of the learned counsel for the respondents to the extent that these are not provided in the Ordinance itself, is correct, but there are numerous authorities of the Hon'ble Supreme Court which make it obligatory on the agency, taking disciplinary action against its employee for imposing major penalty, to issue final show-cause notice and also to provide him an opportunity of personal hearing. Admittedly, no inquiry was held against the appellant, no second show-cause notice was issued to him and he was not personally heard. Further the fact that the appellant has been regularly promoted and it controverts the allegation that the appellant has ceased to be efficient.
13. The last punishment awarded to the appellant was in the year 1996 i,e, about 6 years prior to the initiation of the proceedings against him. This has seriously disturbed us for the reason that if the appellant had committed any offence as alleged why the Departmental authority had slept over it and had not taken any action against the appellant at that time and what prevented them to use such an old incident to prove the charge against the appellant which has no basis as no incident or event, if any had taken place after the promulgation of Removal from Service (Special Powers)
Ordinance, 2000 as has been cited in the charge-sheet. The entire proceedings against the appellant are beyond our apprehension as to why the Railways Department had to revive the past and closed events to dismiss its employee without resorting to proper procedure as provided under the said Ordinance and failed to hold any enquiry even in a case of major penalty. We are therefore, not willing to condone the illegal acts of the respondents.
14. The above-mentioned discrepancies in the disciplinary proceedings against the appellant show that the impugned order of removal of the appellant from service was illegal and needed to be set aside. We, therefore, allow the appeal, set aside the impugned order and reinstate the appellant in service with back-benefits for the period he was not gainfully employed elsewhere during the intervening period. The respondents would, however, be at liberty to initiate fresh disciplinary proceedings against the appellant, if they so desire, No order as to costs.
15. Copies of the judgment be sent to the parties and to the relevant quarters as per rule 21 of Service Tribunals (Procedure) Rules, 1974.