Qazi Muhammad Hussain Siddiqui, Member.--The Appellant had been serving as Driver in the Pakistan Steel Mills, when, vide order dated 2.5.2001, he was dismissed from service on the charge of misconduct under the provisions of Removal from Service (Special Powers) Ordinance, 2000. His departmental appeal dated 22.5.2001 was not responded to; hence, he preferred this appeal before the Tribunal on 31.7.2001. Prior to approaching the Tribunal he had approached the N.I.R.C. and had obtained the stay order from there.
2. The disciplinary proceedings against the Appellant had been initiated with a show cause notice dated 18.8.2000, which is reproduced as under:-- "It has been reported that:-- On 10/11.8.2000, you were deputed on trailer No, KTR-296 for transportation of skulls from S.M.D. to Skull breaking yard. At 1.40 hours on 11.8.2000 while coming back to SMD with empty trailer via Slag Side of Blast Furnaces, you did not adopt proper precautions required to cross the railway level crossing. As a result of which trailer No, KTR-296 collided with railway train and caused damage to trailer as well as to railway platform No, 412 besides interruption in Railway working.
2. You are therefore, charged for:-- Neglect of work, which amounts to MISCONDUCT as per Standing Order No, 15(3)(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
3. You are hereby directed to explain, in writing, within three days of the receipt of this Notice as to why disciplinary action should not be taken against you in accordance with law.
Sd/- (Farooq Ahmad Khan) DGM/O.H. (P.A.T.)"
The Appellant admitted the incident, but, denied any negligence on his part in connection with the incident. No action was taken on the said show-cause notice and reply of the Appellant, but a revised charge sheet dated 25.10.2000 under Removal from Service (Special Powers) Ordinance, 2000 was issued to the Appellant with the statement of allegations as under:-- "Sub:--STATEMENT OF ALLEGATIONS On the basis of the report received from Incharge (Railway) you are hereby charged with the following allegations:-- On 10/11.8.2000, you were deputed on trailer No, KTR-296 for transportation of skulls from S.M.D. to Skull breaking yard. At 1.40 hours on 11.8.2000 while coming back to SMD with empty trailer via Slag Side of Blast Furnaces, you did not adopt proper precautions required to cross the railway level crossing. As a result of which trailer No, KTR-296 collided with railway train and caused damage to trailer as well as to railway platform No, 412 besides interruption in Railway working.
2. The above allegations are prima facie' reflective of Misconduct on your part rendering you liable to disciplinary action under Section 3 of the Removal from Service (Special Powers) Ordinance, 2000.
Sd/- (MIRZA TARN BEGG)
DIRECTOR (PRODUCTION).
FOR COMPETENT AUTHORITY."
The show-cause notice dated 25.10.2000 also contained the order of inquiry into the allegations by inquiry committee comprising M/s. Liaquat Ali Ujjan, Manager (Coordination), Anwar Ahmed Jamali, A.M. (Railways) and Nizamuddin A.M. (PAT). The inquiry committee accordingly conduct the inquiry and held that the incident was caused due to the negligence of the Railway staff, but the Appellant was also responsible for it for not adopting proper precautions in accordance with the instructions of the Respondents while approaching the Railway level crossing.
3. After inquiry, a show-cause notice dated 13,2.2001 was issue to the Appellant wherein the was held guilty of misconduct i,e, neglect of work and liable for penalties/punishments as recommended by the inquiry Committee. (1) The total damage/loss of KTR-296 Traier body amounting to Rs, 3100/- as assessed by P&L (PAT) may be recovered from his salary, (2) He may be censured to be careful in future." The record shows that another show-cause notice dated 9.4.2001 was issued to the Appellant again stating therein, "As a result of the inquiry, the allegations leveled against you have been proved/established and you have been found GUILTY of misconduct i,e, neglect of work and liable for major penalty."
4. The Appellant relied the said show-cause notice vide his reply dated 26.4.2001, re-iterating his earlier reply to the show-cause notice/charge sheet to the effect that at the place of incident nothing was visible; that the train which had collided with his truck was coming in reverse order and had no indicator light on the last cabin and also had no headlight; that the Signalman was also not present there and the gate was also open and was without bar chain across it.
5. Finding the reply of the. Appellant not satisfactory, the Appellant was dismissed from service vide impugned order dated 2.5.2001, as already mentioned above.
6. We have heard the learned counsel for the parties and perused the record carefully.
7. The learned counsel for the Appellant argued that the show-cause notice and charge sheet were not issued to the Appellant by the competent Authority and the penalty of dismissal was imposed upon the Appellant without any personal hearing. The learned counsel for the Appellant stated that even as per inquiry report, it was a case of negligence and the Appellant had not done anything intentionally to cause any loss or damage to Pakistan Steel Mills. The learned counsel stated that the penalty of dismissal was extremely harsh one and disproportionate to the act of negligence of the Appellant and that in such case the apex Court had taken lenient view and imposed minor penalty as it was not the deliberate act of misconduct. The learned counsel urged that he would not press the appeal on merits if a lenient view were taken and penalty of Appellant was suitably modified to some minor penalty.
8. The learned counsel for the Respondents maintained that the Appellant was rightly punished for the act of negligence which amounted to misconduct
9. We have carefully considered the arguments of both sides. A perusal of the record shows that it was a sheer case of negligence. The incident had not taken place due to any deliberate act of the Appellant, but it had taken place due to want of proper care on, his part before approaching the Railway level crossing. He should have paused a little bit before crossing the railway gate, even if there was no body present there and there was no chain across it. However, the contention of the Appellant finds support by the inquiry report that the incident had mainly taken place due to negligence of the concerned railway staff as none was present there at the time of the incident and the level crossing was also not barred by any chain. It was also not disputed that the colliding train had approached the level crossing in reverse order having no indicator light on the rear wagon. The penalty of dismissal also appears to us to be extremely harsh one and disproportionate to the contributory act of negligence of the Appellant causing the incident and this penalty is also not commensurate with the alleged loss or damage caused to the property of the Pakistan Steel. Apart from this, the major penalty of dismissal was also not in accordance with the earlier show-cause notice dated 13.2.2001 wherein the proposed penalty was recovery of Rs, 3100/- and censure. It appears that the Respondents were not sure what penalty actually had to be given to the Appellant and no reason has been assigned for deviating from the proposed minor penalty to proposing again major penalty of dismissal to the Appellant. Under the circumstances, we are inclined to accept the request of the learned counsel for the Appellant for taking a lenient view in the matter by modifying the major penalty of dismissal of the Appellant to some minor penalty.
10.It being a clear case of negligence, relying on 2005 SCM R 1617 and PLD 2006 Supreme Court 94, we, partially allow this appeal, set-aside the impugned order of dismissal of the Appellant from service and modify his penalty of dismissal from service to that of withholding of his two increments for a period of two years. We think that this would serve the ends of justice. The Appellant shall be reinstated in service accordingly with back benefits (subject to penalty of two increments) for the period he was not gainfully employed elsewhere for which he shall submit an affidavit before the competent authority.
11.No order as to costs.
12.Copies of this Judgment be sent to the parties under registered cover and to the relevant quarters as per Rule-21 of the Service Tribunals (Procedure) Rules, 1974.