' 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 13-5-2002 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:-- PAKISTAN RAILWAYS DIVISIONAL OFFICE KARACHI ' No, DS/Misc/2001/114 March 20,2002 STATEMENT OF CHARGES "(1) Whereas you Mr. Muhammad Asim, Ex-PWI/Wapda Works now Work Mistry, Kotri are charged with misconduct, inefficiency and corruption for the following charges and other relevant circumstances:--
(a) You were held responsible for the irregularities committed in the execution of Wapda Works in connivance and collusion with other Railways Officials/Officers as established by the Addl. General Manager/IBU in his enquiry report as under:--
(i) You being PW1/Incharge of Wapda Works incurred excess expenditure on engaging temporary labour than the provision in the sanctioned estimates of various Wapda Works.
(ii) You being PW1/Incharge were required to submit all the store accounts regularly as per Chapter 38 of Way and Works Manual 1969 but you did not submit the same during your tenure.
(iii) On re-alignment, of track for new Bridge No,81 at KM No,76/7-8 on MPS-PHO section, an expenditure of Rs,524,750.00 had been booked on TLA against the provision of Rs,307, 466.00 in the sanctioned estimate No,10/97-98 but neither the girders had been placed on the new Bridge nor the track had been laid over the new alignment.
(iv) An amount of Rs,951,060.00 had been spent on TLA for construction of 8x41' girder Bridge at KM No,158/12-4 on KOT-DDU section against the provision of Rs,103,400,00 in the sanctioned estimate No,1 of 1995-96. Whereas the track over the raised approaches of the bridge was in the miserable condition as observed in the Annual FGIR. Inspection conducted on 6-4-1999.
(2) You are, therefore, proceeded under Removal from Service (Special Powers) Ordinance, 2000- 01.
(ABDUL WAHAB AWAN) Divisional Superintendent, Pakistan Railways, Karachi.
2. On 1-4-2002 the appellant submitted his reply to the Statement of Allegations denying all the charges levelled against him. He stated that he was put to work to look after the duties of PW1 on 8- 4-1996 as such no proper accounts could be maintained by him. On 3-1-1998 the appellant was directed by AEN/WW/Karachi to take over complete charge of P.Way material and other records and thereafter he had prepared monthly store accounts and submitted to the authorities, as without filling up MBs, the store accounts could not have been prepared. He stated that the actual expenditure incurred on this project was Rs,2, 49,000 in the engagement of temporary labours and Rs,80,000 was saved by the appellant by extra-vigilance and as such, he saved the railway administration from loss. He stated that actual provision in connection with re-construction of Bridge No,81 at KM No,76/7-8 on Mirpukhas-Pithro section had been Rs,3,29,600 for engaging the temporary labours. He stated that girders were required to have been placed by the bridge department and track was placed/laid upto 80% provision and 20% material was required to have been laid after placement of girders by the bridge department as such the appellant cannot be held responsible for laxity in performance of his duty. So far as charge mentioned against sub- para (iv), the appellant stated that he had never worked on the said project (RBOD as per notification issued on 13-3-1996. He stated that neither, he was negligent in performance of his duties nor caused loss to the revenue of Pakistan Railway. On 6-4-2002 the appellant was called for affording him chance of personal hearing by respondent No :2 through 'respondent No,3. The Respondent No,3 relieved him on 10-4-2002 directed the appellant to appear for personal hearing on 13-4-2002. On 13-4-2002 the appellant appeared before respondent No,2 and explained him verbally about his case. The respondent No,2 had understood and was fully convicted but in spite of that he was removed from service by respondent No,2 vide Notification dated 13-5-2002 which was conveyed to him on 5-6-2002 by respondent No,3 against which he filed departmental appeal to respondent No,1 on 18-6-2002 but the appellant did not find any reply of his departmental appeal from respondent No,l therefore, after waiting for 60 days with effect from 18-6-2002 to. 18- 2002, he preferred service appeal within next 30 days before this Tribunal.
3. The respondent in their written comments opposed the appeal and stated that the contentions raised by the learned counsel for the appellant were not correct. It was also pointed out that the proceedings against the appellant were conducted strictly in accordance with the rules and provisions of Removal from Service (Special Powers) Ordinance, 2000.
4. 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 18 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 department 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 SCMR 104. He also pointed out that the show-cause notice did not formally dispense with holding of regular which is mandatory in terms of rulings reported in 1997 SCMR 1543 = 1997 PLC (C.S.) 817.
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 (C.S) 528 and 1990 PLC (C.S.) 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 (C.S) 419, 2002 SCMR 1034 = 2002 PLC (C.S.) 1083 and 2001 SCJ 218. 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 his service right and in this regard he placed reliance on the ruling reported in 2003 PLC (C.S.) 353 and 2004 PLC (C.S.) 959.
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 5(4) of Removal from Service (Special Powers) Ordinance, 2000. It 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)(CS).2002 and appeal No,263(K)(C.S)/2003 wherein 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 of the documents and to 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 been allowed the inspection."
7. The above discussion clearly brings out the infirmities which have seriously impaired the service rights of the appellant. Respondents have also not contradicted the appellant's contention that he had rendered unblemished 18 years service. In view of the above facts we set aside the impugned order dated 13-5-2002 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 all back-benefits for 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.