' RASHID ALI MIRZA (MEMBER)---The Appellant having been aggrieved by the order of removal from service passed by respondent No,1 dated 2-10-2002 communicated by respondent No,3 vide order dated 20-11-2002 received on 22-11-2002 after submitting a departmental appeal against unlawful removal from service under Removal from Service (Special Powers) Ordinance, 2000 has filed this appeal under section 4 of the Service Tribunals Act, 1973.
2. The brief facts of the case are that the Appellant was lastly serving as CSR (Goods), He had served the Respondent-Organization for about 37 years and was never involved throughout his career in any subversive activity but when reached at the verge of his retirement, the respondent No,2 issued him Show-Cause Notice dated 22-11-2001 and levelled false allegations against the appellant on past and closed transaction with mala fide intention. The show-cause notice along with statement of allegations read as under:-- PAKISTAN RAILWAYS DIVISIONAL OFFICE, KARACHI Show-Cause Notice
(1) Whereas you are charged with misconduct as per statement of charges attached.
(2) And whereas the competent authority has decided that there is no need of holding an enquiry against you under subsection 4 of section 5 of Ordinance XVII of 2000 Removal from Service (Special Powers) Amendment Ordinance No,V of 2001, and that proceedings are being initiated under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000 which might entail imposition of a major penalty of "Dismissal" from service as specified in section 3 of the said Ordinance
(3) Now, therefore, you are required to show cause within seven days from the date of receipt of this notice as to why the proposed action should not be taken against you.
(4) If no response is received from you within the time stipulated above, it would be presumed that either you have no defence to offer and/or you have wilfully declined to do so. The case shall then be decided on "ex parte" without further reference.
(Sd) (Iqbal Samad Khan) General Manager (Operations) Pakistan Railways Headquarters Office, Lahore STATEMENT OF CHARGES
(1) Whereas you Mr. Muhammad Siddique, CSR (Goods), Karachi City are charged with misconduct, inefficiency and corruption for the following charges and other relevant circumstances:---
(a) You while working as Loading Clerk at Keamari during the year 1995, defrauded the Railway Administration in the shape of evasion of demurrage charges to the tune of Rs,81,660.00.
(b) You have indifferent record of service, which reflects highly inefficient working as misconduct on year part.
(c) You have persistent reputation of being corrupt and inefficient official of Pakistan Railways as is evident from the above charges and other recorded evidence.
(2) You are, therefore, proceeded under Removal from Service (Special Powers) Ordinance, 2000.
(Sd.) 16-11-2001 (Iqbal Samad Khan) General Manager (Operations) Railways Headquarters Office, Lahore
3. The respondent No,2 illegally and unlawfully issued the Notification of removal from service against which the appellant filed departmental appeal which was dic lined.
4. The respondents filed the Parawise Comments stating therein that there were demurrage charges at KMR during the period 1995 which were reported Rs,78,479 as running outstanding against various parties on account of less calculation by Mr. Muhammad Siddique, as such, enquiry was held and such amount was debited to him and necessary recovery was being made from his salary in terms of the office letter dated 24-1-1996. It is further stated that subsequently the whole amount was recovered from the parties against him. The amount was running outstanding and Rs, 1000 which was recovered from the appellant was ordered to be refunded vide Office Letter dated 7-2-1996. It is further stated that a joint enquiry was conducted and as per report of enquiry the appellant was held responsible for the charges.
5. We have heard the arguments. The learned counsel for the appellant has assailed the impugned order and argued that the impugned order is illegal, unlawful, unconstitutional and not proper as all the allegations contained in the Statement of Charges pertained to the transaction of demurrage charges being loading Clerk at Keamari during the period of 1996 and were reported Rs,78,479 as running outstanding against various parties. The learned counsel for the appellant has argued that the appellant has produced such proof and letter on record as Annexure-G dated 20- 1-1996 which reveals that the amount were due against the parties of respondents and not against the appellant, which even otherwise paid by the various parties involved in the transaction. The learned counsel further argued that the demurrage charges are always recoverable from the parties as mentioned in the Wagon Transfer Register and still millions of Rupees are outstanding against various parties. Neither the same has been recovered from various parties nor any other official even penalized and removed from service but only the appellant is penalized on such allegations of demurrage charges which is the part of work as per rule which have been recovered through the past efforts of the appellant.
6. The learned counsel further contended that no such enquiry was conducted into the guilt of appellant, nor any opportunity of defence was ever provided by the respondents and the respondent's passed such arbitrary, illegal, unlawful and harsh order at the stage when the Appellant is at the verge of his retirement. He has further contended that these demurrage charges are waiveable by the competent authority as provided in rules and no official can be penalized.
7. We have come to the conclusion that the impugned order dated 2-10-2002 passed by the respondents is illegal, unlawful and not proper. We have also come to the conclusion that the amount of, demurrage charges Rs,78,479 were due against the parties of respondents and not against the appellant which even otherwise paid by the various parties involved in the transaction.
The appellant has produced Photostat copy of letter dated 30-1-1996 as Annexure-H of Commercial Assistant Pakistan Railway Keamari which supports that the amount of Rs,78,479 was deposited by the various parties. The impugned order is accordingly set aside and appeal is allowed. The respondents are directed to reinstate the appellant in service with all back-benefits for which he shall file Affidavit before the competent authority that he is not gainfully employed elsewhere.