Rashid Ali Mirza, Member.--The Appellant had been serving as Driver in the Railway Department when vide order dated 14/04/2003 he was dismissed from service and upon imposition of debit of Rs, 119680/- by the Respondents. On 17/04/2003 the Appellant preferred departmental appeal to the appellate authority which was rejected on 15/9/2003. Being aggrieved by the impugned order, the Appellant preferred this Appeal on 23/9/2003 before the Tribunal under Section 4 of the Service Tribunals Act, 1973 (as amended upto date) praying to set aside the impugned order of dismissal from service alongwith unwarranted debit of Rs, 119680/- and reinstate him with full back benefits.
2. Briefly the facts leading to this appeal are that the Appellant was Driver in the Pakistan Railway Department since last 20 years. On 3/2/1999 he was served with Charge Sheet containing allegations of missing of Top Seals of Tank Wagons Nos, 6595, 6489, 5235 and 6725. It was also claimed that the hose pipes of Tank Wagons 6473 and 5247 were intact but the Driver/Appellant reported isolation of hose-pipes. Besides this, Filling Dip of Tank Wagons Nos, 6725 and 5235 was shown as short at destination. The Appellant submitted detailed explanation to the show-cause notice, denying the charges therein and requested that, a fair enquiry be conducted. It is stated that enquiry was conducted by Asst. Transportation Officer and Asst. Mechanical Engineer- III/Sukkur and Appellant was called to attend the same alongwith other staff, but the findings of Enquiry Officers were not disclosed to the Appellant till date. In the month of August 1999, another enquiry was arranged by nominating the Divisional Transportation Officer. The Divisional Mechanical Engineer and Divisional Engineer-III Railway Sukkur as Member of Enquiry Committee called the staff from the Station and other points for holding enquiry from 13/8/1999 to 21/8/1999 but its findings were not disclosed. After joint enquiry of five officers on two different occasions a 3rd enquiry was arranged by Muhammad Hanif Lakho, Assistant Transportation Officer-I Railway Sukkur. Appellant attended but refused to submit any statement to the Assistant Transportation Officer-I Sukkur because after enquiry of Divisional Officer, he was not competent to supersede them being an officer of BPS-16, therefore, he spared the Appellant and his fireman an the same date, without recording statement of any employee. On 24/7/2001, the Appellant was served with a show-cause notice under Ordinance XVII 2000, issued by Respondent No,
2. On 25/7/2001 the Appellant submitted reply to the show-cause notice denying all the charges and requested the competent authority to hold an impartial enquiry. On 17/8/2002, the Appellant was called for personal hearing by Respondent No, 2 but was not afforded the chance of personal hearing. On 27/1/2003, the Divisional Superintendent Railways called the Appellant to appear before him on 22/3/2003, but nothing was heard from the Appellant. The Appellant was also not allowed to talk and was dealt in insolent manners and turned out from the office in hating manners. Thereafter Respondent No, 2 passed the order of his dismissal from service alongiwth recovery of Rs, 119680/- on 14/4/2003.
3. The Respondents in their Written Comments stated that the Appellant while working as driver, committed theft of oil from goods train amount to Rs, 1,19,600/-. Accordingly, the was dismissed from service with recovery of misappropriated amount as a result of action taken under Removal from Service (Special Powers) Ordinance 2000-2001. His request dated 17/11/2003 for release of G.P.
Fund amount was considered and after obtaining legal opinion he was advised to deposit the misappropriated amount within 14 days or give consent to transfer the G.P. Fund amount at credit against recoveries as the G.P. Fund amount was lesser than the misappropriated amount.
4. We have carefully heard the learned counsel for the parties and have also perused the record.
5. The Learned Counsel for the Appellant contended that the Appellant was made to stop his train on 6/1/1999 at the outer-signal of the Walhar Station without some lawful justification and after heavy detention on 35" mts: he received Annexure "R" through service of "Paper Line clear" called as OP 373 as per provisions of Operating Manual which supports the contention of the Appellant. He has further contended that the reception signals of Walhar Station were kept red and train was detained at outer signal for 35 minutes deliberately. The train was received upon the authority/OP 373, but such assertion of Appellant was belied without just and fair reasons and production of OP 373 was overlooked. He has further contended that Appellant stated about extra time, enroute on account of wheel-slipping while picking up speed, but the same was also belied by the Assistant Transportation Officer-I Railway Sukkur through his Table Report. He further contended that in support he has filed photocopy of statement of incoming Driver of Train KS-lup/Oil Express, through which he also confirmed that the locomotive was giving trouble of wheel-slipping from the very beginning. He further contended that in the present case train was stopped at outer signals by Station Staff of Walhar by keeping the signal as red intentionally, then received train through OP 373 by showing that the signal was defective, but they received all other trains prior to Appellant's train and other following trains upon proper signals, which is sufficient to prove that the staff of Walhar station was involved in the conspiracy of theft of oil and for the very reason the trains were being detained at outside signals without obvious reasons. Despite causing detention to oil express intentionally, they were not imposed penalty like Appellant, but all others including Station Master, Asst. Station Master, Points men and Gang man found indulged in mall-practices were sacked through transfer orders from the station, which is sort of discrimination. He contended that as per duty list of the staff, the Guards of Train are duty bound to check the seals if the oil tanks and goods Wagons at the Station, were taking over charges and before starting the station, they are required to sign the Seal Checking Register No, CM 361 and pass the remarks if found some deficiency. In the present case for missing the seals of five tank wagons Appellant is being sacked as evident from the contents of charge-sheet of 3/2/1999. Even the Train Clerk who failed to obtain the signatures of Guard for 'All Seals Correct' before starting from RGY/Rohri Station, his responsibility has also been transferred to the Driver of Train. He further contended that the Train was worked out from Kanpur to Sher Shah Station without providing safety seals to the wagons, mentioned in charge- sheet, found without Upper Seals, whereas it was most objectionable and not permitted by the Rules. He further contended that the Subordinate Incharge who checked the train at Khanpur, confirmed that Upper Seals of Tank Wagons mentioned in the charge-sheet dated 3/2/1999 were missing. They failed to take dip of the same as per existing rules and allowed to run the train without seals from Khanur to Sher Shah and on arrival at destination it was reported by one of the main witness Manzoor Ahmed Shed man Incharge that lower seals of one tank wagon were missing, which proves that the incident of theft of oil occurred, beyond Khanpur. There is no rule to run the tank wagons without seals. He further contended that in the present case no proper enquiry, in serious manners was conducted but attempts were made to save the Gang of culprits, involved in oil-stealing at Walhar and Appellant's train was stopped at the outer with malice intention by keeping the signals as red, in order to support the cause of oil stealing Mafia. He contended that in the present case, if there was any incident of theft of oil from the running train then it was obligatory duty of the Respondents to lodge Prosecution case against the culprits involved in criminal activities, but in the present case no F.I.R. was lodged. He contended that inquiry was dispensed with in the show-cause without recording any plausible reasons. He placed reliance on PLJ 2004 TRC (Services)
1. He contended that the inquiry was defective and improper and no penalty was warranted on the basis of such preliminary inquiry. He placed reliance on 1997 TD (Services) 247 and 2001 SCMR 256. He contended that major punishment was awarded without providing the chance of personal hearing to the Appellant. He placed reliance on PLD 2004 SC 441.
He contended that major punishment under the Ordinance cannot be awarded without conducting regular domestic enquiry, hence the punishment so awarded is without any base. He placed reliance on 2004 SCJ 455. The order passed by the authority is non-speaking order, hence not maintainable in law. He placed reliance on PLC (CS) 857. He contended that domestic inquiry was initiated on 3/2/1999 under Government Servants (E&D) Rules, 1973 and it culminated under Removal From Service (Special Powers) Ordinance 2000 which is illegal. He placed reliance on 2003 PLC (CS) 1303.
6. The Learned Counsel for the Respondents contended that the Appellant had committed theft of oil from goods Train and misappropriated a sum of Rs, 1,19,600/-. He was advised to pay the misappropriated amount within 14 days or give consent to transfer the G.P. Fund amount against recoveries. Instead of depositing the misappropriated amount or giving consent, he filed Appeal before this Tribunal.
7. We have carefully perused the record which clearly discloses that the Appellant was neither associated with enquiry proceedings nor allowed opportunity to cross-examine witnesses produced against him. We have no doubt that a person facing enquiry has right to be associated with its proceedings and entitled to impeach credit of witnesses produced against him through cross-examination. Obviously, enquiry proceedings and consequential order regarding dismissal of Appellant suffer from inherent legal defects.
It was held in 2000 PLC (C.S.) 857 as under:
(a) Government Servants (Efficiency & Disciplines) Rules 1973-- ----Rr. 4 & 6-A--Service Tribunals Act (LXX of 1973), S. 4--Premature retirement--Departmental enquiry--Authenticity-Principle of natural justice--Violation--Civil servant initially was awarded penalty of withholding of four increments but subsequently that penalty was converted into major penalty of "permanent retirement"--Onus was on Departmental Authority to show that enquiry against civil servant was conducted in accordance with Rules, but facts available on file had shown that civil servant was condemned unheard and his penalty was based on reports of a Fact Finding Committee, which could not be made a ground for condemnation of civil servant--Minor penalty of withholding of four annual increments awarded by Authorised Officer, was converted by Authority into major penalty of permanent retirement without serving civil servant with a show- cause notice as to why said minor penalty awarded to him by Authorised Officer, should not be enhanced--Validity--Under provisions of R. 6-A of Government Services (Efficiency & Disciplines)
Rules 1973, no adverse order to the interest of civil servant could be passed without affording him opportunity of personal hearing if Authority intended to review penalty especially in case of enhancement of penalty--Order of Authority was set aside, in circumstances.
8. Learned Counsel for the Appellant contended that despite proceedings were initiated against the Appellant under (E&D) Rules 1973 and Charge Sheet dated 3/2/1999 was issued, the Enquiry Officer was appointed who conducted the Preliminary Enquiry and gave his findings that the Appellant stopped his train with consultation of Guard M. Imdad Ali Shaikh wilfully whereas oil was decanted from tank wagons into road tankers between Reti-Walhar and held that charge of stealing oil from running train had been established against M/s. Younis driver, Imdad Ali Shaikh guard and Sikandar Ali fire-man. However, the disciplinary proceedings were held against the Appellant under E&D Rules 1973. The learned Counsel contended that the matter was pending before the departmental authority when proceedings were switched over to Removal From Service (Special Powers) Ordinance 2000 and Show Cause Notice dated 21/7/2001 was issued and the Appellant was imposed penalty thereunder, which according to the learned Counsel for the Appellant could not be done as per terms of Section 13 of the said Ordinance of 2000 which provides:-- "13. Pending proceedings to continue.--For the removal of doubts, it is hereby provided that all proceedings pending immediately before the commencement of this Ordinance against any person whether in Government service or corporation service under the Civil Servants Act, 1973 (LXXI of 1973) and rules made thereunder or any other law, or rules, shall continue under the said laws and rules, and as provided thereunder."
The contention of the learned Counsel appears to be correct as Section 13 of the Ordinance 2000 is explicit on the point that disciplinary proceedings initiated prior to coming into force of the said Ordinance were to II be completed under E&D Rules 1973 and not under the Ordinance of 2000.
Reliance is placed on 2003 PLC (C.S.) Supreme Court 1303.
9. Thus the proceedings against the Appellant had been initiated by a Charge Sheet under (Efficiency & Disciplines) Rules 1973 but he was punished under Removal From Service (Special Powers) Ordinance 2000.
Broadly speaking the procedure prescribed for action under Removal From Service (Special Powers) Ordinance 2000 is that the competent authority issues Charge Sheet, appoints Enquiry Officer who holds enquiry giving the accused official full chance to defend himself and if the charges are proved a Second Show Cause Notice is issued to the accused alongwith a copy of the Enquiry Report and then the accused official is given a chance of personal hearing, whereafter punishment if any is imposed upon the accused official on the charges proved against him.
However in case where the competent authority finds that regular enquiry is not needed for any reason including the availability of documentary evidence on which the matter can be decided or for any other reason for not holding regular enquiry such as confession or admission of an accused official then the competent authority is required to state in the Show Cause Notice that for such and such reason, the enquiry is dispensed with, but in the instant case we find that no such reason has been assigned in the Show Cause Notice for dispensing with the regular enquiry. Secondly, inspite of denial of serious allegations of fact by the Appellant no regular enquiry has been held against him. Unless to say that Second Show Cause Notice could not be issued as regular enquiry was not held and, it is not the case of the Respondent that the penalty has been imposed upon the Appellant after personal hearing. We find that there are grave and serious infirmities in the disciplinary proceedings against the Appellant which have vitiated the same. Reliance is placed on 1984 PLC (CS) 641 1986 PLC (CS) 894 PLD 1994 SC 222 and 1985 PLC (CS) 245.
10. Under the circumstances and for the reasons mentioned above the order of dismissal of the Appellant cannot be sustained. The appeal is therefore, remanded with direction to the Respondent to reinstate the Appellant and hold denovo disciplinary proceedings against the Appellant on the same allegations/charges within a period of four months. The period of four months shall be counted from the date of receipt of a copy of this judgment by the Respondent.
The question of back benefits shall depend upon the result of the enquiry. No order as to costs.
11. Copies of the judgment be sent to the parties (under registered cover) and to the relevant quarters under Rule 21 of Service Tribunal.