' RASHID ALI MIRZA (MEMBER).---Appellant Nabi Bux who was lastly working as Head Constable with the Respondent No,2 Pakistan Railways Sukkur was served with Show-cause Notice, The show- cause notice reproduced hereunder:-- SHOW-CAUSE NOTICE ' Whereas you HC/94 Nabi Bux of BPS JCD, under suspension at RPL/Sukkur are accused of having committed the following acts of inefficiency, misconduct and corruption as defined under Section 3(1)(a)(b) and (c)(iii) of Removal from Service (Special Powers) Ordinance 2000 as amended by Ordinance No, V of 2001.
' As reported by S.H.O. RPS Jacobabad vide report No,223-5 dated 25-2-2002, that on 25-2-2002 you while detailed on train escort duty with train (19 Up Khushal Express) carried 19 Passengers without ticket in the said train, as detected by Vigilance Team, P.R. Sukkur at Railways Station Jacobabad and charged from them Rs,4205 vide RET No,391047 dated 25-2-2002.
' NOW WHEREAS you appear to have been found guilty of the above charges, hence the competent authority is of the view that you should be proceeded against under the above said Ordinance and the competent authority has decided to dispense with the enquiry as provided in sub-section (4) of Section 5 of the said Ordinance.
' AND NOW WHEREAS on receipt of this show-cause notice you are required to submit your reply within 7 days as to why you should not be inflicted with one or more of the punishments provided in section 3 of the said Ordinance, including .Major punishment. Your reply must reach this office within 7 days, stating at the same time whether you desire to be heard in person by the competent authority otherwise your case will be decided ex parte.
(Sd.)
' Superintendent of Police, Pakistan Railways Sukkur ' No,803-E/7-PRF/Vig-2002 Dated 2-3-2002.
' The Appellant replied to the Show-cause Notice denying all the allegations levelled against him stating that his past record was neat and clean and he was never given any minor or major punishment prior to it, but his reply was not found satisfactory and thereafter the appellant was removed from service under Removal from Service (Special Powers) Ordinance, 2000 vide order dated 2-4-2002 against which he filed departmental appeal on 10-4-2002 which remained unresponded, hence the present appeal under section 4 of the Service Tribunals Act, 1973 with the prayer to set aside the order of removal from service dated 2-4-2002, passed by Respondent No,2 and direct the respondents to reinstate the appellant in service with all back-benefits or in alternate remand back the case to the department/respondents for de novo departmental action as no proper inquiry while awarding major punishment of dismissal from service was ever conducted by the respondents.
2. The respondents filed their Parawise Comments wherein it was stated that in view of the overwhelming situation, regular enquiry was dispensed with and show-cause notice under Removal from Service (Special Powers) Ordinance, 2000 which had overriding effect on the existing law was issued to the appellant and after getting explanation and affording a personal hearing, the appellant was correctly punished by the competent authority.
3. We have heard the learned counsel for the parties and have also perused the record.
4. The learned counsel for the appellant argued that the action was taken against the appellant under Removal from Service (Special Powers) Ordinance, 2000 (Ordinance No,XVII of 2000) which was promulgated by the President of Pakistan w,e,f, 27-5-2000 and it was further replaced by the Ordinance, 2001 on its expiry of life of four months. The said Ordinance, was enforced to provide the penalty of dismissal, removal, compulsory retirement from service and reduction to lower post of pay scale of certain persons from Government and Corporation Service and under section 11 of the said Ordinance, it has overridden effect to other laws in Pakistan and it was made applicable to the person in Government service as per section 2(d) of the said Ordinance, 2000, Appellants have not committed any misappropriation as alleged in the Statement of Allegations and it is supported by the Inspection Notes of Divisional Superintendent dated 13-10-2001 which notes are available on the record. The learned counsel states that in view of the denial of serious allegations of fact by the appellant a regular enquiry was absolutely necessary, but no enquiry was held and without giving an opportunity of personal hearing to the appellants they were illegally dismissed from service.
5. The learned counsel for the respondents stated that the charge of carrying 19 ticketless passenger by abusing official position, while allowing the passengers from the gate was established which was detected by the Army Vigilance Cell in presence of senior police and railways officials amount of Rs,4,205 was realized from the appellant for carrying ticketless passengers.
6. We have carefully considered the above submissions of both sides. The proceedings against the appellant had been initiated by a show-cause notice issued under Removal from Service (Special Powers) Ordinance, 2000 and he was also punished under the same Ordinance. 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 along with 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 reasons 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, in spite of denial of serious allegations of fact by the Appellant no regular enquiry has been held against him.
A Useless 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 (C.S.) 894, PLD 1994 SC 222 and 1985 PLC (C.S.) 245.
7. It has been reported in a number of cases by the Honourable Supreme Court that no major penalty can be imposed upon an employee without holding a regular disciplinary inquiry against a delinquent employee. Reliance is placed on 1982 SCMR 770, 1997 SCMR 1552, 2004 SCJ 455.
8. Under the circumstances, 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 de novo 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.
9. Copies of the judgment be sent to the parties (under registered cover) and to the relevant quarters under Rule 21 of Service Tribunal.