Rashid Ali Mirza, Member.--Through the instant appeal under Section 4 of the Service Tribunals Act, 1973, the Appellant has challenged the impugned order dated 21.7.2001 of his dismissal from service under Removal from Service (Special Powers) Ordinance 2000, praying therein to allow the appeal, set aside the impugned order and direct the respondents to reinstate him in service with all back benefits.
2. Briefly the facts, leading to this appeal as mentioned in the Memo of Appeal are that while the Appellant posted as Senior Commercial Assistant Booking was placed under suspension. He was served with Show Cause Notice dated 3.5.2001 alongwith Statement of Allegations which are reproduced as under:-- "No, 170E/12274/P.I Dated : 3.5.2001 SHOW CAUSE NOTICE WHEREAS, you Mr. Noor Muhammad s/o Abdul Razzaque CSA/Booking Rohri BPS-7 have committed the following irregularities:-- CHARGES See Reverse.
WHEREAS, by reason of above, you are guilty of misconduct and liable to disciplinary action under the Government Servants (Efficiency & Discipline) Rules, 1973/Delegation of Powers 'under Removal from Service (Special Powers) Ordinance, 2000.
AND WHEREAS, in the light of the facts and circumstances of the case, it has been decided by the undersigned that it is not necessary to have an enquiry conducted in this case in terms of Rule 5(3) of the Government Servants (Efficiency & Discipline) Rules, 1973.
NOW, THEREFORE, you are hereby required to show cause in writing within 7 days of the receipt of this notice why the major penalty of dismissal from service as defined in sub-rule 4(1)(b)(4) of the Rules ibid should not be imposed on you, failing which it shall be presumed that you do not want to offer any written defence and that you accept the charges.
You may also state whether you desire to be heard in person by the competent authority.
(Competent Authority)
Divisional Commercial Officer"
"Statement of charges against Mr. Noor Muhammad Lashari, Senior Commercial Asstt;
1. For serious misconduct, and fraudulent activities as much that you Mr. Noor Muhammad Lashari, SCA/B Rohri while working and performing duty in Booking office Rohri, committed the serious irregularities as evident from the following:--
(i) That during the course of working at Rohri, you misappropriated the Govt. Cash to the tune of Rs, 204000/- by different means of short remittance and issuing M.R. Public out of series and non- accountal of the used books in Govt. ledgers. You deposited the mis-appropriated amount Rs, 204000/- after sayings from time to time.
(ii) During the, course of enquiry it was also reveale that M.Rs No, 867502 to 867507 issued by you on 8.3.2000 valued Rs, 197070.00 but its accountal not shown by you, thus amount was pocketed illegally. The same Enquiry Committee worked out Rs, 277062.00 in total by way of non-accountal and short remittance, which has not been paid by you so far.
(iii)That during, the course of stay at Rohri, you committed serious irregularities without any fear of accountability as evident from the MR Public No, 835488 to 490(3) dated 3.11.2000, involving Rs, 146000.00 which were issued by you while you were under suspension. You used the Government documents involving finance, rather in off duty which indicates that you worked fearlessly and unlawfully. The amount of three MRs, Issued during suspension was deposited three months later, which is sort of mis-appropriation.
(iv)During the course of working you made frequent short remittances and pocketed the Government amount illegally as evident from the record of Booking office Rohri.
You also failed to deposit the out-standing amount Rs, 277062 till date through asked to deposit the same.
Explain as to why you should not be imposed major penalty of dismissal from service under the extent rules in addition to the recovery of out-standing amount of Rs, 277062.00 under Land Revenue Act 1987? still'not made good by you.
Sd/- Divisional Commercial Officer Pak. Railways Sukkur (Competent Authority)"
The Appellant denied the aforesaid charges and requested for inquiry but Respondent No, 3 instead of holding inquiry, issued orders for personal hearing on 31.5.2001 and without hearing him served another show cause notice dated 4.6.2001 on the following Statement Allegations: STATEMENT OF ALLEGATIONS In continuation to this office Show Cause issued under letter of even No, dated 3.5.2001, you Mr. Noor Muhammad SCA(B) Rohri (under suspension) are further charged that amount of Rs, 88827/- has been detected outstanding against you by T.A.O/Fraud Lahore, the details of which are as under:-- S.No, Dated Amounts.
1. 5.1.2001 Rs, 11000/-
2. 8.1.2001 Rs, 00010/-
3. 19.1.2001 Rs, 00225/-
4. 22.1.2001 Rs, 2000/-
5. 23.1.2001 Rs, 5000/-
6. 1.2.2001 Rs, 10000/-
7. 2.2.2001 Rs, 10872/-
8. 10.2.2001 Rs, 49700/-
9. 18.2.2001 Rs, 00020/-
10. Total:- Rs, 88827/- The above amount is in addition to the amount Rs, 277062/- already detected by the Assistant Officers Enquiry Committee of Sukkur Division, for which you were charged under the above referred letter. Thus the total amount misappropriated by you now comes to Rs, 365889/-.
Sd/- Competent Authority."
4. The Appellant submitted an application dated 6/6/2001 to the Respondent No, 2 requesting to furnish the material documents to enable him to submit his defence reply but the Respondents neither held enquiry into the serious allegations nor provided the required documents and thereby deprived the Appellant from reasonable opportunity of defence. The Appellant has stated in the Memo of Appeal that he was involved in the criminal case and F.I.R. No, 14/2001 was registered against him and others. The Appellant surrendered himself before the Court and remained in Jail for 2 days and obtained the bail on 1.6/10/2001. After release from Jail the Appellant requested for copies of material documents in order to prove the innocence but the same were not provided to him. He had produced the photo copy of the application as Annexure-I. The Appellant further stated that the Respondent No, 2 has removed him from service by ex-parte order which was delivered to him on 1/1/2002. The Appellant being aggrieved with the said impugned order preferred departmental appeal to Divisional Superintendent Pakistan Railways, Sukkur on 14/1/2002 but the same was not responded by the Department, hence he filed the appeal.
5. The Written Comments have been filed on behalf of the Respondent wherein it has been stated that the Appellant was placed under suspension on 9/3/2001 followed by Show Cause Notice which was served upon the Appellant on 3/5/2001 on account of short remittance to the tune of Rs, 365889/-; that enquiry was conducted by Assistant Accounts Officer, Assistant Commercial Officer-I and Assistant Personnel Officer of Enquiry Committee, on the strength of which Show Cause Notice was served upon the Appellant and F.I.R. was lodged for recovery of defalcated amount. It is further stated that. Appellant was afforded full opportunity to defend his case and was also afforded a chance of personal hearing. It is further stated that the appeal merits no consideration and is liable to be dismissed.
6. We have heard the Learned Counsel for the parties and perused the record.
7. The learned Counsel for the Appellant contended that the action against the Appellant without holding proper enquiry and affording reasonable opportunity for defending his case is illegal as such, the Appellant was condemned unheard. He contended that after registration of F.I.R., case against the Appellant was investigated by SHO Railway Police with the assistance of both Commercial Inspectors, who worked out total outstanding of Rs, 4542/- against the Appellant which amount was paid by the Appellant vide M.R. No, 891656, dated 27.7.2001 which was confirmed by SHO in presence of Station Superintendent Railway Rohri and both Commercial Inspectors that there was no outstanding against the Appellant after . payment of Rs, 4542/-. He contended that outstanding amount shown in the show cause notice to the tune of Rs, 365889/- was false and fabricated. He contended that it is proved from the reports of Commercial Inspectors that on verbal Statement of Supervisor Muhammad Rafique a huge amount was collected upon the orders of Respondent No, 2 without any evidence, therefore, there was nothing against the Appellant at the time of submitting report by the Commercial Inspectors on 20.3.2001. He contended that no regular enquiry was conducted nor there was any evidence or Statement of any witness to connect the Appellant with the alleged incident. The learned Counsel further argued that the allegation against the Appellant of short remittance of Government money or imposing responsibility upon him for the alleged defalcation was without bringing on record any evidence or without holding any enquiry against him. The learned Counsel argued that in view of the denial of serious allegations of fact by the Appellant regular enquiry was absolutely necessary but no regular enquiry was held and without giving an opportunity of personal hearing to him, he was dismissed from service. He has further contended that the fact-finding enquiry was conducted prior to issuance of Show Cause Notice and he has been awarded major punishment on the basis of that report which is not tenable in the light of the ruling cited in 2001 SCMR 256. He contended that F.I.R. No, 14/2001 had been filed by the Respondents and after investigation, the Police Department had arrived at a conclusion that the excess amount of Rs, 4542/- was remitted by the Appellant. He further argued that regular mandatory enquiry was also not held in this case. He placed reliance on 2004 SCJ 455. He has further contended that no personal hearing was afforded which was necessary. He placed reliance on 1986 PLC (CS) 419, 2003 PLC (CS) 365 and PLD 2004
(SC) 44L He further argued that identical cases have been remanded in view of the findings of this Tribunal and as such this appeal may also be remanded to the Respondents for denovo proceedings. He placed reliance on PLJ 2003 (SC) 511. He stated that all the proceedings were initiated behind his back when he was in jail, but neither any notice was got served upon him through Jail Superintendent nor any notice was given to him.
8. The Learned Counsel for the Respondents has failed to rebut the contention of the Learned Counsel for the Appellant but supported the impugned order passed against the Appellant and prayed for dismissal of the appeal.
9. The Appellant had been proceeded against by a Show Cause Notice issued under Government Servants (E&D) Rules 1973 and Removal from Service (Special Powers) Ordinance 2000 and he was also punished under the same Ordinance Broadly speaking the procedure proscribed for action under Removal from Service (Special Powers) Ordinance 2000 is that the competent authority issues Charge sheet, appoints Enquiry Officer who 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 equiry 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 to regular enquiry has been held against him. We find that there are grave 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, 2004 SCMR 1.662, 1993 SCMR 603.
10.From the perusal of the record and from the arguments advanced by the Learned Counsel for the Respondents it has transpired that a show cause notice was issued to the Appellant as a result of an enquiry conducted by the Committee. Even otherwise, object of a Preliminary enquiry is to collect evidence and material and to determine the truthfulness of the allegations levelled against an employee. That employee can be declared guilty only through a regular enquiry which is held after Charge Sheet is issued to him. It is strange that the Respondent did not feel the necessity of holding a regular enquiry against the Appellant and for imposing penalty on him banked merely on the report of preliminary enquiry. As such, the proceedings conducted by the Respondents which resulted into the dismissal of the Appellant from service cannot be protected. Our this view gets full support from the law laid down in PLJ 2000 Supreme Court 255. It was held in this authority that the fact-finding enquiry can never be a substitute for a regular enquiry and it could not be used against an accused employee for awarding major penalty of dismissal from service.
11. For the reasons above, we accept the appeal, set aside the impugned order dated 21.7.2001. 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.