' RASHID ALI MIRZA, MEMBER.--- Appellant had been serving Pakistan Railway for the last 34 years.
Lastly he was posted as Sub-Inspector in Sukkur Division. While the appellant was posted as Sub- Inspector in Sukkur Division on 5-12-2001 he was served with show-cause notice by respondent No,2 alleging therein that during service he was awarded WIT for one year in 1983, censure four times in 1975, 2 time in 1977 and one in 1996. The appellant was also awarded punishment of reduction in rank in the year 1978. It was further alleged that the appellant's ACR for the year 2000 was average wherein he was shown to be corrupt. Appellant had tendered his reply to the show- cause notice and rebutted all the charges levelled against him. On 1-5-2002 the appellant was removed from service by respondent No,2. Feeling aggrieved with the impugned order of removal from service, the appellant sent departmental appeal on 9-5-2002 to the respondent No,1 for setting aside the order of removal from service and reinstating the appellants. On 15-7-2002 the appellant was called for personal hearing by respondent No,1 at Lahore but the respondents have not communicated any decision, hence the appellant filed appeal in this Tribunal.
2. Respondents filed parawise comments stating therein that the appellant has been proceeded against under the provisions of Removal from Service (Special Powers) Ordinance, 2000 for his bad service record and having been reported to have bad reputation as there have been many complaints against him. Since the charges were based on record, therefore, the enquiry was dispensed with, hence the appellant was rightly punished on the basis of the charges on record.
3. We have heard the learned counsel for both parties and have gone through the record of the case.
4. We have observed that the respondents have imposed major penalty in number of cases on the Railway employees on the basis of past minor punishment awarded to such employees on the general allegations of inefficiency and corruption without holding any enquiry in such allegations.
In this appeal inter alia two important points arise for determination which are:--
(i) Whether minor penalties awarded to the appellant in the past could be made basis for imposing major penalty of removal from service on the appellant?
(ii) Whether a major penalty of removal could be imposed on the appellant without holding regular enquiry into the allegations levelled against him?
5. In a number of identical cases, this Tribunal on the basis of law as laid down by the apex Court answered both the points in the negative. Reference can be made to two identical cases bearing appeal No,490(K)(C.S.) of 2002, 42 to 45, 50, 51, 61 and 62(K)(C.S.) of 2002, Sher Muhammad and others v. Pakistan Railway and 25(Q)(C.S.) of 2002 Khurshid Nadir v. Pakistan Railway.
6. The seriousness of the charges against the appellant is evident from the above charge which has been made basis for the dismissal of the appellant. In fact there is no cogent evidence in support of the allegations of the appellant having persistent reputation of being corrupt and of ceasing to be an efficient employee. The respondents for proving these two charges relied on one minor punishment. No detail of such minor punishment had been given in the statement of allegations. These punishments were awarded during a period from 1983, censure four times one in 1975, two in 1977 and one in 1996. As per clause (iv) of Pakistan Railway Personal Manual-I, the minor punishments awarded under Efficiency and Disciplines Rules should be written off, if the employees do not commit any irregularity for two years after the expiry of the punishments. It is an admitted position that the last punishment awarded to the appellant was in the year 1994 and the disciplinary proceedings against the appellant were initiated in December, 2001 which means that the minor penalties awarded to the appellant had already expired. This has neither been rebutted nor controverted by the learned counsel for the respondents. As such, the minor punishment which appellant had already suffered and which have become a chapter past and closed cannot be used to vex the appellant twice. Vexing the appellant twice would fall within the principles of double jeopardy. This is supported by authorities reported in 1989 SCMR 1224, 2002 PLC (C.S.) 738 and 2004 PLC (C.S.) 959. We therefore, hold that the minor punishment awarded to the appellant cannot be used even as a corroborative basis of evidence because the appellant was not alleged to have committed any act or omission amounting to misconduct after the year 1996 when his minor punishments had lost their force.
7. Coming to the second point we have to say that the apex Court has consistently held in a number of cases identical and otherwise, that no major penalty could be imposed in disciplinary proceedings against the employees without holding regular enquiry into the serious allegations of fact which were denied by such employees and the same needed to be proved by recording of evidence through regular enquiry providing the accused/employee full opportunity to cross- examine the departmental witnesses and to bring on record his defence and thereafter also providing an opportunity of personal hearing. Needless to say that in the instant case also the allegation of corruption and inefficiency needed to be proved by means of a regular enquiry with providing an opportunity to the appellant to cross-examine the departmental witnesses and to put up his defence also. That having not been done, the respondents cannot go to prove their allegation of inefficiency and corruption against the appellant. The average ACRs are not to be counted as adverse.
8. In the above view of the matter, we have no hesitation in accepting the appeal. We accordingly accept the appeal, set aside the impugned order dated 1-5-2002 and direct the respondents to reinstate the appellant in service to the post he was dismissed from service with all back benefits for the period he was not gainfully employed elsewhere for which he shall file an affidavit before the competent authority. However, it will be open to the respondents to hold a de novo enquiry.
' Against the appellant in accordance with law within a period of four months. No order as to costs.
9. Copies of the judgment be sent to the parties and to the relevant quarters under registered cover under rule 21 of Service Tribunal.