RASHID ALI MIRZA, MEMBER - Appellant was serving in the respondent Pakistan Railways when he was issued a show-cause notice dated 07.02.2002 under Removal from Service (Special Powers)
Ordinance, 2000 and thereafter was compulsorily retired from service vide Order dated 8.6.2002.
After filing departmental appeal which was not responded, the appellant preferred this appeal on 05.09.2002 under Section 4 of the Service Tribunals Act, 1973 praying that the impugned order of his compulsory retirement from service be set aside and he be reinstated in service with full back benefits.
2. The charge against the appellant as mentioned in the show-cause notice was as under:-
(1) An amount of Rs. 35,000/- in small denomination of Rs. 5/- and 10/- each was collected on 05.10.2001 by Mr. Sajjad, Naib Qasid and . Mr. Abdul Hameed from your agent Mr. Obaidullah and handed over the said amount to civilian Mr. Muhammad Ali and Mr. Shabhir in Boltan. Market who in return gave them Rs. 13,000/- as commission, which was given to you at 13.30 hours the same day.
(2) You while posted as D.P.M. Karachi closed your eyes towards the objectionable practice prevailing in D.P.M. Office, Karachi in broad daylight, in connection -with the exchange of currency notes by your staff. Mr. Muhammad Sajjad, Naib Qasid of your office, who was caught red-handed on 05.01.2001, while he was carrying on a bicycle an amount of Rs. 65,000/- of new Government Currency notes in small denomination of Rs. 5/- and 10/- respectively which he intended to sell the same ' in Bolten Market on your behalf.
(1) You drew an amount of Rs. 1,52,28,690/- from State Bank of Pakistan on 05.10.2001 for the salary of Railway employees and delivered the said cash to the S.P.M.S. In very late hours, which intends to have mixed-up for exchanging the new currency notes through the staff of cash office.
(2) You did not distribute new Government currency notes of Rs. 5/- and 10/- properly on 05.10.2001 amongst the S.M.P.S. As confirmed by the cashiers through their statements.
(3) You misused your official position by collecting new currency notes from the State Bank of Pakistan for the salary of Railway employees and sold the currency notes through employees of cash office on .Commission basis to the broker of Bolten Market. '
(4) . You utilized the service of the Junior Auditor named Muhammad Ismail as S.P.M. Without the proper approval of the competent authority and thereby exceeded from position/powers as D.P.M., which on your part amounted to misconduct as you proved to be a very irresponsible officer in cash matters."
2. In his departmental appeal the appellant denied the allegations of exchanging the currency notes on commission basis, but his reply, it appears, was not found satisfactory and major penalty of compulsory from service was imposed upon him.
3. The written comments have been filed on behalf of the respondent wherein punishment of removal imposed upon the appellant has been justified.
4. We have heard the learned counsel for the parties and perused the record.
5. The learned counsel for the appellant argued .That the appellant has not committed any act of exchanging the currency notes on commission basis as alleged in the show-cause notice and it is supported by the Inspection Report dated 10.12.2001 which is 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, but no enquiry was held and without giving an opportunity of personal hearing to the appellant he was illegally retired from service.
6. The learned counsel for the respondents stated that the charge for exchange of. New currency notes in old currency on commission basis was proved against the appellant. He stated that the appellant was reportedly earning profit from Rs. 50,000/- to Rs. 60,000/- per month through exchange or currency with Bolten Market, Karachi.
7. 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 ar 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 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 disposed 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, inspire of denial of serious allegations of fact by the appellant no regular enquiry has been held against him. 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 1980 SCM R 850, 1984 PLC(CS) 641, 185 PLC(CS)
245, 1986 PLC(CS)894, PLD 1994 SC 222, 1997 SCM R 1543, 1999 SCM R 841, 2002 SCMR 514, 2003 PLC(CS) 395, 2004 SCM R 316, 2004 SCM R 49, 2004 SCJ 455, 2003 PLO(CS) 314 and 2004 PLC(CS)
1275.'
7. Under the circumstances, the order of compulsory retirement of the appellant from service 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.
8. Copies of the judgment be sent to the parties (under registered cover) and to the relevant quarters under Rule 21 of Service Tribunal.