' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).--- ' The appellant was Booking Clerk at Landhi Railway Station, when following show-cause notice was issued to him:- Pakistan Railways Divisional Office, Karachi ' No,E-1013/5/121 May 22, 2002 Show-cause notice
(1) Whereas you are charged with gross misconduct and breach of discipline as per statement of charges.
(2) And whereas the competent authority has decided that there is no need of holding an enquiry against you under subsection (4) of section 5 of Ordinance XVII of 2000 (Removal from Service, Special Powers Amended Ordinance No,V of 2001 and that proceedings are being initiated under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000, which might entail imposition of a major penalty of "dismissal" from service as specified in section 3 of the said Ordinance.
(3) Now, therefore, you are required to show cause within 7 days from the date of receipt of this notice, as to why the proposed action should not be taken against you.
(4) If no response is received from you within the time stipulated above it would be presumed that either you have no defence to offer and/or you have wilfully declined to do so. The case shall then be decided on 'ex parte' without further reference.
'DA/As above (Sd.) 21-5-2002 (Abdul Wahab Awan)
' Divisional Superintendent, Pakistan Railways, Karachi."
' The attached statement of allegations is also reproduced as under:-- "No,E-1013/5/131 May 22, 2002 Statement of charges
(1) Whereas you Mr. Muhammad Ayub Solangi, SCA(B), Landhi are charged with gross misconduct, inefficiency and corruption for the following charges and other relevant circumstances:--
(a) While working in Lower Class Reservation Office, Karachi City issued tickets Nos.5482, 83, 84, 88, 89, 90, 91, 97, 98 and 5487 on 1-2-1993 and 3-2-1993 but the same were not accounted for in the DTC Book, thus, you pocketed Rs,1,160.
(b) On 28-7-1995, during orderly duty, ACO-II, Karachi noticed that you were absent from duty whereas according to diary you were detailed to work on local and platform tickets counter.
(c) You have also been awarded the following punishments:- WIT one year on 8-11-1974.
WIP two years on 10-7-1976 (waived oft)
WIT two years on 22-8-1977 WIT one year on 13-12-1988 WIT one year 27-6-1989 WIT three years on 4-4-1993 WIT two years on 31-1-1994 Censure twice. Suspension - three times.
' The above punishments clearly show that you have ceased to be efficient.
(d) You have persistent reputation of being corrupt and inefficient official of Pakistan Railways as is evident from the above punishments and other record evidence.
' You are, therefore, being proceeded against under Removal from service (Special Powers)
Ordinance, 2000-2001.
(Sd.) 21-5-2002 (Abdul Wahab Awan) Divisional Superintendent Pakistan Railways, Karachi."
' The appellant replied the show-cause notice in which he admitted the minor punishments awarded to him, but he denied the other allegations including the charges of corruption. His reply to the show-cause notice did not find favour with the respondents, with the result that he was removed from service by the following order.
Pakistan Railways Division Office, Karachi June 20, 2002 Notification "No,E-1013/5/121 whereas Mr. Muhammad Ayub Solangi, SCA(B), Landhi were charged for misconduct, inefficiency and corruption vide show-cause notice bearing even number dated 21-3- 2002 under Removal from Service (Special Powers) Ordinance, 2000.
(2) And whereas after considering the defence of the accused employee to the show-cause notice and other relevant circumstances the Divisional Superintendent, Pakistan Railways, Karachi found the official inter alia guilty of the charges mentioned in the above show-cause notice.
(3) Whereas the official has been found guilty of the charges therefore, the Divisional Superintendent, Pakistan Railways, Karachi has imposed the major penalty of removal from service with immediate effect under the, said Ordinance upon Mr. Muhammad Ayub Solangi, SCA(B)
Landhi.
(4) Mr. Muhammad Ayub Solangi, SCA(B), Landhi shall have a right for representation and review to the General Manager (Operations), Pakistan Railways Headquarters Office, Lahore within fifteen days from the date of communication of this order, under Rule 9 of the said Ordinance.
(Sd.) 21-6 (Aamir Ali), D.P.O. For Divisional Superintendent, Pakistan Railways, Karachi."
' The appellant filed a review petition/representation against the major penalty of his removal from service, but the respondents did not communicate any order on such review/representation. The appellant, therefore, filed this appeal before this Tribunal on 9-9-2002 praying that the impugned order, dated 20-6-2002 be set aside and he be reinstated with all consequential benefits.
2. The two paged written comments, filed on behalf of the respondents, mostly contain "no comments". However, it was stated that the appellant was awarded punishments for 10 times within a period of 12 years which showed that he ceased to be efficient.
3. We have heard the learned counsel for the parties and perused the record.
4. The learned counsel for the appellant stated that although it was mentioned in the show-cause notice that there was no need of holding a formal inquiry, but the appellant having denied the serious allegations of corruption and inefficiency, the respondents were required to hold regular inquiry into such allegations, providing full opportunity to the appellant to put up his defence, but that was not done. The learned counsel stated that this discrepancy alone was sufficient to discard the case of respondents against the appellant in view of the authorities of the Honourable Supreme Court in many. Cases. He cited 2004 SCJ 455; 1984 PLC (C.S.) 610 p 1429; PLD 1986 SC 162; PLD. 1996 SC 207; 1996 PLC (C.S.) 1-539 and 868; 1993 PLC (C.S.) 100; 1989 PLC. (C.S.) 7671, 1997 PLC (C.S.) 873; 1993 SCMR 683; PLD 1994 SC 22; 1985 PLC (C.S.) 219 and 245; 1990 PLC (C.S.) 745.
' The learned counsel further stated that since the appellant had undergone minor punishments, same could not be used to .Punish him on the principle of "double jeopardy" specially when last punishment awarded to him was in the year 1994 i,e, about eight years prior to the initiation of these disciplinary proceedings against him. The learned counsel further stated that under page 769 of Railway Personnel Manual, minor punishments not followed by any other punishment within a period of two years after the last punishment stood waived off. On the point of double jeopardy, the learned counsel relied on KLR 2004 Labour and Service Cases 201, 1989 SCMR 1224; 2002 PLC (C.S.) 738 and 2004 PLC (C. S.) 344. The learned counsel additionally urged that since major penalty of removal from service was imposed upon the appellant second show-cause notice should have been issued to him prior to imposing the said penalty. He relied on KLR 2000 Labour and Service Cases 221. Finally, the learned counsel argued that no opportunity of personal hearing was given to the appellant which meant that the appellant was condemned unheard. He relied on 1994 SCMR 2232 and PLD 2004 SC 441. The learned counsel urged that in view of the glaring discrepancies in the disciplinary proceedings against the appellant, the impugned order was liable to be set aside and the appellant was entitled to be reinstated in service with all back-benefits.
5. The learned counsel for the respondents stated that since the allegations against the appellant were based on documentary evidence, no regular inquiry was needed in this case. He also contended that there was no provision of second show-cause notice or personal hearing in the Removal from Service (Special Powers) Ordinance, 2000 itself. His last argument was that the inefficiency of the appellant was proved from the minor penalties imposed upon him within .a period of 12 years.
6. We have carefully considered the above arguments of both sides. In view of the arguments of the learned counsel for the appellant, which arguments are duly supported by the, authorities of the Honourable Supreme Court, we are not impressed by the arguments of the learned counsel for the respondents. It has been repeatedly held by the Honourable Supreme Court in a number of cases that where serious allegations of fact are denied by the delinquent employee regular inquiry is absolutely necessary wherein chance has to be given to such employee to meet the allegations against him, but in the instant case, no inquiry was held and no opportunity was given to the appellant to defend himself. The contention of the learned counsel for the respondents about the minor punishments does not appeal to us as such punishments stood waived off under Railway Personnel Manual and they cannot be made basis of any other punishments under the principle of "double jeopardy". As to the 'question of second show-cause notice and personal hearing, the contention of the learned counsel for the respondents to the extent that these are not provided in the Ordinance itself, is correct, but there are numerous authorities of the Honourable Supreme Court which make it obligatory on the Agency, taking disciplinary action against its employee for imposing major penalty, to issue final show-cause notice and also to provide him an opportunity of personal hearing. Admittedly, no inquiry was held against the appellant, no second show-cause notice was issued to him him and he was not personally heard.
7. The above mentioned discrepancies in the disciplinary proceedings against the appellant show that the impugned order of removal of the appellant from service was illegal and needed to be set aside. We, therefore, allow the appeal, set aside the impugned order and reinstate the appellant in service with back-benefits for the period he was not gainfully employed elsewhere during the intervening period. The respondents would, however, be at liberty to initiate fresh disciplinary proceedings against the appellant, if they so desire. No order as to costs.
8. Announced in open Court.
9. Copies of the judgment be sent to the parties and to the relevant quarters as per Rule 21 of Service Tribunals (Procedure) Rules, 1974.