Muhammad Javed Ashraf Hussian, Member.--This is an appeal under Section 4 of the Service Tribunals Act, 1973 against the impugned order dated 16.9.2004 whereby the major penalty of removal from service has been imposed upon the appellant. The appellant preferred departmental appeal dated 29.9.2004 which was rejected vide department letter dated 25.10.2004 whereafter this appeal dated 24.11.2004 has been filed before this Tribunal.
2. Briefly, the facts of the case are that the appellant joined the railway department as R.C.C. w.e.f 7.11.1987. The nomenclature of the post was later changed to that of junior Commercial Assistant (Booking). while serving against the said post at the Booking Office, Karachi Cantt, the appellant was issued a charge sheet dated 25.3.2000 and the reply to 'the charge sheet having been found not satisfactory, he was awarded the punishment of being, placed two steps back in his existing pay scale for two years and the period of absence from 18.12.1999 till the date of resumption of duty was to be treated as absence. He was further directed to report to Head P-I for further posting order. The appellant states that the accordingly reported for duty to HDP-I on 2.1.2001 for further posting but according to him he was not taken on duty. The appellant states that he kept on visiting the relevant Branch time and again but did not get any response as far as palce of duty or further positing order was concerned.
3. The appellant was served with a show-cause notice dated 3.8.2004 with statement of charges reproduced verbatim as under: "(i) You were directed to P.I on 20.1.2001 for further posting order of the remaining absent for duty w,e,f, from 18.12.99 with the punishment of Two (02) step back in present pay scale for the period of two (2) years. You reported on P-I and thereafter remained away since 02.1.2001 from the office without any intimation and permission of competent authority.
(ii) You have been awarded the following punishments.
(1) Removal from service on 22.3.90 and reinstated on 3.5.1992.
(2) WIT for (3) years on 27.12.92.
(3) WIT for (3) years on 5.8.93.
(4) WIT for (3) years on 11.5.04.
(5) WIT for (3) years on 15.10.95.
(6) WIT for (3) years on 22.8.95.
(7) WIT for (3) years on 18.11.95
(8) WIT for (3) years on 21.12.95.
(9) WIT for (3) years on 29.2.96
(10) Reduction in time scale by three steps back for the period of three years on 23.6.96."
The appellant submitted his reply vide his letter dated 11.8.2004 which having been found not satisfactory the impugned order dated 16.9.2004 removing him from service under Removal From Service (Special Powers) Ordinance 2000 was imposed. Thereafter, the departmental appeal dated 29.9.2004 was rejected vide department letter dated 25.10.2004 whereafter this appeal dated 24.11.2004 has been filed before this Tribunal.
3-A. The learned counsel for the appellant argued that the appellant was available for duty which can be proved by the fact that he was readily available to receive the show-cause notice dated 3.8.2004 to which he replied promptly on 11.8.2004 and also on receiving the impugned order dated 16.9.2004 he filed the departmental appeal well in time promptly again on 29.9.2004. The learned counsel for the appellant stated that if the appellant had disappeared or had made himself unavailable for duty, he would not be at hand to receive the show-cause notice and also to reply to it promptly. He stated that this powers that the appellant was always available for duty from 2.1.2001 onwards but was not assigned any duty by the department.
4. The appellant in his reply to the show-cause notice has averred that when he reported for duty to Head P-I, his case was submitted to the then DCO who it seems had some reservations regarding the earlier punishment of two steps back in his existing pay scale implying therewith that the DCO thought that the punishment was too lenient and a more drastic punishment was called for. The appellant asserted that his further posting after he reported to Head P-I was not notified on account of the alleged bias on the part of the DCO.
5. The learned counsel for the appellant argued that the statement of charges dated 3.8.2004 includes earlier punishments awarded to 'the appellant and stated that it was a well settled principle of law that a person cannot be vexed twice for the same misconduct. He also stated that minor punishment, if any stood waived off after expiry of two years under the 'relevant rules/laws.
The learned counsel for the appellant further argued that major punishment cannot be imposed without conducting a regular departmental inquiry. He maintained that no regular inquiry was conducted and further contended that such regular inquiry was mandatory in view of the fact that the appellant had denied the charges leveled against him. He placed reliance on the rulings as in 1997 SCMR 1543, 2003 TD (Service) 242 and 2004 SCJ 455. The learned counsel for the appellant further argued that he impugned order dated 16.9.2004 has been made effective with retrospective effect i,e, from 18.12.1999 although it is a submitted fact that appellant had reported for duty to Head P-I on 2.1.2001. He further argued that the order cannot operate retrospectively and therefore the punishment is not sustainable in law and placed reliance on 1986 PLC (CS) 719, 1985 SCMR 1178 and 2004 TD (Service) 349. The learned counsel for the appellant further stated that if any inquiry was at all conducted it was so conducted at the back of the appellant and he was not provided opportunity to defend his case and in any event the copy of inquiry report was not supplied to him.
In such a situation, he argued, the punishment awarded would be unlawful and liable to be set aside and placed reliance on rulings as in PLD 2002 SC 667; and 1985 PLC (CS) 518, PLJ 2003 Tr.C.
(Services) 66, 1988 SCMR 1352. The learned counsel for the appellant concluded his arguments by stating that in view of his above submissions that impugned order is liable to be, set aside and the appellant reinstated in service with all back benefits.
6. The learned counsel for the respondents stated that the appellant was unauthorized absent from duty w,e,f, 18.12.1999 for which disciplinary proceedings were initiated against him under E&D Rules 1973 and after finalization of said disciplinary proceedings he was inflicted the punishment of two steps back in his pay scale for two years vide department order dated 2.4.2001. He was accordingly allowed to resume duty and was directed to report to HDP-I for further posting orders.
The learned counsel for the respondents further stated that although the appellant a reported in HDP-I on 2.1.2001, he thereafter absented himself from duty and was therefore issued the show- cause notice dated 3.8.2004. The learned counsel for the respondents also stated that the competent authority had dispensed with inquiry under the rules and the fact of such dispensation was duly mentioned in the show-cause notice. The learned counsel for the respondents further stated that the appellant was afforded the opportunity of personal hearing after he had submitted reply dated 11.8.2004 to the show-cause notice. The learned counsel for the respondents also stated that the order of removal from service was given effect from 18.12.1999 as the appellant had remanded absent from duty from this date, only briefly reporting on 2.1.2001 and disappearing thereafter. The learned counsel for the respondents concluded his arguments by stating that the impugned order having been issued after complying with all the necessary procedures under the relevant law/rules, the appeal is liable to be rejected.
7. Heard the learned counsels for both the appellant as well as the respondents and also refused the record.
8. The un-controverted facts is that the appellant reported for duty to the Head P-I on 2.1.2001 and this fact has been duly admitted by the respondent Department. As for as the period of absence from 18.12.1999 to 2.1.2001 is concerned, the appellant was charge sheeted and awarded punishment of being placed two steps back in pay scale. As such, this is a closed transaction having attained finality by the imposition of the punishment 'vide order dated 2.1.2001 and thereafter this period of absence cannot be cited again for proceeding against the appellant en a subsequent date as this would clearly constitute double jeopardy. The relevant issue is the alleged absence from duty on the part of appellant after he reported for duty to Head P-I on 2.1.2001 and uptil 3.8.2004 i,e, The date of issuance of the show-cause notice. The appellant has vehemently denied that he remained absent from duty and has insisted that he kept on presenting himself to the department for assigning him duty but he was not given posting order after he duly reported to HDP-I. The appellant has also insinuated that his posting order was not given on account of the DCO feeling that the earlier punishment of two steps back in pay scale was not sufficient and that the appellant deserved a more severe punishment. However, there is no evidence to establish any such motive on the part of the concerned authorities including the DCO. We have however noted that the department has admitted that the appellant did report for duty to HDP-I on 2.1.2001 and it is rather interesting that the department woke up to the alleged unauthorized absence of the appellant after more than three and a half years in, that the show-cause notice was issued on 3.8.2004. If the appellant had indeed disappeared from duty after 2.1.2001 and was consistently not available for duty it was incumbent upon the department to initiate disciplinary proceedings soon after which was evidently not done and the department waited for more than three and a half years. This aspect of the case itself is quite intriguing and leads to the suspicion that there was some hesitation on the part of certain authorities to assigning regular duty to the appellant after he had admittedly reported for duty on 2.1.2001. There is also no gainsaying the fact that the appellant had clearly denied that he had disappeared or was not available for performing duty. In view of such an eventuality, the holding of a proper inquiry was called for which, was not conducted and the appellant was imposed the major penalty through summary proceedings of issuance of show-cause notice only. The show-cause notice also does not explain the reasons for dispensing with the inquiry. In view of the circumstances as discussed above we are of the view that regular inquiry was imperative and by not holding such an inquiry the appellant has been denied his due right of presenting his case and defending himself.
9. In view of the above we have no hesitation in setting aside the impugned order and direct that the. appellant shall stand reinstated in service from the date of his removal. However the department will be within its right to hold a regular inquiry which may be completed within six months from the date of receipt of a copy of this judgment. The payment of back benefits of the appellant would depend on the outcome of the inquiry. No order as to costs.
10.Parties be informed accordingly.