RASHID ALI MIRZA, MEMBER - The Appellant had been serving as Guard/KER in the Railway Department when vide order dated 11.3.2003, he was dismissed from service upon imposition of debit of Rs. 1,19,680/- by the Respondents. On 11.6.2003 the Appellant preferred departmental appeal to the appellate authority which was rejected on 14.6.2004. Being aggrieved by the impugned order, the Appellant preferred this appeal on 24.6.2004 before the Tribunal under Section 4 of the Service Tribunals Act, 1973 (as amended up to date) praying to set aside the impugned order of dismissal from service alongwith unwarranted debit of Rs. 1,19,680/- and reinstate him with full back benefits.
2. Briefly the facts leading to this appeal are that the Appellant was Guard/KER in the Pakistan Railway Department since last 16 years. Due to urgent domestic affairs Appellant availed four days casual leave with effect from 4.8.2001 duly sanctioned by the Station Master, Khanpur. On return from leave on 8.8.2001 he was not allowed duty but was handed over memo./order dated 8.8.2001 to see D.T.O. Railway, Sukkur in his Office. On the next day the Appellant reported for duty in the Office of Respondent No. 2 through Head Clerk Transportation Branch Divisional Office, Sukkur, where he was told that an enquiry will be conducted which was not conducted and after two months, his statement was recorded by the Divisional Transportation Officer i.e. Respondent No. 2 but the Appellant was not permitted to resume his duty. Due to retention in the gallery of Divisional Officer, Sukkur, without work and without payment of his salary the Appellant lost his health and became a patient of low blood pressure. He requested the Respondent No. 1 for allowing him duty to which the Respondent No. 1 lost his temper and turned him out with hatred manners. On 9.6.2003, the Appellant visited the Divisional Office to know about his duty orders, where he was handed over Order of his Dismissal from service without any show-cause notice for which he agitated and on the spot he was handed over show-cause notice dated 29.8.2002 containing allegations of shortage of oil in Tank Wagon No. 6725. It was also alleged against him in the said show-cause notice that he remained absent from duty unauthorisedly with effect from 4.8.2001 without intimation. The Appellant being aggrieved with the impugned order of dismissal preferred representation/appeal which was not processed to the competent authority by respondent No. 1 and after 12 months Appellant submitted another application to decide his appeal. However, the same was rejected vide order dated 14.6.2004, hence this Appeal under Section 4 of the Service Tribunals Act, 1973.
3. The Respondents in their Written Comments stated that the performance of the Appellant during tenure of his service was not satisfactory and he was awarded punishment of different nature. It is stated that Appellant never applied for leave and remained absent with effect from 4.8.2001.
Thereafter be contacted Assistant Transportation Officer-I, Sukkur who was nominated to conduct enquiry for fixing responsibility in connection with stealing of oil from KS-1 and after completion of enquiry a show-cause notice dated 29.8.2002 was served upon the Appellant.
We have heard the learned counsel for the parties and have also perused the record.
5. The learned Counsel for the Appellant contended that the impugned order of dismissal alongwith debit of Rs. 1,19,680/- is illegal. He contended that the impugned Order of dismissal of Appellant from service dated 19.3.2003 was not delivered to the Appellant through bona fide means well in time. He also contended that copy of Punishment notice dated 19.3.2003 addressed to the Station Master, Khanpur, was never delivered to the Appellant by Respondent No. 1, but it was delivered to the Appellant on 9.6.2003 in presence of Mumtaz Hussain Bajwa Guard Rohri and copy of show-cause notice dated 29.8.2002 was also delivered on the same date in presence of the afore-said Guard namely Mumtaz Hussan Bajwa. He argued that the Appellant was spared by the Station Master Railway Khanpur on 8.8.2001 as per orders of DTO, Sukkur but thereafter the Appellant reported for his duty through Head Clerk Transportation Branch Divisional Office, Sukkur, but he was not allowed to resume his duty and was made to sit in the gallery, in the name of inquiry which was neither conducted nor finalized. He contended that after a lapse of two months, statement of Appellant was recorded by DTO Railways, Sukkur, but he was not returned back to the Headquarter for normal duties and was humiliated and unlawfully harassed by Respondents Nos. 1 and 2 and was not paid his salary for the period he was kept in office due to which he fell sick and remained under treatment of doctor. He argued that Appellant was not absent but he was maltreated and harassed by Respondent No. 2 during the course of his detention. He argued that the Appellant was condemned unheard. He contended that the inquiry was defective and improper and no penalty was warranted on the basis of such preliminary inquiry. He placed reliance on 1997 TD (Services) 247 and 2001 SCMR 256. He contended that major punishment was awarded without providing the chance of personal hearing to the Appellant. He placed reliance on PLD 2004 SC 441. He contended that major punishment under the Ordinance cannot be awarded without conducting regular domestic enquiry, hence the punishment so awarded is without any base. He placed reliance on 2004 SCJ 455. The order passed by the authority is non-speaking order, hence not maintainable in law. He placed reliance on PLC (CS) 857. He contended that domestic inquiry was initiated under Government Servants (E&D) Rules, 1973 and it culminated under Removal from Service (Special Powers) Ordinance, 2000 which is illegal. He placed reliance on 2003 PLC (CS) 1303.
The Learned Counsel for the Respondents contended that the Appellant had committed theft of oil from goods Train and misappropriated a sum of Rs. 1,19,600/-. He was advised to pay the misappropriated amount within 14 days or give consent to transfer the G.P. Fund amount against recoveries. Instead of depositing the misappropriated amount or giving consent, he filed Appeal before this Tribunal.
7. We have carefully perused the record which clearly discloses that the Appellant was neither associated with enquiry proceedings not allowed opportunity to cross- examine witnesses produced against him. We have no doubt that a person facing enquiry has right to be associated with its proceedings and entitled to impeach credit of witnesses produced against him through cross-examination. Obviously, enquiry proceedings and consequential order regarding the Appellant suffer from inherent legal defects.
It was held in 2000 PLC (CS) 857 as under:-
(a) Government Servants (Efficiency and Disciplines) Rules 1973 - Rr. 4 & 6-A-Service Tribunals Act (LXX of 1973), S. 4-Premature retirement- Departmental enquiry-Authenticity-Principle of natural justice-Violation-Civil servant initially was awarded penalty of withholding of four increments but subsequently that penalty was converted into major penalty of "permanent retirement"---Onus was an Departmental Authority to show that enquiry against civil servant was conducted in accordance with Rules, but facts available on file had shown that civil servant was condemned unheard and his penalty was based on reports of a Fact Finding Committee, which could not be made a ground for condemnation of civil servant-Minor penalty of withholding of four annual increments awarded by Authorised Officer, was converted by Authority into major penalty of permanent retirement without serving civil servant with a show-cause notice as to why said minor penalty awarded to him by Authorised Officer, should not be enhanced---Validity-~Under provisions of R. 6-A of Government Services (Efficiency and Disciplines) Rules, 1973, no adverse order to the interest of civil servant could be passed without affording him opportunity of personal hearing if Authority intended to review penalty especially in case of enhancement of penalty-Order of Authority was set-aside, in circumstances.
8. Learned Counsel for the Appellant contended that dispite proceedings were initiated against the Appellant under (E&D) Rules, 1973 and Charge-sheet dated 3.2.1999 was issued, the Enquiry Officer was appointed who conducted the Preliminary Enquiry and gave his findings that charge of stealing oil from running train had been established against M/s. Younis Driver, Imdad Ali Sheikh guard and Sikandar Ali fireman. However, the disciplinary proceedings were held against the Appellant under E&D Rules, 1973. The learned Counsel contended that the matter was pending before the departmental authority when proceedings were switched over to Removal from Service (Special Powers) Ordinance, 2000 and Show-Cause Notice dated 29.8.2002 was issued and the Appellant was imposed penalty thereunder, which according to the learned Counsel for the Appellant could not be done as per terms of Section 13 of the said Ordinance of 2000 which provides:- "13. Pending proceedings to continue - For the removal of doubts, it is hereby provided that all proceedings pending immediately before the commencement of this Ordinance against any person whether in Government service or corporation service under the Civil Servants Act, 1973 (LXXI of 1973) and rules made thereunder or any other law, or rules, shall continue under the said laws and rules and as provided thereunder."
The contention of the learned Counsel appears to be correct as Section 13 of the Ordinance 2000 is explicit on the point that disciplinary proceedings initiated prior to coming into force of the said Ordinance were to be completed under E&D Rules 1973 and not under the Ordinance of 2001.
Reliance is placed on 2003 PLC (CS) Supreme Court 1303.
9. Thus the proceedings against the Appellant had been initiated by a Show-Cause Notice under (Efficiency & Disciplines) Rules, 1973 but he was punished under Removal from Service (Special Powers) Ordinance, 2000. 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 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 to 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 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 no regular enquiry has been held against him. Useless to say that Second Show-Cause Notice could not be issued as regular enquiry was not held and, it is not the case of the Respondent that the penalty has been imposed upon the Appellant after personal hearing. 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 1984 PLC (CS) 641, 1986 PLC (CS) 894, PLD 1994 SC 222 and 1985 PLC (CS) 245.
10. Under the circumstances and for the reason mentioned above, the order of dismissal of the Appellant cannot be sustained. The appeal is, therefore, remanded with direction to the Respondent to reinstate the Appellant and hold de novo 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. Not order as to costs.