' MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).---This is an appeal under section 4 of the Service Tribunals Act, 1973 against the impugned order, dated 29-8-2002 whereby the appellant has been imposed the major penalty of compulsory retirement from service. The appellant preferred departmental appeal dated 10-9-2002 which was rejected vide letter, dated 5-4-2003 received by the appellant as stated by him on 14-4-2003 whereafter this appeal dated 12-5-2003 has been filed before this Tribunal.
2. The brief facts of the case are that the appellant was issued a show-caused notice dated 10-6- 2002 on charges of gross misconduct, inefficiency and corruption. The charges as in the statement of allegations served with the show-cause notice read as under:-- "(a) On 24-4-1995, while working in Booking Office, Karachi City, you issued economy class Ticket No,001138 for Mandi Bahauddin and charged Rs,245 instead of legitimate fare of Rs,235, thus realized Rs,10 in excess from the passenger with ulterior motive.
(b) On 15-6-1994, while working in Booking Office, Hyderabad, you issued three 2nd class tickets, for Quetta by 45-Up and charged Rs,315 instead of legitimate fare of Rs,210 by defacing the fare with dating stamp, thus, realized Rs,105 excess from the passengers with ulterior motive.
(c) You have also been awarded the following punishments:--WIT six months on 15-3-1972 (cancelled). WIP one year on 15-5-1980.
WIP two years on 21-1-1981 (waived off). WIT six months on 30-5-1983. WIT two years on 12-3-1989.
Censure - once.
(d) You have persistent reputation of being corrupt and inefficient official of Pakistan Railways, as is evident from the above punishments and other recorded evidence.
(e) It has been reported that you enjoy bad reputation."
' The reply to the show-cause notice, dated 26-6-2002 having been found not satisfactory, the department imposed major penalty of compulsory retirement from service vide impugned order, dated 29-8-2002 whereafter the appellant filed departmental appeal, dated 10-9-2002 which was rejected by the department vide letter dated 5-4-2003.
3. The learned counsel for the appellant argued that compulsory retirement from service which is a major punishment cannot be imposed in a summary manner after issuance of show-cause notice only and as such, the punishment of compulsory retirement so inflicted is not sustainable in the eyes of law. He placed reliance on rulings in 1997 PLC (C.S. 817 = 1997 SCMR 1543, 2002 PLC (C.S.)
960 = 2002 SCMR 1004, 2002 SCMR 57, 2003 PLC (C.S.) 395 and 514. He further argued that as the appellant had not admitted the charges in his response to the show-cause notice, a regular inquiry was called for and such regular inquiry having not been held the punishment is not sustainable in law and liable to be set aside. He placed reliance on the rulings 1997 PLC (C.S.)
817/873 and 2005 PLC (C.S.) 1555. He further stated that appellant was not afforded chance of personal hearing before awarding the punishment of compulsory retirement and therefore, the punishment is liable to be set aside on this score also. He placed reliance on the rulings in 1986 PLC (C.S.) 419, 2001 PLC (C.S.) 210, 2001 SCMR 934, 2002 SCMR 1034 = 2002 PLC (C.S.) 1083 and 2003 PLC (C.S.) 365/589. The learned counsel for the appellant therefore, argued that in view of the above submissions, the impugned order of compulsory retirement from service is liable to be set aside and the appellant reinstated in service with all consequential benefits.
4. The learned counsel for the respondents, stated that inquiry was dispensed with by the competent authority as indicated in the show-cause notice under the provisions of subsection (4) of section 5 of Removal from Service (Special Powers) Ordinance, 2000 as amended under Ordinance V of 2001. The learned counsel for the respondents also stated that the appellant was given the option of personal hearing which he did not avail willfully.
5. Heard the learned counsel for both the appellant as well as the respondents.
6. A perusal of the show-cause notice reveals that although the competent authority had decided to dispense with inquiry under subsection (4) of section 5 of the Removal From Service (Special Powers) Ordinance, 2000, no reasons had been recorded for such dispensation. The show-cause notice also does not state that the opportunity of personal hearing will be available to the appellant. Therefore, it is quite clear that the opportunity of personal hearing was not afforded to the appellant before proceeding to impose on him the major penalty of compulsory retirement from service.
7. It has also been noted that the means through which it came to the knowledge of respondent- department that the appellant had charged excess fare on 24-4-1995 and 15-6-1994 to the passengers are not identified in the show-cause notice/statement of allegations. Complaints if any from the aggrieved parties do not appear to be on record. Besides as the appellant has denied the charges, it was incumbent upon the respondent-department to hold a proper inquiry to establish the charges. Also, the respondents have not been able to prove that personal hearing was afforded to the appellant before imposing the major penalty. This in itself is a violation of the mandatory requirement of the procedures as conclusively held by the superior judicial fora in their various pronouncements.
8. In view of the foregoing, we have no hesitation in holding that the department has proceed to impose major penalty of compulsory retirement from service on the appellant in an arbitrary manner without caring to establish the charges through a proper inquiry which could afford the opportunity of proper defence to the appellant. Therefore, we set aside the impugned order of compulsory retirement from service and direct that the appellant shall be reinstated in service from the date of compulsory retirement. However, the department would be within its rights to hold a proper/formal inquiry which may be completed within six months of the receipt of a copy of this judgment. The question of back-benefit to the appellant will depend on the outcome of the inquiry.
No order as to costs.
9. Parties be informed accordingly.