' SALIM GUL SHAIKH (MEMBER).--- Appellant Sikandar Ali, Fireman, Pakistan Railways has preferred this appeal under section 4 of the Service Tribunals Act, 1973 against impugned order, dated 11-10- 2002 imposing penalty of reduction in time scale by 3 steps for three years and the recovery of Rs,119,680.33.
2. The facts about this case are that the appellant, a Fireman with 15 years service, was on duty with driver Muhammad Younus on KS-1 Up Train (Oil Express) on 6-1-1999 from Rohri Goods Yard
(RGY) to Khanpur. The train, which was properly escorted, was stopped at the outer signal of Walhar Railway Station between Reti and Rahim Yar Khan Railway Stations for 40 minutes and was received at the Walhar Railway Station through OP-373 which is the standard procedure for receiving trains at stations when the signals are defective. Following the incident, the appellant was served with a charge-sheet under Efficiency and Discipline Rules, 1973, dated 6-2-1999 on charges of oil theft from tank wagons numbers 6725 and 5216. These charges were based on inquiry of the incident conducted by the Assistant Transport Officer, Sukkur Region. In his defence reply the appellant not only vehemently denied the charges, but also requested for a detailed enquiry to investigate why the Oil Express was stopped at the outer signal while other trains following behind were allowed to proceed to Walhar through the green signal. Two years later, the appellant was served a show-cause notice, dated 6-6-2001 under the Removal from Service (Special Powers)
Ordinance, 2000. The charges against him were same as in earlier charge-sheet, dated 6-2-1999 which he had denied. The appellant submitted his defence reply to the show-cause notice on 13-6- 2001 by denying the charges for the second time. His reply was considered unsatisfactory and the penalty was imposed on him through the impugned order, dated 11-10-2002 by the competent authority. He appealed to the departmental authorities against the punishment unsuccessfully. The department however, served him a notice, dated 23-1-2003 signed by the Divisional Mechanical Engineer to show-cause why the punishment awarded to him should not be enhanced in view of the gravity of the crime he had committed. The appellant immediately submitted his defence reply to the said notice on 3-3-2003. He was subsequently, informed vide letter, dated 15-8-2003 that the said notice had been withdrawn by the department. But four days later, another punishment enhancement notice bearing the signature of the Divisional Superintendent, dated 19-8-2003 was served on him. The appellant submitted his defence reply to this notice also and once again denied the allegations. He was given personal hearing on 3-10-2003 by the Divisional Superintendent and finally informed vide letter, dated 9-6-2004 that his appeal had been rejected.
Thereafter he preferred the appeal in hand.
3. During the hearing, the learned counsel for the appellant contended that his client had been treated harshly and the charges against him had not been proved. He based his arguments on the following legal facts; (i) the officer who had passed the impugned order was not competent to do so and (ii) the inquiry report had wrongly placed the blame on the Fireman.
4. Referring to the competence of the official to impose the punishment, the learned counsel for the appellant contended that the appellant was in BS-6 and therefore, only an officer of BS-18 could act as the competent authority in the case. He stated that the punishment order had been signed by the Assistant Mechanical Officer who was not a BS-18 Officer hence the impugned order was void ab initio. In this context he placed reliance on the Notification, dated 21-12-1983 issued by the Divisional Superintendent. Sukkur notifying the Authority and the Authorized Officers.
5. About the punishment, the learned counsel for the appellant stated that the appellant was a Fireman and his duty is to assist the Locomotive Driver only. The decision to stop the train or to ensure the security of oil seal was not his responsibility. The appellant's counsel further stated that the train was stopped without any valid reason at the outer signal of Walhar Railway and was escorted to the station under OP-373 while other trains that were following behind were received under the bona fide system of green signal by the Station Master at Walhar which clearly shows his direct involvement in the stoppage of the train but he has not been held responsible.
6. Before summing up the arguments, the learned counsel for the appellant stated that the inquiry report on which the competent authority had based his decision was incomplete as it had left many questions unanswered. And in this connection he pointed out that; no culprit had either been identified or apprehended stealing the oil from the tank wagons; no stolen property had been recovered; no truck involved in oil theft had been identified; no one from the gang of thieves has been identified or arrested; no formal inquiry has been conducted into the incident; no dip of the tank wagons was taken at Khanpur Railway Station where Oil Express was detained for the purpose of enquiry; police report makes no mention of missing lower seal of the tank wagon at Khanpur but it was found missing when the train reached Sher Shah Station; that Station Staff, police constable and the staff at the outer signal have not been included in the investigations.
7. The counsel prayed that in view of the circumstances mentioned heretoabove the impugned order is liable to be set aside as being arbitrary and harsh. And that the seven instalments at the rate of Rs,500 deducted from the salary of the appellant during the pendency of the departmental appeal may also be refunded along with any further relief along with costs.
8. The learned counsel for the respondents assailed the arguments of the appellant's counsel by contending that the Assistant Mechanical. Engineer was competent to award the punishment given his position in the official hierarchy at that particular time. He stated that the appellant had been charged earlier under the Efficiency and Discipline Rules, 1973 but after the promotion of the Removal from Service (Special Powers) Ordinance, 2000 the appellant was served with a show- cause notice under the new Ordinance in view of the gravity of the offence. He further contended that the appellant had been held responsible for the offence along with others as per the inquiry conducted by the Assistant Transport Officer, Sukkur.
9. The learned counsel invited attention to the statement of the respondents in the parawise comments in which serious allegation of forgery of document, dated 9-5-2004 had been levied against the appellant in order to cover the issue of limitation of his appeal before the Tribunal.
10. We have heard the learned counsel from both sides and have carefully gone through the record placed before us. The case primarily revolves around two issues raised by the petitioner's counsel
(a) competence of the authority who had passed the impugned order, and (b) defective inquiry report.
11. The contention of the learned counsel for the respondent that the Assistant Mechanical Engineer was competent to pass the impugned order does not stand in the face of facts. According to the notification placed on record before us the Authority in case of disciplinary case of officials in BS-5- 10 is in BS-18. In circumstances where there is no post of BS-18 Officer provided, a BS-17 Officer can be the Authority. We have noted that the proceedings of this inquiry were taking place at the Divisional Office therefore, the exception stated in the Notification does not come into play. The status of the Authority in this case was required to be in BS-18. This requirement has not been fulfilled by the department. We, therefore, accept the contention of the learned counsel of the appellant that the impugned order was passed by an officer who was not competent to do so.
12. Secondly, we also find that the Authority has proceeded against the appellant on the basis of fact-finding inquiry conducted by the Assistant Transportation Officer in 1999. Admittedly the Authority is competent to dispense with proper inquiry under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000, but the superior Courts in a number of cases have held it necessary to hold formal/regular inquiry in order to resolve controverted questions of fact. Reliance is placed on Alamgh v. Divisional Forest Officer reported in 1993 SCMR 603. In addition, we find that Inquiry Officer has simply recorded the statements of the employees and has not provided the accused official an opportunity to cross-examine witnesses which is a serious infirmity. Reliance in this connection is placed on N.B.P. v. Punjab Labour Appellate Tribunal reported in 1993 SCMR 105.
13. Furthermore, the appellant has been proceeded against under the Removal from Service (Special Powers) Ordinance, 2000. In nutshell the prescribed procedure for action under this Ordinance is that the competent authority issues a charge-sheet, appoints an Inquiry Officer who holds the inquiry giving an opportunity to the accused official full chance for his defence and if the charges are proved he is issued a show-cause notice along with a copy of the inquiry report. And after receiving his defence reply, he is given an opportunity for personal hearing after which the punishment is imposed upon him. In case the competent authority decides to waive the condition of formal inquiry for any reason including documentary evidence on which the matter can be decided or a confessional statement etc. Then the competent authority is required to state the reason in the show-cause notice.
14. In the present case we see that the competent authority did not hold the proper inquiry even after the allegations were vehemently denied from the outset. We also find strength in the argument of the learned counsel for the appellant that the inquiry report has left many questions unanswered. These questions also relate to the conduct of the inquiry which fortifies our view that the inquiry report on which the entire case has been built is feeble in the eyes of the law. In this matter we place reliance on the case of Zonal Head of National Bank of Pakistan v. Punjab Labour Appellate Tribunal cited in PLD 1996 SC 200 wherein it has been held that since the inquiry report plays a decisive effect on the final decision of the competent authority, the accused official should be provided an opportunity to defend himself or else it would amount to condemning him unheard.
Moreover, we have not seen any evidence that the appellant was provided a copy of the inquiry report to prepare appropriate defence. These are infirmities which seriously infringe the rights of the accused official. Reliance is placed on 1984 PLC (C.S.) 641, 1986 PLC (C.S.) 894, PLD 1994 SC 22 and 1985 PLC (C.S.) 245.
15. In view of the foregoing the impugned order, dated 16-6-2001 is not sustainable and therefore, is set aside. We are however, conscious of the fact that issues involved in the petition are of a serious nature and hence would not like to foreclose the option of a re-inquiry by the department just because the respondents' case has been turned down on the basis of legal technicalities. The case is, therefore, remanded to the department with the direction that they may wish to hold de novo disciplinary proceedings against the appellant on the same charges within a period of sixty days.
The period of sixty days will be counted from the date of receipt of copy of this judgment by the respondent. The payment of back-benefit will depend on the outcome of the inquiry. No order towards costs.