MUHAMMAD JAVED ASHRAF HUSSAIN, MEMBER. - This is an appeal under Section 4 of the. Service Tribunal Act, 1.973 against the impugned order No. DS/Misc/2002/264, dated September 21, 2002 whereby the appellant has been removed from service under Removal from Service (Special Powers) Ordinance 2000. The' appellant submitted department appeal dated 28.09.2002, which has remained un responded and therefore this appeal dated 03.12.2002 has been filed before this Tribunal.
2. The brief facts of the case are that during checking at Railway Station, Karachi Cantt. At 13:00 hours on 31.05.2002, it was discovered that an amount of. Rs. 1,08.880.00 was short from running, cash of CS (Booking). It, was alleged that the amount was defalcated by the CS (Booking) Mr, Muhammad Siddique in collusion with other officials including the appellant and the share of the defalcated amount among the various officials as per F.I.R. Lodged with the Railway Police was as under:- #tbs
(i) Muhammad Siddique CS(B) Rs. 80280.00
(ii) Muhammad Liaque (JCAB) Rs. 2400.00
(iii) Muhammad Nisar (CSRB) Rs. 7000.00
(iv) Qaisar Abbas (SCAB) Rs: 10000.00
(v) Asadullah (JCAB) Rs. 860.00
(Vi) Nomano (REC) Rs. 5825.00
(vii) Shah Nawaz Leghari (SCAB) a Rs. 1835.00
(Viii) Muhammad Javaid (JCAO) Rs. 255.00-
(ix) Abdul Majeed Janago (JCAB) Rs. 425.00 #to
3. It was alleged that CS (B) Mr. Muhammad Siddique made good the defalcated amount by himself contributing his own share and making the other accused officials as in para-2 above pay up the amount falling in their shares. The share of the appellant was stated to be Rs. 10,000/- There were also some other charges against the appellant as included in the statement of charges which reads as under:- NO. DS/Misc/2002/264 July 8, 2002 STATEMENT OF CHARGES
1. Whereas you Syed Qaiser Abbas. SCA (B). Karachi Cantt. Are charged With misconduct and corruption for the following charges and other relevant circumstances:-
(a) During checking of Railway Station, Karachi Cantt. At 13:00 hours on 31.05.2002, it was observed that a sum of Rs. 1,08,880.00 was short from running cash of CS (B) Mr. Muhammad Siddique.
(b) You in connivance with the CS (B) Mr. Muhammad Siddique deposited short amount of Rs.
10,000/-
(c) You have also been awarded the following punishment:-
(i) WIT one year on 24.04.1978.
(ii) WIT one year on 03.10.1979.
(iii) WIT one year on 03.01.1981.
(iv) WIT one year on 26.06.1982.
(V) WIT two years on 07.12.1982.
(Vi) WIT three years on 05.03.1994.
(vii) WIT two years on 12 ... 1995
(viii) WIT three years on 10.04.1995:
(ix) WIT two years on 05.09.1995.
(x) Censured three times.
(xi) Suspension twice.
(xii) Debited Rs. 870.00 on 09.09.1995 The above punishments clearly shows that you have ceased to be efficient.
You are, therefore being proceeded against under Removal from service (Special Powers)
Ordinance 2000-2001.
Sd/- (Abdul Wahab Awan)
Divisional Superintendent Pakistan Railways, Karachi.
4. F.I.R. No. 5812002, dated 31.05.2002 was duly investigated by the Railway Police. From the record it does not appear that any headway was made by the Police in that the case has not been challaned so far not to speak of any conviction having been effected. However, the authorities initiated departmental proceedings against the appellant amongst others, whereby he was issued Show-Cause Notice vide No. DS/Misc/2002/264, dated July 8, 2002 alongwith the statement of allegations/charges as above. Reply to the Show-Cause Notice having been found not satisfactory, the department imposed the major penalty of removal from service upon the appellant Vide Notification No. DS/Misc/2002/269, dated September 21,2002.
5. The learned counsel for the appellant argued that the responsibility for the amount defalcated if any, was entirely that of CS(B) Mr. Muhammad Siddique who deposited the said amount. He further argued that there was no evidence whatsoever that the appellant had contributed any amount to make up the shortfall. He further argued that the police case lodged with the Railway Police vide F.I.R. No. 58/2002 also did not make any headway in establishing any charge against the appellant.
6. The learned counsel argued that punishments inflicted upon the appellant in the past have been invoked as justification for further punishment. He averred that the past punishments are closed transaction and cannot be for further punishment.
7. As regards the charge of debiting the amount, of Rs. 870/- allegedly by the appellant on 09.09.1995, the learned counsel for the appellant argued that the debited, amount was on account of excess expenditure incurred on the telephone in the reservation office. The said telephone was in the custody of SRS and was used only by him. He argued that the amount was wrongly debited to the appellant, as he had no concern with the said telephone set.
8. The learned counsel for the appellant further argued that the major penalty of removal from service has been-imposed on the appellant without holding inquiry thus denying the chance of cross-examining prosecuting witnesses, if any. A second show-cause notice would be in order consequent to such inquiry. He averred that on this score alone, the order of removal from service is liable to be. Set aside. The learned counsel concluded by asserting that the impugned order of removal from service under Removal from Service (Special Powers) Ordinance 2000 was illegal, unwarranted and unjust and thus liable to be set aside.
9. The learned counsel for the respondents argued that the appellant had shared the defalcated amount with the main accused CS (B) Mr. Muhammad Siddique to the extent of Rs. 10,000/- and had deposited it as part of the shortfall. He further stated that the record of the appellant is dubious and therefore action was initiated against him under the Removal from Service (Special Powers) Ordinance 2000. He further argued that inquiry was dispensed with under Sections 4 and 5 of Removal from Service (Special Powers) Ordinance 2000 and therefore the question of issuance of second Show-Cause Notice and personal hearing did not arise.
10. The learned counsel for the respondents argued that in view of the above the appeal was liable to be dismissed.
11. We have heard the learned counsel for both the parties and also perused the record including the comments filed on behalf of the respondents. It is clear from the record that the respondents have not been able to produce evidence regarding the involvement of the appellant in the defalcated amount and have also not been able to prove that the appellant contributed his alleged share of Rs. 10,000/- in the total amount of Rs. 108,880/-. The record, also does not show that the Police investigation made any headway in establishing any charges against the appellant.
It has also been noted that the major penalty of removal from service has been imposed upon the appellant without carrying out a formal inquiry. By not carrying out such inquiry the appellant has been denied the opportunity to produce his own evidence or to cross-examine the prosecution witnesses if any. As regards the deposited amount of Rs. 870/- we are inclined to agree with the appellant that the responsibility for the excess expenditure incurred on the telephone rested with SRS only who had the custody of telephone set. Any distribution of the excess expenditure among the various officials was unjustified. We are constrained to observe that distributing the excess expenditure on officials other than the custodian of the telephone was an irregular act on the part of the departmental authorities. As regards the punishments inflicted upon the appellant as in the Show-Cause Notice and statement inflicted upon the appellant as in the Show Cause Notice and statement of allegations/charges which have been made on the grounds for imposing the fresh penalty of removal from service, we feel that these past punishments have been invoked and reflected in the statement of allegations/charges to only buttress the departmental case and on their own might not have triggered, the initiation of disciplinary proceedings against the appellant;
13. In view of the above, we accept the appeal, set aside the impugned order with direction to the respondents to reinstate the appellant in service with all back benefits.
14. No order as, to cost. Parties be informed.