G.M. Sikander, Member.--Muhammad Ashraf was dismissed from service vide order dated 20.6.2001. His departmental appeal to the Senior Mechanical Engineer, Pakistan Railways filed on 2.7.2001 was rejected on 10.7.2001. Hence the present appeal filed on 30.10.2003 alongwith an application for condonation of delay.
2. The learned counsel for the appellant has based his arguments on the following grounds:--
(a) Although the respondents rejected his departmental representation vide letter dated 10.7.2001 yet he was never informed of the fate of his appeal by the Respondent No, 3 despite his repeated reminders and he came to know about the same only when he visited the office of Respondent No, 3 on 20.10.2003. He was successful in obtaining a copy of the rejection order only two days before the filing of the instant appeal and as such the delay in filing the appeal was not intentional.
(b) The impugned order dated 20.6.2001 was patently illegal since the same was based on victimization and discrimination.
(c) Since the appellant was working in BS-6, as per Ministry of Railways' Notification dated 10.8.2000 circulated by the General Manager (Personnel) vide letter dated 24.8.2000, the competent Authority in respect of the appellant was declared "a conserved officer holding the post of BS-17 or 18 if there is no BS-17 officer" and accordingly AWN, Track Workshops, Raiwind BS-17 was his competent Authority whereas he was ordered to proceed on 90-days forced leave with immediate effect by SME/Track Machines, Pakistan Railways, Lahore, BS-18 officer using the powers of competent Authority of AWN which was totally incorrect and illegal which renders the impugned order void ab initio. The appellant's leave was cancelled w,e,f, 14.5.2001 vide letter dated 9.5.2001 meaning thereby that letter dated 9.5.2001 was made effective w,e,f, 14.5.2001 which indicates the mala fide on part of AWN/Track Workshops, Raiwind. This letter was addressed to Fitter, T.No, 3303384, Track Workshop, Raiwind whereas the appellant was on sanctioned leave from 20.5.2001 to 31.5.2001 and his postal address was available in the office record which indicates that incorrect address was intentionally given to harm the appellant.
(d) The show cause notice was issued to him as unsigned and without any number and date which has to be signed and authenticated by the competent Authority i,e, AWN/Track workshop.
(e) While imposing the major penalty of dismissal from service vide Notification dated 20.6.2001 the date of show cause notice has been wrongly mentioned as 3.5.2001 whereas no such notice was issued to him on that date which makes the entire proceedings doubtful and illegal.
(f) The appellant has rendered more than 21 years of blotless record and his pensionable service has been spoiled with a single stroke of pen without any fault on his part in an arbitrary manner.
(g) No case of misconduct or gross negligence for not performing any legitimate duty has been highlighted in the Statement of Allegations which contains only generalized nature of accusations.
(h) No incidence of disobeying any order of any office superiors or juniors indicated and as such the charges framed against him were vague and frivolous.
(j) The competent Authority was bound to provide an opportunity of personal hearing before passing the impugned order which was not done and as such he was condemned unheard.
(k) The appellant has been an active member of the trade union and used to oppose illegal orders and misdeeds of the administration and as such he was victimized unlawfully.
(1) Benefit of judgement given by this Tribunal on 19.12.2009 in Appeal No, 502(L)CS/2001, identical in nature having same allegations, may be extended to the present appellant.
(m)The dismissal order was passed on vague allegations which do not constitute misconduct and as such reliance was placed on Allah Dino vs Senior Superintendent of Police, Larkana and others [1994 PLC (CS) 595] and a judgement dated 19.7.2003 passed in Appeal No, 949(R)CS/2002 titled Mohsin Abbas vs. General Manager (Operation) Pakistan Railways Headquarters Office Lahore and two others, containing the same allegations.
(n) The respondents have not produced any evidence in support of the charges whereas the law requires that convincing and sufficient evidence to impose a major penalty of dismissal must be given and as such reliance was being placed on PLD 1989 SC 335 and 2007 SCMR 1008.
(m) The impugned order has been passed without holding any regular inquiry. Reliance has been placed on 2008 SCMR 1369, 2009 SCMR 329 and 2009 SCMR 339.
(p) Notwithstanding the aforementioned illegalities and infirmities contained in the proceedings the appellant was promoted as Fitter BS-6 by the Respondent No, 2 who was his Appointing Authority as well.
(q) The Respondent No, 3 being inferior in rank to the appellant's Appointing Authority was not competent to pass the impugned orders against the provisions of Section 2(aa) of the Removal from Service (Special Powers) Ordinance, 2000 and the Statutory Notification dated 27.5.2000. The Respondent No, 2 had initiated the disciplinary proceedings by sending the appellant on forced leave vide order dated 3.5.2001 but subsequently the powers of the competent Authority were usurped by Respondent No, 3 which vitiated the disciplinary proceedings and the consequential dismissal as well as the appellate orders.
(r) The objection of limitation raised by the respondents was entirely misconceived since the appellate order dated 10.7.2001 was only communicated and served upon the appellant who came to know about the appellate order before 30.10.2003 only through his personal contacts, therefore, limitation would start from 20.10.2003 and as such appeal filed before this Tribunal on 30.10.2003 was quite within time. Reliance in this context was placed on 2001 SCMR 1322, 2003 SCMR 720, NLR 1985 (Labour) 33 and KLR 1991 (Labour and Service Cases) 294. Moreover, application for condonation of delay filed by the appellant has not been denied or rebutted by the respondents.
His application was supported by affidavits while the respondents have neither denied the averments nor filed any counter affidavit, therefore, the time spent for waiting for the appellate order was liable to be condoned as held in 1976 SCMR 79.
In view of the above, it was prayed that the dismissal order dated 20.6.2001 and appellate order dated 10.3.2001 may be set aside reinstating the appellant in service with back benefits in the interest of justice.
3. On the other hand, the learned counsel for the respondents resisted the appeal with the help of the following counter arguments.
(i) The Senior Mechanical Engineer being the administrative Head of the Track Workshop was fully authorized to ask any worker to proceed on forced leave on the charge of misconduct or inefficiency etc.
(ii) It was within the scope of legitimate powers of the competent Authority to cancel the forced leave and the cancellation orders delivered/communicated to the appellant though special messenger.
(iii)The show cause notice dated 3.5.2001 and Statement of Allegations were duly signed by the, competent Authority and the appellant had submitted his de fence reply to the same without pointing out any legal defect in the snow cause notice at that time.
(iv)The action was quite lawful since the appellant was taking part in union activities during his duty hours and did not pay his attention to his job as such it was decided by the competent Authority to initiate action against him under the law. The appellant himself has accepted that he was an active member of trade union activities which were banned by the Ministry of Defence.
(v) He was provided opportunity of personal hearing before imposing the major penalty.
(vi)The appeal was patently time barred and as per 2005 SCMR 1206, the limitation could not be stretched beyond 120-days. Reliance is also placed on 1994 SCMR 25, 2003 SCMR 1790, 2002 SCMR 918 and 1988 SCMR 1354. They have concocted a story to controvert a lawful order initiated by the respondents.
(vii) Since he was a Fitter and as such as per Section 37 of the Railways Act he was not a civil servant and comes under the definition of workman.
In view of- above it was requested that the appeal may be dismissed on the point of limitation as well as on merits.
4. We have heard the parties and gone through the record.
5. Record shows that sanctioned leave of the appellant was cancelled w,e,f, 14.5.2001 and he was directed to resume duty immediately failing which he would be proceeded against under the Removal from Service (Special Powers) Ordinance, 2000, vide letter dated 9.5.2001. He alongwith two other Fitters had been ordered to proceed on 90-days forced leave vide order dated 3.5.2001 issued by the Senior Mechanical Engineer, Track Machines, Pakistan Railways, Lahore. The address given on the letter dated 9.5.2001 regarding sanction of his forced leave was as under:-- "Muhammad Ashraf s/o Bawa Filter T.No, 3303384 Track Workshops, Raiwind".
Whereas he was not available on that address being on forced leave. This should have been sent on his postal address available in the office record. The appellant's contention that he did not receive that letter on time, appears to be plausible. The Statement of Allegations attached with the show cause notice was signed by the Assistant Works Manager, Track Workshops, Pakistan Railways Raiwind on 12.5.2001 which reads as under:-- "For misconduct and gross negligence as you were not performing your legitimate duties assigned to you and disobeying the orders of your, immediate superiors for which you are held responsible."
5. The show cause notice appears to be unsigned and undated and appears to have been issued when the appellant failed to comply with the directions given in the letter dated 9.5.2001. We tend to agree with the appellant that charges contained in the Statement of Allegations are, indeed, very vague and of generalized nature. The respondents should have given instances of negligence and disobeyance of orders of the superiors to be thrashed out through a regular inquiry which was not done in this case. It appears to us that since the attached 3 liner Statement of Allegations carried the signatures of AWM Track Workshops, Pakistan Railways, Raiwind, the signatures on the show cause notice might have been omitted.
6. The appellant alongwith others had been sent on forced leave vide order dated 3.5.2001 signed by the Senior Mechanical Engineer, Trach Machines in which it was mentioned that the competent authority has ordered the forced leave. If the AWM Track Workshops, Raiwind was the competent authority then the Senior Mechanical Engineer had used the power of the competent authority as alleged by the appellant as it appears from the order dated 9.5.2001, whereby his sanctioned leave was cancelled and the show cause notice/Statement of Allegations as well as the impugned order of impugned dismissal order dated 20.6,2001. The contention of the respondents that the Senior Mechanical Engineer being the administrative head of the Track Workshops was fully authorized to ask any worker to proceed on forced leave on the charge of misconduct or inefficiency, thus appears to be doubtful. Competent authority is one who is notified and in this case AWM appears to be the competent authority. The appellant had filed his appeal to the Senior Mechanical Engineer requesting for his reinstatement in service vide his letter dated 2.7.2001 which was rejected by him vide his letter dated 10.7.2001 addressed to the AWM Track Workshops, Raiwind asking him to inform, the appellant accordingly. A perusal of letter dated 10.7.2001 indicates that AWM, Track Workshops had issued directions to the staff to inform the appellant accordingly vide his note dated 12.7.2001. There is nothing on record to prove that the appellant had been informed about the fate of his departmental appeal.
7. The appellant has denied that he ever received any show cause notice or the Statement of Allegations and that he was condemned unheard whereas the respondents have claimed that the appellant had submitted his defence reply to the show cause notice on 3.5.2001 in which he did not point out any legal infirmity in the said notice or the Statement of Allegations. The respondents are correct to this extent that the appellant had responded to the show cause notice vide his reply dated 12.5.2001 placed on record whereby he had apologized for any inadvertently committed defiance and to file the said notices in the interest of justice. He had also assured of good conduct in future in case the show cause notice was filed.
8. However, it appears that because of his admitted involvement in the trade union activities no leniency was shown and he was sent home. The appellant has admitted that he was an active member of a trade union and used to oppose the respondents highlighting their misdeeds and as such he was unlawfully victimized. The respondents have also pointed out that the appellant was taking part in union activities during his duty hours and did not pay attention to his job and as such the competent authority had decided to proceed against him under the law. It has also been pointed out that trade union activities were banned declaring the Section in which the appellant was working as part of the Ministry of Defence line (MOD), through Notification by the Federal Government.
9. The learned counsel for the appellant has drawn our attention to judgement given in Appeal No, 502(L)CS/2001 dated 19.12.2002 whereby Saif Ali has been ordered to be reinstated in service with back benefits. Although Saif Ali had already been sent on forced leave alongwith the present appellant yet no trade union activities were attributed against him and he was mainly charged of being a habitual absentee whereas in the instant appeal both the parties have admitted that Muhammad Ashraf was an active member of a banned trade union. Since he was admittedly a member of the trade union he could have sought relief from the Labour Court/NIRC, which was not done in this case. There is no denying the fact that the proceedings were initiated and concluded in a slipshod manner without giving full opportunity to the appellant to prove his innocence. Having said that we are also mindful of the admitted active participatory role of the appellant in the banned trade union activities causing indiscipline and disturbance during office hours. His case is slightly distinguishable from that of Saif Ali since the later was only declared habitual shirker from duty and absentee whereas the appellant used to take part in union activities even during office hours at the cost of good governance. Since there are procedural flaws in the impugned orders we take a tenant view and accept the appeal to the extent of modifying the dismissal order into compulsory retirement so that the appellant could get pensionary benefits.
10. No order as to costs. Parties be informed accordingly.