SAYED MEHAR HUSSAIN SHAH, MEMBER The appellant through this appeal has challenged the impugned order dated 21.2.2007,' whereby major punishment of reduction in pay by two stages for two years was awarded to him under Removal from Service (Special Powers) Ordinance, 2000.
Against the said punishment, appellant preferred a departmental appear on 28.2.2007, which having been rejected on 25.5.2007, allegedly conveyed on 7.6.2007; hence, this appeal.
2. Brief facts of the case are that on 29.9.2005, while the appellant had been posted as ASI, ROP, Shorkot had seized motorcycle Honda CD-70, Chassis No. BE- 711038, Engine No. 2333642, Registration No. RNQ- 3815 in police custody under Section 25, Police Act, which was found parked by someone in waiting hall of Railway Station, Shorkot and report thereto was submitted by the then ASI to the Area Magistrate for legal action. That on 24.8.2006, during posting of the appellant as Incharge ROP, Shorkot, one person Muhammad Nasir S/o Muhammad Ashraf Caste Arain R/o Ittehad Colony, Khanpur Road, Rahim Yar Khan, filed application for return of the said motorcycle to him on superdari which was reported to have been lying with incharge ROP, Shorkot. That on such application of Muhammad Nasir, the Court sent order on 24.8.2006 to the Incharge, ROP, Shorkot for handing over the said motorcycle RNQ-3815 on Superdari to the said person after proper inquiry and verification of documents as well as after checking of documents regarding ownership of the said motorcycle. That on the said date, the appellant was posted as Incharge, ROP, Shorkot and on presenting the order of the Court, appellant checked NIC of the appellant Muhammad Nasir and documents available with the said applicant with reference to registration number, chassis number and engine number and in compliance of the Court order, handed over the said motorcycle to said Muhammad Nasir and compliance report was submitted to the said Special Judicial Magistrate, Shorkot. That upon an application submitted to high-ups that Muhammad Nasir was fake person who has obtained motorcycle on superdari by producing bogus papers, domestic inquiry was conduced which revealed that real owner of the said motorcycle had been Kishwar Abbas S/o Mehar Muhammad, R/o Megan Tehsil! Shorkot, District Jhang, who had purchased the said motorcycle on 15.1.2005 from M/s. Aftab Traders, Saddar Police Station, Chowk Jhung. That after inquiry, under the order of authority, a criminal case vide F.I.R. No. 9, dated 20.1.2007 under Sections 420/468/471, PPC was registered against said Muhammad Nasir at RPS, Khanewal being ? Parent Railway Police Station of RPO, Shorkot. The appellant was issued show- cause notice for the charges that the appellant while posted at ROP, Shorkot as Incharge, released CD:70 RNQ- 3815 on superdari to one Muhammad Nasir on the basis of bogus documents, whereas, real owner of the motorcycle had been Kishwar Abbas S/o Mehar Muhammad, R/o Megan Tehsil Shorkot, District Jhang, who had purchased said motorcycle on 15.1..2005. The appellant submitted his reply to the said show-cause notice and rebutted the charges, which did not find with the authority and on 21.2.2007, major penalty of reduction in pay by two stages for two years was awarded to the appellant.
3. Learned counsel for the appellant argued that reduction to lower stage in pay is always treated as one stage and not to two stages, as such, the impugned order dated 21.2.2007 is against the norms of natural justice. He relied on PLJ 20O2 Tr. C. (Service) 120, 2002 PLC (CS) 1115, 2003 PLC (CS)
328 and 1372 and 2005 SCJ 809. He argued that duty of the appellant was to check the contents of the registration book with chassis and engine number of motorcycle for which the appellant had never displayed any lethargic attitude. That on anonymous complaint, an F.I.R, was lodged and the alleged motorcycle has already been impounded by the Railway Police, which is no more in the custody of claimant Muhammad Nasir. That under the Removal from Service (Special Powers)
Ordinance, 2000, fact-finding inquiry cannot be made basis for passing the order of major penalty, as such, action taken against the appellant is uncalled for. He relied on 2006 PLC (CS) 604, 2006 SLJ 1325 and 2007 TD (Service)
182. That ex parte action was taken against the appellant which was in violation of settled procedure inspite of the fact that the appellant was quite innocent and had obeyed the order of the Court and acted in good faith; hence, the penalty so warranted is improper and liable to be set aside. That proper opportunity of defence was not provided to the appellant and that no regular departmental inquiry was conducted against the appellant and that in the show-cause notice regular departmental inquiry was dispensed with without any plausible reason.
4. Learned counsel for respondent, on the other hand, argued the appeal is time-barred for which the appellant did not pray to the Tribunal for condonation of each day of delay, as such, it be dismissed in limine. He also contended that in para 8 of the facts of appeal, appellant has confessed that he had handed over motorcycle No. RNQ- 3815 to Muhammad Nasir (fake owner/fraudster).
5. We have considered the arguments, advanced on behalf of both parties and carefully gone through the material placed on record alongwith the appeal as well as alongwith the comments, filed on behalf of the respondents. The appeal is well within time, as the appellant was awarded major penalty of reduction in pay by two stages for two years vide order dated 21.2.2007. Against the Said penalty, appellant preferred a departmental appeal on 28.2.2007, and the appellate rejection order dated 25.5.2007 was sent to the appellant by the office of Superintendent, Pakistan Railways Police, Multan and thereafter, instant appeal has been filed before this Tribunal on 11.6.2007.
6. We are also of the view that no regular departmental inquiry was conducted against the appellant and the punishment has been awarded to the appellant, it is a settled law that when the allegations are denied, a regular departmental inquiry was absolutely necessary, in the instant case, appellant had denied the charges, but in the show-cause notice, regular departmental inquiry has been dispensed with, which is not in accordance with law. Even otherwise, reduction to lower stage in pay is always treated as one stage and not to two stages, as such, the order of respondent No. 2, dated 21 .2.2007 to that of reduction in pay by two stages for two years is against the norms of natural justice. Appellant has been punished on the basis of fact finding inquiry, which is illegal. Under Section 3/5 of the Removal from Service (Special Powers) Ordinance, 2000, major penalty cannot be imposed without regular departmental inquiry, as such, the penalty so awarded to the appellant is not sustainable. We rely on 2006 SLJ 152, 2006 PLC (CS) 722 and 2007 SCMR 693.
Under the said law, regular departmental inquiry cannot be dispensed with, without assigning any reasons. We rely on PLJ 2006 Tr. C. (S) 40, KLR 2006 L&S Cases and 2001 SCMR 1566.
7. The upshot of the, above discussion is that the impugned order dated 21.2.2007 imposing major punishment of reduction in pay by two stages for two years upon the appellant is set aside, as well as appellate rejection order dated 25.5.2007. However, the respondent-department is directed to initiate .And hold de novo departmental proceedings against the appellant, as the charges levelled against the appellant are serious in nature and cannot be proved without regular departmental inquiry, by providing chance to the appellant to cross-examine the witnesses and to defend himself properly, but such proceedings shall be initiated and completed within a period of 120 days from the date of receipt of a copy of this judgment. The question of consequential benefits shall depend upon the outcome of such fresh proceedings. No order as to costs.
8. Parties be informed-accordingly.