' SAYED MEHAR HUSSAIN SHAH (MEMBER).--- The appellant, through this appeal has challenged the order dated 29-2-2008 whereby major penalty of removal from service was imposed upon the appellant. Against the said penalty, appellant preferred a departmental appeal on 15-3-2008 which remained unresponded; hence, this appeal.
2. Learned counsel for the appellant argued that the statement of charges/allegations was not issued by the inquiry committee or by the authority, whereas, the charge-sheet dated 12-12- 2006/statement of allegations was not used against the appellant for awarding penalty and in the second inquiry there is no statement of allegations; hence, the entire action against the appellant is unlawful. It was argued that no witness was called and examined by the inquiry committee, as evident from inquiry reports. In both the reports, appellant was not found responsible regarding collapse of Run Pothani Bridge, but the appellant was found negligent in the second inquiry report for not processing the proposals. He argued that appellant was not provided opportunity of cross- examination to the witnesses. It was further argued that both the inquiries were conducted in question and answer form, which is not permissible. He further argued that administrative inquiry was used against the appellant for awarding major penalty. Learned counsel argued that under the Removal from Service (Special Powers) Ordinance, 2000, major penalty cannot be imposed till regular departmental inquiry is conducted through the inquiry officer/committee, which is lacking in the case and that preliminary inquiry was used against the appellant for awarding the major penalty. The appellant in prayer clause of his appeal as well as learned counsel for the appellant in his written submissions has alternatively prayed for remand of the matter for de novo departmental action. He also placed reliance on judgment dated 15-3-2010 passed by the Principal Seat of this Tribunal in Appeal. No,426(R)CS of 2008.
3. Learned counsel appearing for the respondents contended that the order of removal from service of the appellant was issued after completion of all formalities, i,e, issuance of charge sheet, show cause notice and grant of personal hearing, as the appellant showed casual and careless handling of such an urgent work, which resulted in delay of seven months and subsequently the Bridge collapsed. It was argued that inquiry was conducted by high level officers of Railways, having vast technical experience. The committee framed its recommendations independently on the basis of which, a show-cause notice was issued and on receipt of defence from the appellant, competent authority, after affording an opportunity of personal hearing passed the order of removal of the appellant from service. The charge of careless working against the appellant was proved. He argued that a fact-finding .Inquiry was conducted and on the basis of which charges were framed and regular inquiry was ordered. Entire action taken was in line with the prescribed rules.
4. We have heard the arguments of both sides and have also carefully perused the material placed on record. As is borne out from the record, the charge sheet was issued/signed by the Secretary/Chairman Railways, which is against the provisions of the Removal from Service (Special Powers) Ordinance, 2000, as it was required to be issued by the A Inquiry Officer/Committee, as the case may be and thus the entire action, based on the said charge-sheet, is nullity in the eyes of law. It is also an admitted fact that a questionnaire was provided to the appellant by the inquiry committee, which is not permissible in law. We have carefully perused the report of the inquiry committee and hereby reproduce the findings of the said committee:--- "4. FINDINGS.
' After examining the defence statements of the accused officer, replies to the questions posed by the enquiry committee, fact finding enquiry report of the FGIR, relevant record of the HQ office Lahore and related Manuals and Code the enquiry committee do find as under:--- 4.1 Charge No, (i) .
' The delay in processing the proposal (replying to the queries of the HQ office) rest with the accused officer Mr. Aftab Mehdi partially only whereas major delay was on account of DAO/Karachi and the bridge branch HQ office Lahore of making un-necessary quarries.
4.2 Charge Nos.(ii and iii) .
' The Bridge No,85 remained safe for train operation during the entire tenure of 12 months of Mr. Aftab Mehdi as DEN-III/ Karachi and even 17 months after his transfer from the post as such he cannot be held responsible for the charge levelled against him.
4.3 Charge No, (iv) .
' Mr. Aftab Mehdi graduated from NED University Karachi, registered with Engineering Council, qualified professional training courses at Pakistan Railway Academy Walton, worked continuously on the division for the last thirteen years and maintained the bridges in his charge safe during his tenure therefore at this stage the charge levelled against him is not justified.
4.4 Provisions of para 194 of organization manual paras 19.1(a), 19.1(c), 19.8.
28.1 and 28.2 of Way & Wofks Manual 1969 and para 1003 of Railway Code for the 'engineering department have not been violated by the accused officer as the bridge No, 85 remained safe not only during his tenure of 12 months as DEB- III/ Karachi but also 17 months after his transfer from the Post."
In view of the above findings of the inquiry committee, submitted, vide report dated 21-4-2007, allegations were not proved against the appellant. Thereafter, another charge-sheet dated 24-4- 2007 along with the statement of charges was issued to the appellant, again signed/issued by the Secretary/Chairman Railways, with the same set of allegations and Inquiry Committee was appointed, which conducted the inquiry in the same fashion, as was done by the other committee.
This Inquiry Committee also took the same view, as was taken by the earlier committee, as the appellant was held responsible for delaying the process of the proposal, as contained in Charge No, 1 . None of other charges were proved even this time too. The Inquiry Committee only held the appellant guilty of Charge No,1 only and exonerated him from Charges 2 to 4. In our view, there was no need to conduct/appoint second Inquiry' Committee, as were already investigated and looked into and findings given. On the basis of the same, appellant was given a final show cause, which having been found unsatisfactory, a punishment of removal was imposed upon the appellant. The punishment of removal from service does not commerisurate with the act of the appellant. As learned counsel has pointed out certain legal infirmities, which warrant remand of the matter to the department for holding de novo proceedings and has also prayed for the same even in his written submissions, but we are not inclined to remand the matter back to the respondent because of the fact that in the similar circumstances and situation, Bench of this Tribunal at Principal Seat of this Tribunal had set-aside the impugned order of appellant Sohail Ahmed Shaikh, in the referred judgment, by converting the dismissal of the appellant therein into stoppage of one increment for one year and reinstating him in service. Therefore, keeping the rule of consistency and in view of the fact that the said judgment has also been relied by the appellant's side, we feel that it would be in the interest of justice, if removal of the appellant herein is modified and converted into stoppage of his one increment for one year.
5. In view of what has been discussed above we, while setting aside the impugned order of removal of the appellant from service dated 29-2-2008, modify/ convert the same to that of stoppage of his one increment for one year, direct the respondents to reinstate the appellant in service. No order as to costs.
6. Parties be informed accordingly.