' Syed Arshad Ali, Member.--The appellant through the instant appeal assailed the impugned order dated 27.07.2011 whereby minor penalty of withholding of increment for one year was imposed upon him. The appellant preferred departmental representation dated 20.08.2011 which was rejected vide letter, dated 13.06,2012. Conveyed to the appellant on 15.11.2012; hence, this appeal praying, inter-alia, that the impugned order of minor penalty of withholding of increment for one year may be set aside.
2. The factual position as per memo. Of appeal in brief is that the appellant joined the Pakistan Railways as Assistant Station Master w.e.f.
13.03.1976 and later promoted to the post of Station Master(B- 12) and since then was serving as Station Master. The major penalty of compulsory retirement from service was imposed upon the appellant w.e.f. 23.09.2002 on account of shortage of Rs. 68.375/- as short remittance to Lahore.
The appellant preferred departmental representation against the said punishment on 07.09.2004 which was rejected on 03.12.2004. The appellant then approached this Tribunal on 05.12.2004 vide Appeal No. 266(K)CS/2004. This Tribunal vide order dated 15.05.2010 set-aside the impugned order of Compulsory retirement of the appellant and ordered that the appellant be reinstated with direction to hold denovo proceedings within a span of 120 days. In pursuance thereof, the appellant joined the Pakistan Railways and at the same time, ordered for denovo proceedings against the appellant on 04.11.2010. Accordingly, a show-cause notice with statement of allegations was issued to the appellant stating therein that while working as Station Master Odero Lal during the period 21.03.1999 to 30.06.2000, misappropriated Rs. 68,375/- by way of short remittance cash on different dates from the earnings of station for personal use. The appellant rebutted the charges on 05.05.2011 .The respondent after consideration of the reply of the show-cause notice, awarded minor punishment of withholding of increment for one year. The appellant again sent departmental representation against the said punishment on 20.08.2011, which eventually was rejected on 13.Q6.2012 which was conveyed to the appellant on 15.11.2012; hence, this appeal.
3. The respondents in parawise comments admitted that the appellant was appointed as Assistant Station Master in Pakistan Railways (ASM) in BS-6 on 11.03.1976: further affirmed that the appellant misappropriated daily sale of Railway Tickets amounting to Rs.
68.375/-. The inquiry was conducted under Removal from Service (Special Powers) Ordinance, 2000 as amended and was awarded major punishment of compulsory retirement from service.
The denovo proceedings were conducted by the authorized officer of BS-18, the inquiry officer has held the appellant responsible in this ease. The appellant in the instant case had already admitted his misconduct before the inquiry office on 21.07.2002 where he admitted that he used the government cash for the treatment of his mother. Furthermore, respondent vehemently denied that keeping in view the cross-examinations, it was established that the appellant had committed offence by way of short remittance during his duties as Station Master Odero Lal in 1999-2000. This was admitted by him during cross-examination. In addition, in respect of personal use of government cash, the appellant had no plausible reasons; hence, respondents asserted that "there is no scope of recommendations to consider his back benefits and the revocation of the punishment of withholding of one increment".
4. Learned counsel for appellant argued that the charges were denied by the appellant, as such, no major or minor penalty was warranted without conducting proper and regular inquiry hence penalty so awarded in the lis is not sustainable. The summary procedure was adopted for imposing the penalty of withholding increment for one year is not sustainable. Reliance was placed on 1984 PLC (CS) 999, 1997 PLC (CS) 348 and 1999 PLC (CS) 665. No regular inquiry was ever conducted: the statement of the relevant persons were not recorded in presence of the appellant and the opportunity of cross-examination was also not provided as such is suffering from legal infirmities as contended by the learned counsel for appellant. Moreover, the appellant was not supplied copy of the inquiry report, before awarding the penalty with the show-cause notice, as such, the penalty awarded to the appellant without supplying the copy of the inquiry report with show-cause notice on 19.04.2011 is not sustainable.
' Reliance was placed on 1987 SCMR 1562, 1996 SCMR 201 and PLJ 2003 TRC (Service) 66.
5. The learned counsel further argued that the denovo proceedings were conducted much beyond the period stipulated by the Tribunal, as such, the formalities meant for disciplinary proceedings and action thereof were not observed in letter and spirit and are thus liable to be set aside. The appellant had denied the charges and thereafter regular inquiry had become imperative which was ordered but was not conducted as per procedure; hence, entire action was void and liable to be set aside. Reliance was placed on 1982 SCMR 1543. The learned counsel further argued that charges were flimsy and without putting to proof. The short remittance was not misconduct at all and the appellant had been sealing and handing over the money bag to the Assistant Station Master (ASM) on duty for sending to Lahore as 153 UP carrying iron safe had used to arrive at Odero Lal at 0630 hours in the morning, whereas. Station Master; appellant had to come on duty at 0800 hours and as per Station Journal, the ASM of night duty had been sending such cash bag; occasionally it happened that ASM may have not sent the sealed bag of cash to Lahore by 153 Up and such fact came to the light when Lahore cash office informed regarding non-receipt of the cash from Odero Lal Railway Station; the appellant took it upon himself and by inquiry as to which ASM was responsible collected the cash which was short remitted to Lahore. This short remittance was not the part of appellant but negligence and slackness of Assistant Station Master. Be that as it may, the appellant, as such, was not responsible for negligence as the duty entrusted to the appellant as Station Master was rightly discharged as per station duty order; hence, the penalty awarded to the appellant for negligence is unwarranted.
6. The charge leveled as contained in the statement of allegations that while working as Station Master. Odero Lal w.e.f.
21.03.1999 to 30.06.2000 had misappropriated an amount of Rs. 68.000/- by temporary short remitting cash on different dates from station earning for personal use could not be substantiated and is not sustainable on account of non-holding of regular inquiry, non-examination of witnesses and cross-examination by the appellant in his defense no opportunity of personal hearing was given to the appellant. The copy of inquiry report was not supplied to the appellant alongwith show-cause notice, which was disposed of in a summary manner. We rely on KLR 2005 SC 135.
Reproduced hereunder, suffering from legal infirmities:- "...--Absence of regular inquiry-Application of law--Question of--Civil appeal in Supreme Court against impugned order of High Court whereby order of dismissal of employee/appellant from service of Board of Intermediate & Secondary Education having proceeded against departmentally of having not cheeked and scrutinized certain admission forms of certain candidate, was maintained--Validity--It was an admitted fact that it was the Board itself which had elected to deal its employers through the process and the procedure envisaged by the said Rules, 1975-- Respondent-Board could not be permitted to go back on the commitment thus made by it to its employers to treat them, in the disciplinary matters, in the manner prescribed by said Rules-- Decision of Authorized Officer to dispense with requirement of a regular inquiry and to punish appellant in a slipshod and summary manner and thereby depriving him of his job, could not be sustained on any principle of equity, justice and fair play--Civil ".
7. Period of four months was given to the department in the judgment vide dated 14.05.2010 and as such, time expired on 15.09.2010 when minor penalty was imposed upon the appellant on 27.07.2011, beyond such period, hence, such penalty is liable to be set-aside with consequential benefits.
Reliance is placed on 2005 TD (Service) 459. Where it was held that: "...--S.4. Major penalty imposed on civil servant as a result of enquiry which was not conducted within given time by Service Tribunal in its earlier judgment would be illegal when application of department for extension of time for completion of enquiry was rejected by Service Tribunal. In such circumstances, Service Tribunal holding that department did not pay respect to judgment of Tribunal qua completion of enquiry within time given by Service Tribunal. Service Tribunal allowing appeal, setting aside penalty and ordering that appellant would be entitled to back benefits as per earlier judgment of Service Tribunal by which it had set aside major penalty imposed on appellant had ordered his reinstatement and had made question of back benefits dependant on result of fresh enquiry."
8. The appellant was Station Master Odero Lal Station w.e.f. 21.03.1999 to 30.06.2000 the appellant had been sealing and handing over the money bag to the Assistant Station Master (ASM) on duty for sending to Lahore by 153 UP carrying iron safe had used to arrive at Odero Lal at 0630 hours in the morning, whereas. Station Master/ appellant had to come on duty at 0800 hours and as per Station Journal, the Assistant Station Master (ASM) of night duty had been sending such cash bag occasionally it did happen that ASM may not have sent the sealed bag of cash to Lahore by 153 Up.
Such fact came to light when Lahore Cash Office informed regarding non-receipt of cash from Odero Lal Railway Station. The appellant then took it upon himself and by inquiring as to which ASM was responsible? Who collected the cash which was short remitted to Lahore. However short remittance of Rs. 68,375/- had been managed and sent to Lahore. This short remittance was not on the part of appellant but was on account of negligence and slackness of Assistant Station Masters. Be that as it may, the appellant, as such, was not responsible for negligence as the duty entrusted to the appellant as Station Master was rightly discharged as per station duty order, hence, the penalty awarded to the appellant for negligence is unwarranted.
9. In view of the discussion as above, we are of the considered view, to meet the ends of justice, the appeal is allowed and the order of withholding of one increment for one year is set aside and is ordered that all consequential benefits be allowed to the appellant. No order as to costs.
10. Parties be informed accordingly