Muhammad Javed Iqbal Kasi, Member.--The appellant, being aggrieved of the order dated 14.06.2014 whereby major penalty of 'compulsory retirement from service' was imposed upon him under E&D Rules, 1973, has filed this appeal.
2. Concisely, the facts of the case are that the appellant, while working as Conductor Guard was served with a charge sheet dated 03.05.2014 on the following allegations: "1. That while working 2-DN on 17.4.2014 EX:KPR to KC 04 adult passengers (03 ladies and one boy) were travelling from Multan in Coach No, 10 "J" compartment without tickets. The said train was raided at PNL Station by ATO/SUK with STE Croup of SUK Division who charged them for Rs,30240/- EX;PSC to ROH.
2. That SHO/HDR raided the said train again at HDR and found that STE/SUK had charged 03 out of 04 passengers upto ROH. But passengers further continued journey EX;ROH to HDR without ticket again and further you bought 03 economy class ticket No, 0124446, 47 & 48/3 EX:HDR to protect the ticketless passengers whereas the said three passengers cut of four were again charged EX:ROH to HDR vide EFT No, 0113040340361/3 for Rs,5170/- while one passenger was charged EX:PSC to KC vide EFT No, 0113040344927 for Rs,6880/- in presence of SHO HDR.
3.That during inquiry conducted by AC0-2/KYC you have stated that you worked 7-UP on 15.4.2014 EX:KC to KPR but went to MUL on same train and from MUL you carried 04 (four) passenger (03 ladies and one boy) without ticket in AC Business Class Coach No, ,10 "J" compartment of 2-DN on 17.4.2014 by taking Rs, 10000/-from said passengers as admitted by you during ..inquiry."
The appellant in his reply dated 17.05.2014, stated that due to mistake he issued tickets for Rohri instead of Karachi and that it was his first mistake during the entire service of 30 years. He further stated that no loss sustained by the department as the tickets were issued subsequently. However, before submission of this reply, the Inquiry Committee held him guilty of the charges and recommended major penalty of demotion from present Grade and Scale. A show-cause notice dated 16.05.2014 was served upon him. The appellant's reply to the show-casue notice dated 28.05.2014 was not considered satisfactory and by order dated 16.06.2014, he was retired compulsorily against which his departmental appeal dated 07.07.2014 remained un-responded despite lapse of waiting period, hence this appeal.
3. The main thrust of the learned counsel for the appellant is that before imposing major penalty no regular inquiry was conducted and neither any witness was examined nor the appellant was given opportunity of cross-examination and no documentary evidence was provided. He stated that the inquiry, which was held was in fact a fact finding inquiry as appellant's statement was not recorded by the Inquiry Committee and even the recommendations of the Committee "demotion from present grade and scale" were not accepted by the competent authority without recording any reason. He further stated that the confessional statement of the appellant was obtained under duress and coercion which has no legal value in the eye of law.
4. As against this, the respondent-department opposed the appeal. In their written objections, they stated that the proceedings against the appellant were conducted in accordance with law and the Inquiry Officer held him guilty of the allegations and recommended demotion but the competent authority, after examining the record, imposed the major penalty of 'compulsory retirement' in exercise of independent application of mind. It was also stated in the written parawise comments that the appellant made voluntary confessional statement before Railway Police as well as before fact finding inquiry, thus it was wrong to assert that the confessional statement was obtained under coercion and threat.
5. Arguments heard. Record perused.
6. The admitted position is that the Authorized Officer served a charge sheet dated 03.05.2014 along with statement of allegations upon the appellant requiring him to submit his defence within a period of fourteen days. The appellant submitted his reply on 17.05.2014, last date for submission of reply, but strangely enough the Inquiry Committee recorded its findings recommendations on 09.05.2014 i,e, just after six days when the appellant had not submitted his reply. Furthermore, show-cause notice was issued on .15.05.2014, after 12 days of the charge sheet, which could show that the respondent-department was bent upon to get rid of him. Even in para 1 of the show-cause notice, it was stated that 'after consider his defence, whereas there was no reply of the appellant was available, as admittedly he submitted his reply to the charge sheet on 17.05.2014. Perusal of the report it transpired that the Inquiry Committee neither recorded any statement of the appellant nor given him an opportunity of putting his defence, even any prosecution witness was appeared before the Committee in support of the allegations, therefore, it could be presumed that it was a fact finding inquiry, which could not be substituted a regular inquiry. It is trite law that no major penalty could be imposed without first resorting to the formal inquiry. It has consistently been held by the Superior Courts that while imposing a major penalty, the principles of natural justice required that a regular inquiry was required to be conducted in the matter an opportunity of defence and personal hearing was to be provided to the civil] servant otherwise he would be condemned unheard. Reliance in this regard is placed on the case, law reported as 2009 PLC (CS)
19 and 2006 SCAR 846.
7. Another aspect of the case is that the Inquiry Committee commended imposition of "major penalty of demotion from present, grade and scale" but the competent authority without recording any reason or giving any notice .to the appellant makes the impugned order illegal and unlawful. It has been held that "the competent authority was not bound by the recommendations of the inquiry Officer qua the award of penalty to the accused; if the competent authority was not inclined to agree then he had to give notice to the accused and had to pass a reasoned order for disagreeing with the recommendations.
Reliance is placed on the case reported as 2016 PLC (CS) 616.
8. For the foregoing reasons, we are of the firm opinion that the proceedings against the appellant were not conducted in accordance with law, therefore, the appeal is accepted. The respondents are directed to reinstate the appellant into service from the date of impugned order. However, the respondent-department would be at liberty to conduct de novo proceedings strictly in accordance with law, which, if conducted; should be completed within a period of three months from the date a copy of this judgment is received; otherwise, the appellant will be entitled to all back benefits.
Parties to bear their own costs and they be informed accordingly.