Rizwan Ali Dodani, Member .--The appellant has preferred this appeal/under/Section 4 of the Service Tribunals Act, 1973 assailing the orders dated 03.07.1997 and the appellate order dated 10.06.2016 whereby he has been removed from service on the charges of negligence and carelessness in performance of his duties.
2. Brief facts of the case as set-forth in the memo. of appeal is that the appellant as a Fireman on 03.03.1990 was on board 6DN Train alongwith Driver Khalid Islam which met with an accident with the Train 9UP near Mehar Shah Station as a result of which many passen gers were killed and injured. The respondents got the FIR lodged against the appellant alongwith three other staff members in respect of the said unfortunate incident wherein it was alleged that due to their negligence, the danger signal was not observed by them as a result of which the accident took place. Simultaneously , the department proceeded with the departmental inquiry amongst others against the appellant which culminated into his removal from service.
3. The notices of the appeal were issued to the respondents but they did not appear to proceed with the matter , as such, the respondents were ordered to be proceeded against exparte vide order of this Tribunal dated 31.10.20198. Even on the date of final arguments i.e. 09.01.2019 the respondents did not turn up and the arguments from the side of the appellant were heard in their absence.
4. The learned counsel for the appellant contended that no proper inquiry was conducted in the matter against the appellant rather it was concluded in the absence of the appellant in- as-much-as the latter was in custody . The learned counsel candidly submitted that though there is no bar in conducting the proceedings in absentia, but there is a procedure laid down for the said proceedings and according to him the same has not been followed in accordance with the prescribed rules and that the impugned order for removal was passed. He further contended that the appellant alongwith other accused persons have been honourably acquitted by the appellate Court in the criminal case lodged against them, as such, no evidence could be brought on record as to their irresponsibility . He also contended that even the Driver of the train namely Khalid Islam has been reinstated by the Hon'ble F.S.T.
Lahore vide order dated 19.12.2003 in appeal No. 509 of 2000, therefore the counsel requested that when the principal accused has been reinstated, therefore, on the principle of Rule of Consistency , the appellant's instant appeal may also be accepted and he may be reinstated in service.
5. We have considered the arguments made by the counsel for the appellant and perused the record available on the file. Since the respondents did not opt to contest the matter , therefore, we have considered both the impugned orders as well as read the judgment passed by the appellate Court in the criminal matter . While perusing the acquittal judgment of the appellate Court in the criminal mater we have found that the Honble Additional Sessions Judge considered the evidence of as many as seven witnesses which were examined at the trial and was of the view that none has supported the case of prosecution with the observation that it was an unintended, unforeseen injurious occurrence, that does not occur in the usual course of events or that it could not be reasonably anticipated and infact it occurred due to the unexplained reasons and sudden failure of breaks of the Train and nothing sort of negligence has been found against the appellant and other staf f/ accused persons.
6. The record also reveals that appellant has also sent reply to the show-cause notice issued by the respondents showing reasons that it was not the fault of staff boarding the train, however , it might be negligence of technical staff of Khanewal Railway Station, who lastly checked their 6DN train and could not detect any problem in the breaks system of train and cleared it, which did not work when applied looking at the danger/ red signal only six kilometers away after leaving the Khanewal Station. He also submitted in the said reply that he was confined in jail at that moment and an exparte proceeding were conducted against him.
7. We are of the view that on account of above discussion there appears to be no ground to believe that the appellant had acted irresponsibly at the time of accident, particularly looking at his position as a Fireman, moreover , the inquiry has been conducted exparte . Besides, the other co-accused namely Khalid Islam who was Driver of the locomotive, has been reinstated by the FST Lahore, who as a matter of fact was mainly responsible for driving the train, as such; rule of consistency shall also apply in the instant matter . Consequently , we are of the opinion that there is no reason to maintain the impugned orders, therefore, we set-aside both the impugned orders dated 03.07.1997 and 10.06.2016 respectively and direct the reinstatement of the appellant in service from the date when he was removed from service with all back benefits.
8. Appeal is disposed with no order as costs.
9. Parties be informed accordingly .