KHUDA BAKHSH MARRI, J.--This is a petition filed under Article 98 of the Constitution of 1962 read with Provisional Constitution Order of 1969, and seeks to quash and hold null and void and of without lawful authority orders of respondent No, 6 Works Manager, Diesel Locomotive Workshop, P.
W. R. Cantt. Station, Karachi dated the 7th of February 1970 Exh. "X" and respondent No, 3 Divisional Personnel Officer, dated 21st of May 1970 Exh. "Z", by which, present petitioner was dismissed from service and his appeal rejected respectively.
2. Shortly the facts of the case are, that the petitioner was employed as a Clerk by Pakistan Western Railway in 1954 and at the time of his dismissal from service he was acting as Shed Clerk Grade II in Diesel Locomotive Workshop, Time Office, P. W. R., Karachi.
3. That in June 1968, Division all Accounts Officer informed Divisional Superintendent, Pakistan Western Railway that wages of certain staff in Locomotive Workshop, Karachi Cantt. were being charged under fictitious names and the said amount so charged was being misappropriated by the staff responsible for preparation of muster sheets. As a result a close scrutiny of muster sheets for months of March, April and May 1968 was undertaken, and it was found that railway funds were being misappropriated by fraudulent means as about 25 fictitious persons were shown in muster sheets to have drawn salary without being employees of respondent No, 1, the P. W. R.
4. A thorough probe into the matter was ordered by respondent No, 2, the Divisional Superintendent, P. W. R. and a fact-finding Committee consisting of three senior scale officers (respondents Nos, 3, 4 and 5) was ordered, after paying surprise visits to time office, Diesel Shed and Diesel Workshop on 17-9-1968, certain irregularities and violation of rules regarding preparation of muster sheets and fictitious payments were observed, and respondent No, 2 was informed accordingly, who appointed another Enquiry Committee consisting of Assistant Personnel Officer, Assistant Accounts Officer and Assistant Manager Diesel to conduct regular investigation and to fix liabilities of the misappropriation of funds.
5. It transpired, that during this general enquiry, statements of various persons connected with preparation of muster sheets etc. including the petitioner were recorded on 27th of March 1969. The petitioner came out with clean admission in writing to have fraudulently charged P. W. R., Salaries of 21 persons to the tune of Rs, 3,660 giving the name of fictitious persons and the manner he perpetrated the fraud. His statement dated the 27th of March 1970 duly signed by him finds place as Exh. "AA" on the record of this case. The fact-finding Committee submitted its report to respondent No, 2 oil the 14th of May 1969, implicating the present petitioner and two other officials.
Thereafter petitioner was suspended from service and a Departmental Enquiry under Railway Servants (Efficiency and Discipline) Rules, 1961 was ordered.
6. A show-cause notice in Form "A", by the Assistant Works Manager, Diesel being lower authority under rule 8(f ) was issued to petitioner containing detailed statements of allegations on two separate sheets, was duly served upon him, on the 25th of June 1969. With this Form "A" notice, was attached a comprehensive statement regarding names, dates and amount fraudulently drawn by the petitioner from P. W. R. (on pages 25 to 35 of the file).
7. Instead of replying to the allegations levelled against him, in show-cause notice, the petitioner took a negative attitude and vide his letter of 30th of June 1969, insisted to be supplied copies of earlier general enquiry of 27th of March 1969 and of his own statement, for the purpose of preparing an adequate reply to Form "A".
8. He was again informed by relevant authority on the 11th of July 1969 that details of charge being duly supplied to him with Form "A", no copy of the report of fact-finding Committee, being out of the pale of Departmental Enquiry against him, can be supplied from record. It appears that an unending correspondence continued between the petitioner and the respondents, his employers, on the subject of supply of first enquiry report by the petitioner and persistent refusal by the respondents.
9. As enjoined by Railway Servants (Efficiency and Discipline) Rules the petitioner was again notified on the 15th of August 1969 about ex parte proceedings in case of his failure to reply to show-cause notice of Form "A" already served, and also was informed that he is permitted to examine record of proceedings of previous General Enquiry Committee at the time of his appearance before Departmental Enquiry Committee. But to no avail, the petitioner simply-- insisted to obtain copies of first enquiry committee report.
10.On the petitioner's failure to enter into any defence to show-cause notice (Form A), respondent No, 6 constituted an enquiry committee consisting of three senior subordinates officers to go into the allegations of fraud and misappropriations of Railway funds by the petitioner, the petitioner was duly informed of this and called upon to appear before the Committee on time and date fixed for the same by letter Exh. "DD" on file, he was further told to bring any witness or documents of his defence. It seems the petitioner has no intention to enter into his defence, he again put forth many objections to the establishment of enquiry committee as well insisted on obtaining copies of earlier enquiry, as a result action under section 10(3), Railway Servants. (Efficiency and Discipline) Rules, 1961, was taken against him by the Committee, who examined the muster sheets and all other relevant documents and held the petitioner responsible for the charges of fraud and misappropriation of railway funds.
11.It is interesting to note that the petitioner appeared before the enquiry committee, but refused to make any statement in his defence, simply filed an application objecting to the Committee and procedure in general terms. In this connection an extract of Committee report is reproduced as under : "Mr. Ramzani had appeared before the enquiry committee on 15-11-1969 and handed over an application addressed to the President, Enquiry Committee dated 15-11-1969 and refused to give any statement to the enquiry committee.
The enquiry committee explained to him the consequences of his repeated refusal to give any statement beyond the contents of his application dated 15-11-1969 handed over to the enquiry committee. The enquiry committee is not in a position to accede to his request which is against the Disciplinary Rules of 1961. In other words he is hampering the progress of the enquiry and as such the enquiry committee is competent to take the ex parte decision in this case."
Thereafter, the petitioner was served with second show-cause notice in Form "B" after conclusion of enquiry report, as required by the rules, along with copy of enquiry committee's report, and 14 days were given to him to file his reply. A reply by the petitioner was submitted on 18-12-1969 to Form "B" which after being duly considered was found inadequate, he was dismissed from service by the competent authority, he was duly informed of this and of his right to appeal, which he exercised but the same was dismissed on the 21st of May 1970 by respondent No, 2, the Divisional Superintendent, Railway.
12.In compliance to this Court's directions dated the 5th of October 1970, parawise comments since have been filed by respondents Nos, 2 and 3 dated the 21st of November 1970. All the allegations in the petition have been denied in detailed parawise report of the respondents, factual as well as legal. No rejoinder in reply to this has been filed by the petitioner side.
13.The main grievances of the petitioner are that as a preliminary enquiry committee consisting of respondents Nos, 7, 4 and 6 was not constituted by the appointing authority i,e, Divisional Personnel Officer (respondent No, 3) the entire proceedings are without jurisdiction and of no legal effect. He further contends that show-cause notice dated the 25th of June 1969 in Form "A" not having been issued by the Divisional Personnel Officer, the appointing authority but by respondent No, 6 the Assistant Works Manager, the notice is defective. He further attacks the legality of regular enquiry committee which admittedly was constituted by the Divisional Personnel Officer, on the ground that they are either subordinate to respondent No, 6 Assistant Works Manager or are in league with him, he pleads a biased finding against him. His next and strongest grievance is, that principles of natural justice were violated by the respondents in that as he was not supplied with copies of earlier general enquiry report along with copy of his own statement and statements of prosecution witnesses at the time of first probe into the alleged misappropriation of railway funds, these documents in his view hampered his preparation of defence during the Departmental Enquiry and that has been his sole cause for not entering his defence before later regular enquiry committee constituted under Railway Servants (Efficiency and Discipline) Rules, 1961.
14. Before entering into discussion on the petitioner's above grievances it would be appropriate to refer to the relevant Railway Servants (Efficiency and Discipline) Rules, 1961 regarding mode of enquiry and punishment of railway employees for misconduct. To these rules, petitioner as well as respondents are undoubtedly equally subject. Section 8, Railway Servants (Efficiency and Discipline) Rules, 1961, is reproduced as under : "Inquiry procedure in case involving major penalties.--(1) If the lower authority after carefully examining the allegation against a Railway servant and the available evidence is of the opinion that the allegations, if establishment would call for a major penalty the following procedure shall be followed namely :- (a)The lower authority shall frame a show-cause notice in Form 'A' and communicate it to the accused together with a statement of the allegation sections on which it is based and of any other circumstances which it considers should be taken into consideration when passing orders on the case.
(b)In serving the `show-cause' notice on the accused the lower authority shall require him to submit, within a reasonable time, which shall not be less than seven days and not more than fourteen days from the date the notice has been communicated to him to put in a written defence.
(c)If the lower authority after having considered the defence, arrives at the provisional conclusion that a major penalty should be imposed, one or more inquiry officers shall be appointed under rule 10 to hold an oral inquiry at which oral evidence be heard as to such of the allegations as are not admitted, and the accused shall be entitled to cross-examine the witnesses against him to give evidence in person and to have such witnesses called for the defence as he may wish, provided that the inquiry officer or officers may, for reasons to be recorded in writing, refuse to call a particular witness or to summon or admit particular evidence.
Note.--In the case of Class IV staff, the lower authority may at his discretion, permit the accused to be assisted by another Railway servant.
(d)The proceedings shall contain a sufficient record of the evidence and the Inquiry Officer's report of his findings and the grounds thereof.
(e)If the lower authority after having considered the report, arrives at the conclusion that a major penalty should be imposed and it is the punishing authority for that purpose, it shall pass orders which shall be conveyed through a notice in Form 'C'. If however, the lower authority arrives at a provisional conclusion that a major penalty should be imposed."
"Rule 10. Appointment of an Inquiry Officer and procedure of enquiry.--(1) Where a Railway servant is proceeded against under clause (a) or clause (b) or clause (c) of rule 3, and the lower authority has decided that the case calls for a major penalty, it shall appoint one or more officers senior in rank to the person proceeded against to hold an enquiry and to conduct the proceedings.
(2)The enquiry officer or officers shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing. Every adjournment, with reasons therefore shall be reported forthwith to the authority ordering the enquiry. No adjournment shall be given for more than a week.
(3)If the enquiry officer or officers are satisfied that the Railway servant proceeded against is hampering or attempting to hamper the progress of the enquiry he shall administer a warning and if thereafter the accused continues to disregard the warning, a finding to that effect shall be recorded and the officer or officers shall proceed to complete the enquiry in such manner as the officers think best fitted to do substantial justice.
(4)The Enquiry Officer or Officers shall, within ten days of the conclusion of the proceedings, or such longer period as may be allowed by the lower authority, submit the findings and the grounds thereof to that authority."
15. Now rule 9(2) of Railway Rules, 1961, raises a presumption of being guilty of the charges, against railway employee, who refuses to enter upon his defence. Section 3(b) is as under :- "If the Railway servant refuses to undergo examination his refusal may subject to the consideration of the grounds he may give, in support of it, be taken into consideration against him as showing that he had reason to believe that the result of the examination would prove unfavourable to him."
Attached to the Rules of 1961, is a Schedule which shows powers of various departments iudicating therein the authority competent to impose minor or major penalties on the accused railway staff, so that no authority subordinate to that by which the railway servant was appointed to the post held by him shall impose on him the defined panalties.
16.The first contention of the petitioner that he was entitled to copies of first general enquiry committee as this was held on the 27th of March 1969, is simply fallacious as this enquiry was not directed against any particular person including the petitioner, this was an enquiry of a general nature held by different agencies, as occasions demand mostly these are held for furtherance of efficiency in departments. Therefore it cannot be said that the first enquiry could come within the pale of Rules of 1961, entitling the petitioner to a copy of the report. Besides, in their parawise comments and replies to the petitioner on record, respondents have repeatedly advised him of their inability to do so. Hence this objection of the petitioner in no sense divest the respondents of their legitimate powers exercisable under the rules, to hold proper enquiry which in fact they duly held.
17.The other point urged on behalf of the petitioner was about the incompetency of respondent No, 6 the Assistant Works Manager, to issue show-cause notice on the 25th of June 1969, in Form "A" on the mistaken ground that such notice has to be issued by the appointing authority, in this case it would be the Divisional Personnel Officer. The schedule attached to the Rules of 1961 does not support this contention of the petitioner either as show-cause notices are always issued by lower authority and not by appointing authority, and respondent No, 6 admittedly comes within category of lower authority duly empowered to issue show-cause notice under delegated powers, therefore, the notice being issued by proper authority it becomes lawful within framework of Railway Rules, 1961.
18.The petitioner's contention that the regular enquiry committee consisting of Chief Inspector of Repairs, Loco Foreman and Divisional Leave Inspector appointed by the Divisional Personnel Officer (respondent No, 3) are either subordinate to or in league with respondent No, 6 the Assistant Works Manager, is equally devoid of any legal basis, firstly because respondent No, 6, has not been accused of any offence along with the petitioner, hence no bias can be shown against him, mere by alleging wild allegations, no defence can be built up. It is now settled that in writ jurisdiction, any alleged bias has specifically to be proved by record and there is nothing on record to show that really the respondent No, 6 had any bias against the petitioner, therefore, no question of any influence by respondent No, 6 on members of enquiry committee can be deduced.
19. As to the question of violation of principles of is justice is concerned, it seems that the petitioner either.is under a misapprehension about the basic principle or he deliberately from the start wanted to absent himself from entering to his defence with a view to invoke the same, in case, he is dismissed or otherwise penalized for the alleged offences after enquiry.
20. The unending correspondence and the stubborn attitude of the petitioner from the very start of enquiry to the date of his filing appeal, is sufficient to show that he having no basis to stand his defence, simply used delaying tactics and the respondents were quite within the rules to take ex parte proceedings against him. A few extracts of the petitioner's own letter would show that how far he attempted and successfully at that, to prolong otherwise short departmental proceedings against him.
In reply to show-cause notice dated the 14th of June 1969, the petitioner states in his letter dated the 16th of July 1969, inter alia- "My defence entirely depends upon the supply of true copies of my previous statement and those of other witnesses and the finding resulting in the issuances of my suspension notice and a charge sheet, and my personal examination of the relevant muster sheets and salary bills."
To this he was duly informed by the Divisional Personnel Officer on the 27th of July 1969-- "You are however, permitted to see the relevant papers in presence of the Office Superintendent of this office on any working day to enable you to submit your defence to Form 'A' of even number dated 25-6-69."
Again on 26-7-1969, the petitioner is threatening the respondents in case of failing to supply him copies-- "I could be obliged to have recourse to an appropriate Court of law by invoking the provisions in our constitution."
Again on the 7th of October 1969, the petitioner puts the condition to appear before the enquiry committee by saying-- "I will attend and face the enquiry only after I have been put back to duty as I have already suffered a big amount of financial, physical and mental loss....
Can this be the appropriate attitude of an employee towards his employer particularly when there are serious charges of misappropriation against him that instead of standing firmly to enter his defence, he embarks upon throwing wild and baseless allegation against his superior officers, simply either to prove himself hero or a martyr--In spite of this, every opportunity under the rules was afforded to the petitioner as show-cause notices in Forms 'B' and 'C' then issued to him, but he still clings to his wild allegations against his superiors and his appeal was duly considered having no substance was duly rejected.
21. In view of the very limited scope of writ jurisdiction wherein questions of facts cannot be entered into, and no violation of rules or law having been made out by the respondents, every opportunity having been given to the petitioner to defend his case, we see no substance in this petition and dismiss the same in limine.