' IBRAHIM MAHMUD (CHAIRMAN).-- This appeal submitted by Mohammad Ashiq Moghal of Diesel Shop, Pakistan Railways, Islamabad is directed against the order passed by the learned Senior Member on 24-3-1984 on the application submitted by him under section 22-A(8)(g) read with Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations, 1973, against the Divisional Superintendent Pakistan Railways and two others. The learned Senior Member after hearing the learned Representative for the appellant and the learned counsel for the respondents dismissed the petition on the ground that there was no substance in the allegations contained in the petition.
2. The brief facts of this case are that the appellant and Mohammad Ashraf Vice-President of Diesel Shop Branch of the PREM Union were suspended and served with charge-sheets on 26-10- 1982 for gathering staff from 7.5 a.m to 7.30 hours on 25-10-1982, for holding an unlawful meeting and delivering speeches inside the workshop within the working hours and thus wasting 25 minutes working time. The appellant Mohammad Ashiq Mughal was also held responsible for making speech against the Martial Law Administration, using undesirable language against the Railway Administration and instigating the staff against the Railway Administration. A joint enquiry was ordered but both these persons did not participate in the enquiry on the ground that they had no confidence in the Inquiry Officer, Saiful Malook.
3. The learned Senior Member examined the appellant and also 3 of his witnesses Mohammad Ashraf, Syed Mustafa Zaidi and Mohammad Hanif. The petitioner besides corroborating the contents of the petition stated that on 24-10-1982 the rival union held a meeting between 7.00 and 7.30 hours and again on 21-11-1982 from 7.00 to 7.40 hours. They also held a demonstration which continued upto 8.30 hours. He stated that the meeting on 25-10-1982 of his union was held from 6.35 a.m to 6.45 a.m.
4. On 9-12-1982 an enquiry letter was issued after the appellant and Mohammad Ashraf were suspended and charge-sheeted. He protested against the appointment of Inquiry Officer but it was not accepted. He again made a request for the change of Enquiry Officer on 22-12-1982 but he was informed that under the rules the Inquiry Officer could not be changed. Syed Mustafa Zaidi corroborated the version given by the appellant. Mohammad Hanif also stated that the meeting was held on 25-10-1982 between 6-30 a.m and 6.45 a.m and denied that any objectionable speeches were made in that meeting.
5. The respondents produced 3 witnesses namely S.A. Zaidi, Malik Qudrat Hussain and Saiful Malook. S.A. Zaidi stated that the meeting was held on 25-10-1982 and that he attended that meeting and recorded the proceedings. Malik Qudrat Hussain, Assistant Sub-Inspector Railway Police C.D.L. Workshop stated that the meeting started at 7.05 and continued upto 7.30 a.m and that he took hand notes of the speeches. Mr. Saiful Malook, Chief Inspector, Production said that he had issued a notice to the two appellants to attend the enquiry on 23-12-1982 but they did not participate in the enquiry and made an application to the Works Manager for the change of Enquiry Officer. The Divisional Personnel Officer asked him to carry on with the enquiry and he had therefore, to proceed ex parte. He recorded the statement of the witnesses and submitted the same to the Works Manager.
6. We agree with the findings of the learned Senior Member that evidence reveals that the appellant had failed to show any cogent reasons for the change of the Enquiry Officer and that one of the members of the enquiry committee namely Saiful Malook was not working under the Works Manager incharge of the Diesel Workshop. The main points in this appeal for consideration are as to whether the meeting was held before start of working hours and whether the appellant had arranged gathering of the employees and delivered speech against the Martial Law Administration and the Railway Administration and had instigated the workers against Railway Administration.
According to the learned Senior Member, it has been proved by an independent witness namely; Malik Qudrat Hussain, Assistant Inspector Railway Police, that the meeting was held during the working hours between 7-05 a.m to 7-30 a.m. The learned Senior Member has also not dealt with the remaining points. We also feel that Malik Qudrat Hussain being a Railway employee cannot be considered as an independent witness as it was his duty to submit reports of such incidents. The other witness namely Mr. S.A. Zaidi being Head Timekeeper was an interested party and we have therefore, to see as to whether their statements were corroborated by any other witness.
7. We have heard the learned Representative of the appellant and the learned counsel for the respondents. Having carefully gone through the Inquiry Report submitted by the Inquiry Committee on 26-12-1982, regarding Mohammad Ashraf Fitter and Mohammad Ashiq Mughal, S.S. Welder, we find that Mohammad Ashiq Mughal was charge-sheeted for misconduct as under:- "(1) You arranged gathering of staff from 7.05 to 7.30 hours on 25-10-1982 for holding unlawful meeting and delivered speeches in the shop premises during working hours; thus 25 minutes of working time of workshop was wasted though you were not on duty at that time.
(ii) You delivered the speech against Martial Law Administration and used indecent and undesirable language against the Railway Administration.
(iii) You instigated the staff against the Railway Administration.
8. The Inquiry Committee examined the following members of the staff and recorded their statements:-
(1) S.A. Zaidi, Head Time-keeper, Time Office.
(2) Mohammad Salim U.D.C. Time Office.
(3) Ghulam Mohammad L.D.C. Time Office.
(4) Mohammad Jabbar U.D.C. Time Office.
(5) Burkhurdar Khan U.D.C. Time. Office. (6) Malik Qudrat Hussain, A .S.I. Railway Police.
9. Mr. S.A. Zaidi, Head Timekeeper C.D.L. Workshop, in his statement submitted that a meeting was held on 25-10-1982 inside the workshop near the time office cabin. The meeting started at 7.05 hours and ended at 7.30 a.m. It was attended by 400 to 450 workers. In this meeting Mohammad Ashraf Fitter and Mohammad Ashiq Mughal delivered speeches against the Railway Administration.
10. The next witness examined was Mohammad Salim U.D.C. Time Office C.D.L. He pointed out in his statement that he was sitting inside the cabin and was hearing the noises of a meeting and he came to know from the labour that it was a meeting of the PREM Union. According to his statement, the meeting was held from 7.00 a.m to 7.15 a.m. He did not note the exact time. He also stated that he did not know as to who was speaking in the meeting.
11. Another witness Ghulam Mohammad, L.D.C. Time Office stated hat he was sitting in the cabin and could hear the noise of the meeting but he could not make out what was being said. He also did not know as to upto what time the meeting continued. He also did not know as to whose meeting it was as he was performing duties inside the cabin.
12. Mohammad Jabbar U .D.C. Time Office also stated that the meeting was being held outside the time office and that he was not hearing the speeches clearly but he came to know from the Labour that the meeting was held by the PREM Union. According to him, the meeting started at 6.45 a.m and continued till 8.00 a.m. He did not know as to who delivered speeches in that meeting, but he came to know from the people that Mohammad Ashraf and Ashiq Mughal were delivering speeches. He could not pin-point the persons who informed him about these two speakers.
13. Burkhurdar Khan, U.D.C. Time Office, stated that he had heard that a meeting was held on 25-10- 1982 and that he was working in the time office cabin at that time. He stated that the staff which was taking tokens from him told him that this meeting was being held by the PREM Union. He stated that he did not ask any body as to who was delivering speeches. He was not hearing the voices of the speakers clearly. He also could not tell the time of the meeting.
14. Malik Qudrat Hussain, A.S.1. Railway Police, C.D.L., stated that the meeting was held from 7-05 to 7-30 a.m and that this meeting was addressed by Mohammad Ashraf Fitter and Mohammad Ashiq Mughal, S.S. Welder. He &so told that both these persons accused the railway administration and that he had submitted a detailed report in this connection.
15. We have observed that with the exception of Head Timekeeper, S.A. Zaidi and Malik Qudrat Husain, A .S.I., none of the witness examined has corroborated the time of the meeting as Mohammad Jabbar witness puts it at 6-45 to 8-00 a.m., while Burkhurdar Khan and Ghulam Mohammad did not know at all about the timings of the meeting. Muhammad Salim however stated that the meeting was held from 7-00 a.m to 7-15 a.m. It will be observed that the charge against Mohammad Ashiq Mughal was that he arranged gathering of staff from 7-00 a.m to 7-30 a.m on 25-10-1982 for holding unlawful meeting and delivered speeches in the shop during working hours. The inquiry committee has not proved or asked the witnesses to show as to how the applicant was responsible for arranging gathering of staff to hold the unlawful meeting. From the report of the enquiry committee this charge has not been proved against Mohammad Ashiq Mughal nor has any of the witnesses examined stated that he arranged gathering of staff from 7- 05 to 7-30 hours on 25-10-1982. None of the office staff examined has corroborated the statements of S.A. Zaidi and Malik Qadrat Hussain that the speeches were delivered by Mohammad Ashiq Mughal. In fact, there were 900 to 450 workers present in the meeting according to Mr. S.A. Zaidi, Head Timekeeper, but the prosecution has failed to produce a single witness to prove that the appellant arranged gathering of staff and delivered speeches in the shop premises during working hours. In the absence of any corroborating evidence, we feel that this charge against Mohammad Ashiq Mughal is not proved.
16. As to the second charge relating to speeches against the Martial Law Administration and use of indecent and undesirable language against the Railway Administration, we have observed that there is no mention of speeches against the Martial Law Administration in the enquiry report nor has this been mentioned in the statements given by Malik Qudrat Hussain or S.A. Zaidi. Needless to say that the remaining witnesses were never asked any question about speeches against the Martial Law Administration as they stated that they could not hear the voices coming from the meeting. Malik Qudrat Hussain, A.S.I., was asked question No. 8 as to whether both these persons had used indecent language against the Railway Administration and the reply was that he has given details in his report. He was not particularly asked about the speeches against Martial Law Administration. Mr. S.A. Zaidi vide question No. 9, was asked as to what they had spoken in their speeches and the reply was that they accused the Administration in the speeches. On the second charge as well there is no corroborating evidence by the enquiry committee and it is not understood as to how it had concluded in its report that the charges levelled against Mohammad Ashraf and Mohammad Ashiq Mughal are proved.
17. As to the 3rd charge relating to instigating the workers against the Railway Administration, we have observed that there is nothing whatsoever mentioned about this charge in the report of the Inquiry Committee and nothing has been mentioned by the witnesses who were examined by the Enquiry Committee in this connection. This charge has not, therefore, been proved at all.
18. In view of the above discussions we feel that Inquiry Committee has failed to prove the charges against Mohammad Ashiq Mughal particularly the charges relating to gathering of staff, delivering of speeches against the Martial Law Administration and instigating the staff against the Railway Administration. Even if it is accepted that a meeting was held on 25-10-1982 the appellant did not do so for his personal benefit but in the interest of his trade union and it was not so grave a crime that he should be dismissed on that account. We have also gone througt. The Railway Servants (Efficiency & Discipline) Rules, 1975 and the term misconduct as defined in these rules is as under: "Misconduct.- Means conduct prejudicial to good order or service discipline or contrary to Railway Servants (Conduct) Rules, 1964 or unbecoming of an officer and a gentleman and includes any act on the part of a Railway Servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Railway or any Railway Servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the railway or any Railway Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Railway Servant."
19. Holding of a union meeting and delivering speeches in that meeting in the absence of any corroborating evidence to prove that it was held during working hours does not mean conduct prejudicial to good order or service discipline and cannot be covered under the definition of 'misconduct'. We feel that whatever the reasons for holding a meeting, the administration imposed a harsh penalty on the appellant in the shape of his dismissal from service. We find even in the Railway Servants (Efficiency & Discipline) Rules, 1975, the major penalties relate to reduction to a lower post or time scale or to a lower stage in a time scale.
20. Judging from the above noted facts we feel that the dismissal of the appellant was not in order and we, therefore, accept the appeal and set aside the dismissal order and direct that he should be re-instated with full back benefits. The respondent may, if so advised impose any penalty other than dismissal on the appellant.