1. ' This appeal is directed against the judgment and decree of Additional District Judge, Karachi, dated 8-8-1973 passed in Suit No, 205 of 1972. The relevant facts are that the appellant was working as head watchman at Karachi. He was transferred from Karachi to Sukkur Division on 15-12-1969 for administrative reasons in regard to the maintaining of discipline among the Watch & Ward Staff.
2. Before this transfer the appellant had been allotted quarter No, 14 Block No, 204, Railway Colony, Karachi City.
3. ' The appellant did not go to Sukkur and made representation against his transfer to respondent No, 1 and the Chief Watch & Ward at Lahore but nothing came out of it, and on 15-1-1970 he was informed by Vice-Chairman, P.W.R. That his transfer was ordered from Karachi Division to Sukkur Division for valid disciplinary reasons. The appellant had not informed the Sukkur Division of his address at Karachi and nor he had intimated Sukkur Division about his representation that he was making to the higher authorities against his transfer. Even the Union of Railway Employees which had moved the Railway Authorities on behalf of the appellant did not inform Sukkur Division of this position.
4. ' The result was that Sukkur Division treated the appellant as absent from duty and they sent show- cause notices in Form-A at his home address at Hazara which was available with them but the same could not be delivered to the appellant and was returned undelivered with the endorsement that the addressee is not at home hence it should be returned. Thereafter the services of the appellant were terminated on 6-3-1970 on the ground that he had failed to reply to the show- cause notice because it was returned undelivered. This last letter was re-directed from District Hazara to the Karachi address of the appellant and was received by him.
5. ' The appellant filed suit against his dismissal from service, grounds taken were that the dismissal was without service of proper notice and further ground was that even the order of transfer was vitiated because the transfer was made as a punishment. The respondent denied the contention of the appellant by two written statements. Following issues were framed:-- "(1) Is the suit bad for non-joinder of party?
(2) Was the transfer of the plaintiff from Karachi to Sukkur an Administrative section or was it by way of punishment?
(3) Was the plaintiff entitled to any show cause for his transfer from Karachi to Sukkur?
(4) Did the plaintiff report for duty at Sukkur Division or did he send any information or representation to Sukkur Division explaining the reason for remaining absent from duty?
(5) Was the plaintiff guilty of gross misconduct?
(6) Did the Sukkur Division know the whereabout of the plaintiff and were they justified in sending the notices to the plaintiff at his home address?
(7) Whether the transfer of the plaintiff and his subsequent removal from service are illegal, bad, void and against natural justice?
(8) Whether the plaintiff is entitled to retain the railway quarter?
(9) Did the defendants make reasonable efforts to ascertain the latest address of the plaintiff from delivering the show-cause notice of his removal from service. If not what's the effect?
(10) What should the decree be?
6. ' The parties led their evidence and the Additional District Judge decided issue No, 1 in favour of the plaintiff. Issue No, 2 was decided against the plaintiff and it was held that the transfer cannot be termed as punishment even though the underlying idea before the defendant was to remove the plaintiff from Karachi due to general complaint. In respect of issue No, 3 it was held that the transfer was neither a penalty nor a punishment and, therefore, the plaintiff was not entitled to any show- cause notice. Issue No, 4 was decided on the basis of concession made by the plaintiff as he had deposed that he had not reported for duty from Sukkur nor he sent any information to the said Division explaining his reasons for remaining absent from duty. In respect of issue No, 5 it was held that according to the railway rule absence from duty amounts to gross misconduct. On issue No, 6 it was held that the defendant No, 2 was justified in sending the notices to the plaintiff at his home address as had been given in the service record. In respect of issue No, 7 it was held that the transfer of the plaintiff was lawful and valid, and that he remained absent without any intimation for about 2 (1/2) months and, therefore, the defendant had no choice but to terminate his service as they did. On issue No, 8 it was held that the plaintiff was not entitled to retain railway quarter after his removal from service. On issue No, 9 it was held that there was no reason for Sukkur Division to suspect that the plaintiff is still living in the railway quarter at Karachi and Sukkur Division was, therefore, justified in resorting to the only address available to them which was the home address of the plaintiff even in the service record of the plaintiff. On the basis of all these decisions the suit was dismissed.
7. ' Mr. Manzoor All Khan has submitted that the transfer of the appellant from Karachi to Sukkur was penalty and, therefore, before ordering the transfer of the appellant he should have been issued a show-cause notice. He has drawn my attention to rule 4(II) of section 5 of Pakistan Western Railway Advance Chapter No, 1 of Personnel Manual Addition, page 51 where it is clearly provided that a transfer on a particular fault cannot but be treated as a penalty. He has also drawn my attention to paragraph 6 of written statement where it has been stated that there was a general complaint against the plaintiff and some other members of the staff and as such for adminsitrative reasons and for maintaining discipline among watch and ward staff, plaintiff alongwith some other staff was transferred from Karachi Division to Sukkur Division. Even the letter of Vice-Chairman of P.W.R. Exh.9 shows that the transfer of the appellant was ordered from Karachi to Sukkur for valid disciplinary reasons. It, therefore, appears to be clear that the transfer of the appellant was not an ordinary transfer and it was a part of disciplinary action taken against the appellant. It is an admitted position that before a person is penalised in reference of particular matter he must be heard. But in this case no show-cause notice was ever given to the appellant to show-cause as to why he should not be transferred for disciplinary reasons.
8. ' Mr. Abdul Mateen had submitted that mere transfer did not involve any condemnation of the appellant and, therefore, no show cause notice was necessary. But this argument of Mr. Mateen is of no force in view of rule 4(I1) referred to above. The railway authorities themselves have considered transfer on account of a fault as a penalty and written statement of the appellant has pleaded that there was a general complaint against the appellant and such being the position the transfer from Karachi to Sukkur was evidently the result of the complaint made against the appellant and hence he should have been provided with an opportunity to explain his position in respect of those complaints before his transfer could be ordered. But he was afforded no opportunity and, therefore, the action of transfer of the appellant was hit by the breach of principles of natural justice and hence that action was without lawful authority. The mere fact that the appellant was not demoted or reduced in rank at the time of transfer cannot make the transfer as devoid of penalty when the transfer which is on account of a fault is treated by the railway itself as a penalty. Moreover the transfer itself entails inconvenience and botheration to the person who is transferred. And in this case the plaintiff/appellant had been transferred from Quetta to Karachi only on 4-12-1968 and, therefore, his transfer on 15-12-1969, after just one year, was bound to create difficulty for the appellant and it was in fact intended to punish him, for the complaints which had been made against him and of which he had no notice. He was, A therefore, condemned unheard.
9. The transfer was, therefore, vitiated.
10. ' The next submission was that reasonable efforts had not been made to serve notice upon the appellant before his transfer. Reliance is made to page 16 of Advance Chapter No, 5 of Personnel Manual Rules Regulating Discipline, etc. Where under rule 10 in respect of the 'Absence without sufficient cause', Sub-rule D-1 in Clause II, it is provided that reasonable efforts should be made to ascertain the address of an employee which he may have failed to intimate. I find that in the circumstances of this case the Railway Authorities have not made any reasonable efforts to ascertain the address of the appellant for the issue of show-cause notice against him before his dismissal. It is correct that the appellant had not joined his service at Sukkur and had also failed to give his address at Karachi and, therefore, the Railway Authorities were justified initially to send the show-cause notice at Hazara address which was contained in the service record but once a said notice had been returned undelivered to the respondent No, 2 with the endorsement "addressee is not present at his house" then thereafter the respondent No, 2 should have made reasonable efforts to ascertain the address of the appellant. In this respect if one looks at para. 4 of the plaint where the plaintiff has stated that he was allotted railway quarter No, 14 Block No, 204, Railway Colony, Karachi city, and the answer of the respondent No, 2 to the same in para. 6 of the written statement, where it is admitted that the plaintiff was allotted quarter as the same was vacant at that time, it, therefore, appears that the respondent No, 2 could have ascertained the address of the appellant, even if it was not known to them in 1969 or early 1970, if they had merely asked the transfering department namely Karachi Division to intimate them of the address of the appellant if they had any. In fact there was a dispute going on between the Karachi Division and the appellant about the occupation of the said quarter.
11. ' Moreover, it would have been reasonable to issue a notice to the appellant through Divisional Office, Karachi because they were the previous employers of the appellant. In any case the notice of the dismissal of service was served upon the appellant at his Karachi address and, this position had been made known to the respondent No, 2 by the postal authorities in their letter Exh. 23, dated 22-3-1971 and once it was known to the respondent No, 2 that the appellant was residing at quarter No, 14 in Railway Colony, Karachi then they should have retraced their steps and should have issued a proper notice to him to show-cause as to why he should not be removed from service. I am, therefore, of the view that the appellant was not issued a proper notice of show-cause before he was dismissed from service as reasonable efforts to ascertain his address were not made by the respondent No,
2. And moreover in spite of a correct address of the appellant having been made known to the respondent No,2 in March 1970 itself, by the postal authorities, the insistence of the Railway Authorities upon acting on a show-cause notice, which had not been served upon the appellant and had been returned unserved, was not fair in the circumstances of this case and did not afford a reasonable opportunity to the appellant and it could not be regarded as a properly served show-cause notice. The result of the above discussion is that this appeal has to succeed and the transfer of the appellant as well as his dismissal from service are declared to be without lawful authority and he, therefore, had continued in service from 15-12-1969 as well as after March, 1970 subject to Rule 2044 of Pakistan Railway Establishment Vol.II. I may however note here that the appellant has stated before me that he has served elsewhere during the period that he was dismissed from service till today and, therefore, he will not claim any pay from the Railway for this period, but other benefits would of course be allowed to him according to the rules.