MUHAMMAD IRSHAD KHAN (MEMBER).--The appellant while serving as Inspector of Works/Special, Sanjwal, was served with a charge-sheet accompanied by a statement of allegations which are reproduced below:- "CHARGE-SHEET Whereas you Mr. Muhammad Jamil IOW/S.I, Sanjwal at Atcy are charged with (1) misconduct inasmuch as you have committed serious irregularities as per statement of allegations on reverse.
(2) And whereas it is proposed to take disciplinary action against you under the Railway Servants (E$D) Rules, 1975, which may entail imposition of a major penalty under rule 4 (1) (b) of the said Rules in addition to recovery of pecuniary loss;
(3) You are hereby required to show cause within seven days from the receipt of this charge-sheet as to why the proposed action should not be taken against you.
(4) You may put in your written defence if any and state whether you desire to be heard in person.
(Sd.) Authorised Officer with the designation Divisional Superintendent, Rawalpindi."
"STATEMENT OF ALLEGATIONS For misconduct in that you while working as IOW/S.I, SJU measured a quantity of 1,07,759 C. Ft. Of 2" stone ballast supplied by Haji Ghulam Rabbani, Contractor, against Contract Agreement No.385 dated 20-10-1982 in connection with special repairs to track between Kala and Haranpur.
Accordingly the contractor was paid first and final bill of Rs.6,25,002. The work was subsequently transferred from Divisional Engineer Works, Rawalpindi to Divisional Engineer No. 2, Rawalpindi.
While handing over charge to PWI/Jhelum you made over only 87,000 C. Ft. Of ballast against the measured quantity of 1,07,759 C.Ft. For which payment was made.
You have, therefore, actually accepted 20,759 C.Ft. Of ballast short thus causing a pecuniary loss to the Railway to the extent of Rs.1,20,402 by excess payment to the contractor.
(Sd.) Divisional Superintendent, Pakistan Railways, Rawalpindi. "
2. In his reply to the above charge-sheet the appellant denying the charge, offered an explanation that the alleged shortage of 20,759 C. Ft. Of stone ballast had, in fact, been issued to work "Hannapur Yard" through PWI, Jhelum. Thereon an Inquiry Committee comprising of the Assistant Personnel Officer, Rawalpindi, Assistant Engineer, Attock City and the Accounts Officer, Rawalpindi, was appointed which enquired into the matter and submitted its report holding the appellant guilty of the charge. On consideration thereof the Chief Personnel officer vide his order dated 3-7- 1984 imposed upon the appellant a penalty of dismissal from service and recovery of pecuniary loss amounting to Rs.1,51,651. After exhausting the departmental remedy the appellant filed the present appeal.
3. We have heard the learned counsel for the parties and perused the record. As said above, the stand taken by the accused-appellant was quite clear and specific that the alleged shortage of stone ballast was issued to work "Hannapur Yard. A perusal of the inquiry report has, however, revealed. That in order to verify the correctness or otherwise of this contention of the accused- appellant what was merely done was that only two out of three members of the Inquiry Committee visited Hannapur Yard and that too in the absence of the appellant. According to the said two members there was no trace of newly-laid ballast nor any tampering with the ballast stacks was visible. Quite obviously, the proper course was that the whole committee should have visited the spot in the presence of the appellant and other material witnesses so that the appellant could also be provided an opportunity to explain his contention, which was not done and instead the aforesaid improper course of action was adopted which materially prejudiced him, (the appellant) in his defence. Based on such defective proceedings and evidence the inquiry report culminating in the impugned order, cannot be sustained.
4. Though not argued by the appellant yet we have taken notice of another serious lacuna in the impugned order. The relevant provision whereby a penalty of recovery of any pecuniary loss caused to Government can be imposed upon a civil servant is clause (iv) to sub-rule (1) of rule 4 of the Government Servants (Efficiency and Discipline) Rules, 1973, which reads as under:- "(iv) Recovery from pay of the whole or any part of any pecuniary loss cause to Government by negligence or breach of orders."
A bare perusal of the above provision would show that thereby as a penal measure, recovery of pecuniary loss can be ordered only from the pay of civil servant but if a civil servant is simultaneously dismissed from service, the question of recovery of pecuniary loss from his pay does not arise. Indeed this penalty can be imposed only upon a civil servant who continues to be in service. The impugned order is legally defective on this account also.
5. In view of the foregoing, the appeal is accepted and it is directed that the appellant shall be re- instated in service. Since, however, the appeal is being accepted for technical reasons it shall be open for the relevant authorities to proceed afresh against him for the charge but in strict conformity with the relevant law and the prescribed procedure. If the appellant is so proceeded afresh then at the conclusion of the proceeding, an order about the treatment of the period he has remained out of service, shall be passed by the competent authority otherwise he shall be allowed back benefits also.
6. No order as to costs.
M.Y.H./366/Lb/S