The applicant in his application u/s 25-A has challenged the punishment of reduction in time scale by 2 steps for 3 years and has also prayed for treating his suspension period as violative of law having no legal effect.
2. The applicant was charge-sheeted for stealing oil to which he replied satisfactorily denying the allegation but the enquiry was held against him on the basis of which he was served with a Second Show Cause Notice and consequently the above punishment was awarded to him. The applicant after preferring the departmental appeal and serving the grievance notice upon the opponent has filed the above petition.
3. The opponent in reply statement has pleaded that the action taken against the applicant is quite legal and this Court has no jurisdiction to adjudicate upon the matter.
4. The applicant examined himself while A. Aziz, Amir Mohammad Malik, Nasir Ali and Shafiullah were tendered in evidence on behalf of the opponent. I have heard learned Advocates of the parties and have gone through the material placed on the record.
5. Mr. Awan the learned Counsel for the applicant referred to me the cross-examination of A. Aziz the main witness who has stated that he had not signed the reply statement, but the then D.S. Railways Mr. Iqbal Samad had signed it and its verification was signed by Mr. M.Burhan the dealing clerk and he himself had not gone through the reply statement. Mr. Awan further submitted that it has been admitted by Mr. A.Aziz that appointing authority of the applicant is Assistant Personnel Officer while the punishment was awarded to the applicant by the Divisional Mechanical Engineer-
1. Mr. Awan has also referred to me the cross-examination of Enquiry Officer namely Amir .
Mohammad Malik wherein he has stated that the complaint of the Loco foreman was in writing which he received with file but it is not available in the enquiry papers produced in this Court as R/2. Mr. Awan has further submitted that Enquiry Officer has further stated in his cross-examination that the material upon which he had given his findings is hot available with the papers. Mr. Awan further submitted that the Enquiry Officer has admitted in the cross-examination that the statements of the witnesses given in the enquiry are not signed by him and that he had put questions to the applicant in the enquiry proceedings. Mr. Awan thereafter referred to me the cross-examination of another prosecution witness Nasir Ali who has stated that when the enquiry was held against the applicant he was not available there but he was available in his office. With regard to the alleged complaint of Shafiullah Mr. Awan has pointed out that he has nowhere stated that the record of the applicant was checked in his presence.
6. On the basis of above submission Mr. Awan contended that the reply statement having been signed and verified by the persons not examined in evidence has no evidentiary value, the punishment was admittedly awarded by an Officer who was not appointing authority of the applicant, the Enquiry Officer has not produced the papers in the Court and has admitted that the material upon which he recorded the findings is not available on the record in this Court and though the Enquiry Officer was not justified to put questions to the applicant yet he put the questions hence the impugned punishment awarded to the applicant in presence of such legal defects is not sustainable in view of the authority reported in 1987 PLC 605.
7. Mr. Jehangir Shah the learned counsel for the opponent submitted that the applicant had admittedly participated in the enquiry and did not cross-examine the witness and that enquiry was fair and impartial and further the applicant is not a permanent workman hence he is not entitled to maintain his application.
8. In reply Mr. Awan submitted the mere participation of the applicant in the enquiry does not mean that he is automatically guilty of charges unless these are proved against him Mr. Awan referred to me the cross examination of opponent's witness A. Aziz who has admitted that the applicant is a permanent workman.
9. In view of the above discussion I come to the conclusion that the punishment awarded to the applicant is not supported by any evidence, the opponent having failed to substantiate the same and there being glaring legal defects the punishment is not sustainable. Consequently the impugned punishment awarded to the applicant by order produced as A/6 is hereby set aside.