RUSTAM S.SIDHWA, J.--This is a petition filed by Allah Din Akhtar petitioner seeking leave to appeal against the judgment dated 8-1-1986 passed by the Punjab Service Tribunal, Lahore.
2. The brief facts of the case are that in 1981 Allah Din Akhtar petitioner was posted as Food Inspector Jauharabad. On 16-5-1981, two railway wagons containing 100 bales of gunny bags were received by the petitioner at Jauharabad Railway Station. The Food Department had awarded a contract to Muhammad Ilyas & Company, Jauharabad, for the carriage of the goods of the Food Department for the period 1-4-1981 to 31-3-1982. The petitioner issued the necessary work order on 16-5-1981, to the contractor for lifting of the goods. Consequently, the contractor lifted ten bales from the Railway Station and delivered the same at the Central Godown of the Food Department.
The remaining ninety bales were not lifted by the contractor. The petitioner, on 19-5-1981 and 23-5- 1981, directed the contractor to lift the remaining ninety bales. This action was also noted by the District Food Controller, when he visited the office. However, the contractor failed to lift the bales.
Unfortunately, on 26-5-1981 at about 3.00 p.m. The ninety gunny bales lying at the railway station, caught fire and were burnt. On the direction of the District Magistrate, Sargodha, an inquiry was held by a Magistrate, who submitted his report that the burning of the gunny bags occurred due to the negligence of the contractor and that the Goods Clerk and the Station Master, Railways, were also guilty of negligence. According to the' learned Magistrate, the cause of fire was that one Maddah Hussain, a Railway Constable, who was posted on duty in the Yard where the gunny bags were lying, used to cook his meals nearby where the gunny bags were lying and due to some spark from the fire, the gunny bags had caught fire. On this inquiry report, the Assistant Commissioner, Jauharabad, raised some further queries, whereupon the Inquiry Magistrate reported that the petitioner was partly guilty of negligence inasmuch as he had not appointed a whole time Chowkidar at the Railway Station for guarding the gunny bags. The petitioner was charge sheeted.
The petitioner was then held responsible for half of the amount of loss amounting to Rs.1,89,000.
The petitioner filed an appeal, which was dismissed. The petitioner, thereupon, preferred an appeal before the Punjab Service Tribunal, Lahore, which was also dismissed. The petitioner now seeks leave to appeal against the said decision.
3. On behalf of the petitioner, it is submitted that the petitioner has no authority under any provision of law or under any instruction of the department to appoint a whole time Chowkidar at the Railway Station, Jauharabad, and that he was, otherwise, also held not responsible for any negligence regarding the actual fire that burnt the remaining ninety bales. The submissions made by the counsel require examination.
4. Leave is accordingly granted to consider the following points:
(i) Whether it was the duty of the Railways Watch and Ward Staff for the safe custody of the goods (ninety bales of gunny bags) which were lying under the shed at the Jauharabad Railway Station, in view of the provisions contained in Chapter-XXI, from para 31.3 to para 31.7, of the Pakistan Railways Commercial Manual?
(ii) Whether the petitioner had got any authority under any provision of law or under any instruction of the department to appoint a whole time Chowkidar at the Jauharabad Railway Station for the safe custody of ninety bales of gunny bags which were lying at the Railway Station?
(iii) Whether the finding of the Inquiry Magistrate whereby he has held that the cause of fire was due to the fact that Maddah Hussain, Railways Constable, Watch and Ward, who was on duty at the Jauharabad Railway Station for the safe custody of the goods and used to cook his meals there and due to his negligence the bags were burnt, releases the petitioner from all liability.
The appeal shall be heard on the basis of the present record. The petitioner shall furnish security of Rs.5,000. The recovery of the penalty imposed on, the petitioner shall remain suspended, pending the decision of the appeal.