ABDUL RAZZAQ A. THAHIM (CHAIRMAN)---These four Appeals Nos.145, 146, 148 and 149(L)/92 relating to Ghotki Railway accident involving common questions of facts and law, were heard together and disposed of by single judgment by a Bench comprising Mr. M. Ilyas Lodhi and Mr. Rana Rifat Saeed, Members. Mr. Rana Rifat Saeed, Member initiated the judgment and allowed Appeals Nos.145, 146 and 148(L) of 1992 by observing that minor penalty of withholding of promotion for one year has since become infructuous, the respondent department shall refrain to take into account this penalty while considering their cases for moveover/promotions etc. As regards Appeal No.149(L) of 1992, the appellant therein was awarded penalty of withholding of promotion for three years, but after the expiry of about 8-1/2 months, he was given the acting charge of XEN/Divisional Engineer with effect from 27-10-1992. Mr. Rana Rifat Saeed, disposed of this appeal by holding that penalty in this appeal stood reduced by one year on the date of hearing i.e. On 11- 2-1993 and there is no justification in further reducing the punishment, which is already very lenient.
It was further ordered that suspension period of all the four appellants be decided under the relevant rules.
2. On the other hand, Mr. M. Ilyas Lodhi, Member allowed the Appeals Nos.145, 146 and 148(L) of 1992 on the ground that since the Inquiry Officer had exonerated them, the punishment imposed by the authorised officer was not justified. In case of Appeal No.149(L) of 1992, he reduced the punishment to that of censure. Since there was difference of opinion between the learned Members in all the four appeals, these appeals have come up before me under subsection (2) of section 3-A of the Service Tribunals Act, 1973.
3. Mr. Rana Rifat Saeed, Member, in my view, has not exonerated the appellants on merits but allowed the appeals only on technical ground by observing that since one year period of punishment has passed, the appeals have become infructuous. As regards, Appeal No.149(L) of 1992 Mr. Rana Rifat Saeed, observed that since the appellant therein had been given the acting charge of the higher post of XEN/DE with effect from 27-10-1992, therefore, the punishment of withholding of promotion for three years automatically stood reduced on the expiry of one year and there is no justification for further reducing the punishment as a lenient view has already been taken. He also ordered that suspension period of all the appellants may be decided by the competent authority. It follows that he has not allowed the relief on merits but on technical ground.
On the other hand, Mr. M. Ilyas Lodhi has allowed Appeals Nos. 145,146 and 148(L) of 1992 on the ground that the appellants were exonerated by the Inquiry Officer and passed order of censure in Appeal No.149(L) of 1992. I do not agree with him because it is the discretion of the authorised officer to agree or disagree with the findings and recommendations of the Inquiry Officer, and in these appeals the authorised officer has given cogent reasons in disagreeing with the findings of the Inquiry Officer.
4. I have gone through the record. The railway accidents have become common features and detailed inquiry was held in all the cases and both the learned Members have not pointed out any infirmity in the inquiry proceedings, but in my view, there must be cogent grounds for disagreeing with the impugned orders passed by the authorised officer in such cases in which hundreds of people have lost their precious lives. Therefore, in my view punishments have rightly been awarded by the competent authority in all the four appeals, and even if one year period of withholding of promotion has passed, the appellants who are affected by this order, will automatically be considered for promotion but they cannot be exonerated of such serious charges levelled against them. I would, therefore, dismiss all the four appeals.
RANA RIFAT SAEED (MEMBER)---(Appeal No.146(L) of 1992).
The appellant, Iqbal Samad Khan, as a result of disciplinary proceedings taken against him with the accident which had taken place on 8-6-1991 had been suspended from service with effect from 17-6-1991 and given following minor penalty by Notification dated 2-2-1992: "Withholding of promotion for one year:"
2. The learned counsel had stated that the appellant at time of accident had been working as Chief Operating Superintendent (COPS, B-20) in Pakistan Railways Headquarter, Lahore and in no way he had an involvement in the accident which took place at Ghotki Railway Station at 23-10 on 8-6-1991 between Jaranwala Phosphate Special Goods Up Train already standing on line and 7-Up Tezgam.
He had mentioned that no doubt the accident was disastrous as many lives had been lost and materials destroyed, but the accident had been caused by the sheer carelessness of the Block Maintainer/Sub-Engineer (Saeed) and Assistant Station Masters (Messrs Razzaq and Nizam).
3. From report of technical inquiry, it was revealed that electric connection for outer signal had become loose with the track and it was giving wrong light reflection in the relay system. Block Maintainer/Sub-Engineer (Saeed) instead of going to the site of the outer signal for tightening up the connection had without any permission unlocked/entered into the Relay Room and inserted insolation of cardboard paper in relay equipment in the circuit of the signal which had then started showing clear line track and outer signal had then become green for 7-Up Train to pass through the station. But, since Phosphate Special Goods Train was standing there, 7-Up Tezgam had to collide and meet a serious accident causing damage havoc.
4. He had stated that since Ghotki Railway Station and Staff were under the administrative control of the Divisional Superintendent Railways at Sukkur, as such maintenance of track, relay system etc. And taking any disciplinary action against the officials at fault were within the direct administrative and divisional jurisdiction of D.S. Sukkur; moreso when he was assisted by Technical Divisional Officers at Sukkur. But in any case for a major technical default, if noticed in the system he could get in touch with the Headquarter for obtaining necessary advice and assistance for removal of the defects.
5. The learned counsel had elaborated that the relay system at Ghotki Station was found to be working satisfactorily, but it was the mischief/mishandling of Block Maintainer/Sub-Engineer (Saeed) to have entered into the Relay Room without permission, played with the relay equipment by inserting cardboard paper to disturb the signalling circuit which had allowed then 7-Up Tezgam to pass through and meet an accident. The appellant had mentioned that during the course of inquiry and even before and afterwards there had been frequent inspections for checking the track and operating/relay systems of various stations of Pakistan Railways and particularly the stations located in Sukkur Division; but for this particular mishandling/disturbance of the circuit by the Block Maintainer, the matter had also been referred to the Principal Suppliers of the relay equipment i.e. Messrs Siemens who had also through inspections and site visit had declared that there was nothing wrong with the relay system (which had been installed at Ghotki Station 24 years back), but it was sheer mishandling, carelessness and intentional action of the Block Maintainer/Sub- Engineer (Saeed) who had inserted a cardboard paper in the relay equipment to disturb the signalling circuit which had permitted 7-Up Tezgam to pass through the station and evidently it was to collide with the Phosphate Special Goods Up Train which was also standing there. The appellant had explained that afterwards as soon as the loose electric connection at the outer signal on the track and properly been tightened/maintained, the relay equipment of the station had started working satisfactorily. As such it was established that there was nothing wrong in relay system, but it had been mishandled/disturbed by Block Maintainer who had not even obtained necessary permission in writing from the Station Master to open the relay room and enter into it for any maintenance or working on it. Anyhow Block Maintainer and ASM were facing enquiries by F.I.A.
And other officers to find out, if it was a sabotage action.
6. The appellant had stated that according to his duties, as printed in the Organizational Manual, COPS at the HQ, was not to be involved and hence not responsible for any disciplinary action and punishment. He had referred to the enquiry conducted under E&D Rules, 1973 by Member, Railway Board (Mr. M. Rafiq), wherein his findings as given below, appellant had not been held responsible for any failure in his specific responsibility: FINDINGS: 9.1.After going through the defence given by Mr. Iqbal Samad Khan, personal hearing and discussions on the charges and in view of the fact that there is no specific provision in the Organization Manual for inspections by COPS and that duties/responsibilities of COPS as contained in para. 50 of the said Manual do not entail specific responsibility on him to ensure observance of rules/procedures for safe train operation, I do not find him responsible for any charge mentioned in the statement of charges."
7. The learned counsel had mentioned that in the show-cause notice of 29-12-1991, it had clearly been mentioned in paras. 2 and 3 that he had been held responsible for facts coming into light as a result of the inquiry and for irregularities mentioned in the inquiry report; whereas in the said inquiry report, the appellant had not at all been held responsible and had rather been exonerated by the Enquiry Officer in his findings. In the reply (extract) given by the appellant to the show-cause notice dated 29-12-1991, he had clearly mentioned in para. 2 as under:-- (Annexure `G' -- Appellant's reply dt. Dec. 91/Jan. 92).
"Sub: SHOW-CAUSE NOTICE.
Ref. No.Admn-I/91-GS/17, dated 29th December, 1991.
Sir, The above show-cause notice appears completely out of context, when read in conjunction with the report (accompanying the show-cause notice) of the Enquiry Officer nominated as such by the Authorised Officer to probe into the charges, against the undersigned.
Para.2 of the show-cause notice is reproduced below:-- "Now, on the basis of defence furnished by you and the facts which came into light as a result of this enquiry, it is proposed to impose upon you a major penalty of `Dismissal from service' in term of provision of Rule 4(1)(b)(iv) of the Government Servants (Efficiency and Discipline) Rules, 1973. A copy of the Enquiry Report is enclosed, on which I have made observations as shown in the Annexure."
On the contrary, the fact is that I have been completely exonerated by the Enquiry Officer on each and every charge without any reservations and he has concluded in the Findings of the Enquiry Report without any shadow of doubt as under:-- "After going through the defence given by Mr. Iqbal Samad, personal hearing and discussions on the charges and in view of the fact that there is no specific provision in the Organization Manual for inspections by C.O.P.S. As contained in para. 50 of the said Manual do not entail specific responsibility on him to ensure observance of rules/procedures for safe train operation, I do not find him responsible for any charge mentioned in the statement of charges."
In view of the above findings, it is not understood as to what fact have come to light as a result of this enquiry, which can become the basis of the abovementioned show-cause notice. I have gone through the entire enquiry report and have not come across any adverse fact or remark brought out by the Enquiry Officer, holding me responsible in any way."
Therefore, the very basis of the show-cause notice were defective and it had been fabricated without facts and substance against the appellant who had not been found involved by way of his duties and his responsibilities by the Inquiry Officer in his findings. It was, therefore, evident that the show-cause notice and punishment given to the appellant was, mala fide, ultra vires and not maintainable. The learned counsel had also brought out at Bar that the officers who were directly responsible for maintenance, operation, inspection, control, administration and discipline for Ghotki Station were the Divisional Superintendent (Mr. Mola Bux Samroo) and Deputy Divisional Superintendent (Mr. Ghulam Muhammad Samroo) who were not even proceeded against and were left free. This was a point of consideration and for observance that favouritism had been done to spare the then D.S. And Dy. D.S. Sukkur Division and a mala fide action to involve the C.O.P.S. At HQ. (i.e. Appellant) who was in no way responsible for administrative control and discipline of Ghotki Station had been processed. Therefore, his suspension from service and the punishment were mala fide, unlawful and not maintainable and these should be set aside. He had also stated that the appellant's representation/appeal to the senior officers had not succeeded and finally aggrieved on account of penalty etc. He had submitted the instant appeal to the F.S.T. On 28-6- 1992.
8. Replying to the question by appellant (Iqbal Samad Khan) and that he i.e. C.O.P.S. Was not technically responsible for faults in operation/relay system at Ghotki Station, the learned counsel for the respondent Department had stated then why he had issued instructions vide letter dated 3- 12-1990 to all the D.S? The learned counsel and the appellant had answered that the said letter was of general instructions to all Railway Stations regarding vigilance for railway crossings particularly for unmanned crossings, where over in the past some serious accidents had taken place between the road traffic and the railway trains and this letter had nothing to do with his duties particularly the administration and control over Ghotki Staff and electric relay system. They had submitted that it was operational staff of Ghotki who had caused the accident and who was by all means under the administrative control of D.S. Sukkur and obviously appellant/C.O.P.S. Had no administrative jurisdiction over them and there.
9. The learned counsel had referred to an earlier similar train accident at Sangi Railway Station in Sukkur Division for which inquiry had been conducted by Mr. Justice Tanzeelur Rehman, wherein C.O.P.S. Had not been involved, because the Inquiry Officer (Mr. Justice Tanzeelur Rehman) after considering all facts and merits of the accident had not held the officer, i.e. C.O.P.S. Responsible for that accident. As such on the same analogy, the Inquiry Officer who conducted the inquiry under E&D Rules (Member, Mr. M. Rafiq) had not found the C.O.P.S. Responsible for any specific failure in his duties etc. Therefore, suspension of the appellant, show-cause notice and the punishment given to him were mala fide and unlawful and these should be set aside. The learned counsel had also mentioned that in his opinion it was an act of sabotage caused due to mishandling of the relay system by Block Maintainer/Sub-Engineer (Saeed) and A.S.M. Who had also strong links with the Union. He had, therefore, prayed as under:-- "(i)That the impugned order, dated 2-2-1992 passed by the authorised officer may be declared as null, void, inoperative, arbitrary, against law and of no legal effect and as such it may be set aside.
(ii)That the suspension period of the petitioner may be treated as duty and that full wages for that period may be allowed to him.
(iii)Any other relief which this Honourable Court may deem fit in the circumstances of the case may also be awarded.
10.The learned counsel and the representative of the respondents Department had referred to the Manual of duties for C.O.P.S. And particularly for Deputy C.O.P.S. And had tried to show that since in the duties of the Deputy C.O.P.S. Technical inspections/control of operating relay system for all stations in the Pak Railways were included, as such his senior i.e. C.O.P.S. (appellant) was virtually to be responsible for similar duties and actions. They had stated that the inquiry conducted by the D.G., F.IA. And Federal Government Inspector of Railway (F.G.I.R.), the appellant had been held responsible for failure in his duties which had caused the accident. They had said that it was sheer pity that the H.Q. Officers and the appellant were absolving themselves/himself out from this criminal accident. They had held the appellant to be indirectly involved in the accident and had stated that was why he was given minor penalty for withholding his promotion for one year, which was fully justified. But the appellant had mentioned that it was not logical and rational to hold the senior officer/C.O.P.S. Responsible for duties of his junior officers and respondent-Department instead of laying hands on the responsible Divisional Superintendent and Deputy D.S., Sukkur who were let free was in error to hold him responsible/involve the appellant i.e. C.O.P.S. At HQ who had not even a remote control over the administration of Ghotki Station and Staff.
(a)It was correct that supervision, control and administration over Ghotki Station and Staff lied with the D.S./D.D.S., Sukkur Div. But they were not proceeded against and let free by the Department whereas the appellant who was the Principal Officer i.e. C.O.P.S. At Headquarter, Lahore had been involved/punished. There looked to be no justification in his involvement/punishment.
11.Appeal No145 (L) 1992-The learned counsel had mentioned that the appellant (Qazi Khalil-ur- Rehman), at the time of accident had been working as Executive Engineer Telecom. (B-18) at the HQ and performing additional duties as Dy. Chief Engineer Signals (South) and as far as his duties and control were concerned he had by no means responsible for any administrative control over relay system installed at Ghotki Station and its Staff. His suspension with effect from 31-7-1991, charge sheet dated 31-7-1991, show-cause notice, dated 7-12-1991 and punishment given to him vide order dated-2-2-1992 for imposing minor penalty of withholding of promotion for one year were ultra vires, mala fide and not maintainable. He had mentioned that the arguments advanced by the appellant in Appeal No 146(L) of 1992 were adopted by him in their support. He had, therefore, requested for acceptance of his appeal, setting aside the order of punishment and with the prayer as under:-- "that this Honourable Tribunal may graciously be pleased to hold and declare that the impugned action of placing the appellant under suspension, awarding him the penalty of withholding of promotion to BS-19 for one year and divesting him of the charge of a post in BS-19, as a disciplinary measure as illegal and without lawful authority and the relevant orders/notification/charge- sheet/show-cause notice dated 31-7-1991, 31-7-1991, 7-12-1991, 2-2-1992 and 6-2-1992, be set aside directing the respondents to restore the position of the appellant as obtaining at the time of his suspension allowing all consequential benefits."
12. Appeal No.148(L) of 1992The appellant, Azim Mahfuz Khan had stated that at the time of accident he had been working as Chief Engineer Signals/Project Director (B-20) at Pakistan Railways HQ and mentioned that according to duties, as printed in Railway Manual he had no control and administrative jurisdiction over the Staff and relay equipment of Ghotki Station which were under direct administrative control of D.S. Sukkur Division. He had stated that after the ac(, t had taken place and according to his technical conclusions/observations, he had found out that it was not the failure of the relay equipment, but it was mishandling of the equipment by the Block Maintainer/Sub-Engineer (Saeed), as he had inserted cardboard paper in the equipment to allow the 7-UP Tezgam to pass through instead of going to the outer signal for tightening/maintenance of the loose electric connection. As such it had been established beyond doubt that the accident had been caused by the intention, carelessness and mishandling the equipment by the Block Maintainer (Saeed) with the connivance of A.S.M. (Razzaq/Nizam) who had allowed him to enter the relay room. In the enquiry report conducted by Member, Mr. Waheeduddin, no charge could be proved against the appellant. The findings are reproduced below:-- FINDINGS After going through the defence and the record produced by Mr. Azim Mahfuz Khan, ex-Chief Engineer/Signals, and the technical opinion sought from Messrs Siemens Pakistan, who installed the equipment at Ghotki Railway Station, the four charges framed against the accused officer could not be sustained."
(a)It was correct that supervision, control and administration over Ghotki Station and Staff lied with the D.S./DDS, Sukkur Division but they were not proceeded against and let free by the Department whereas the appellant who was the Principal Officer i.e. CEE (Signals) at HQ, Lahore had been involved/punished. There looked to be no justification in his involvement/punishment.
13.He had also adopted the arguments of Appeals Nos.146 and 145(R) of 1992 and had pleaded that disciplinary actions taken against him awarding the punishment of withholding of promotion for one year was unfounded, unjustified, mala fide, and unlawful and he had requested for acceptance of his appeal and setting aside the order of penalty with the prayer as under:-- "That this Honourable Tribunal may graciously be pleased to hold and declare that the impugned orders of punishment of this appellant are without lawful authority, mala fide in law, and of no legal effect and the same be set aside as if no punishment has taken place.
That this Honourable Tribunal may order the respondents to pay the arrears of salary during the period the appellant remained under suspension treating the period of suspension from 17-6-1991 to 17-2-1992 as on duty."
14. But the learned counsel for the respondent-Departments had maintained that Dy. Chief Engineer Signals on current charge (South), (Qazi Khalilur Rehman) and the Chief Engineer Signals (Azim Mahfuz Khan) were fully responsible for this accident, as they had failed to inspect the relay system at Ghotki; otherwise there was no fun in appointing and keeping such a heavy staff at the HQ, if they had nothing to do with the operation and relay system of the Railway Stations within Pakistan Railways. The learned counsel and the representative of the respondent-Departments had, therefore, contended that the punishments/penalties given to the appellants were fully justified and the appeals be dismissed.
15. Appeal No.149(L) of 1992--- Hearing was resumed on 11-2-1993 to hear the 4th Identical Appeal No.149(L) of 1992. The appellant in this appeal (Muhammad Attaullah) and his learned counsel (S.A.
Latif) had all along been present on 19, 20 and 21-1-1993, when 3 Identical Appeals Nos.145, 146 and 148(L) of 1992 were being heard.
16. The learned counsel and the appellant, Muhammad Attaullah, had adopted the common merits and points regarding punishments and reliefs which had earlier been discussed/argued in the three connected appeals. The learned counsel had mentioned that after the accident and conducting preliminary enquiry, the appellant alongwith other officers had been suspended from service vide Notification dated 17-6-1991 and he had been given a charge --sheet by the respondent department on 31-7-1991 with the statement of charges as under:-- "STATEMENT OF CHARGES During the course of investigating the causes of accident of 7-Up Tezgam at Ghotki on 8-6-1991 it has come to light that you, Mr. Muhammad Attaullah, while working as Divisional Signals Engineer/Sukkur, have failed to perform your duties as noted below:-- (i)Your failed to ensure proper and efficient maintenance and operation of signalling and interlocking system through effective regular inspections.
(ii)You failed to ensure the safety of the sensitive signalling and interlocking equipments with a view to keep it free from tampering.
(iii)You are found negligent in the observance of prescribed procedures and instructions for the working of signalling and interlocking equipments by the concerned staff.
(iv)There was apparent general laxity in the working of your Branch which you failed to control and overlooked the unauthorised and objectionable methods employed by your staff for short cut working of signalling system.
(v)You also failed to ensure that your subordinates performed their assigned duties effectively and efficiently.
(vi)You were found slack in exercising technical control and supervision over the working of your subordinates.
You are thus guilty of gross negligence of duties leading to unsafe train operation."
17. The appellant who had been working as Divisional Signals Engineer, Pakistan Railways, Sukkur Division on current charge basis had given reply on 4-9-1991 denying all the . Charges. Afterwards an enquiry under the E&D Rules, 1973 had been conducted by an Enquiry Committee consisting of Messrs Wasif Roheel and Aurangzeb Khan, Deputy Chief Engineers and it was concluded/submitted in October, 1991. The Enquiry Committee after going through defence submitted by the appellant, scrutiny of the relevant record and cross-examining the above officers and the witnesses, was of the view that Mr. Muhammad Attaullah was responsible for:-- (i)Non-observance of the proper procedures and instructions for opening and closing of Relay Room at Ghotki Station by his subordinates which resulted in adopting unauthorised and objectionable methods by them in collusion with the Operating Staff working at the station. I (ii)Although he carried out required number of inspections of stations but in certain cases did not ensure follow up action, thus not able to exercise proper control over the working of his subordinates.
18. The learned counsel had stated that the accident had taken place due to mishandling of the relay equipment at Ghotki by the Block Maintainer (Saeed) and other related staff viz. A.S.Ms. (Razzaq and Nizam) and there was no involvement of the appellant in this criminal act, when he had been posted and sitting in Sukkur Office, because as per his duties he was responsible to inspect relay/signal systems installed at different Railway Stations within Sukkur Division and according to his last inspection at Ghotki the relay systems was functioning very well there. Had this been not mishandled by the Block Maintainer who instead should have gone to the outer signal and tightened the loose connections, the accident could be averted. He added that in the enquiry report he was only held indirectly responsible, but the punishment, which had been given to him by the respondent-Department on 2-2-1992, for withholding promotion for three years was excessive.
19. Upon an observation, if the appellant was not responsible for the mishap, then who was the Divisional Officer who was more responsible, as far as his supervision, inspection and control were concerned? The learned counsel had mentioned that the Divisional Transport Officer (M. Ayaz Awan) and Deputy Divisional Superintendent (G.M. Soomro) were to be more responsible, because the control room had also remained in vigilant and inefficient in this regard, otherwise they could better advise and guide Ghotki Station Staff.
20. Upon another observation, how many times the appellant had inspected Ghotki Station during his tenure at Sukkur? He had replied that the inspections were carried out on 20-7-1990, 7/8-1990 and 11/12-2-1991 and he had found that the relay/signalling system had been working normally.
21. Later on, the respondent-Department keeping in view the defence furnished by the appellant and findings of the Enquiry Committee had on 7-12-1991 issued a show-cause notice which had been replied by denying all charges by the appellant on 17-12-1991 and he had requested that he should be absolved of the charges, as found by the Enquiry Committee without enough ground.
Later on the appellant had been imposed a minor penalty of withholding of promotion for three years vide Notification, dated 2-2-1992 which according to the learned counsel for the appellant was not a speaking order and also excessive, because the duties of the appellant did not so warrant. He had also mentioned a judgment of the Supreme Court reported as 1991 SCMR 2330 in his support. The appellant had made a representation on 7-3-1992 and it was rejected on 17-10- 1992.
22. The learned counsel and the representatives of the respondent-- Department had brought out at Bar that the appellant according to his duties was responsible for the mishap as he had not performed well. He was Divisional Signal Engineer on current charge and it was within the parameters of his functions and responsibilities to guide and control the concerned staff at Ghotki with the relay equipments. He had failed to do so and remained in vigilant and inefficient. He had mentioned that the Secretary/Chairman, Pakistan Railways had issued a speaking order which was as under:-- "Mr. Muhammad Attaullah was working as Divisional Signal Engineer at Sukkur at the time of accident of 7-Up Tezgam at Ghotki on Railways (Rana Rifat Saeed, Member) 8-6-1991. He was charged with the following irregularities committed by him:
(i) He failed to ensure proper and efficient maintenance and operation of signalling and interlocking system through effective regular inspections.
(ii) He failed to ensure the safety of the sensitive signalling and interlocking equipments with a view to keep it free from tampering.
(iii) He was found negligent in the observance of prescribed procedures and instructions for the working of signalling and interlocking equipments by the concerned staff.
(iv) There was apparent general laxity in the working of his Branch, which he failed to control and overlooked the unauthorised and objectionable methods employed by his staff for short-cut working of signalling system.
(v) He also failed to ensure that his subordinates performed their assigned duties effectively and efficiently.
(vi) He was found slack in exercising technical control and supervision over the working of his subordinates.
After service of the charge-sheet on the officer, an enquiry was ordered to be conducted by a team of officers comprising Messrs Muhammad Aurangzeb Khan, Deputy Chief Mechanical Engineer and Wasif Roheel, Deputy Chief Signal Engineer. The Enquiry Committee after considering the defence of the accused officer and also scanning other evidence, held Mr. Attaullah responsible for:--
(i) Non-observance of the proper procedures and instructions for opening and closing of Relay Room at Ghotki Station by his subordinates which resulted in adopting unauthorised and objectionable methods by them in collusion with the Operating Staff working at the station.
(ii) Although he carried out required number of inspections of stations but, in certain cases, did not ensure a follow up action, thus was not able to exercise proper control over the working of his subordinates.
A show-cause notice was issued to him on the basis of the findings of the Enquiry Committee and a personal audience was also granted to him as requested. In his defence to the show-cause notice and also during the course of personal hearing, the officer did not come up with any fresh argument. In his defence, the accused had tried to shift the responsibility of adopting proper procedures at the time of passage of 7-Up Tezgam on to the operating staff of the station. This indeed was not enough to exculpate him of the charges levelled against him.
In my opinion, the charges framed against him stand amply proved. The irregularities for which he has been held responsible should normally justify a major penalty. But the fact that this officer has been held indirectly responsible both by the F.G.I.R. As well as the F.IA. Team and also considering the fact that the accused officer has just started his career, having only 5 years service at his credit, I am constrained to take a lenient view of the situation and let him off witha minor penalty of `Withholding of promotion for three years'.
The officer should immediately be divested of the current charge of the post and posted in his substantive grade (BPS-17).
(Sd.)
(SYED NASEER AHMAD), Secretary/Chairman."
Assuch objections of the learned counsel for the appellant that punishment was not a speaking order were misconceived and invalid. He had mentioned that the punishment given to the appellant was very lenient, otherwise he could be given a major penalty, as far as the nature of accident and his duties were concerned. He had added that in his representation/appeal, the appellant had never mentioned about the punishment notification that it was not speaking order and now how he could take up this point? As such it was an incompetent objection.
23. Regarding the observation made earlier that whether other Division Staff viz. Divisional Transport Officer and Deputy Divisional Superintendents were also responsible and if so why they could not be proceeded against and given punishments? The learned counsel and the representative of the respondent-Department could not give a satisfactory answer and it seemed that they were to be held responsible, but they were let free by the administration. The learned counsel had stated that one (S.M. Uzair) Assistant Signal Engineer, Sukkur had only been compulsorily retired from service and all others faced lenient punishments.
24. During the course of arguments and averments made at Bar, it was discussed that the appellant who had been given minor penalty on 2-2-1992 of withholding of promotion for three years and who as a result of the punishment order had started working as Assistant Engineer (B-17) after the vacation of his current charge as Divisional Engineer (B-18) had again been given the duties and responsibilities of XEN/Divisional Engineer by the respondent-Department with effect from 27-10-1992. The learned counsel and the representative of the respondent-Department were asked how the appellant, when his minor penalty of withholding of his promotion which was still operative and was to be over after three years i.e. With effect from 2-2-1995, had again been given the duties and responsibilities of the senior post of XEN/Divisional Engineer on 27-10-1992? They had no answer and only stated that it .Was an action of the respondent-Department.
25. The learned counsel had, however, submitted that the action of lenient punishment/minor penalty given to the appellants in three Appeals Nos.145, 146 and 148(L) of 1992 vide Notification dated 2-2-1992 had become nullified and infructuous with effect from 2-2-1993 during the course of hearings/arguments on the present date of hearing i.e. On 11-2-1993, but the penalty in Appeal No.149(L) of 1992 would be over after 2-2-1995.
26. After going through the record, examining the facts and hearing the parties, it is established as under:-- Appeals Nos. 145 146 and 14S(L) of 1992 (a)That during the course of arguments, it had been observed that day-- to-day supervision, control and administration over Ghotki Station staff lied with the D.S. And D.D.S., Sukkur Division who were more responsible for the accident (than the COPS and CE and DCE (Signals) stationed at Lahore HQ), but both the DS and DDS had been let free and not proceeded against.
(b)That as per duties and functions of the COPS and CE Signals, they fit had no control and administration over Ghotki Station Staff and accordingly they had little involvement in the accident which had been caused by sheer mishandling of the relay system by Block Maintainer (Saeed) who had been allowed by A.S.M. On duty (Razzaq/Nizam) to "enter the relay room without following proper procedure and obtaining proper permission. The BM and ASM were fully responsible and involved in the mishap.
Appeal No 149(L) of 1992
(c) That the appellant who had been given minor penalty on 2-2-1992 for withholding of his promotion. For 3 years and his representation/ appeal in this regard had failed, how he could be again given the charge and responsibilities of the senior post of XEN/Divisional Engineer with effect from 27-10-1992 by therespondent-Department just after 8-1/2 months of the penalty? This seemed an action of undue favour, encouragement and support given to the appellant without any justification. Virtually it meant the waiving of the disciplinary proceedings and the punishment Order/Notification dated 2-2-1992 thereof mere looked to be a fun of This was a far liberal, totally relaxed and favourable action of the department afforded to the appellant, as no lesson for others could be derived out of it; but, on the contrary, others might feel encouraged. It is showed that the Administration did not take/view the accident and punishment to the appellant as something serious and it was not understood how the effective control and proper administration to run the traffic in order to prevent/avert such mishaps/accidents can be exercised?
27. Under the aforementioned circumstances and after hearing the Appeals Nos.145, 146, 148 and 149(L) of 1992 and the parties, the appeals are allowed to the extent/disposed of as under:-- (a)Minor penalty of withholding promotion for one year given to appellants vide Notifications dated 2-2-1992 in Appeals Nos.145, 146 and 148(L) of 1992 has since beeb me infructuous, the respondent --Department shall refrain to take this penalty into account, while considering their cases for move over/promotions etc. (b)Penalty in Appeal No.149(L) of 1992 stood reduced by one year on the date of hearing i.e. On 11- 2-1993 and there is no justification and merit in further reducing/modifying the punishment which is already very lenient, and (c)Period of suspension, in respect of all the appellants after their reinstatement vide order, dated 17-2-1992 be decided/paid under relevant rules within one month, if not already done by the respondent-Department.
By this order, Appeals Nos.145, 146, 148 and 149(L) of 1992 are disposed of accordingly. No order for costs.
M. ILYAS LODHI (MEMBER).--With profound respect to the view taken by my learned brother, I do not feel in agreement with the conclusion drawn and effective order proposed by him in Appeals Nos. 145, 146 and 148(L) of 1992.
29. The spirit of the order of the authorised officer in observations made by him is that day to day accidents in Pakistan Railways have become the order of the day and deterrent punishment to the high-ups may check the accidents is desirable. This deserved to be much appreciated. However, in the interest of justice, I feel that the authorised officer should have also appreciated that how for the direct responsibility assigned to these officials in performance of their day-to-day working is related to this particular accident. In the inquiry made by the Railways Inspector and inquiry conducted under the Government Servants (Efficiency and Discipline) Rules, 1973, these officers have not been held responsible for the said accident and have been exonerated. The competent authority even then punished them, which in my opinion is not in accord with the norms of justice.
In this respect there are number of cases wherein it has been held by the superior Courts that the competent authority should act on the recommendations of the Inquiry Officer, unless there are grounds for coming to a deterrent conclusion on the basis of evidence on which the report of the Inquiry Officer is based. Even then cogent reasons are required to be given for rejecting the report of Inquiry Officer who by nature of his duty has the occasion to hear the witness, examine the record and appreciate the version of the accused officer.
30. In the case of Saeeda Tasneem Ara v. Province of West Pakistan PLD 1967 Lah. 1112, their Lordships held "that the charter of the action taken in a departmental case and the nature of the judicial proceedings are akin and the purpose of observing fairness in both such cases is to be maintained for public confidence. It is as such necessary in a departmental inquiry as in a judicial proceeding that the mind of the officer who is ultimately responsible to draw conclusion from the record of a case should travel in the straight furrow of detached and objective thinking and there should be no apprehension of its deflection on account of personal bias or ill-will. An officer who has to decide about the culpability of a Government servant in a case of misconduct is under an obligation to give his decision in view of the facts of the case in good faith. If there is any ground for saying that his mind in coming to a decision may have been affected by some personal dislike or rancor his action is liable to be set aside". In another case of Shafiullah Khan v. The Government of Pakistan PLD 1970 Pesh. 176, it was held that the basic rules of natural justice to regulate enquiries; when a public authority is directed under a law to make an inquiry and the competent authority has to take action on the basis of its report and recommendations it cannot carry out a grotesque caricature of it but on the contrary has to conduct it in a manner which does not violate the basic rules of natural justice when a public authority is directed under a law to make an inquiry and the competent authority has to take action on the basis of its report and recommendations it cannot carry out a grotesque caricature of it, but on the contrary, has to conduct it in a manner which does not violate the basic rules of natural Justice. One of these rules, is that there shall be a fair inquiry into the truth of the alleged facts. If it is held by a biased person, the element of fairness is bound to disappear and with it will vanish the validity of the inquiry itself which will stand vitiated.
To hold the opposite would amount to attributing fraud to the Constitution and the law and to suggest in that the provisions meant to afford security to Government servants were enacted merely as a cloak and the intention was just the opposite.
31. An inquiry into the conduct of a public servant is neither a criminal indictment nor even a quasi- criminal proceedings but 4 is mainly an administrative proceeding conducted by a domestic forum to examine the fitness of the servant for service. The subject-matter of these proceedings is neither civil rights and duties nor criminal liabilities. It is simply the conduct of a public servant, which is to be properly reviewed in the interest of the purity and honour of the public service.
32. The inquiry report does not fix direct responsibility of the accident on these officers. Even then the competent authority had imposed the penalty merely on the presumptions that these officers at the Headquarter are supposed to be responsible for all actions etc. Of the subordinates.' In my opinion there is no yardstick to determine the indirect responsibility of any functionaries of the Government as it has no end and can be stretched even to the imaginary level. If we literally mean indirect responsibility then first of all the officer who interviewed and recruited the individual responsible for the accident, the Medical Officer who certified his mental fitness and all the officers responsible for the training and his posting should be held indirectly responsible and be penalized.
33. Under the Government Servant (Efficiency and Discipline) Rules. 1973, if the Authorised Officer does not agree with the inquiry report then he should ask for second inquiry but in these cases neither the Authorised Officer had asked for the fresh inquiry nor agreed with the findings of the inquiry report.
34. In view of the above, I am of the view that the punishment against the recommendations of the Inquiry Officer who had exonerated them is against the norms of justice and as such is set aside.
These appeals are accepted accordingly.
35. In Appeal No.149(L) of 1992, also I do not agree with the reasoning of my learned brother because in the aforesaid cases too, the first charges are the same. However, in this case there are two additional charges:-- "(5)You also failed to ensure that your subordinates performed their assigned duties effectively and efficiently.
(6)You were found slack in exercising technical control and supervision over the working of your subordinates."
36. The findings of the Inquiry Officer and the technical opinion sought from Messrs Siemens of Pakistan, the first four charges against the other three officers were not proved. If other appellants could be exonerated on the basis of report from Messrs Siemens of Pakistan, then on the same analogy, the appellant should also be exonerated from these charges. As regards, the last two charges, the Inquiry Officer had drawn attention of the Authorised officer towards paras. 7-1 and 7- 2 of their report wherein mitigating circumstances have been given that why the appellant had failed to fulfil his duties. Hazrat Umar (R.S.) kept in abeyance the punishment of cutting of hands for thief keeping in view the mitigating circumstances of famine, therefore, I am of the view that the law and order situation prevailing in the Province of Sindh and the strong unionism in the Pakistan Railways do require sympathetic consideration. Besides, that the appellant has also contended that he had no Railways (M. Ilyas Lodhi, Member) direct control on the main accused (who opened the room and put a cardboard and was held directly responsible for this criminal act). Neither he writes his report nor he is his Authorised Officer and also has got nothing to do with the day-to-day administration of the Ghotki Railways Station. As regards inspection of the station, he had been carrying out the same which had been verified by the Inquiry Officer. Moreover, the appellant after passing 8-1/2' months of the penalty imposed upon him had also been given acting charge of higher position which shows that the department had appreciated his conduct and work, otherwise he should have not been given the higher responsibility.
37. Since the inquiry proceedings had been conducted under a statutory provision, the competent authority had to take action on the basis of inquiry reports and its recommendations. It cannot carry out a grotesque caricature of it but on the contrary has to conduct it in a manner, which did not violate the basic rules of natural justice. Any decision made in violation of principle of audi alteram partem cannot be sustainable in law.
38. The punishment of merely withholding the promotion of one year of the three appellants and three years to Muhammad Attaullah cannot be an effective deterrent factor. On the contrary, the agony of inquiries and adverse publicity against them in the media is a greater punishment and would be stronger deterrent factor and would fulfil the objective of the competent authority.
39. In view of the above, I am of the opinion that penalty of stoppage of promotion imposed upon the appellant is harsh and requires modification. I partly accept this appeal, set aside the impugned order of withholding the promotion for three years and substitute it to that of minor punishment of "Censure".
40. The period of suspension is to be treated as period spent on duty.
41. All the appeals are disposed of as above. There shall be no order as to costs.
42. Parties be informed.
ORDER OF THE TRIBUNAL By virtue of proviso (b) of subsection (2) of section 3-A of the Service Tribunals Act, 1973, the decision of the Tribunal shall be in terms of the opinion of the Chairman and accordingly all the four Appeals Nos.145, 146, 148 and 149(L) of 1992 are dismissed.