MUHAMMAD RAZA KHAN (MEMBER).---This judgment will also dispose of a connected Appeal No, 325(P) of 1997 as the main issues are identical in nature.
2. The appellant, Hidayatullah, (Appeal No, 324(P) of 1997) was working as Station Master, Railways Station, Peshawar City, and the appellant, Juma Said (Appeal No, 325(P) of 1997) was serving as Assistant Station Master, Pakistan Railways Station, Jahangira, when an occurrence took place On the night between 11-10-1995 and 12-10-1995. A goods train 0012 DN admittedly arrived at Peshawar Railways Station at 2355 hrs. Five minutes thereafter the appellant, Hidayatullah, commenced his duty which was from 0000 hrs to 0800 hrs. The Assistant Station Master, previously on duty during 1600 hrs to 2400 hrs, had instructed the appellant, Hidayatullah, for attaching eight loaded wagons in compliance with the Control Phone Messages Nos. 11, 12 and 13. The said appellant admittedly was in close contact with the Control Office till the departure of the train at 0045 hrs. It appears that, after the departure of the said train from Peshawar City, some instructions were issued for stopping the train and later on certain instructions were issued for detaching the said eight wagons from the train. Prior to these instructions the train had admittedly left the Railway Station and, therefore, further stations were contacted like the stations Pir Piai, Akora Khattak, Pahangira etc. but it appears that due to some fault in the communication system, the message was communicated late and after the departure of the train. In this process the appellant, Juma Said, who was posted at Jahangira, was also informed to stop the train but this message was not directly communicated to him by the Control Office rather it was redirected to him through the Akora Khattak Railways Station. However, at the time when the message was received by the said Juma Said, appellant, the train had left the station. Although it may not be relevant yet admittedly the train was stopped ahead of Attock and the said wagons were detached and were returned to Peshawar and allegedly the said wagons were thereafter released by the authorities without any action and had to be shifted again to the destination. The present two appellants and several others were involved on different counts for this mishap. However, vide the final order, penalties of various natures were imposed and the present two appellants were also awarded penalty of withholding of an increment temporarily for two years whereas some other employees were awarded the penalty of reduction in the scale by two steps etc.
3. Two appeals of such employees registered at Nos. 79(P) of 1996 and 80(P) of 1996 were heard by a Bench of this Tribunal on 9-4-1997 and vide a judgment dated 7-5-1997 it was held: "We have also examined the allegations and are of the view that no doubt the discretion to hold the inquiry lies with the authorised officer, but the discretion is to be exercised judiciously keeping in view the nature of the allegation and not arbitrarily. The allegations against the two appellants were of such a nature which in our view, could not be proved without holding detailed inquiry under rule 6. Therefore, we set aside the impugned orders of penalty and by consent of the parties, remand the case to the Divisional Superintendent, Pakistan Railways, Peshawar for de novo proceedings of the case holding a full-fledged inquiry under rule 6 of (E & D) Rules, 1973, if so desired."
The present appeals belting of identical nature with minor penalty as compared to the said appellants were to be decided accordingly and we had the intention to follow the judgment in the earlier case particularly on the ground that the cause of action was the same and if the de novo enquiry is to be held it may take care of all the events, including the case of present appellants.
Moreover, we apprehended that any observation made with regard to the occurrence or the proceedings in these appeals, may have bearing on the de novo enquiry proceedings and, therefore, we enquired from the learned counsel for Railways whether he would concede for the remand of the case, as was done earlier, but he stated that the earlier case had not been properly handled by the learned, counsel for the Department and, therefore, he insisted on the adjudication of these appeals on their own merits. The learned counsel took the technical objections of limitation as the main legal objection and also argued on the merits. We had also heard the learned counsel for the appellant and gone through the record.
4. With regard to the technical objection of limitation we are of the opinion that in Appeal No,324(P) of 1997 a show-cause notice was issued on 13-11-1996, reply whereof was given on 21-11-1996 and the impugned order of penalty was passed on 15-2-1997. Under the law applicable to the appellants a period of two months is provided to file the departmental appeals. The departmental appeal was filed on 10-4-1997 and it was reminded on various dates. Finally the appellate order dated 13-9-1997 was received by the appellant on 20-9-1997 and within the next 30 days from the appellate order the said appeal was filed on 17-10-1997. In the second Appeal No,325(P) of 1997 the penalty was imposed on 20-6-1996 and the departmental appeal was filed on 14-7-1996 which has been rejected by the respondents on 13-9-1997 allegedly received by the appellant on 14-10-1997 and he had filed the said appeal on 17-10-1997.
5. Analyzing the said chronology of events it is quite clear that both the appellants had sought their legal remedy before the Department within the prescribed period under the law and before this Tribunal within the specified period of limitation. The learned counsel for the respondent- Department strongly argued that the appellants should have filed the service appeals after the expiry of ninety days of their departmental appeals and since the appeals have been filed beyond the period of 120 days, therefore, these were all egedly barred by time.
6. The appeals to the Service Tribunal are filed under section 4 of the Service Tribunals Act, 1973, which provides that an aggrieved civil servant has the right to challenge the original or the appellate order of the department. However, a proviso to the said section prescribes a precondition that prior to the challenging of an original order the civil servant concerned should file a departmental appeal or representation and he has to wait at least for 90 days before filing the service appeal. If the department decides the appeal earlier, it will be obligatory for a civil servant to file a service appeal within 30 days thereof but if the department does not decide the said appeal in 90 days, the aggrieved person is at liberty to file an appeal within 30 days thereafter.
However, the remedy of the appellant does not extinguish after 120 days and he still has a right to file a service appeal by challenging the appellate order whenever the same is conveyed. The law has provided two options to the civil servant and the same can be adopted at his choice. He may file an appeal against the original order after seeking departmental remedy or he may challenge the appellate order within 30 days thereof. In this view of the matter the appeals are certainly within time.
7. The contention of the learned counsel for the respondents is that the appeals had become barred by time after 120 days of the departmental appeals and he argued that under the principle of equity the law has to help those who are vigilant rather than those who are indolent. The vigilance of the appellants can be seen from timely filing the appeals and repeatingreminders but conversely it is the Department which has delayed a simple matter for several months and had conveyed the final rejection order in September, 1997. In this situation if the appellants are penalized on the point of limitation, it will amount to appreciate the sluggishness and indolence of the Department which can never be the intention of any legislation. The learned counsel for the respondents was specifically asked as to whether the departmental appeals of the appellants were rejected earlier than the orders of 13-9-1997 so as to apply the principle that once a departmental appeal is rejected, subsequent appeals cannot be entertained. However, in response to this query the learned counsel for the appellant pointed out that the objections filed on behalf of the Department in both the appeals contained a sentence saying "in fact the departmental appeal filed on 14-7-1996 was not replied by the respondent". Thus, it amounts to a confession by the respondents that there was no rejection of the appeals except by the impugned appellate order dated 13-9-1997. At this stage, the representative of the Department has produced a copy of the letter dated 11-8-1996 in Appeal No,325(P) of 1997 indicating that the departmental appeal dated 14-7-1996 was rejected. However, the learned counsel for the appellant denied having received such letter and the representative of the Respondent-Department could not prove its service on the appellant. Hence the document looses its force. Moreover, the document dated 11-8-1996 has not been served on the appellant directly rather it has been transmitted to him through the Station Master, Attock, and even the service of letter or its despatch to the said addressee is not proved. In any case, the pleadings supersede the documents produced at a belated stage and in the pleadings it is clarified that the departmental appeal was not replied prior to 13-9-1997. Thus, we hold that the objection is without merit and the appeal was within time from the appellate order being the second option available to the appellant as held by the Supreme Court in several cases.
8. On merits, a show-cause notice issued to the appellant on 13-11-1996 does not contain any allegation. However, a preliminary enquiry report dated 8-5-1996 holds the appellant responsible in these words:- "Mr. Hidayatullah, ASM/PSH is held responsible for non-attending control phone wilfully so as to start the train against the instructions of the control office."
Similarly the appellant, Juma Said, was held guilty by the preliminary enquiry report in these words: "Mr. Juma Said, ASM/JHR is held responsible for failing to control the train when he himself admitted that guard was not available in the brake-van."
The allegations quoted in the paras. hereinbefore are the only allegations against the appellants.
The learned counsel for the Respondent-Department referred to several matters where the accidents normally take place due to inattention and inefficiency of the Station Masters like the present appellants. However, this is neither the case of any accident nor the appellants were charged for any such occurrence. The learned counsel also stated that the appellant, Hidayatullah, should have issued instructions to the nearest available station to stop the train which had left the city. Unfortunately this is also not the charge. He has been held guilty of not attending the Control Phone whereas the record shows that till the departure of train at 0045 hrs there was no instruction from the Control Office to stop the train and hence the failure to attend the phone is a baseless allegation. The record shows that for the first time a written request was made by the F.I.A. at 0220 hrs. whereafter the train was ordered to be stood at 0230 hrs. At that time the train must have passed several stations ahead. Therefore, the responsibility of the appellant, Hidayatullah, stands unproved. Similarly the charge against the appellant, Juma Said, was only for failing to control the train whereas the record proves that the Control Office had not intimated any instruction to him directly, presumably for some fault in the line, and thus, the message had to be transmitted through Akora Khattak Railway Station and the time when such message was communicated from Akora Khattak to Jahangira had not been ascertained and admittedly it was conveyed to Jahangira after the departure of the train from there. Hence the responsibility of the said appellant is also not established. We feel that these are purely technical matters and a thorough probe was necessary to determine the disputed questions of fact and that is why the earlier cases were remanded with the consent of the parties but, in these appeals, the learned counsel stressed the need of adjudication on merits and hence the observations have to be made that the true story appears to be different than the one available on the record. The wagons which were loaded with timber were detained by the authorities and the matter was taken to the Court where a direction was issued for the release of the wagons by the District Judge after obtaining the indemnity bonds.
The dmurrage had been paid. The wagons were ordered to be despatched under the orders of the Court and the same was done accordingly. However, for some ulterior motives the wagons were intended to be detained further, and thus, despite the orders of the Court, the orders for stoppage of train, detachment and return of wagons were issued and they had to be brought back from a very long distance and at a considerable huge expense with practically no benefit and they had to be despatched again. This tells the hidden story between the lines. Action against certain officials was intended to protect the skin of certain high-ups and to justify the unnecessary expenditure as well as to protect from the effect of disobedience of the order of the Court coupled with certain ulterior motives of detaining the timber by certain quarters. Hence several conclusions can be drawn from the entire action which was an exercise in futility and the penalties were imposed without any charge and even without observing the proper procedure.
9. There are several other technical defects that the same officer has acted as Enquiry Officer, Authorised Officer and the Authority and that the enquiry was held without the association of the appellants. The preliminary enquiry report prepared without any evidence or presence of the appellants was considered to be the ultimate truth and the summary procedure was adopted whereas the dispute about the questions of fact demanded a holding of regular enquiry.
10.Keeping in view all the above factors we accept both these appeals, set aside the impugned original and appellate orders of imposition of penalty, on the present appellants, of withholding increment temporarily for two years. The appellants shall also be entitled to the cost of litigation.
11.Parties to be informed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.