' FAZAL ILAHI KHAN, J.---Facts of the case giving rise to these appeals by leave of the Court briefly stated are that the appellants serving in the relevant department were proceeded against departmentally in connection with an accident occurred on the night between 7th and 8th June, 1991 in which a number of people lost their lives. In the inquiry conducted the appellants were found to be indirectly responsible for the accident; hence, they were ordered to be removed from service.
Irshad Ahmad Hashmi and Bashir Ahmad appellants challenged the order of their removal from service passed by the Superintendent, Pakistan Railways in Service Appeals Nos.101-R of 1993 and 100-R of 1993, respectively.
2. Both these appeals were heard by Mr. Rana Rifat Saeed and Mr. Muhammad Ilayas Lodhi the learned Members of the Service Tribunal. As the learned Members failed to arrive at a unanimous conclusion these appeals were placed before the Chairman, Federal Service Tribunal who on a perusal of the record, without hearing the parties/their learned counsel, dismissed both the appeals.
3. Leave was granted in these cases to consider the submission of the learned counsel for the appellant that both the learned Members of the Bench had concurrently held that proceedings conducted against Irshad Ahmad Hashmi were irregular and incompetent, therefore, his reinstatement was ordered with all back benefits but with stoppage of promotion for 3 years. The difference of opinion, however, cropped up in the case of Mirza Muhammad Bashir appellant as according to Mr. Rana Rifat Saeed he was to be compulsorily retired from service instead of removal from service. However, Mr. Muhammad Ilyas Lodhi the learned Member agreed with Mr. Rana Rifat Saeed as far as the appeal of Irshad Ahmad Hashmi appellant is concerned but further held that Bashir Ahmad appellant shall be extended the same consideration as allowed to Irshad Ahmad Hashmi appellant and that he too is to be reinstated with stoppage of promotion for 3 years. According to him the appeal of Irshad Ahmad Hashim was to be accepted to that extent, while that of Bashir Ahmad shall have been referred to Third Member (Chairman)' for his opinion.
The learned Chairman had, therefore, acted illegally and without jurisdiction in dismissing the appeals which is violative of section 3-A(2) of the Federal Service Tribunals Act, 1973.
4. As the learned counsel for the appellants confined his arguments to the legal position stated above we are not inclined to go into the merits of the case. The legal point has been fully reflected in the leave granting order substance reproduced above. It is sufficient to state that both the appellants were similarly charge-sheeted and proceeded against in a similar manner for the fateful accident and on the conclusion of the inquiry both of them were held "Indirectly responsible" and, as such were equally treated by ordering removal from service by order of the Superintendent, Pakistan Railways. Rana Rifat Saeed the learned Member in his very elaborate and detailed judgment dated 25-8-1993 held as under:-- "Under the aforementioned circumstances and after hearing the parties, we find that both the appellants had been held indirectly responsible by she Enquiry Officer and the punishment of removal from service, as compared to the quantum of negligence and misconduct on their part was more harsh And did not justify vis-a-vis the punishments given to other employees and co- accused colleagues, as discussed in paras. 3 to 5. We, therefore, set aside the orders of their removal from service and modify these, indicated as under:--
(i) Appeal No,100(R)/93(161(L)/92 Mirza Bashir Ahmad, appellant). Since in his case Authorised Officer and Authority had correctly been appointed by the respondent Department, he is compulsorily retired from service w.e.f, the date of order of removal.
(ii) Appeal No,101(R)/93(162(L)/92 Irshad Ahmad Hashmi, appellant). Since Authorised Officer and Authority were (B-18) and (B-20) officer and whereas under relevant rules, these were to be (B-19) and (B-21) officers respectively, proceedings and actions taken by the respondents Department in this case were not so valid and competent, he is to be reinstated into service and he is to be given punishment of stoppage of promotion for three years w.e.f, the date of such removal and with all back benefits etc. However, respondents Department shall settle his absence from date of removal to date of rejoining as per his entitlement under relevant leave rules.
(iii) Their suspension periods shall be finalized within one month of this judgment and they paid accordingly under relevant rules. ' and
(iv) Respondents Department shall accordingly issue orders within one month."
' Mr. M. Ilyas Lodhi, the learned Member on going through the judgment of the learned Member Rana Rifat Saeed did not agree with the above conclusion reached by the learned Member in respect of Mirza Bashir Ahmad as it was contrary to the observation made in para.7 of the judgment, reproduced above, wherein both the appellants have been indirectly held responsible. It was, therefore, held that the "job description and responsibility of both the appellants are same, charge-sheet is same and the finding of the inquiry is same. Moreover, the inquiry has also not been properly conducted as it was in form of question/answer, therefore, it was expressed by the learned Member that Mirza Bashir Ahmad appellant also deserves the same consideration. The case was referred to 3rd Member in terms of section 3-A(2) and instead of referring the case of Bashir Ahmad on which both the learned Members have differed with regard to the punishment imposed upon him both the appeals in toto were placed before him. The learned Chairman without hearing the appellants or their learned counsel fell in error in taking cognizance of the appeal of Irshad Ahmad Hashmi on which there was no difference of opinion and the judgment had become final both the learned Members constituting the Bench had concurred as far as the penalty imposed on him is concerned accordingly Appeal No,383 of 1994 of Irshad Ahmad Hashmi v. The General Manager, Pakistan Railways etc., is partially accepted, the judgment of the learned Chairman dated 16-11-1993 is modified to the extent stated above.
6. As far as Appeal No,384 of 1994 filed by Mirza Bashir Ahmad is concerned we are in full agreement with the judgment of Mr. M. Ilyas Lodhi the learned Member that the appellant having been equally held indirectly responsible as in the case of Irshad Ahmad Hashmi, therefore, he deserves to be treated in the same manner. We, therefore, modify the judgment in case of Mirza Bashir Ahmad to the extent of reinstatement in service with stoppage of promotion of 3 years w.e.f, the date of such removal with all back benefits etc. The respondents shall settle his absence from the date of removal to date of rejoining as per his entitlement under the relevant Rules. Their suspension period shall be finalised within one month of this judgment. Both the appeals are allowed in terms stated above. Parties are left to bear their own costs.