FAKHRUDDIN G. EBRAHIM, J.--The petitioner, who is a railway servant, challenges his removal from service. The impugned order wag made under the Railway Sarvants (Efficiency and Discipline)
Rules, 1961. The two charges levelled against the petitioner read as follows :- "(a) Special Railway Magistrate during the course of his surprise raid on MG-15 Up crated 14-1?-1974 at the Digri Railway Station detected a number of ticketless passengers, three of them namely, Soomar son of Umar. Mohammad Siddiq son of Mithol Mamon and Sinjar son of Dino Junejo who had entrained at Nabosar Road stated that they had paid the amounts of fare at the rate of Rs. 2- 25 each to the S T. E. On duty with the train and the S. T. E. Had not issued any excess fare ticket etc. To them. All these three ticketless passengers identified you before tae Special Railway Magistrate and stated that you are the S. T. E. Who recovered the amount in question and did not issue the excess fare ticket. Thus you pocketed Railway revenue to the tune of Ra. 6.75 with ulterior motive..
(b) Again at Shadi Pali during the raids of S. R. M. On MG-14 Dn dated 14-12-1974 you were fount sleeping in a First Class Compartment, although you were not even booked to work this train."
Usual show-cause notice was given to the petitioner and he denied the allegations and ultimately an Enquiry Committee was appointed of two officers, namely, Mr. Ziauddin Siddiqui, Assistant Transportation Officer-I and Mr. Ashfaq, Assistant Personnel Officer, to enquire into the two charges.
2. Before the enquiry commenced the petitioner objected to the inclusion of Mr. Ziauddin Siddiqui as the senior enquiry officer alleging allegations that he was prejudiced against the petitioner. The Divisional Superintendent in his reply to this grievance of the petitioner stated as follows :- "Your apprehensions that justice will not be done to you are not well founded. Assistant Personnel Officer, Karachi being a Welfare Officer, has been specifically nominated on the Committee so that he may look after your interest and ensure that all reasonable opportunities are provided to you during the course of the enquiry."
The petitioner repeated his allegations at the enquiry as well to which the reply given was that the Divisional Superintendent had already considered the wane. The Enquiry Committee all the same went into the allegations made against Mr. Ziauddin Siddiqui and came to the conclusion teat they were unfounded.
3. In so far as the charges on merits are concerned at the enquiry neither the Railway Magistrate who had complained nor the passengers whose statements too had recorded were examined. In so far as the passengers are concerned attempts were made to summon them but to no avail. In so far as the Railway Magistrate is concerned he was served with the summons but his reply was that he had made his complaint in writing and nothing therein contained "shall be deemed to require the examination of the complainant for he had made the same as a public servant in discharge of his official duties." He further observed in this letter that it was legally sufficient to call the railway employees who had accompanied the Magisterial Group and witnesses on the day of the occurrence and afford the accused facilities for cross-examining them. In the circumstances neither the Railway Magis--trate nor the passengers were examined before the Enquiry Officer.
4. The evidence recorded by the Inquiry Committee, it may at once be stated, does not implicate the petitioner in any manner whatsoever in so far as the first charge is concerned. Even in relation to the second charge there was no evidence that he was found sleeping in a First Class Railway "Compartment while on duty. The railway witnesses who were present when the railway passengers alleged that they had paid the fare but were not issued the tickets by a ticket examiner whose physical appearance they described and which allegedly tallied with that of petitioner, did not support this version.
5. Mr. Mohammad Sharif, the learned counsel for the petitioner questioned the findings of the Enquiry Committee on two grounds. Firstly, that it was vitiated by bias of Mr. Ziauddin Siddiqui, the senior member of the Enquiry Committee and, secondly that it was a case of no evidence against the petitioner. Ax to the first we have Lo details of the Prejudice alleged against Mr. Ziauddin Siddiqui but the fact remains that bias was alleged which was not specifically denied by the Divisional Superintendent who consoled the petitioner that the other Member, the Assistant Personnel Officer was "specifically nominated on the Committee so that he may look after your interest". That the allegation of bias was found baseless by the Committee is of no avail for the person against whom bias so alleged was himself party to this conclusion. The respondents have not filed any documents-they have not even cared to file a counter- affidavit from which it can be inferred that the allegation of bias was unfounded or irrelevant and in its absence and in the presence of its implicit admission by the Divisional Superintendent we cannot but hold that bias was alleged, it was not repudiated and it must of necessity result in prejudice being caused to the petitioner. This fact alone is sufficient to bold that the findings of the Enquiry Committee cannot be sustained against the petitioner. This bias is further demonstrated by the unjustified conclusions arrived at by the Com--mittee on merits to which we will now revert.
6. The straightforward contention on merit was that the findings of guilt were exclusively based on the report submitted by the Railway Magis--trate against the petitioner and the statements of the passengers recorded by him. However, neither the Railway !Magistrate nor the passengers were examined by the Committee and the evidence recorded by the Committee completely exonerated the petitioner. Mfr. Usman Ghani Rashid, the learned Assistant Advocate-General for the respondents contended that it was not obligatory to examine the Railway Magistrate or the passengers and the alternative contention was that in any event attempts have been made to procure these witnesses but they were not forthcoming and. Therefore, no blame could be attached to the Enquiry Committee for relying upon the report of the Magistrate. We are, with respect to the learned counsel wholly unable to agree for the burden of proving the alleged misconduct was on the Railway Administration and they had to prove the same in a just, fair and reasonable enquiry held in accordance with the well-established;, principles of natural justice. The petitioner, to say the least, was entitle to cross-examine the Railway Magistrate which opportunity he was denied. He has been found guilty on the basis of an ex parts report. The law on the subject ii well-settled and the consistent view of our superior Courts has been succinctly stated by Kaikaus, I, in the case of Mohammad Hussain Khan v. Federation of Pakistan and others PLD 1956 Kar. 538 in these words :- "The only reply of Mr. Brohi to this objection is that the Enquiry Officer had in fact ordered the production of the witness and that if he was not produced in spite of that order, the Enquiry Officer is hardly to blame, for he had no power by which to force the attendance of the witness. This is hardly a reply to the objection. We are not concerned with whether the enquiry officer is to blame or not, but whether ~he petitioner have had a proper opportunity to show cause if the person proceed against wants to cross-examine a witness whose statement i9 being used against him and he is not allowed to do so. Apart from the provisions in the rules entitling the person proceeded against to call witnesses, the enquiry had to be conducted in accordance with the principles of natural justice. The result of holding a proceeding quasi-judicial or of holding that there is a duty to all judicially is that the tribunal must act in accordance with the principles of natural justice. Any violation of such principles warrants interference by proceedings in certiorari. If any authority was needed for such a proposition, I would refer to para. 122 of (Crown Proceedings) Halsbury, Volume II and the cases referred to therein."
7. In relation to the second charge the learned counsel for the respon--dents pointed out that the finding of the Enquiry Committee is that the petitioner was responsible for travelling by a train by which he was not booked thereby failing to work on his booked train, MG-13-Up from Kunri Pak to Mirpurkhas on 14-12-1974 and that there was evidence in support of this finding. The short answer to this is that the allegation against the petitioner was not that he was on a train other than the train assigned to him but that he was found sleeping in a First Class Compartment of a train other than the train on which he was booked. It is also significant to note that the Enquiry Committee has proceeded against the petitioner for in its opinion the charge that he was found sleeping in a First Class Compartment of a train other than his booked train was duly proved. We are further of the view that there would have been no occasion to propose the harsh punishment of removal from service if the charge merely was that the petitioner was found working on a train other than where he was booked. Quite clearly, the Enquiry Committee had proceeded to propose a major penalty for in its view the grave charges of pocketing railway fare and sleeping while on duty bad been proved. We are inclined to think that the learned counsel in his exuberance was trying to improve upon his case which the petitioner, had not been called upon to answer.
8. The next contention on behalf of the respondents was that since the petitioner, according to him is a "workman" within the meaning of the ,expression as defined in the Industrial Relations Ordinance, 1969, his remedy was under section 25-A of the T. R. O. We pointed out to the learned counsel that it was not sufficient to merely refer to section 2s-A of the I. R. O. For he must further prove that the grievance of the petitioner was in respect of .Any right guaranteed or secured to him by or under any law which would entitle him to invoke that law, to which the answer was that it was the petitioner to so demonstrate. The learned counsel went as far as to state that the petitioner should have filed an application under section 25-A of the 1. R. O. And obtained a ruling that the grievance of the petitioner was not in respect of any right guaranteed or secured to him by or under any law before coming to this Court. To our mind it was for the learned counsel for the respondents to show that the grievance was one for which the remedy was the 1. R. O. And he has not been able to so demonstrate except that the Rules provide for a departmental enquiry, a right to the person proceeded against to cross-examiee the witnesses and to adduce evidence in defence. The grievance of the petitioner is rot that the departmental enquiry was not held but that the Committee acted in violation of the rules of natural justice and there was no evidence on which any reasonable person could have found against the petitioner. If the matter had gone to the Labour Court it would have turned into a lengthy and involved controversy as to what is the meaning of the words "try or under any law" occurring in section 25-A of the I. R. O. And whether the word 'law' has been, used in a generic sense so as to embrace violation of the principles of natural justice or are limited to statute law only. We are, therefore, of the view that in the circumstances of the present case the remedy under auction 25-A would not have been an adequate alternate remedy. We may here take the opportunity of impressing upon advisibility of taking such a plea- plea of an adequate alternate remedy-at the earliest occasion, for if such a plea is taken after elapse of several years it may prejudice the petitioner though of course it was for the petitioner to show in the first instance that he had no alternate adequate remedy.
9. The last argument of the learned counsel for the respondents was that notwithstanding our conclusion that the charges against the petitioner had not been proved we should not grant him the relief sought, for the petitioner's record of service is allegedly unclean. The argument surprised us for the petitioner was not removed from service because of his past record. The petitioner could not have been removed from service if the misconduct alleged had not been proved merely on his past record. Moreover, the petitioner in the absence of any counter-affidavit by the respondents was denied the opportunity of meeting this factual plea. The learned counsel relied on our decision in Constitutional Petition No. 1454 of 1974, in which we refused to interfere with an order without jurisdiction for not only the order made was otherwise just and also because the petition suffered from laches.
10. The result, therefore is that this petition is allowed In terms prayed for.