' MUHAMMAD IQBAL KHAN (MEMBER).---The appeal is directed against Notification dated 3/4-5- 20U2 whereby the appellant Mr. Abdul Razzaq was compulsorily retired from service on the charges of misconduct, corruption and malpractices.
2. Brief facts of the case are that the appellant Mr. Abdul Razzaq joined service as Ward Boy in the Cairns Hospital Pakistan Railways, Lahore on 3-4-1979 and was subsequently redesignated as Laboratory Attendant in October, 1980. He was promoted to the post of Laboratory Assistant w,e,f, 6-1-1990.0n formation of Vigilance Cell in the Headquarters office of Pakistan Railways, Lahore vide Organization Order No,674, dated 13-7-1999, the appellant was transferred along with his post and appointed as Co-ordinator of the ,Vigilance Cell. The purpose of the Vigilance Cell was to redress the grievances of public and Railway employees. The appellant was issued show-cause notice on 18-8-2001 for alleged misconduct, corruption and malpractices together with statement of allegations during the course of his tenure as Co-ordinator, Vigilance Cell, under section 5(4) of the Removal' from Service (Special Powers) Ordinance, 2000 as amended under Ordinance, 2001. The appellant submitted his reply to the show-cause notice on 20-8-2001, inquiring from the department the substance of evidence in support of the charges in order to enable him to file a proper defence reply to the show-cause notice. The appellant was asked to consult the record in the room of Medical Superintendent of the Hospital vide order dated 3-5-2002. The appellant furnished his detailed reply to the show-cause notice on 4-5-2002. The appellant was compulsorily retired from service with effect from 3-5-2002, which was subsequently corrected to read his date of retirement as 4-5-2002 vide order. Of 6-5-2002. The appellant submitted his rcpresentation/departmental appeal on 15-5-2002 denying the allegations and also invited attention of the respondents to legal lacuna committed by them in the processing of the disciplinary proceedings against him. The departmental appeal was rejected vide order dated 18- 7-2002. The appellant filed his service appeal in the Tribunal on 7-8-2002.
3. The main objection of the learned counsel for the appellant against the prosecutors is that the disciplinary proceedings in this case were not conducted as per prescribed procedures. The counsel submitted that the charges levelled against the appellant in the show-cause notice/statement of allegations dated 18-8-2001 were vague and general in nature as no details thereof were provided to the appellant, enabling him to furnish viable defence reply to the allegations. The learned counsel further lamented non-holding of detailed inquiry to substantiate the allegations, especially when major penalty of compulsory retirement was contemplated against the appellant. The counsel further averred that the Notification dated 4-5-2002 did not reflect allegations raised in the show-cause notice/statement of allegations and thus not legally sustainable for including irrelevant allegations in the impugned Notification.
4. The learned counsel for the respondent-department mainly relied on the parawise comments, already furnished on the Memo, of Appeal. He also submitted during the course of the arguments that being in-charge of he Vigilance Cell, the appellant misused his position by getting unauthorized patients admitted in the Railway Hospital and also helped unauthorized persons for allotment of houses to them in the Railway Colonies.
5. Heard the parties and examined the record.
6. It will be appropriate first to peruse the show-cause notice dated 18-8-2001 together with the statement of allegations and the Notification dated 4-5-2002, which are reproduced below for facility of reference.
"(CONFIDENTIAL) PAKISTAN RAILWAYS CAIRNS HOSPITAL, LAHORE. No, 3-Med/E/102/E&D(Confdl.), dated 18-8-2001.
SHOW-CAUSE NOTICE
(1) Whereas you Mr. Abdul Razzaq s/o Mir Afzal Khan, Laboratory Assistant, P.R., Cairns Hospital, Lahore are charged with misconduct, corruption and malpractice as per statement of charges attached.
(2) And whereas on the basis of documentary evidence available it is not considered necessary to have formal inquiry against you and that proceedings are being initiated under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000 as amended under Ordinance, 2001, which might entail imposition of a major penalty of dismissal from service as specified in section 3 of said Ordinance.
(3) Now, therefore, you are required to show-cause within seven days from the date of receipt of this notice as to why the proposed action should not be taken against you.
(4) If no response is received from you within the time stipulated above, it would be presumed that either you have no defence to offer and/or you have wilfully declined to do so. The case shall then be decided on "ex-parte" without further reference. DA/As above. Sd/- (DR. SHAKEELA KHALID), Medical Superintendent.
P.R., Cairns Hospital, LAHORE COMPETENT AUTHORITY STATEMENT OF ALLEGATION ' You Mr. Abdul Razzaq s/o Mir Afzal Khan, Laboratory Assistant, Pakistan Railways, Cairns Hospital, Lahore are charged for misconduct, corruption and malpractice for the following charges and other relevant circumstances:--
(1) You were Incharge of Vigilance Cell in previous Government involved in accepting illegal gratification, getting commission in allotment of Railway Quarters and theft of medicines.
(2) You earned million of Rupees by unfair means.
(3) You were reportedly corrupt individual.
(4) You enjoy bad reputation.
' You are therefore, proceeded against under Removal from Service (Special Powers) Ordinance, 2000.
(Sd.)
(DR. SHAKEELA KHALID), Medical Superintendent, P.R. Cairns Hospital Lahore Competent- Authority ' Enclosaed to 3-Med/E/102/E&D/ (Confdl.), dated 18-8-2001.
PAKISTAN RAILWAYS CAIRNS HOSPITAL LAHORE NOTIFICATION ' No, 3-Med/E/102(E&D)/Confidential. Whereas Mr. Abdul Razzaq, Lab. Assistant, Cairns Hospital, P.R., Lahore was charged for misconduct corruption and malpractices vide Show-Cause Notice No,3- Med/E/102/E&D (Confdl)., dated 18-8-2001 under Removal from Service (Special Powers)
Ordinance, 2000 amended 2001. And whereas after considering the documentary evidence and defence of the accused employee to the show-cause notice, the competent authority viz. Medical Superintendent, Cairns Hospital, Lahore afforded the documentary evidence as a proof, on 3-5- 2002 and found the official guilty of the following charges.
(1) He was Incharge of Vigilance Cell in previous Government. Had political affiliation and got allotted Railway accommodation out of turn and out of category by political pressure.
' Whereas the official has been found guilty of the above charges, therefore the competent authority has imposed the major penalty of compulsory retirement from service with immediate effect under the said Ordinance upon Mr. Abdul Razzaq, Lab. Assistant, Cairns Hospital, Pakistan Railways, Lahore.
' Mr. Abdul Razzaq, Lab. Assistant, Cairns Hospital, Pakistan Railways, Lahore shall have a right fol representation and review to the competent authority within 15 days from the date of communication of this order under rule 9 of the said Ordinance.
(Sd.)
Medical Superintendent, P.R., Cairns Hospital, Lahore (Competent Authority)
' Assistant Suprintendent/Printing. Pakistan Railways, Printing Press Moghalpura, Lahore.
7. It will be observed that all charges as enumerated in the statement of allegations are absolutely vague and general in nature and lack details thereof to enable the appellant to furnish a proper reply to these allegations. The Notification dated 4-5-2002 also does not reflect the charges contained in the show-cause notice/statement of allegations and includes charges net specified therein. Perusal of the record shows that the appellant was indicted for the following alleged nefarious activities along with others:- "The above mentioned officials were attached with one or the other union and following were their activites:--
(a) They used to steal or obtain medicines by unfair means from the Cairn Hospital and them used to sell the medicines in the local market
(b) They used to manage the admission of outsiders in Cairns Hospital showing them as Railways employees to get money from them.
(c) Helping people in getting the bogus medical bills passed in return of some percentage.
(d) Making use of hospital's vacant rooms at night for womanizing, sodomy and drinking.
(e) Out of turn allotment of Railwys' accommodation to Railways' officials or to unauthorized persons and in turn receiving bribe from them."
8. Even if the above allegations are perceived as correct, no details have been provided and these allegations are also not reflected in the show-cause notice/statement of allegations, which was a mandatory requirement. In order to prove these serious allegations prosecution witnesses were requited for every allegation. In our view, therefore, these allegations are truncated indictments and for establishing them a full-fledged inquiry was needed to prove the veracity of each allegation. The prosecution, did not have compelling evidence/proof available with them to dispense with the enquiry proceedings under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000. There was, therefore, no rationale or justification for not holding the enquiry in this case. Moreover, it will be observed that undesirable activities were attributed to a number of officials but the extent of involvement of each in the alleged misdemeanours was not delineated. Unfortunately this was not done with the result that the appellant was handicapped both in the submission of his replies to the show-cause notice/statement of allegations and the departmental appeal against the impugned notification dated 4-5-2002 There is no denying the fact that one of the essential ingredients of the principle of natural justice is to afford an opportunity of effective defence to the accused, which is only possible to hold an enquiry, especially when a major penalty is to be imposed. The Honourable apex Court in a number of cases has held that proper enquiry should be held to substantiate the allegations denied by the accused and for which imposition of major penalty is contemplated against him. It will be appropriate to refer to case-laws reported in 1997 SCM R 1543, the most relevant part of the case- law is reproduced below:-- "If the allegations against the accused civil servant/employee are of serious nature and if he denies the same, a regular inquiry cannot be dispensed with. In such a case, the initial burden is pn the department to prove the charge, which cannot be done without producing evidence. If the witnesses are examined in support of the charge by the department before the Inquiry Officer, the accused civil servant/employee has the right to be present at the time of examining of such witnesses and has ago the right to cross-examine them to demonstrate that they are not telling the truth. He has further right to produce evidence in rebuttal. The department has the right to cross-examine the accused civil servant/employee if he makes a statement in defence and to cross-examine other witnesses who may appear on his behalf."
9. It will not be also out of place to mention that the Pathologist of the Railway Hospital who is the supervisory officer of the appellant has appreciated the performance of the appellant in the following words: "PAKISTAN RAILWAYS ' PATHOLOGY DEPARTMENT ' CAIRNS HOSPITAL ' LAHORE ' No, 3-Med/Staff/Path/C.H. Dated 26-4-2002.
' The Medical Superintendent, ' Pakistan Railways, ' Cairns Hospital, ' Lahore ' Sub: Show-Cause Notice No,3-EdllE/102/E&D/Confdl, dated. 18-8-2001, issued to Mr. Abdul Razzaq, Lab. Assistant, Pakistan Railways, Cairns Hospital, Lahore.
' Ref: Your letter No, 3-Med/E/102/E&D/Confdl., dated 20-4-2002.
' Conduct of Mr. Abdul Razza, Lab. Assistant to the best of my knowledge and belief is satisfactory.
He is satisfactory. He is working under me in the Pathology Department, Cairns Hospital, Lahore since last nine years and handling around 100 blood sugar tests daily. I have received no complaint against him and his general reputation is good.
' He has been regular and punctual in performance of his duties.
(Sd.)
(Dr. Munawar Zia) Pathologist."
' The respondent-department has also conceded that there was no complaint by public and superior officers against him during the period of his service. If there was no such complaint, it seems bizarre to implicate him in heinous crimes. The question arises as to who were the complainants? It appears that the respondents in this case acted as prosecutors, Judge and executioners. Their vendetta and vindictiveness are discernible from the fact that initially they gave hardly anytime to the appellant to consult the record as order allowing him to consult the record was issued on 3-5-2002 and the Notification for imposing the penalty of compulsory retirement was also issued on the same date. Subsequently, probably realizing their faux pas, the respondents changed the Notification from 3-5-2002 to 4-5-2002 but in the process exposed their vengeful attitude and bias against the appellant. Time constraint did not provide unimpeded access to documents to the appellant. We feel that this was done by design.
10. Taking into consideration, the above features of the case, we have no doubt in our mind that the respondents made a mess of this case and dealt in a shoddy And slipshod* manner. We have come to the conclusion that Notification dated 3-5-2002 is not sustainable in law and suffers from a number of legal infirmities. Accordingly, the Notification dated 3/4-5-2002 and the rejection order dated 18-7-2002 are set aside and the appellant is reinstated in service with effect from the date he was compulsorily retired from service with full consequential benefits.