' MUHAMMAD IQBAL KHAN (MEMBER).---By this single, judgment we intend to dispose of the above mentioned two appeals as the procedure adopted by the respondents in both the appeals and the law points involved are the same.
2. Ghulam Nabi Bhand (Appeal No,259(R)CS/2003). This appeal is directed against Notification dated 20-6-2002 whereby the appellant Mr. Ghulam Nabi Bhand, Junior Commercial Assistant (hereinafter referred to as JAC) Pakistan Railways has been removed from service under the relevant provisions of Removal from Service (Special Powers) Ordinance, 2000 (hereinafter referred to as Ordinance).
3. The appellant was working as JCA (Booking) in Pakistan Railways since 25-1-1987. He was served with the show-cause notice dated 22-2-2002 which reportedly received by him on 29-5-2002. He submitted his defence reply to the show-cause notice on 4-6-2002, denying the allegations. The version of the appellant is that in order to pre-empt his removal from service, he obtained stay order dated 12-6-2002 from the N.I.R.C. Which restrained the department taking any extreme punitive action against him. Resultantly the appellant further submitted, the respondent withdrew the order of 20-6-2002 vide order dated 1-7-2002 and that finally when N.I.R.C. Dismissed his petition on 17-10-2002 for lack' of jurisdiction, the respondent vide order dated 29-10-2002 withdrew the order of 1-7-2002, making the removal order of 20-6-2002 issued on 26-6-2002 as valid. The appellant submitted his representation against the impugned order on 14-11-2002 which was rejected on 22-2-2003 and conveyed to the appellant vide letter dated 6-3-2003. The appellant filed his service appeal in the Federal Service Tribunal on 26-3-2003.
4. Heard the counsel and perused the record.
5. The show-cause notice/Statement of Charges dated 22-5-2002 read as under:-- "PAKISTAN RAILWAYS DIVISIONAL OFFICE, KARACHNo ,E-1013/5/109 May 22, 2002 SHOW-CAUSE NOTICE
1. Whereas you are charged with gross misconduct and breach of discipline as per statement of charges attached.
2. And whereas the competent authority has decided that there is no need of holding an enquiry against you under subsection (4) of section 5 of Ordinance XVII of 2000 Removal from Service, (Special Powers). Amended Ordinance No, V of 2001 and that proceedings are being initiated under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000 which might entail imposition of major penalty of "Dismissal" from service as specified in section 3' of the said Ordinance.
3. Now, therefore, you are required to show cause within 7 days from the date of receipt of this notice, 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,)
(Abdul Wahab Awan), Divisional Superintendent Pakistan Railways, Karachi"
"No, E-1013/5/109 - May 22, 2002 STATEMENT OF CHARGES
1. Whereas you Mr. Ghulam Nabi Bhand, JCA (B), Badin are charged with misconduct, inefficiency and corruption for the C following charges and other relevant circumstances:-- a. On 12-1-1999 while working in Booking Office, Karachi Cantt. You issued economy class ticket No, 833511 for Multan and charged Rs,235,00 instead of legitimate fare of Rs,195.00 as such you realized Rs,40.00 in excess from the passenger with ulterior motive. b, On 20-4-1999 while working in Booking Office. Karachi Cantt, you issued economy class ticket Nos.028410,411 and 284092 for Raiwind and charged Rs,870.00 instead of legitimate fare of Rs,750.00 as such realized Rs,120.00 in excess from the passengers with ulterior motive. c. You were found involved in short remittance, of cash 122 times thus you violated rule 5.7 Chapter-V of Commercial Manual. d. It has been reported that you enjoy bad reputation. The above charges clearly show that you have ceased to be efficient.
2. You are therefore, being processed against under Removal from Service (Special Powers)
Ordinance, 2000-2001.
(Sd.)
(Abdul Wahab Awan) Divisional Superintendent Pakistan Railways, Karachi"
' The appellant has denied the allegations in his. Defence reply dated 4-6-2002. The appellant has placed on record a document dated 3-6-2002 written by Commercial Superintendent (Booking) that no passenger ticket bearing No,284092 was -issued from the Booking Officer on 20-4-1999 that there was no outstanding balance against the appellant. Regarding other tickets, the appellant has submitted in para 7 of the appeal that no complaint in this regard was lodged by any passenger. The reply of the respondents to this para is evasive and leads us to cul-de-sac. The charge (d) is of a vagus and general nature and no solid evidence has been placed on record to substantiate it.
6. Considering all aspects of the case, we have come to the conclusion that facts involved were disputed and of controversial nature, which needed in depth probe by holding a regular enquiry.
The summary procedure adopted in this case contains many loopholes as discussed above. The impugned order dated 20-6-2002 issued on 26-6-2002 is set aside and the appellant is reinstated with effect from the date of his removal from service. It is open to the respondent-Department to hold, fresh disciplinary proceedings against the appellant based on the same allegation in accordance with law within a period of six (6) months from the date of issue of this order. The appellant shall 'be entitled to back-benefits upon the findings of the de novo inquiry proceedings, it conducted and completed within the period as indicated above. The appellant is at liberty to approach the tribunal in case he still feels aggrieved by any order of the respondent-Department.
7. Ghulam Mustafa Bhand (Appeal No,260(R)CS/2003.---The appellant was working as Junior Commercial Assistant (Booking) in Pakistan Railways since 5-9-1982. He has served with a show- cause notice dated 29-1-2002 against which he also obtained a stay order from N.I.R.C. On 18-6- 2002. The version of the appellant is that the respondent removed him from service vide order dated 26-6-2002 which was later on withdrawn vide order dated 1-7-2002. The order dated 26-6- 2002 was again made valid by order of 29-10-2002 after the announcement of the N.I.R.C.
Judgment dismissing the appellant's petition for lack of jurisdiction. The appellant filed his representation on 11-11-2002 wherein he denied the allegations. The representation was rejected on 26-2-2002 which the appellant received on 1-3-2002. He filed his service appeal in the Tribunal on 26-3-2003.
8. Heard the counsel and perused the record.
9. The show-cause notice/Statement of Allegations dated 29-1-2002 read as under:-- "Pakistan Railways Divisional Office, Karachi No, 402-E/891/2001/P-8 Dated 29-1-2002 SHOW-CAUSE NOTICE
1. Whereas you are charged with misconduct as per statement of charges attached.
2. And whereas the competent authority has decided that there is no need of holding an enquiry against you under subsection (4) of section 4 of Ordinance XVII of 2002 (Removal from Service, Special Powers) Amended Ordinance No,V of 2000 and that proceedings are being initiated under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000 which might entail imposition of a major penalty of "Dismissal" from service as specified in section 3 of the 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 officer and/or you have wilfully declined to do so the case shall not be decided "ex parte" without further reference. DA/As above (Sd.)
Divisional Superintendent Pakistan Railways Karachi (Competent Authority)"
"No, 402-E/891/2001/P-S Dated: 29-1-2002 STATEMENT OF CHARGES ' Whereas you Mr. Ghulam Mustafa S/o Muhammad Hayat JCA(B) MXBC are charged with misconduct for the following charges and other relevant circumstances.
(i) You got G-92 from S.M/MXBC but did not report to railway Doctor and reported sick under Medical Officer in Civil Hospital, Karachi from 17-10-2001 to 3-12-2001 remained absent from your duty unauthorizedly.
(ii) You have been awarded the following punishments:--{{TABLE}} WIP one year on 26-5-1983 Reduction in time scale by one step for one year on 1-10-1988 WIT two years on 24-7-1991 WIT two years on 21-9-1991 WIT three years on 9-9-1991 Reduction time scale by two steps for 2 years on 17-11-1991 WIT 3 years on 21-9-1993 WIT 3 years on 26-2-1994 WIT 2 years on 29- 10- 1 994 WIT one year on 9-3-1995 WIT 3 years on 1-4-1995 WIT one year on 2-9-1995 WIT two years on 17-2-1996 Censure one time.
The above punishments clearly show that you have ceased to be efficient.
2. You are, therefore, proceeded to explain as to why you should not be dismissed from service under Removal from Service (Special Powers) Ordinance, 2000-2001.
(Sd.)
' Divisional Superintendent Pakistan Railways Karachi (Competent Authority)"
10. In para 6 of the Memo. Appeal the appellant has submitted as under:-- "That the appellant denied the allegation of misconduct in toto and clarified his position that owing to his sudden sickness, he obtained G-92 Form with the intention to appear before the Divisional Medical Officer, Pakistan Railways, for his check-up and treatment but after receipt of said Form No,G-92, appellant's condition became beyond his reach, as such, family members of the appellant without any loss of time took him to Civil Hospital Karachi, where he was checked and disease was diagnosed as "Typhoid Fever" which disease puts embargo on the patient not to move and take meals which is strictly prohibited till the disease is fully cured. It was further submitted that the appellant never avoided appearing with, Form G-92 before the Divisional Medical Officer intentionally but this all was happened due to the serious ailing condition of the appellant being beyond his control and power. In the reply to the show-cause notice, it was further submitted that under Rule 5 (c) of the Revised Leave Rules, 1980, the employees have been given, the opportunity to avail leave on medical grounds in the following three manner:
(a) Without Medical Certificate-120 days
(b) Medical Certificate-120 days.
(c) Plus on Medical Certificate from leave account in entire service 365 days."
The respondents reply to this para is as under:-- "It is admitted that the appellant submitted his reply to show-cause notice, rest of the para as stated is denied. The appellant was found fit for duty, but he failed to attend his duty."
' It will be observed that reply is vague. If the appellant had submitted a certificate from the doctor of a Civil Hospital Karachi, it should have been accepted and at the same time he should have been subjected to a second medical opinion by his authorized doctor. Sometime in emergencies, one is forced to seek medical assistance at the nearest medical facility. The appellant second to have done the same. It was therefore, obligatory for the respondent-Department to refer his case for second medical opinion once he reported for duty. Unfortunately this was not done.
11. The allegation (ii) relates to past and closed transactions for which he was already punished as it clear from the statement of charges itself. Article 13 of the Constitution of Islamic Republic of Pakistan and section 26 of the General Clauses of Act bars repetition of punishments on the same allegations.
12. Considering the above position we have come to the conclusion that if the respondents find that allegation of misconduct is still attracted on the part of the appellant in respect of allegation No,(i) of the Statement of Charges, they may hold another inquiry in accordance with law by plugging the loopholes as identified above within a period of six (6) months from the date of issue of this order. Accordingly, the impugned order dated 26-6-2002 is set aside and the appellant is reinstated with effect from the date of his removal from service. Back-benefits shall depend upon the findings of the fresh enquiry proceedings if conducted and completed within the period as indicated above. The appellant is at liberty to approach the Tribunal if he still feels aggrieved by any order of the respondent-Department.
13. No order as to costs. Parties be informed accordingly. accordingly.