QAZI MUHAMMAD HUSSAIN SIDDIQUI, MEMBER.- This is an appeal under Section 4 read with Section 2 of the Service Tribunals Act of 1973 against the order of the respondent No. 2, dated 1.5.2002 whereby the appellant was removed from service under Removal from Service (Special Powers) Ordinance, 2000.
2. Briefly, the facts leading to this appeal are that the appellant joined the Pakistan Railways as a Constable on 11.2.1964 and rose to the position of Sub-Inspector, having been posted at various places. Lastly he was posted as Acting R.I.P. At Railway Police Kotri in Karachi Division when he was served with a show-cause notice dated 5.12.2001 by the respondent No. 2, alleging therein that during his service the appellant was awarded WIT for 6 months in 1984, 1983 (twice), 1985, 1995 and 1996, and that he earned average A.C.Rs, for the year 1989 to 1992, 1995, 1996 and 1998. It was further alleged that the appellant was reported to have been corrupt and ceased to be efficient and was, therefore, guilty of misconduct.
3. The appellant tendered his reply to the show- cause notice on 10.12.2001, contending that the minor punishments awarded to him were a chapter past and closed, and that the average A.C.Rs, were not to be counted as adverse because these were not communicated to him. After such reply of the appellant, the respondent No. 3 on 13.4.2002, further sent to the appellant a corrigendum dated 13.4.2002 issued by the respondent No. 2 wherein it was alleged that the cases/FIR No. 2/2001 under Section 379/411, PPC lodged as R.P.S. Larkana and FIR No. 11/2001 under Section 121 of the Railways Act and Sections 506/426, PPC lodged as R.P.S. Larkana, falsely registered by the appellant, were cancelled subsequently, In addition to that, it was further alleged that' the performance of the appellant as S.H.O, at R.P.S. Larkana and then at Nawabshah was not upto the mark as he had failed to detect cases under the local and special laws, It was also alleged that the appellant was reported to have been involved in transportation of ticketless passengers during escort duties.
4. On 24.4.2002 the appellant tendered his reply to the allegations contained in the above- mentioned corrigendum to the show-cause notice explaining his position and denying the allegations against him. His replies to the allegations against him did not find favour with the respondents . And he was removed from service, as mentioned above. He filed a departmental appeal on 13.5.2002 before the respondent No. 1. On his request the respondent No. 1 heard him in person at Larkana on 13.7.2002, but his departmental appeal was not responded to; hence, after expiry of the statutory period of 60 days w.e.f. 13.5.2002 to 13.7.2002 he filed this appeal before the Tribunal on 8.8.2002 within next 30 days, praying to set-aside the impugned order of removal from service issued by the respondent No. 2 on 1.5.2002 and to reinstate him in service with all consequential benefits by treating the out of service period as spent on duty.
5. The respondents filed the written comments.
6. We have heard the learned counsel for the parties and have carefully gone through the record of the case.
7. In his arguments, the learned counsel for the appellant raised the following points:-
(i) That awarding of punishment to the appellant the respondents/Authority did not follow the instructions of the Establishment Division as per office memorandum dated 21.9.2001 issued by the Cabinet Secretariat, Establishment Division, Government of Pakistan, that disciplinary cases having the authority of law;
(ii) ' That no proper reasons were recorded by the respondents in the show-cause notice for dispensing with the regular inquiry against the appellant-cited 1980 SCMR 850 and 1997 TD (Services) 346.
(iii) That for awarding major punishment, the respondents were required to hold full fledged inquiry into the allegations against the appellant, but that was not done; hence, the order of removal of the appellant from service by the authority was unlawful-cited PLJ 2004 SC 353 and PLJ 1997 SC 1393;
(iv) That the charges of corruption were levelled against the appellant in the show-cause notice for establishing which regular inquiry was imperative, but no such inquiry was held-cited 1986 PLC
(CS) 894;
(v) That major punishment of removal from service was imposed upon the appellant on the basis of past punishments which were illegal as second punishment could not be awarded on the basis of past penalties-cited 1989 SCMR 1224, 1995 PLC (CS) 666 and judgment in appeal No. 59 and 60(K)(CS)/2002.
(vi) That the punishment imposed upon the appellant by the respondents was in the year 1996 which alongwith the previous minor punishments stood waived of and subsequent punishments on the basis thereof was illegal- cited Photocopy of the relevant page of Rule 18(2) of the Pakistan Railway Police Rules, 1980 and Photocopy of Page No. 769 of , Personal Manual Vol-t, Railways.
(vii) Average A.C.Rs if not conveyed are always to be treated as good A.C.Rs, the appellant was- never communicated the average A.C.Rs in question; hence, the punishment based on such average ACRs is illegal-cited PLD 1992 SC 144, PLD 1995 SC 556 and 2000 TD (Service) 374.
(viii) That the action against the appellant was taken under the direction of the Army Vigilance Cell without applying their own mind by the respondents, such an action under undue influence of outsiders/superiors is always to be treated as illegal-cited 2001 PLC (CS) 270.
(ix) That the appellant was dealt within summary- manner which is not permissible in law--cited 2001 PLC (CS) 296 and NLR 2003 Service 1.
(x) That the respondents made mess of the case and long service career of the appellant was demolished in a slip-shod manner-cited 2004 TD (Service) 172.
(xi) That parawise comments had been filed without counter-affidavit which amounts to admission of the assertions made by the appellant-cited 1986 CLC 1408.
(xii) That the service of the appellant were appreciated on many occasions by his superiors and about 60 commendation certificates had been awarded to him;
(xiii) That the appellant was promoted by the respondents Nos. 2 and 3 as well as by the Departmental Promotion Committee on 4.10.2001 as Sub-Inspector, was posted as S.H.O, at R.P.S. Larkana on the same date which fact cuts across charge of inefficiency against the appellant;
(xiv) That the two FIRs in question were lodged at the instance of the Station Master.
8. In his arguments, the learned counsel for the respondents admitted that the appellant was granted 49 commendation certificates and not 60, as alleged. Whereas, 8 minor punishments were recorded in the service book. About average A.C.Rs., he admitted that these were not communicated to the appellant. He urged that the average A.C.Rs, and minor punishments did support the allegations of inefficiency and corruption levelled against the appellant. He admitted that the appellant was promoted as Sub-Inspector in the year 2000 and since then he had been performing his duties against the said post. The learned counsel stated that the competent authority had dispensed with the inquiry proceedings against the appellant on the basis of evidence available on the record and that the disciplinary proceedings against the appellant have been drawn strictly in accordance with law.
9. We have carefully considered the above arguments of both sides alongwith the record of the case and the authorities cited at the bar.
10. In the first show-cause notice dated 5.12.2001 the charge of corruption has been levelled against the appellant on the basis of the minor punishments imposed upon the appellant between the years 1982 to 1996 and average A.C.Rs, for the years 1989 to 1992, 1995, 1996 and 1989, but the minor punishments, as per Railway Rules, having lapsed after two years, lose their force and cannot be used against the appellant for supporting the general allegations of corruption without any specific instance of corruption committed by the appellant. The average A.C.Rs, are also of no help to the respondents, bringing home the charge of corruption and inefficiency to the appellant.
Admittedly the appellant was promoted as Sub- Inspector in the year 2000. This fact cuts at the very root of the allegations of inefficiency against the appellant. These views are supported by, the authorities cited by. The learned counsel for the appellant.
11. Realising, perhaps, that on for the above mentioned reasons, charge of misconduct could not be proved against the appellant, a corrigendum dated 13.4.2002 was issued to the appellant, which depicts the mind set of the respondents to punish the appellant come what may. The serious allegations contained in it were denied by the appellant. These allegations about the FIR and ticketless travelling of passengers allegedly indulge in by the appellant raised a factual controversy which needed to be resolved by means of evidence. The settled law is that the respondents-Authority is empowered to dispense with holding of inquiry against the appellant but the dispensing of the inquiry must be based on sound reasons and that should not have been done on the basis of whimsical and frivolous reasons. Secondly, in case of major penalty, a regular inquiry is most and it could be dispensed with only if case against the appellant was based on unimpeachable documents or admission of the appellant, but this is not so in this case. By not holding the inquiry into the factual controversy pertaining to the FIRs and ticketless travelling, the appellant was arbitrarily deprived of the opportunity of cross-examining the witnesses and putting up his defence in the inquiry proceedings.
12- The case of the respondents suffers from many other infirmities, but we refrain from discussing the same as the above discussion of the material brought on record by the parties is Sufficient to come to the unflinching conclusion that the charges of corruption and inefficiency have not been proved by the respondents against the appellant by any convincing or cogent evidence. We will, therefore, all the appeal, set- aside the impugned order dated 1.5.2002 and direct the respondents to reinstate the appellant in service from the date of his dismissal. This intervening period will be treated as leave of any kind due to the appellant.
13. No order as to costs. Parties be informed accordingly.