QAZI MUHAMMAD HUSSAIN SIDDIQUI, MEMBER.- Vide order dated 4.5.2002, appellant Mashooq Ali and Muhammad Javed (in Appeal No. 303(K)
(CS)/2002) had been removed from service against which both of them had filed separate appeals under Section 4 of the Service Tribunals Act, 1973 with a prayer to set aside the impugned orders and reinstate them in service with back-benefits. The order is reproduced as under:- "ORDER This order will dispose of show-cause notices No. 803-E/Vig-1 2/PRP, dated 25.4.2002 issued to Constable No. 49, Muhammad Javed and Constable No. 146 Mashooq Ali of RPS/Rohri under Removal from Service (Special Powers) Ordinance XVII of 2000-as amended by Ord. No. V of 2001.
As per report received from the Deputy Director, Ministry of Communication and Railways (Vigilance), both the above-named constables were deputed on escort duty with Train No. 35 UP (Faisalabad Night Coach) alongwith other Pakistan Railways Police Staff from Hyderabad to Rohri on 20.2.20.02. They obtained Rs.2000/- from (02) passengers and sold in black two lower A.C.
Tickets and permitted them to travel after Preparing tickets from Rohri to onward. Another passenger to whom they allowed to free travel from Hyderabad to Rohri in Economy class without ticket and gave tickets from Rohri to onward and obtained Rs.300/- as total amount Rs.2300/-.
Upon the above charges the above-named staff have been issued show-cause notices in which they denied the charges, hence an enquiry was entrusted to DSRP/B, Sukkur for factual position. The DSRP/B. Sukkur has conducted by recording the statement of concerned staff on the train as well as at the Platform of Rohri Station. The Enquiry Officer has concluded both the above-named defaulter constables guilt of the charges and their guilt for taking illegal gratification Rs.2300/- from the passengers have been proved during the course of enquiry.
As for the above-named defaulters constables both were issued final show-cause notices and they tendered their replies. The undersigned also heard them in orderly room but they could not satisfy the undersigned with their arguments. Hence, they are removal from service with immediate effect.
Debits if any against them be recovered Promptly under an intimation to this office.
ANNO UNCED Sd/- 4.5.2002 (Syed Muhammad Hasnain Naqvi)
Superintendent of Police, Pakistan Railways/Sukkur."
2. The above order is self-explanatory, giving the facts of the case and the disciplinary proceedings taken against the appellant and M. Javed. Except the facts comprising allegations against the appellant, all other facts have been reiterated by the appellant in his memo, of appeal and these need not be repeated. However, the allegations of selling of the lower AC tickets in black to certain passengers and obtaining money from them were denied by the appellant.
3. The respondents have filed the written comments supporting the allegations against the appellant.
4. We have heard the learned counsel for the parties and perused the record of the case as also the authorities cited at the bar.
5. As is evident from the perusal of the show-cause notice issued to the appellant the action against him was initiated as per report received from the Deputy Director, Ministry of Communication and Railways (Vigilance). This shows that the Superintendent Police, Pakistan Railways, Sukkur had not applied his own independent mind to issue the show-cause notice to the appellant, It is not known who was the complainant in the matter on whose complaint the report in question of the Deputy Director was based. There is no complaint on record against the appellant except the report mentioned above. There is no order of inquiry against the appellant available on record. However, from the perusal of the inquiry report it has transpired that the D.S.P., Railways, Sukkur had conducted the inquiry into the allegations against the appellant on the order dated 15.4.2002 of the Superintendent Police, Railways, Sukkur. We find that the incident of the misconduct, as alleged in the show- cause notice, had taken place on 7.12.2001, but the inquiry against the appellant was initiated after 15.4.2002 and no explanation whatsoever of such a long delay in holding the inquiry is available on record. The action against the appellant was initiated under Removal from Service (Special Powers) Ordinance, 2000, but no charge-sheet and statement of allegations were issued to the appellant, as required under the said Ordinance. There is nothing on record to show if the passengers in question or anyone of the Railway staff available on the station or present on the train (Conductor Guard or STs) was examined by the Vigilance Team/Vigilance Officer. The Vigilance Officer was said to be Subedar Falak Sher, but his statement was also not recorded during the inquiry. So also none of the passengers in question or the railway staff concerned available at the Railway Station on the alleged date of the incident was examined during the inquiry by the Inquiry Officer in presence of the appellant except Sub-Inspector Zafarullah, but he too was also not an eye-witness of the incident. Booking Clerk Ghulam Hussain had also not implicated the appellant and the other Constable Muhammad Javed. Only Head Constable Jahan Khan had implicated Constable Muhammad Javed by stating that he had seen Constable Javed obtaining three tickets from the Booking Office and he had caught Constable Javed giving those tickets to the passengers. Head Constable Jahan Khan was further said to have stated that Javed had admitted/confessed in presence of Subedar Falak Sher to have indulged in selling the tickets in black to the passengers in collusion with the appellant Mashooq Ali, but it is to be noted here that Subedar Falak Sher was not examined during the inquiry and Booking Clerk Ghulam Hussain had not implicated the appellant or Constable Javed. So far as the statement of Jahan han is concerned there is nothing on record to show if his statement was recorded by the Inquiry Officer during the inquiry proceedings in presence of appellant Mashooq Ali or Constable Muhammad Javed and whether these two Constables were given any opportunity of cross- examining Head Constable Jahan Khan. Moreover, there is also no evidence to show the particulars of tickets in question and whether such tickets and the money obtained by the appellant and Constable Muhammad Javed were secured from them.
6. In view of the above discrepancies and infirmities in the case of the respondents, we conclude that the charges of misconduct, inefficiency and corruption, as levelled by the respondents in the show-cause notice dated 3.4.2002 served upon the appellant, are not proved against the appellant by any cogent and reliable evidence. We, therefore, accept the appeal and set-aside the impugned order of removal of the appellant from service and direct the respondents to reinstate the appellant in service from the date of his removal from service. The appellant will be entitled to all the back benefits for the period he was not gainfully employed since his removal from service and for which he shall submit an affidavit before the authority concerned. The respondents are, however, at liberty to hold fresh inquiry against the appellant on the basis of same show-cause notice inquiry report fresh charge- sheet in accordance with the same show-cause notice strictly in accordance with law within a period of four months from the date of communication of this judgment to them. No order as to cost.
7. The above judgment shall apply mutatis mutandis to tire appeal of Muhammad Javed being Appeal No. 303(K)(CS)/2002.
8. Copies of the judgment be sent to the parties and to the relevant quarters.