' NAZAR MUHAMMAD SHAIKH (MEMBER)---Appellant has been aggrieved by Respondents' order dated 17-12-2001 whereby he has been awarded the major punishment of compulsory retirement from service under the provisions of Removal From Service (Special Powers) Ordinance of 2000.
Appellant submitted his departmental appeal on 24-12-2001 which has remained unresponded despite lapse of prescribed statutory period. Appellant then filed this appeal which he sent by post on 21-3-2002 but was not in a position to submit postal receipt of dispatch as a proof. Appellant had rendered over twenty-two years' service allegedly without any blemish and was also reportedly not involved in any case of train accident or derailment. Appellant was serving as Station Master (BPS-12) at Sukkur when he was served with the show-cause notice dated 15-11-2001 under section 13 of the Civil Servants Act of 1973 as amended by the Civil Servants (Amendment)
Ordinance, 2000. For facility of reference the said show-cause notice is reproduced as under:-- "No, E-19/1 Pt.II. Dated 15-11-2001 Mr. Mazhar Ali, RSM/under T.I/Padidan.
' Subject: SHOW-CAUSE NOTICE UNDER SECTION 13(2) OF THE CIVIL SERVANTS ACT, 1973 AS AMENDED VIDE CIVIL SERVANTS (AMENDMENT) ORDINANCE, 2000.
1. Whereas after scrutiny of your service record it has been found that you have been awarded Four penalties in your service career, which shows that you are not enthusiastic about your service career and/or not discharging duties with the required zeal and favour as are necessary for good discharge of service.
2. And Whereas: you have already completed 25 years' service qualifying for pension and other retirement benefits. Therefore, it is intended in the public interest that you should be directed to retire from service in accordance with section 13(1)(I) of the Civil Servants Act, 1973 as amended vide Civil Servants (Amendment) Ordinance, 2000. Hence you are hereby called upon to show cause as to why such direction should not be issued.
3. If no response is received from you within 'SEVEN' days of the receipt of this notice, it will be presumed that either you have no defence to offer and/or you have willfully declined to do so. In that case further action shall be taken ex parte without further reference.
(Sd.)
(Divisional Superintendent) Pakistan Railways, Sukkur. (Competent Authority)"
' Appellant submitted his reply to the show-cause notice on 23-11.-2001 and stated that he was awarded minor punishments which were also awarded without holding formal inquiry or probing into the charges and was based on arbitrary decisions. He further pointed out that since he has been punished already he could not be vexed twice for the same offence in terms of Article 13(a) of the Constitution of 1973. He further pointed out that the minor punishments awarded were written off after two years. As per Railway's Manual. He also pointed out that Appellant's service was less than 25 years and therefore the show-cause notice under section 13(2) of Civil Servants Act of 1973 was illegal, Respondents did not consider the Appellant's reply satisfactory and he was imposed penalty of compulsory retirement from service with immediate effect under Removal From Service (Special Powers) Ordinance, 2000. The said order of imposition of penalty is reproduced as under:- - "NOTICE IMPOSITION OF PENALTY No, E-19/1 Pt.II. Date: 7-12-2001 ' Mr. Mazhar Ali RSM under T.I/PDN.
C/o. T.I/PDN.
C/- Hd.P/1, P/6, ACME, Hd. Bills and D.A.0./SUK.
' You are hereby informed that the explanations in response to show-cause notice of even number dated 15-11-2001 have been carefully considered by the competent authority (D.S.) and in accordance with section 13(1) of the Removal From Service (Special Powers) 'Ordinance, 2000, you are awarded major punishment of retirement from service with immediate effect.
' As per rule review petition against these orders may be submitted to the Competent Authority (G.M.) within 15 (fifteen) days from the date of receipt of this letter if any.
(Sd.) 7/12/2001 (Bashir Ahmed Soomro) for Divisional Superintendent P.Rlys. Sukkur."
' Appellant filed his departmental appeal on 24-12-2001 under registered covers and he has appended postal receipts along with the memo of the appeal. In his appeal appellant has reiterated his earlier pleas made in the reply to the show-cause notice.
2. It was strenuously argued that appellant was being doubly vexed that minor penalties were no more valid after two years and that the show-cause notice was illegal and unlawful.
3. The learned counsel for the respondents opposed the appeal and stated that the appellant was awarded eight punishments in his service career and therefore his contention that he performed his duties vigilantly was not correct. Respondents also added that the appellant was held responsible along with other co-accused for involvement in a theft case of Railways which caused loss of Rs,1,08,204 of which appellant was debited Rs,48,000. He denied that he was not afforded personal hearing. He stated that the appellant was afforded hearing by Respondent No,2 i,e, Divisional Superintendent Sukkur on 6-12-2002. It was also argued that appellant was rightly awarded major punishment under provisions of section 3(1) of Removal From Service (Special Powers) Ordinance, 2000.
4. We have heard the arguments from both sides and perused the record. There is admittedly no denying the fact that the appellant's service record is far from satisfactory and was a fit case for review by the Review Committee. The major legal flaw in the proceedings is that the appellant was issued show-cause notice under section 13(2) of the Civil Servants Act as amended by Civil Servants Ordinance, 2000 but appellant was awarded major penalty of retirement from service under the provisions of Removal From Service (Special Powers) Ordinance, 2000. Both show-cause notice and impugned order have been reproduced in earlier part of this Judgment and its perusal will indicate this major legal flaw i,e, action was initiated under one law and punishment was awarded under different law. Such illegality in the proceedings cannot be sustained in any judicial scrutiny.
5 In view of the above facts the impugned order imposing major penalty of retirement from service is set aside. Appellant is reinstated in service. Respondents are directed to conduct de novo proceedings against the appellant under the relevant law and afford full opportunity to the appellant to defend the charges so that the ends of natural justice are met. No order as to costs.
6. Parties be informed accordingly
7. Short order accepting the appeal was already announced in the open Court on the date of the hearing. accordingly.