1994 PLP (C (PLC(CS))

(ii)??????? You failed to ensure the safety of the sensitive signalling and interlocking equipments with a view to keep it free from tampering. (iii)?????? You are found negligent in the observance of prescribed procedures and instructions for the working of signalling and interlocking equipments by the concerned staff. (iv)?????? There was apparent general laxity in the working of your Branch which you failed to control and overlooked the unauthorised and objectionable methods employed by your staff for short cut working of signalling system. (v)??????? You also failed to ensure that your subordinates performed their assigned duties effectively and efficiently. (vi)?????? You were found slack in exercising technical control and supervision over the working of your subordinates. You are thus guilty of gross negligence of duties leading to unsafe train operation."

17. The appellant who had been working as Divisional Signals Engineer, Pakistan Railways, Sukkur Division on current charge basis had given reply on 4‑9‑1991 denying all the . charges. Afterwards an enquiry under the E&D Rules, 1973 had been conducted by an Enquiry Committee consisting of Messrs Wasif Roheel and Aurangzeb Khan, Deputy Chief Engineers and it was concluded/submitted in October, 1991. The Enquiry Committee after going through defence submitted by the appellant, scrutiny of the relevant record and cross‑examining the above officers and the witnesses, was of the view that Mr. Muhammad Attaullah was responsible for:‑‑ (i)???????? Non‑observance of the proper procedures and instructions for opening and closing of Relay Room at Ghotki Station by his subordinates which resulted in adopting unauthorised and objectionable methods by them in collusion with the Operating Staff working at the station. I (ii)??????? Although he carried out required number of inspections of stations but in certain cases did not ensure follow up action, thus not able to exercise proper control over the working of his subordinates.

18. The learned counsel had stated that the accident had taken place due to mishandling of the relay equipment at Ghotki by the Block Maintainer (Saeed) and other related staff viz. A.S.Ms. (Razzaq and Nizam) and there was no involvement of the appellant in this criminal act, when he had been posted and sitting in Sukkur Office, because as per his duties he was responsible to inspect relay/signal systems installed at different Railway Stations within Sukkur Division and according to his last inspection at Ghotki the relay systems was functioning very well there. Had this been not mishandled by the Block Maintainer who instead should have gone to the outer signal and tightened the loose connections, the accident could be averted. He added that in the enquiry report he was only held indirectly responsible, but the punishment, which had been given to him by the respondent‑Department on 2‑2‑1992, for withholding promotion for three years was excessive.

19. Upon an observation, if the appellant was not responsible for the mishap, then who was the Divisional Officer who was more responsible, as far as his supervision, inspection and control were concerned? The learned counsel had mentioned that the Divisional Transport Officer (M. Ayaz Awan) and Deputy Divisional Superintendent (G.M. Soomro) were to be more responsible, because the control room had also remained in vigilant and inefficient in this regard, otherwise they could better advise and guide Ghotki Station Staff.

20. Upon another observation, how many times the appellant had inspected Ghotki Station during his tenure at Sukkur? He had replied that the inspections were carried out on 20‑7‑1990, 7/8‑1990 and 11/12‑2‑1991 and he had found that the relay/signalling system had been working normally.

21. Later on, the respondent‑Department keeping in view the defence furnished by the appellant and findings of the Enquiry Committee had on 7‑12‑1991 issued a show‑cause notice which had been replied by denying all charges by the appellant on 17‑12‑1991 and he had requested that he should be absolved of the charges, as found by the Enquiry Committee without enough ground. Later on the appellant had been imposed a minor penalty of withholding of promotion for three years vide Notification, dated 2‑2‑1992 which according to the learned counsel for the appellant was not a speaking order and also excessive, because the duties of the appellant did not so warrant. He had also mentioned a judgment of the Supreme Court reported as 1991 S C M R 2330 in his support. The appellant had made a representation on 7‑3‑1992 and it was rejected on 17‑10‑1992.

22. The learned counsel and the representatives of the respondent? Department had brought out at Bar that the appellant according to his duties was responsible for the mishap as he had not performed well. He was Divisional Signal Engineer on current charge and it was within the parameters of his functions and responsibilities to guide and control the concerned staff at Ghotki with the relay equipments. He had failed to do so and remained in vigilant and inefficient. He had mentioned that the Secretary/Chairman, Pakistan Railways had issued a speaking order which was as under:‑‑ "Mr. Muhammad Attaullah was working as Divisional Signal Engineer at Sukkur at the time of accident of 7‑Up Tezgam at Ghotki on Railways (Rana Rifat Saeed, Member) 8‑6‑1991. He was charged with the following irregularities committed by him: (i) He failed to ensure proper and efficient maintenance and operation of signalling and interlocking system through effective regular inspections. (ii) He failed to ensure the safety of the sensitive signalling and interlocking equipments with a view to keep it free from tampering. (iii) He was found negligent in the observance of prescribed procedures and instructions for the working of signalling and interlocking equipments by the concerned staff. (iv) There was apparent general laxity in the working of his Branch, which he failed to control and overlooked the unauthorised and objectionable methods employed by his staff for short‑cut working of signalling system. (v) He also failed to ensure that his subordinates performed their assigned duties effectively and efficiently. (vi) He was found slack in exercising technical control and supervision over the working of his subordinates. After service of the charge‑sheet on the officer, an enquiry was ordered to be conducted by a team of officers comprising Messrs Muhammad Aurangzeb Khan, Deputy Chief Mechanical Engineer and Wasif Roheel, Deputy Chief Signal Engineer. The Enquiry Committee after considering the defence of the accused officer and also scanning other evidence, held Mr. Attaullah responsible for:‑‑ (i) Non‑observance of the proper procedures and instructions for opening and closing of Relay Room at Ghotki Station by his subordinates which resulted in adopting unauthorised and objectionable methods by them in collusion with the Operating Staff working at the station. (ii) Although he carried out required number of inspections of stations but, in certain cases, did not ensure a follow up action, thus was not able to exercise proper control over the working of his subordinates. A show‑cause notice was issued to him on the basis of the findings of the Enquiry Committee and a personal audience was also granted to him as requested. In his defence to the show‑cause notice and also during the course of personal hearing, the officer did not come up with any fresh argument. In his defence, the accused had tried to shift the responsibility of adopting proper procedures at the time of passage of 7‑Up Tezgam on to the operating staff of the station. This indeed was not enough to exculpate him of the charges levelled against him. In my opinion, the charges framed against him stand amply proved. The irregularities for which he has been held responsible should normally justify a major penalty. But the fact that this officer has been held indirectly responsible both by the F.G.I.R. as well as the F.IA. team and also considering the fact that the accused officer has just started his career, having only 5 years service at his credit, I am constrained to take a lenient view of the situation and let him off with a minor penalty of `Withholding of promotion for three years'. The officer should immediately be divested of the current charge of the post and posted in his substantive grade (BPS‑17). (Sd.) (SYED NASEER AHMAD), Secretary/Chairman." As such objections of the learned counsel for the appellant that punishment was not a speaking order were misconceived and invalid. He had mentioned that the punishment given to the appellant was very lenient, otherwise he could be given a major penalty, as far as the nature of accident and his duties were concerned. He had added that in his representation/appeal, the appellant had never mentioned about the punishment notification that it was not speaking order and now how he could take up this point? As such it was an incompetent objection.

23. Regarding the observation made earlier that whether other Division Staff viz. Divisional Transport Officer and Deputy Divisional Superintendents were also responsible and if so why they could not be proceeded against and given punishments? The learned counsel and the representative of the respondent‑Department could not give a satisfactory answer and it seemed that they were to be held responsible, but they were let free by the administration. The learned counsel had stated that one (S.M. Uzair) Assistant Signal Engineer, Sukkur had only been compulsorily retired from service and all others faced lenient punishments.

24. During the course of arguments and averments made at Bar, it was discussed that the appellant who had been given minor penalty on 2‑2‑1992 of withholding of promotion for three years and who as a result of the punishment order had started working as Assistant Engineer (B‑17) after the vacation of his current charge as Divisional Engineer (B‑18) had again been given the duties and responsibilities of XEN/Divisional Engineer by the respondent‑Department with effect from 27‑10‑1992. The learned counsel and the representative of the respondent‑Department were asked how the appellant, when his minor penalty of withholding of his promotion which was still operative and was to be over after three years i.e. with effect from 2‑2‑1995, had again been given the duties and responsibilities of the senior post of XEN/Divisional Engineer on 27‑10‑1992? They had no answer and only stated that it .was an action of the respondent‑Department.

25. The learned counsel had, however, submitted that the action of lenient punishment/minor penalty given to the appellants in three Appeals Nos.145, 146 and 148(L) of 1992 vide Notification dated 2‑2‑1992 had become nullified and infructuous with effect from 2‑2‑1993 during the course of hearings/arguments on the present date of hearing i.e. on 11‑2‑1993, but the penalty in Appeal No.149(L) of 1992 would be over after 2‑2‑1995.

26. After going through the record, examining the facts and hearing the parties, it is established as under:‑‑ Appeals Nos. 145 146 and 14S(L) of 1992: (a)??????? That during the course of arguments, it had been observed that day? to‑day supervision, control and administration over Ghotki Station staff lied with the D.S. and D.D.S., Sukkur Division who were more responsible for the accident (than the COPS and CE and DCE (Signals) stationed at Lahore HQ), but both the DS and DDS had been let free and not proceeded against. (b)??????? That as per duties and functions of the COPS and CE Signals, they fit had no control and administration over Ghotki Station Staff and accordingly they had little involvement in the accident which had been caused by sheer mishandling of the relay system by Block Maintainer (Saeed) who had been allowed by A.S.M. on duty (Razzaq/Nizam) to "enter the relay room without following proper procedure and obtaining proper permission. The BM and ASM were fully responsible and involved in the mishap. Appeal No 149(L) of 1992: (c) That the appellant who had been given minor penalty on 2‑2‑1992 for withholding of his promotion. for 3 years and his representation/ appeal in this regard had failed, how he could be again given the charge and responsibilities of the senior post of XEN/Divisional Engineer with effect from 27‑10‑1992 by the?????????? respondent‑Department just after 8‑1/2 months of the penalty? This seemed an action of undue favour, encouragement and support given to the appellant without any justification. Virtually it meant the waiving of the disciplinary proceedings and the punishment Order/Notification dated 2‑2‑1992 thereof mere looked to be a fun of This was a far liberal, totally relaxed and favourable action of the department afforded to the appellant, as no lesson for others could be derived out of it; but, on the contrary, others might feel encouraged. It is showed that the Administration did not take/view the accident and punishment to the appellant as something serious and it was not understood how the effective control and proper administration to run the traffic in order to prevent/avert such mishaps/accidents can be exercised?

27. Under the aforementioned circumstances and after hearing the Appeals Nos.145, 146, 148 and 149(L) of 1992 and the parties, the appeals are allowed to the extent/disposed of as under:‑‑ (a)??????? Minor penalty of withholding promotion for one year given to appellants vide Notifications dated 2‑2‑1992 in Appeals Nos.145, 146 and 148(L) of 1992 has since beeb me infructuous, the respondent ?Department shall refrain to take this penalty into account, while considering their cases for move over/promotions etc. (b)??????? Penalty in Appeal No.149(L) of 1992 stood reduced by one year on the date of hearing i.e. on 11‑2‑1993 and there is no justification and merit in further reducing/modifying the punishment which is already very lenient, and (c)??????? Period of suspension, in respect of all the appellants after their reinstatement vide order, dated 17‑2‑1992 be decided/paid under relevant rules within one month, if not already done by the respondent‑Department. By this order, Appeals Nos.145, 146, 148 and 149(L) of 1992 are disposed of accordingly. No order for costs. M. ILYAS LODHI (MEMBER).‑‑With profound respect to the view taken by my learned brother, I do not feel in agreement with the conclusion drawn and effective order proposed by him in Appeals Nos. 145, 146 and 148(L) of 1992.

29. The spirit of the order of the authorised officer in observations made by him is that day to day accidents in Pakistan Railways have become the order of the day and deterrent punishment to the high‑ups may check the accidents is desirable. This deserved to be much appreciated. However, in the interest of justice, I feel that the authorised officer should have also appreciated that how for the direct responsibility assigned to these officials in performance of their day‑to‑day working is related to this particular accident. In the inquiry made by the Railways Inspector and inquiry conducted under the Government Servants (Efficiency and Discipline) Rules, 1973, these officers have not been held responsible for the said accident and have been exonerated. The competent authority even then punished them, which in my opinion is not in accord with the norms of justice. In this respect there are number of cases wherein it has been held by the superior Courts that the competent authority should act on the recommendations of the Inquiry Officer, unless there are grounds for coming to a deterrent conclusion on the basis of evidence on which the report of the Inquiry Officer is based. Even then cogent reasons are required to be given for rejecting the report of Inquiry Officer who by nature of his duty has the occasion to hear the witness, examine the record and appreciate the version of the accused officer.

30. In the case of Saeeda Tasneem Ara v. Province of West Pakistan PLD 1967 Lah. 1112, their Lordships held "that the charter of the action taken in a departmental case and the nature of the judicial proceedings are akin and the purpose of observing fairness in both such cases is to be maintained for public confidence. It is as such necessary in a departmental inquiry as in a judicial proceeding that the mind of the officer who is ultimately responsible to draw conclusion from the record of a case should travel in the straight furrow of detached and objective thinking and there should be no apprehension of its deflection on account of personal bias or ill‑will. An officer who has to decide about the culpability of a Government servant in a case of misconduct is under an obligation to give his decision in view of the facts of the case in good faith. If there is any ground for saying that his mind in coming to a decision may have been affected by some personal dislike or rancor his action is liable to be set aside". In another case of Shafiullah Khan v. The Government of Pakistan PLD 1970 Pesh. 176, it was held that the basic rules of natural justice to regulate enquiries; when a public authority is directed under a law to make an inquiry and the competent authority has to take action on the basis of its report and recommendations it cannot carry out a grotesque caricature of it but on the contrary has to conduct it in a manner which does not violate the basic rules of natural justice when a public authority is directed under a law to make an inquiry and the competent authority has to take action on the basis of its report and recommendations it cannot carry out a grotesque caricature of it, but on the contrary, has to conduct it in a manner which does not violate the basic rules of natural Justice. One of these rules, is that there shall be a fair inquiry into the truth of the alleged facts. If it is held by a biased person, the element of fairness is bound to disappear and with it will vanish the validity of the inquiry itself which will stand vitiated. To hold the opposite would amount to attributing fraud to the Constitution and the law and to suggest in that the provisions meant to afford security to Government servants were enacted merely as a cloak and the intention was just the opposite.

31. An inquiry into the conduct of a public servant is neither a criminal indictment nor even a quasi‑criminal proceedings but 4 is mainly an administrative proceeding conducted by a domestic forum to examine the fitness of the servant for service. The subject‑matter of these proceedings is neither civil rights and duties nor criminal liabilities. It is simply the conduct of a public servant, which is to be properly reviewed in the interest of the purity and honour of the public service.

32. The inquiry report does not fix direct responsibility of the accident on these officers. Even then the competent authority had imposed the penalty merely on the presumptions that these officers at the Headquarter are supposed to be responsible for all actions etc. of the subordinates.' In my opinion there is no yardstick to determine the indirect responsibility of any functionaries of the Government as it has no end and can be stretched even to the imaginary level. If we literally mean indirect responsibility then first of all the officer who interviewed and recruited the individual responsible for the accident, the Medical Officer who certified his mental fitness and all the officers responsible for the training and his posting should be held indirectly responsible and be penalized.

33. Under the Government Servant (Efficiency and Discipline) Rules. 1973, if the Authorised Officer does not agree with the inquiry report then he should ask for second inquiry but in these cases neither the Authorised Officer had asked for the fresh inquiry nor agreed with the findings of the inquiry report.

34. In view of the above, I am of the view that the punishment against the recommendations of the Inquiry Officer who had exonerated them is against the norms of justice and as such is set aside. These appeals are accepted accordingly.

35. In Appeal No.149(L) of 1992, also I do not agree with the reasoning of my learned brother because in the aforesaid cases too, the first charges are the same. However, in this case there are two additional charges:‑‑ "(5)????? You also failed to ensure that your subordinates performed their assigned duties effectively and efficiently. (6)??????? You were found slack in exercising technical control and supervision over the working of your subordinates."

36. The findings of the Inquiry Officer and the technical opinion sought from Messrs Siemens of Pakistan, the first four charges against the other three officers were not proved. If other appellants could be exonerated on the basis of report from Messrs Siemens of Pakistan, then on the same analogy, the appellant should also be exonerated from these charges. As regards, the last two charges, the Inquiry Officer had drawn attention of the Authorised officer towards paras. 7‑1 and 7‑2 of their report wherein mitigating circumstances have been given that why the appellant had failed to fulfil his duties. Hazrat Umar (R.S.) kept in abeyance the punishment of cutting of hands for thief keeping in view the mitigating circumstances of famine, therefore, I am of the view that the law and order situation prevailing in the Province of Sindh and the strong unionism in the Pakistan Railways do require sympathetic consideration. Besides, that the appellant has also contended that he had no Railways (M. Ilyas Lodhi, Member) direct control on the main accused (who opened the room and put a cardboard and was held directly responsible for this criminal act). Neither he writes his report nor he is his Authorised Officer and also has got nothing to do with the day‑to‑day administration of the Ghotki Railways Station. As regards inspection of the station, he had been carrying out the same which had been verified by the Inquiry Officer. Moreover, the appellant after passing 8‑1/2' months of the penalty imposed upon him had also been given acting charge of higher position which shows that the department had appreciated his conduct and work, otherwise he should have not been given the higher responsibility.

37. Since the inquiry proceedings had been conducted under a statutory provision, the competent authority had to take action on the basis of inquiry reports and its recommendations. It cannot carry out a grotesque caricature of it but on the contrary has to conduct it in a manner, which did not violate the basic rules of natural justice. Any decision made in violation of principle of audi alteram partem cannot be sustainable in law.

38. The punishment of merely withholding the promotion of one year of the three appellants and three years to Muhammad Attaullah cannot be an effective deterrent factor. On the contrary, the agony of inquiries and adverse publicity against them in the media is a greater punishment and would be stronger deterrent factor and would fulfil the objective of the competent authority.

39. In view of the above, I am of the opinion that penalty of stoppage of promotion imposed upon the appellant is harsh and requires modification. I partly accept this appeal, set aside the impugned order of withholding the promotion for three years and substitute it to that of minor punishment of "Censure".

40. The period of suspension is to be treated as period spent on duty.

41. All the appeals are disposed of as above. There shall be no order as to costs.

42. Parties be informed. ORDER OF THE TRIBUNAL By virtue of proviso (b) of subsection (2) of section 3‑A of the Service Tribunals Act, 1973, the decision of the Tribunal shall be in terms of the opinion of the Chairman and accordingly all the four Appeals Nos.145, 146, 148 and 149(L) of 1992 are dismissed. AA./888/Sr.F.????????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.