1983 PLP (C (PLC(CS))

(vi) After the completion of the enquiry and the submission of the report, additional evidence of one of the witnesses, Mr. Mohammad Shafi, Senior Train Examiner, was recorded after a lapse of more than 7 days, thus completely vitiating the proceedings. (vii) The removal of the appellant was originally ordered on the basis of a charge‑sheet dated 31‑5‑1980, which pertained to the allegation of endorsing, to Respondent No. 1. the copy of reply of the charge‑sheet dated 28‑5‑1980 and, since the alleged misconduct was not of such a serious nature to justify removal from service, the punishment cannot be upheld. (viii) The conduct of Respondent No. 2 was throughout motivated by mala fide and due to grudge which he bore against the appellant and, therefore the entire proceedings against him stood vitiated. The mala fide of respondent No. 2 is apparent from his action in withholding his increment for one year, by an order dated 17‑8‑1980, after the order of removal dated 9‑8‑1980. The mala fide is also proved by the punishment order dated 8‑7‑1980 passed by the said respondent on the ground of not carrying out transfer order had been cancelled by the Minister for Railways himself.

9. Against the above, the stand of the respondents is as under: (i) The order of removal from service was passed by the competent authority, namely. the Divisional Superintendent and it was only conveyed to the appellant by the Assistant Personnel Officer and that this fact was clearly mentioned in the communication issued to the appellant conveying the said order. (ii) The order was passed by the Divisional Superintendent, after careful consideration. (iii) In regard to the second order also, the actual decision was taken by the competent authority, respondent No. 1, although, it was conveyed to the appellant through the Divisional Superintendent, Quetta, by the Chief Personnel Officer, Headquarters Office, Lahore. (iv) The Authorized Officer, namely, the Divisional Mechanical Engineer, Quetta, was very much in the picture and it was on his recommendation that the competent authority, namely, the Divisional Superintendent, Quetta, passed the impugned order of removal from service. (v) The enquiry commenced on 15‑6‑1980 and continued regularly with the exception of a six days, break when the appellant did not attend, for which he was administered written warning to attend. (vi) The mala fide is denied and it is explained that the order withholding the increment for one year, conveyed after his removal from service, had actually been passed earlier.

10. Apart from the above, a preliminary objection was raised by the respondents that the appeal was not maintainable because the appellant not being a Civil Servant, within the meaning of the Civil Servants Act, 1973, it was outside the jurisdiction of this Tribunal.

11. We have heard both the parties in great detail and perused the documents produced by them either on their own or at our instance. As a result thereof, we have come to certain findings and conclusion which we shall put down after dealing with the grounds of the appeal and the replies thereto, one by one.

12. Before dealing with the appeal on facts, we would like to dispose of the preliminary objection referred to above. A civil servant has been defined in the Civil Servants Act, 1973, as under "civil servant" means a person who is a member of an All‑Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include‑ (i)

(ii)

(iii) a person who is a "worker" or "workman" as defined in the Factories Act, 19'4 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923). So far as the definition of a "worker" and "workman", as laid down in the Factories Act and the Workmen's Compensation Act, is concerned, the position is that under the Factories Act,, ,1934, `worker" has been defined as . "worker" means a person employed directly or through an agency whether for wages or not, in any manufacturing process, or in clean ing any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room/place where no manufacturing process is being carried on. And a "workmen" under the Workmen's Compensation Act, 1923, has beer defined as "any person (other than a person whose employment is of a casual' nature and who is employed otherwise than for the purpose of the employer's trade or business) who is‑ , (i) a railway servant as defined in section~3 of the Railways Act, 1890 (IX of 1890,) not permanently employed in any administrative district or sub‑divisional office of a railway and not employed in any such capacity as is specified in Schedule It, or (ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II. (Schedule II ( is the list of persons who are included in the definition of "workman"). From a reading of all these definitions together, it appears that an employee of the Railways cannot be treated as a "civil servant" unless he is either employed permanently in one of the offices mentioned, in a job other than any of those shown in Schedule II of the Workmen's Compensa tion Act or, it employed in such a job, receives monthly wages exceeding one thousand rupees. So far as the appellant is concerned, he was at the time of the passing of the impugned order employed in a Divisional Office as Head Train Examiner and therefore, not qualified to be treated as "workman". Besides, he was drawing a salary of Rs. 1010 and, therefore, even if he fell within the category of "workman" in terms of Schedule II, he could not be treated as a "workman", because he was drawing wage exceeding Rs. 1,

000. In view of this position, we cannot accept the objection raised by the respondents to treating the appellant as a "civil servant'". The appeal, therefore, is not outside the jurisdiction of this Tribunal and cannot be dismissed on the basis of the technical objection raised by the respondents, which is rejected.

13. Dealing with the case on merits, we shall examine the points raised by the appellant, one by one, in the light of the replies given by the respondents to each of these points: (i) So far as the first point raised by the appellant is concerned there is no merit in the objection raised. The order of removal from service, passed on 9‑8‑1980, clearly says that the explanation received in response to the notice issued to him had been carefully considered by the Divisional Superintendent, Pakistan Railways, Quetta and, in accordance with his order, the penalty of removal from service had been imposed, with effect from 9‑8‑1980 (afternoon). Therefore, the signing of the order by the Assistant Personnel Officer does not make the order invalid or defective. (ii) It is not wholly true that the competent authority had not applied his mind to the case. As claimed by the respondents, and as verified from the record of the case, the order was passed by the Divisional Superintendent after consideration of the case on merits. But, it is true, as will be explained later, that the said authority had not fully complied with the requirements of law in this behalf. (iii) In regard to the subsequent order, dated 7‑1‑1980, reducing the punishment from removal from service to reduction in rank from the post of Head Train Examiner to that of Senior Train Examiner, it is apparent from the text of the order itself that the matter had been considered by the Chairman, Railway Board, the Appellate Authority, who had passed the order in question. The fact that the order had been conveyed to the appellant by the Chief Personnel Officer, through the Divisional Superintendent, Pakistan Railways, Quetta does not, in any way vitiate the order. (iv) It is not true, as verified from the case file, that the Divisional Mechanical Engineer, the Authorized officer, had not figured in the proceedings and that the competent authority, namely, the Divisional Superintendent, had passed the impugned order, dated 9‑8‑1980, without any advice from the Authorised Officer. It is seen from the record of the case that the Divisional Mechanical Engineer, Quetta, the Authorised Officer, has figured at all relevant stages. It was the Authorised Officer who placed the appellant under suspension on 28‑5‑1980 and served him with a charge‑sheet accompanied by a statement of allegations. Again, it was the same officer, who considered the reply to the charge‑sheet submitted by the appellant and rejected it and ordered an enquiry to be conducted by two officers nominated by him The report submitted by the Enquiry Committee, was also examined by the Authorised Officer, who put up the case to the competent authority for awarding a major punish ment. Therefore, there is no merit in the allegation that the competent authority had completely eliminated the Authorised Officer. (v) From the relevant record, it does appear that the Enquiry Committee commenced its enquiry on 15‑6‑1980 and concluded it on 25‑7‑1980, while the report was signed on 27‑7‑1980. There is no indication, on the papers on which the statements of witnesses were recorded, as to the date on which these witnesses were examined. Neither the witnesses had put down the dates nor the Members of the Enquiry Committee had cared to do so. However, it appears that about 14 or 15 witnesses were examined, including the appel lant, during the period 15‑6‑1980 to 25‑7‑1980. Whether this was done at one stretch, from day‑to‑day. or by breaks and whether the intervals were of more than seven days, we are unable to determine. Quite strangely, neither the Members of the Enquiry Committee nor the witnesses appear to have considered it necessary to put down the dates on which they signed the evidence recorded. However, we do not consider this a very important point. The rules, no doubt, lay down that the enquiry should be held from day to day and, if any adjournments are given for more than seven days at a time, the matter should be reported to the Authorised Officer. The purpose of this rule is to ensure expeditious completion of the enquiry. If this requirement is not complied with, in any case, it is an irregularity but not one which affects the validity of the proceedings. We therefore, do not attach any importance to the point raised by the appellant in this behalf. (vi) It is true that after the evidence of all the witnesses had been recorded, Mr. Muhammad Shafi, Head Train Examiner, Sick Line, Quetta, who had also been examined earlier on 21‑7‑1980, made an application on 28‑7‑1980 to the President of the Enquiry Committee, requesting that he may be re‑examined, because, on the previous occasion, he could not get the real statement recorded, on account of domestic worries, and was now compelled by his conscience to disclose the facts This request of the witness was granted by the President of the Enquiry Committee, who recorded his statement on 4‑8‑1980, in the absence of the appellant as well as the other Members of the Committee. This was a serious irregularity, which has certainly vitiated the proceedings. Although, in a note under the heading "Discussion on Findings", on which no date has been given, the President of the Enquiry Committee has stated that Mr. Shafi's statement had not been taken into consideration and "the same findings are being given which were framed in the presence of the other Members of the Enquiry Committee, we are unable to accept this statement of the President for reasons to be discussed later. (vii) It is true that the removal order referred to a charge‑sheet dated 31‑5‑1580. This charge‑sheet was subsequent to the original charge sheet and was served on the appellant on the ground that he had endorsed a copy of his reply to the first charge‑sheet in contravention of the rules and had, therefore, been guilty of misconduct. Punish ment of removal from service could not surely be justified merely on the ground of endorsing a copy of the reply to the higher authority. But. the fact is that the date of the charge‑sheet mentioned in the removal order was a clerical mistake and it was, the very next day, corrected by a memo. dated 10‑8‑1980. There is, 'therefore, no merit in this point also. (viii) So far as the allegation of mala fide is concerned, the appellant, apart from drawing our attention, in his grounds of appeal, to the orders passed on 17‑8‑1980 and 8‑7‑1980, also narrated in detail, in the main body of his memo. of appeal, the facts and circumstances, which, according to him, clearly proved that respondent No. 2, was motivated by personal grudge and malice against the appellant and, therefore, he went out of his way to harass him and, ultimately, managed to throw him out of service. Since substantial information relating to this item of the grounds of appeal has been furnished in the memo. of appeal and our attention has also been drawn to a number of documents pertaining to the case, we shall be going into the pros and cons of this matter in detail alongwith the allegation mentioned at item (vi) above. But, at this stage. it may be observed that, it is true, as claimed by the respondents, that the order dated 17‑8‑1980 withholding increment for one year, on charge of address ing the higher authorities directly, was actually passed on 15‑7‑1980 but there was delay in conveying it to the appellant. Whether there was any mala fide in this particular matter, we are unable to say anything. If a punishment had been inflicted, it had to be conveyed, even though another punishment of removal from service had since been passed.

14. Prior to the suspension of the officer on 2j‑5‑1980 and his being charge‑sheeted on the ground of committing serious irregularities connected with the employment of a number of Railway employees on personal work, the appellant was transferred to Sibi by an order dated 22‑1‑1980. Three days before the issuance of this order, the appellant had made a request to the Divisional Superintendent, Quetta, not to transfer him, as he had 8 school and college going children studying at Quetta and his transfer to Sibi was bound to cause him unnecessary hardship. This request was not granted and, therefore, the appellant made an application to the headquarters of the Railways, in response to which, on 4‑3‑1980, the Chief Personnel officer passed an order to the effect that the Divisional Superin tendent, Quetta, be asked to keep the transfer order pending till the end of the school session for the children. The Divisional Superintendent does not appear to have taken any action on this order issued by the Chief Personnel Officer from the headquarters of the Railways. Thereafter, the appellant submitted applications addressed to the Assistant Personnel Officer, Quetta, on 9‑3‑1980 and f5‑3‑1980, requesting that, in view of the order of the Chief Personnel Officer, Lahore, he may be put back on duty at Quetta. This request, however, was not granted and the appellant was informed by a memo. dated 30‑3‑1980, that his request for retention at Quetta could not be acceded to, as he was already under order of transfer to Sibi and, since he had been absenting himself without permission, show -cause notice had already been issued to him. The show‑cause notice, which had been issued on 18‑2‑1980, stated that he was absenting himself from duty with effect from 23‑1‑1980, without authority, since the leave granted to him earlier had been cancelled on the same date and that he had not carried out the transfer order issued on 22‑1‑1980. He was, therefore, required to submit explanation and show cause why he should not be dealt with under the Railway Servants (Efficiency and Discipline) Rules, 1975 and suitable penalty imposed on him. The appellant had already furnished reply to this show‑cause notice, on 25‑2‑1980, addressed to the Divisional Mechanical Engineer, Ouetta, in which he had explained his position with regard to the two charges preferred against him in the following terms: (i) He explained that he had been granted 10 days' casual leave with effect from 22‑1‑1980 and privilege pass, for journey from Quetta to Peshawar and back, had been issued to him on 19‑1‑1980. He availed the leave sanctioned and, utilizing the privilege pass, left Quetta on 24‑I‑1980, by which date he had not received any intimation of the cancellation of his leave. He further explained that he had sent a telegram from Lahore on 3‑2‑1980 for extension of leave for 20 days on account of the sickness of his mother. He, had; therefore, not been guilty of absence from duty without permission, since he was not aware of the cancellation of the leave granted to him. (ii) Regarding the charge of not carrying out the transfer order, he submitted that he had already put in request to the Divisional Superintendent, Quetta and the Chief Personnel Officer, Lahore to keep his transfer in abeyance and, since replies were still awaited, he may not be compelled to join duty at Sibi. 1n this connection, he gave detailed reasons for deferring his transfer. These were that two of his daughters were in the Second Year, of the Science Medical Group, at the Government Women's College, Quetta and one in the Second Year Arts Class of the same College and they could not be migrated in the second year to Sibi, where there was only one Inter- Arts College. Besides, their examinations were due in July and they could not be disturbed at this stage. Moreover, his wife had died recently and, there being no elderly male member in the family, he could not leave his female children alone at Quetta and himself go and join duty at Sibi. He, accordingly, requested that he may be transferred after July, 1980 to any station where the facility of college education for women existed.

15. It appears that the explanation offered by the appellant was not accepted and, on 8‑7‑1980, he was punished by withholding of increment for one year. Prior to this order, after the refusal of the Divisional Superintendent to put him on duty at Quetta, in compliance with the order of the Chief Personnel Officer, dated 4‑3‑1980, the appellant had approached the Minister for Railways, who, on 29‑3‑1980, had ordered that he should be posted to Quetta, observing, at the same time, that he was against the idea of posting people only on complaints. In spite of this order of the Minister, and the previous order of the Chief Personnel Officer, the Divisional Superintendent refused to put him back on duty at Quetta, until the Chairman, Pakistan Railways ordered him to do so on 17‑5‑1980 and he complied with the orders on 24‑5‑1980. However, on the very next day, i. e. 25‑5‑1980, the appellant was placed under suspension and charge sheeted on 28‑5‑1980.

16. The above succession of events indicates that, whatever the reasons respondent No. 2 did not treat the appellant with sufficient consideration. He transferred him to Sibi at a time when it was most inconvenient for the appellant and refused to keep the transfer order in abeyance in spite of the directions from the Chief Personnel Officer and the Minister for Railways, and it was only when the Chairman ordered him to put the appellant on duty at Quetta that he complied with the order on 24‑5‑1980. He did not consider the personal difficulties and problems of the appellant when he made a request for deferring his transfer from Quetta. Not only this, he cancelled the casual leave granted to him w. e. f. 22 1‑1980 and proceeded against him for leaving duty without permission. In view of the orders of the Chief Personnel officer and the Minister for Railways, keeping the transfer order in abeyance, the punishment meted out to the appellant for not carrying out the transfer order appears to be unjustified and high handed. It is indicative of an unduly stern and unsympathetic attitude, which is not desirable either from the view‑point of administration or justice and fairplay. The immediate suspension of the officer once again, after his re‑instatement on 24‑5‑1980, also creates an impression that, for some reasons or the other, respondent No. 2, was acting with a predetermination to give a rough time to the appellant. In this connection, it is significant to note that, as alleged by the appellant and not denied by the respon dents, the charges preferred against him were based on an anonymous complaint of November, 1979, which had been sent by the Martial Law Authorities to the Railway Authorities at Quetta and had also been looked into twice by an officer of the Railway, who did not find the appellant guilty of the charges alleged. The manner and the circumstances in which these charges were revived, after quite a number of months, shows that respondent No. 2 was, somehow, determined to take action against the appellant, irrespective of the propriety of such action. In the circumstances, we cannot say that the suspension of the appellant on 25‑5‑1980, was ordered without an element of prejudice against the appellant and that personal or purely subjective considerations did not influence respondent No. 2 in the action taken by him against the appellant.

17. Regarding the enquiry conducted by the Committee appointed for the purpose, as already mentioned the President of the Committee did not act in a correct manner in allowing one of the witnesses to tender additional evidence on 4‑8‑1980, in the absence of the appellant and also in the absence of the other Members of the Committee, ten days after the closing of the evidence and eight days after the finalization of the report. The reason given by the President of the Committee for allowing Mr. Mohammad Shafi, to tender additional evidence seven days after his original testimony, is far from convincing. He says that, being an important witness of the case, it was not possible to neglect his statement. The very language of Mr. Muhammad Shafi's application, in this behalf, indicates that his offer to tender evidence was clearly an afterthought, most probably made under pressure. He admits, in so many words, that he could not get the real statement recorded and that his conscience was compelling him to disclose the facts. Apparently, he was an unreliable witness and the President of the Enquiry Committee should not have recorded his supplementary statement in the circumstances in which he did so. But the very fact that he took such a course casts some doubt on his impartiality and it is difficult to accept his claim, made in an undated note signed by him under the heading "Discussion of Findings", that he was not influenced in commendations by "this part of the evidence of Mr. Mohammad Shafi. The note, which was written after the supplementary evidence tendered by Mr. Mohammad Shafi and also after the signing of the findings by the President and the other Member of the Committee, and submitted as part of the report of the Enquiry Committee, was bound to influence the thinking and judgment of the officers for whom it was meant, namely, the Authorized Officer and the Authority. In/ fact, the Divisional Superintendent, as the competent authority in the case, has, in his minutes on the case, very clearly admitted that he has been influenced by the statement of Mr. Mohammad Shafi, which otherwise should not have been taken into account at all. The actual words used by him are: "I have gone through the statement of Mr. Shafi, TXR. Sick Line (S. N ‑28 of the case), recorded by the President. Enquiry Committee on 4‑8‑1980, which indicated proof of two more charges i.e. misuse of Balli Masih for carriage of children of Mr. Bajwa and involvement of Ali Gohar, Fitter for supply of milk etc.'' In view of this, the decision taken by the Authority in the case was a legally faulty decision.

18. Coming to the merits of the allegations against the appellant, we find that, so far as the Enquiry Committee is concerned, its findings were that, out of the six charges preferred, three were either not correct or not proved. The other three found to be correct, were: (i) One of the Coolies, Sultan Mahmood, was being utilized as cook at the residence of the appellant. (ii) Another Cooly, Nazir Ahmad, used to look after the buffaloes of the appellant at his residence. (iii) Although it was not proved that the appellant got furniture' made for him by a carpenter of the Railway, it was established that he utilized a Railway carpenter, Fazal‑ur‑Rahman, for repairing his furniture as well as the doors and windows of the bungalow occupied by him. Regarding (i) and (ii) above, it is seen, from the evidence on record and the relevant documents, that the Divisional Mechanical Engineer had, on 24-12‑1979, provisionally allowed one Khalasi, for working with the appellant. But, actually, one Khalasi was working with the appellant since August 1979. At first it was one, Muhammad Hussain, then later Sultan Mahmood and lastly, Nazir Ahmad, who worked till January, 1980. According to the appellant, although, he had obtained written order of the competent authority on 24‑12‑1979, verbal orders had been obtained much earlier. During the course of the enquiry, the appellant could not prove that he had obtained any verbal orders earlier. Therefore, he did commit the irregularity when he utilized the services of a Khalasi at his residence prior to 24‑12‑1979. In view of the written permission later given by the Divisional Mechanical Engineer, the utilization of the services of a Khalasi by the appellant prior to the said permission would not appear to be as serious an offence as it would have had no permission been given at any stage. Regarding (iii), from the evidence on record, it appears that the appellant did get some work done at his residence by two of the Railway carpenters, who also deposed to this fact before the Committee. The work related to repair of furniture and the doors and windows of the bungalow occupied by the appellant. It is however, clear from the same evidence that the practice of utilizing the services of the Railway carpenters was quite common and that jobs, similar to those got done by the appellant, had also been got done by other officials, including Train Examiners, Head Train Examiners, Assistant Mechanical Engineers and the Divisional Mechanical Engineers.

19. When we look at the charge‑sheet against the appellant, we find that out of the six charges, two, namely, charges (ii) and (iii), were two parts of the same charge. Sultan Mahmood and Nazir Ahmad were utilized as Khalasis at the residence of the appellant at two different times, one for a period of two months and the other for three months. But, the manner in which these two charges have been framed gives an impression that both these employees were utilized for work at the appellant's residence simultaneously. In this way, the number of charges has been increased, giving an impression of the seriousness of misconduct on the part of the appellant. Viewing this in the light of the fact that, of the other four charges, three had not been proved or were found to be not true, it would appear that the intention of those who had made the allegations was to swell the number of charges against the appellant, as far as possible. When this fact is considered in the light of the other facts connected with the transfer of the appellant and the refusal of the authorities to defer the transfer, in spite of orders from the Railway Board and the Minister for Railways, one cannot fail to detect that there was some hostility towards the appellant and that some people were interested in putting him into trouble, for which purpose his alleged irregularities and malpractices were sought to be presented in a magnified form. In this connection, we are also constrained to observe that the punishment of removal from service, inflicted on the appellant for utilizing the services of a Khalasi for 3/4 months, without prior official approval in writing, and for getting some furniture repaired and doors and windows of the bungalow put right, was not only excessive but indicative of a predisposi tion against the appellant.

20. Another serious flaw in the proceedings is that the Divisional Superintendent, as the competent authority, appears to have relied a little too much on his subordinates in arriving at his impugned decision. For axample, in his minutes, dated 9‑8‑1980, he says: "A.P.O. told me that all procedural formalities have been complied with in conducting this enquiry. I, therefore, hold him guilty of the three Charges which have been proved by the Assistant Officers Enquiry Committee and remove him from service by giving him one month's pay in lieu of the notice." This clearly indicates that, instead of applying his own mind on the vital question whether the proceedings were conducted in a legal manner, he relied completely on the certificate given in this behalf, by one of his subordinates. In such a situation, it cannot be said that the requirement of law that the competent authority should apply its own mind to the case, was fully complied with.

21. To sum up, while it is true that, as disclosed by the report of the Enquiry Committee, there is no doubt that the appellant was not very scrupulous in the matter of utilizing the services of some of the employees of the Railways, it is also undeniable that there was some element of hostility towards him among his colleagues and superior officers and that because of his being able to get his transfer postponed by the order of the Minister, he further incurred the displeasure of the Railways Administra tion of the Division and was, therefore treated with extreme severity for irregularities which were a common place in the department.

22. In the light of the above, we are of the opinion that the punishment of reversion from the post of Head Train Examiner to that of Senior Train Examiner, inflicted by the order passed in appeal by the Chairman, Railway Board, being not commensurate with the nature and magnitude of the charges established against the appellant, should be further reduced to stoppage of increment for two years, without cumulative effect, from the date of the said order, namely, 7‑1‑1981. It is, therefore, ordered accordingly.

23. With the above orders, the appeal is allowed.

24. No order as to costs.

25. Parties to be informed accordingly. Appeal allowed.