1984 PLP (C (PLC(CS))

ABDUR RASHID (MEMBER).‑Facts of the case are that on 14th January, 1975 a railway accident between 25‑Up Sind Express and an up‑shuttle (K.C L‑1 Up) took place at Malir railway station. The Central Government Inspector of Railways (CGIR) (Mr. A. A. I. Vohra) conducted an enquiry into the accident between 14‑21 January, 1975, about which a 37‑page. printed report is available on record and will be referred to, where necessary, as January, 1975 enquiry. Paras. 5 and 6 of the said report deal with conclu sions and responsibility and being relevant for our purpose, are reproduced. "

5. As a result of the evidence on record and the trials conducted the following conclusions were arrived at : (a) Signal staff tampering with electrical circuit. In April, 1974, the Signalling staff unauthorisedly carried out (i) "Complete electrical disconnection" of cross‑over, points la‑Ib at Malir, thereby rendering them "non‑interlocked." (ii) Looping" of (the points) circuit wires in the Relay Room at Malir, thus made possible to clear the Up Home and D Starter signals, irrespective of the position of these points. Before affecting complete electrical disconnection of the cross‑over points making changes in the Relay circuit and rendering the points "Non‑interlocked", the signalling staff should have secured the points in accordance with rules, imposed a speed restriction of 10 miles per hour over these points and informed all concerned to issue "Tem porary working Instructions" for safe running of trains, revise the "Yard Diagram" and the "Station Working Rules" with the approval of competent authority. (b) Failure of pointsman to reset cross‑over. After these planned reception, through cross‑over points la‑lb of Up Khanewal wheat Special goods train on the down loopeline, Point-s man Sultan Bux, failed to reset these (cross‑over points la‑Ib) for the Up Main line No.

1. These points were, allowed to remain set from Up Mails line No. 1 to Down Main line No. 2 till the accident took place. (c) Lapses on the part of Assistant Station Master. While the cross‑over points la‑lb remained set from Up Main line No. 1 to Down Main line No. 2, the Assistant Station Master, Mr. Aqeel Ahmad, without ascertaining their correct position, cleared the signals for running through of trains in succession (on "Fleeting") on Up and Down Main line No. I and

2. As the result, KCL‑1 Up (Karachi Circular‑Landhi) Suburban train, instead of taking the Up Main line No. 1. got diverted to the Down Main line over which the Down Dry Port Special Goods train having been permitted to run through, also entered from opposite direction (Landhi end). Observing, on the Control Panel the entry of KCL‑1 Up and Down Dry Port Special trains on the same line (Down Main line) from opposite directions, the Assistant Station Master ran out of his office, displaying band danger signal and succeeded in stopping the Down Dry Port Special Goods train, thereby avoiding a Head‑on Collision. The Up Main line signals already having been on "Fleeting", continued displaying clear aspect for running through of subsequent trains. As such, 25‑Up (Sind Express), closely following KCL‑1 Up Suburban train also entered the Down Main line No. 2, via cross‑over points No la‑lb and collided in the rear of KCL‑1 Up.

6. The following persons are held responsible for causing this accident :‑ (a) (i) Assistant Block Inspector, Karachi, Mr. Shaukat Masood son of Shamsuddin, is responsible for causing complete electrical discon nection of cross‑over points la‑lb at Malir, making changes in the circuit by merely looping in the Relay Room to give simulated indication of the points and rendering them non‑interlocked from the respective signals. He failed to advise all concerned in advance to enable them to take specified safety precautions for the passage of trains at restricted speed of 10 miles per hour over such points and revise‑ Yard Diagram, Station Working Rules and issue "Temporary Working Instructions". By doing so he endangered the safety of the travelling public over this cross‑over. (ii) He, thus, violated section 129 of the Railways Act apd Qoperal Rules 45, 83, 90 and Subsidiary Rule 45/1. (b) (i) Mr. Muhammad Hafeez son of Ch. Abdul Haque, Block Maintainer Incharge, posted at Malir also failed to inform all concerned of this major change made in the wiring connections of the Relay Room in Non‑interlocking the cross‑over points la‑lb, thus endangering the safety of travelling public. (ii) He, thus breached section 129 of the Railways Act and General Rule 161. (c) (i) Mr. Inayatullah son of Fateh Muhammad, Block Inspector, Karachi who was incharge of maintenance of the section from Karachi Cantt to Landhi for over five years, failed to take cognizance of such a serious irregularity, apprise Officers concerned and take adequate measures to impose speed restriction of 10 miles per hour over these "Non‑interlocked" points and allowed the trains to run at the maximum permissible speed of 50 miles per hour, thereby endange ring the safety of travelling public. (ii) He, thus, violated section 129 of the Railways Act and General Rules 90 and 161. (d) (i) Sultan Bux Pointsman Malir is held responsible for not re‑setting the cross‑over points la‑lb to the normal position, for Up Main line No. 1, after the arrival of Up Khanewal wheat Special Goods train. (ii) He breached General Rule 31 (b) (ii) and also failed to follow the instructions given under the heading "Reception and Despatch of trains" in para. 5 (a) of the working Rules for Malir Station. (e) Mr. Aqeel Ahmad, Assistant Station Master, Malir, is respon sible :‑ (i) For permitting Reverse Operation through cross‑over points la‑lb prohibited by Station Master, Malir vide entry, dated 9th April, 1974 made on page No. 288, of the Station Journal. (ii) He is also responsible for failing to suspend the working of the Local Control Panel and for putting it on "Fleeting" on arrival of Up Khanewal Wheat Special, before the "Hand Crank" was returned to him by the Point-sman. He, thereby, violated Subsidiary Rule 280/1 and para. 13 (a) of the Station Working Rules for Malir station. (iii) Before leaving his office to stop the Down Dry Port Special, he failed to return the "Rest/Stop" Switch to "Stop" position which would have instantly changed the aspects of all signals to Red and/ or turn the "Emergency Route Cancel" Switch which would have changed all signals to Red immediately, also cancelling the route after one minute. (iv) He, thus, violated paras. 3 (a) and (b) of Appendix to working Rules for Malir station."

2. Another enquiry, vide Ministry of Railways Confidential letter, dated 11th February, 1975, was carried out into the same accident and a second report finalised by the same Central Government Inspector of Rail ways (Mr. A. A. I. Vohra). This is a typed report, dated 22nd February, 1975. It runs into 31 pages with appendices marked from A to W. It will be referred to, where necessary, as February, 75 enquiry. Paras. 1.4,.41 and 1.42, February, 1975, are quoted below, being relevant "1.4. The accident occurred at Malir on 14th January, 1975, on account of unauthorised changes made in the Relay Room by the Signal Staff during April, 1974. The question arises why the supervisory officers of Signal Department did not locate the unauthorised tampering of electric connections of the faulty cable in the Relay Room at Malir for a period of about 9 months. 1,

41. This could have been done Cither : through Returns/Records. Or 1.42. during their own inspections." which are in continuation of the above quoted para. read as under : ".1.41. This could have been done either : through Returns/ Records. Or 1.42. during their own inspections."

3. Chapter 6 of February, 1975 enquiry report, has this to say about the appellant : "6.3. Mr. Z. D. Babar, the then Deputy Chief Engineer (Signals) from 14th April, 1966 to 15th October, 1974 and now Chief Signals and Tele‑Communication Engineer from 15th October, 1974 to date, failed 6.31. to implement through his Officers the "Maintenance Schedules" and corresponding records as per Vice‑Chairman (Signals) letter No. 398 W/O/86, dated 24th April, 1972, and thus tolerated the lapses on the part of the Divisional Signal Engineers for about three years. 6.32. to persue the submission of monthly statement of "Signal and Block Failures". 6.33. to take up with the Divisional Signal Engineers Messrs I. A. Khateeb and Maghfoor Khan for non‑submission of these statements for long over four years. 6.34. to carry out regular inspections and spot checks and to take up with the defaulting Officers and staff. and 6.35. to ensure framing of specifications and take time action for procure ment of cables and other items of Signalling Equipment. 6.36. He thus showed : 6.361. lack of sense of responsibility and initiative. 6.362. laxity of supervision, and 6.363. lack of control on his officers and senior subordinates."

4. Resultantly, the appellant was served a charge‑sheet, dated 19th March, 1975, which is reproduced : WHEREAS, a collision. took place on the 14th January, 1975, between 25‑Up (Sind Express) and K. C. L.‑1 (Karachi‑Landhi Circular) Suburban Train which resulted in the death of three railway officials ;

2. AND, WHEREAS, an enquiry was conducted by the Central Govern ment Inspector of Railways on the aforesaid accident as required under the Railways Act, 1890 (IX of 1890) ;

3. AND, WHEREAS, it has been determined, in the said enquiry, that the cause of this accident at Malir was the faulty maintenance of the signalling system in the Karachi‑Landhi Section ;

4. AND, WHEREAS, in view of the aforesaid enquiry it is not necessary to have a further inquiry conducted under the Government Servants (Efficiency and Discipline) Rules, 1973 ; and

5. NOW THEREFORE, you Mr. Z. D. Babar Chief Signals and Tele Communication Engineer, Pakistan Railways, Lahore are charged for inefficiency as you have shown‑ (a) lack of sense of responsibility and initiative ; (b) laxity of supervision ; and . (c) lack of control over your officers and senior subordinates.

6. You, the said Mr. Z. D. Babar, are now hereby informed that you are guilty of inefficiency and negligence of duty and it is proposed to take disciplinary action against you under the aforesaid Rules which may entail the imposition of a major penalty, as contemplated in rule 4 (b) of the said Rules.

7. You are hereby required to show cause within seven days from the date of receipt of this order as to why the action proposed should not be taken against you.

8. Statement of allegations is attached herewith. (Sd.) (Muzaffar Husain), Secretary 19th March, 1975" "STATEMENT OF ALLEGATIONS You, Mr. Z. D. Babar, Chief Signals and Tele‑communication Engineer, Pakistan Railways, Lahore, have‑ (1) failed to implement through your officers the "Maintenance Schedules" and corresponding records as per Vice‑Chairman (Signals) letter No. 398/0/86, dated 24th April, 1972, and thus tolerated the lapses on the part of Divisional Signal Engineers for about three years ; (2) failed to pursue the submission of monthly statement of "Signal and Block Failures ; " (3) failed to ensure that the Deputy .Chief, Signal Engineer, Lahore, Mr. I. A. Khateeb and the Divisional Signal Engineer, Karachi, Mr. Maghfoor Khan submitted these statements during their respective postings as Divisional Signal Engineer at Karachi ; (4) failed to carry out regular inspections and spot checks and to detect and correct the lapses of the defaulting officers and staff under your control ; (5) failed to ensure framing of specifications and take timely action for procurement of cables and other items or Signal Equipment."

5. The appellant furnished his defence reply on 26th March, 1975 denying the allegations. While doing so he stated : "This reply is being submitted without reference to the papers or report on the basis of which charge‑sheet and statement of allegations have been issued to me and may be revised when such documents are made available to me."

6. The appellant was demoted. Gazette notification, dated 29th July, 1975, to this effect is reproduced :. "Consequent upon the disciplinary action token against him, the Pres] dent has been pleased under rule 3 of the Government Servants (Efficiency and Discipline) Rules, 1973, to order reduction of Mr. Z. D. Babar, Chief Signals and Tele‑communications Engineer (Grade‑20) Pakistan Railways, Lahore, to a lower post in (Grade‑19), with immediate effect."

7. On 27th August, 1975, the appellant preferred an appeal to the Presi dent of Pakistan. As a result of the said appeal, the Secretary, Ministry of Railways vide his letter, dated 24th March, 1976, required the appellant to place all the connected papers under one cover. This was done and the appeal was resubmitted on 12th April, 1976. As a result, Ministry of Railways issued gazette notification, dated 27th May, 1977. This notifica tion reduced the penalty of reduction to lower Grade to two years, where after, the appellant was again promoted to Grade‑20 and retired as such.

8. The appellant preferred a petition to the President of Pakistan (through proper channel) on 15th July, 1978, against his reversion and its subsequent modification to two years vide gazette notifications, dated 29th July, 1975 and 27th May, 1977, respectively, already referred to. The Ministry of Railways (Railway Board) vide their letter, dated 1st July, 1979 addressed to the Chief Personnel Officer said . "With reference to his review petition, dated 15th July, 197& Mr. Z. D. Babar may be informed that the same has been carefully considered and it has been decided that there is no justification for further reduc tion in the punishment already awarded to him." The above-quoted letter was communicated to the appellant vide C. P. O's letter, dated 25th July, 1979. The present appeal was filed on 22nd August, 1979. It was admitted for regular hearing on 20th February, 1980 and is being disposed of by this order.

9. We heard the learned counsel from both sides. The respondents have taken the plea that the appeal is barred by limitation. According to their written statement : "The true facts, however, are that the decision of the President in the review petition; dated 12th April, 1976 of the appellant was gazetted vide Ministry of Railways notification No. EI/75‑EF/1, dated 27th May, 1977. A copy of the notification was duly endorsed to the appellant. The appeal of the appellant, dated 15th July, 1978 was given consideration and no justification was found to review further the orders already passed in that regard."

10. Section 22 of the Civil Servants Act, 1973 read with rule 3 of the Civil Servants (Appeal) Rules, lays down that "where the penalty is imposed by an order of the President, the civil servant shall have no right to appeal but he may apply for review of the order." The respondents are, therefore legally correct in that the appeal, dated 12th April, 1976 preferred by the appellant was treated as a review petition and his period of demotion was reduced to two years vide gazette notification, dated 27th May, 1977. However, a plain reading of their letter with reference to the appellant's review petition, dated 15th July, 1978 (para. 9 above), leaves us in no doubt that the said review petition was carefully considered by the President himself because no one less than the President could have done so, and that it was he, who found no justification for further reduction in the punishment already awarded to the appellant. Viewed in this legal context in the light of section 23 of the Civil Servants Act, 1973, we find no justification on the part of the respondents, at this belated stage, to raise the plea of limitation. The respondents could have rejected the appellant's review petition, dated 15th July, 1978, as time‑barred, but they did not do so and instead dealt with it on merit as their reply clearly shows. At the time of preliminary hearing, on 20th February, 1980, the then Tribunal recorded the following order : "The only point was whether the appeal was competent to the President, Original order being passed by the President himself under section 22 of the Civil Servants Act, 1973, there is no right of appeal but review lies to him. Consequently, the limitation would start running from the date on which the final order was passed in review. Present appeal from the date is within time, x x x." We are, therefore, quite clear in our mind that the present appeal is not hit by limitation and that it is competent before us.

11. On merits, the case of the appellant is that in January, 1975 enquiry, he assisted the C. G. I. R. to reach the correct conclusion. He was in no way implicated. It was at the express orders of the then P. M. that the C. G. I. R. was directed to conduct another enquiry and to find an officer who may be held responsible for the accident. A scape goat, therefore, had to be identified. The learned counsel for the respondents stated that the January, 1975 enquiry report was a preliminary report and that it is always open to the competent authority either to accept such a report or to order a new one. The February, 1975 enquiry was, therefore, to be viewed in this light. We shall accept such a plea, even though this would be the first time that we have run into a beautifully printed report whose purpose would be that of a preliminary nature only.

12. The February, 1975 report was conducted on the basis of statements including that of the appellant recorded by the Enquiry Officer (CGIR). As a result, the appellant was served a charge‑sheet. In other words, even the February, 1975 report was, actually, treated as a preliminary report. After the charge‑sheet, a detailed enquiry report ought to have been prepared, where the appellant should have been given a right to defend himself. Instead, the charge‑sheet, dated 19th March, 1975, was treated as a show cause, as has been incorrectly mentioned ink the summary for the Minister of State for Establishment, signed by the Additional Secretary, Railways on 19th June, 1975 and approved by the said Minister on 25th June, 1975, punishing the appellant. It may be mentioned that, at the relevant time, the Minister of State for Establishment had been authori sed on behalf of the President, to take action against officers of upto and including Grade‑20 level. However, the procedure adopted by the respon dents does not fall, either under rule 5 or 6 of the E & D Rules, 1973, although it was begun under rule 6 of the said rules by serving a charge sheet. The charges at 5 (a), (b) and (c) of the charge‑sheet, dated 19th March, 1975, reproduced above, were of a nature which, in order to be established, required a detailed enquiry. This case could not therefore, b dealt with under rule 5 of the E & D Rules, 1973 under any circum stances.

13. In reply to appellant's request for a copy of the February, 1975 report to furnish his defence reply, the respondent department, vide their letter, dated 31st March, 1975 said "xxx the charges conveyed to you under charge‑sheet, dated 19th March, 1975 are specific and self‑contained. A reference to the report is, therefore, not considered necessary for the preparation of defence. It is therefore, regretted that the same cannot be supplied. A reply to the charge‑sheet may please be furnished."

14. We have no doubt that the disciplinary action taken against the appellant suffers from serious infirmities in that it was begun under rule 6 but then concluded under rule 5 of the E & D Rules ; the appellant was not associated with the enquiry proceedings and that a copy of the enquiry proceedings, recorded behind the back of the appellant, when asked for by him to prepare his defence reply, was refused. These legal lacunae would have, by themselves, sufficed to set aside the proceedings on technical grounds. However, after careful perusal of the enquiry report of February, 1975 in which the appellant has been blamed, we have come to the irresis tible conclusion that he is by no means involved in the accident of 14th January, 1975. In fact according to the Divisional System, outlined at para. 12 of the N. W. R. Organisation Manual, it is the Divisional Superintendent, who is entirely responsible for the operation and maintenance of his division. We, therefore, accept the plea of the appellant that be has been made a scapegoat because, although nothing was established against him with regard to the accident, yet he was punished.

15. As a result of the aforementioned analysis, we hold that the action against the appellant has been violative of the E & D Rules, 1973 in that he was not provided a reasonable opportunity of defence and was virtually, condemned unheard. We, therefore, accept this appeal, setting aside the' order of appellant's demotion (vide gazette notifications, dated 29th July, 1975 and 27th May, 1977). He will be deemed never to have been demoted and instead, to have remained in Grade‑20 continuously. He will be paid the arrears of Grade‑20 pay and allowances, including increments, during the period he remained demoted to Grade‑19.

16. No order as to costs. A. O. RAZIUR RAHMAN (MBMBSR).‑‑Because of the extraordinary, if not strange, nature of this case, I am tempted to make some' comments to supplement the judgment of my learned colleague.

2. The second enquiry ordered by the Government was not a depart mental enquiry under the Government Servants (Efficiency and Discipline) Rules, 1973, but a continuation of the first fact‑finding enquiry, held earlier. Therefore, when a charge‑sheet was issued on the basis of this enquiry, it should have been followed up by regular departmental proceedings. This was not done but, instead, the reply to the charge‑sheet submitted by the appellant was considered and final orders passed on the basis thereof. It is strange that it did not occur to the departmental authorities that the charges were of such a nature that they had to be enquired into properly and the appellant given a chance to defend himself. No opportunity was afforded in this behalf, but on the contrary, when the appellant asked for the report of the Inspector, to help him to answer the charges against him, he was not supplied the report but merely told that the charges were specific and self -contained and reference to the report was not necessary for the preparation of the defence. Obviously, the concerned authorities had a completely prejudiced and closed mind on the subject and were pre‑determined to give a decision of there own liking, irrespective of the pros and cons of the matter. The action taken against the appellant was, therefore, nothing short of mockery and a travesty of justice.

3. In the first enquiry report, the A. S. M., the Point-sman (belonging to the Transporation Department), the Block Maintainer, the Assistant Block Inspector and the Block Inspector were held responsible for the accident that took place on 14th January, 1975. The Special Court, which tried these persons, convicted the A. S. M. and the Point-sman and acquitted the other three, who belonged to the Signals Department. When the Signals Department, on the spot, was not found guilty, it would be absurd to suggest that the Chief Engineer, Signals, sitting at the Headquarters, could have be in any way, responsible for the mishap.

4. The evidence of the witnesses, examined by the Government In spector Railways, was recorded in the absence of the appellant and, admit tedly, as stated in the written objections filed on behalf of the respondent, it was in the nature of preliminary enquiry and, therefore, it was not necessary for the appellant to be given an opportunity of cross‑examining the witnesses. Admittedly, therefore, this evidence was intended only for the information of the authorities and could not be used for convicting the appellant. For the Railway Division to have treated such evidence as conclusive proof of the guilt of the appellant is, to say the least, native.

5. The appellant was not only denied access to the report on which the charges against him were based, he was also refused extra time, which he had asked for to prepare his reply, in addition to the seven days originally allotted. Although, in the opinion of the competent authority, seven days time may have been adequate for preparing the reply to the charge‑sheet, refusal to allow him a few days more was clearly indicative of over strictness, if not hostility, in their approach.

6. All in all, I am of the view that the action taken against the Appel lant was indicative of lack of open‑mindednesses and of a balanced and judicious approach to the matter of the appellant's responsibility for the accident, which the Government Inspector Railways was required to enquire into. In is not unlikely that the Inspector merely carried out a command performance, at the behest of the Ministry of Railways, instead of using his expertise independently for investigating the facts and the Ministry, having already made up their mind as to the responsibility of the appellant, merely followed this to its logical sequel of inflicting a major punishment, without regard to the requirements of justice and the rules laid down in this behalf and to the merits of the case. A. E. Appeal accepted.