2006 PLP (C (PLC(CS))

QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).

Briefly, the facts leading to this appeal are that the appellant joined Pakistan Railways Police as Constable w.e.f. 23-4-1980. His last posting was in Karachi Division when a show-cause notice dated 24-5-2001 under Removal from Service (Special Powers) Ordinance, 2000 (as amended) (hereinafter called the "Removal Ordinance") was issued to him containing the following allegations:

"Whereas, you Mir Khadim Hussain, PC/807 are accused of having committed the following acts of inefficiency, misconduct and corruption as defined under section 3(1)(a)(b) and (c)(iii) of Removal from Service (Special Powers) Ordinance, 2000 as amended by Ordinance V of 2001. (a) That he was awarded WIT 6 months 1984, censures 1985, 1995 and 1997, WPI 3 years 1990 WIP 1 year 1994, WIP 2 years 2000. Forfeiture approved service 1999. (b) That he did not enjoy a good reputation and as such he might reasonably be considered as corrupt. (c) That you do not enjoy a good reputation and as such you may reasonably be considered as corrupt. Now here as you appear to have been found guilty of the above charges, hence the competent authority is of the view that you should be proceeded against under the above said Ordinance and the competent authority had decided to dispense with the enquiry as provided in sub-section (4) of section 5 of the said Ordinance. And now whereas, on receipt of this show-cause notice you are required to submit your reply within 7 days as to why you not be inflicted with one or more of the punishments provided in section 3 of the said Ordinance, including major punishment. Your reply must reach this office within 7 days stating at the same time whether you desire to be heard in person by the competent authority otherwise your case will be decided ex parte. (Sd) Superintendent, PakistanRailways Police.Karachi." The appellant denied such allegations in his reply to the show-cause notice, but his reply was found unsatisfactory, and after hearing him personally, vide order dated 31-5-2001 of the Superintendent, Pakistan Railways Police, Karachi, he was compulsorily retired from service under Removal Ordinance with immediate effect. He filed departmental appeal on 23-10-2001, but it was rejected by the DIG, Pakistan Railways Police, vide his order dated 9-10-2003, inter alia, on the ground of its being time-barred for about five months.

2. Being aggrieved by the above-mentioned orders of the compulsory retirement and rejection of his departmental appeal, the appellant preferred this appeal before the Tribunal on 1-12-2003 under section 4 read with section 2 of the Service Tribunals Act of 1973, praying to set aside the impugned order of his compulsory retirement and to reinstate him in service with all back-benefits.

3. In the para wise comments filed, on behalf of the respondents. The penalty of compulsory retirement awarded to the appellant was justified. It was stated in the comments that the appellant had taken the plea of illness of his wife to over up the delay in filing the appeal.

4. We have heard the learned counsel for the parties and perused the record and the authorities cited at the bar.

5. The learned counsel for the appellant forcefully argued that the minor penalties already awarded to the appellant could not be made basis and could not be used for imposing penalty of compulsory retirement upon the appellant, and the appellant could not be vexed twice for the acts of omission and commission for which he had already been punished. The learned counsel relied on 1989 SCMR 1224, unreported judgment of this Tribunal dated 24-7-2004 passed in Appeal No.281(K)(CS)/2002 (Muhammad Arif v. Deputy Inspector-General, Pakistan Railways, Police Lahore and others) and another unreported judgment of this Tribunal dated 9-3-2004 in Appeals Nos.59 and 60 (K)(CS)/02 (Abdul Rehman v. The Deputy Inspector-General Pakistan Railways Police C.P.O. Lahore and another). About the next allegation i.e. of not enjoying good reputation for which the appellant might reasonably be considered as corrupt, the learned counsel for the appellant argued that such an allegation needed to be proved by means of inquiry giving the appellant a chance to defend himself, but that was not done, therefore, material prejudice had been caused to the appellant. The learned counsel relied on 2004 PLC (C.S.) 1591. For the above reasons, the learned counsel for the appellant argued that the order of compulsory retirement of the appellant was void and nullity in the eyes of law.

6. The learned counsel for the respondents stated that the past punishments of the appellant, might be minor ones, but these could be made basis for conclusion of his being reasonably considered as corrupt. The learned counsel for the respondents vehemently opposed the appeal on its being barred by time for about five months.

7. The learned counsel for the appellant has filed an application for condonation of delay under section 5 of the Limitation Act along with the memo, of his wife has been shown the cause of delay in filing the appeal. In proof of the illness of his wife, the appellant has filed photostat copies of some bills of medicines and Photostat copies of documents pertaining to the operation of and fissure and hemorrhoid when she was operated on 7-12-2000.

8. The learned counsel for the appellant had sought condonation of the delay on another ground also. He stated that the compulsory retirement of the appellant, being void and nullity in the eye of law, the bar of limitation would not be attracted in the case of appellant, as held by the Apex Court in many cases of condoning delay in void cases. He relied on 2005 PLC (C.S.) 1225.

9. We have carefully considered the above arguments of both sides. We agree with the learned counsel for the appellant that the minor punishments already undergone by the appellant cannot be used for imposing major punishment of compulsory retirement on the appellant as that would amount to vexing the appellant twice for the acts of omission and commission for which he had already been punished.

10. As to the question of corruption, it has not been said in the allegation No.2 that the appellant enjoyed bad reputation. On the contrary, strange language has been used to frame the allegation of corruption, as for not enjoying good reputation possibility has been shown of his being considered as corrupt. This shows that the respondents were not firm about the reputation of corruption of the appellant. Anyhow, the allegation needed to be proved by means of a regular departmental inquiry, giving the appellant full chance to defend himself. It is also not known, if minor punishments, mentioned in the show-cause notice, were in connection with the acts of corruption, for which no documentary evidence has been brought on the record to show that such minor punishments were awarded to the appellant in connection with the acts of corruption; hence, the order of compulsory retirement of the appellant on the basis of the allegations mentioned in the show-cause notice was null and void, and for that reason the bar of limitation would not be attracted to the case of appellant even if the delay was not covered up by the period of ailment of the appellant's wife.

11. The authorities cited by the learned Counsel for the appellant do support his arguments before us. We, therefore, accept the appeal, set-aside the impugned order of compulsory retirement of appellant from service and reinstate him in service. The respondents will, however, be at liberty to hold de novo disciplinary proceedings into the allegations of corruption or reputation of corruption, if they so desire, but that would be done within a period of four months from the date of receipt of a copy of this judgment. Back-benefits, if any, for the period the appellant remained out of job and not employed gainfully elsewhere, shall depend upon the result of de novo proceedings.

12. No order as to costs.

13. Copies of the judgment be sent to the parties under registered cover and to the relevant quarters under Rule 21 of Service Tribunal, (Procedure) Rules, 1974. H.B.T./22/FST Case remanded.