2012 PLP (C (PLC(CS))

M.A. AZIZ (MEMBER).

The appellant joined Pakistan Railway on 24-6-1982 as Guard Grade-I (B-8). Thereafter, he was promoted as Guard Grade-II (B-11) on 24-4-1993 and was working as Guard Grade-III since 17-6-1998. While working as Guard Grade-III the appellant was served with a show-cause notice dated 30.4-2002 along with Statement of Charges inter alia on the following charge:-- A "STATEMENT OF CHARGES (1) Whereas you Mr. Mehmood Khan son of Muhammad Aslam, Guard-III KYC are charged with serious misconduct and corruption for the following charges' and other relevant circumstances inasmuch as: (a) that on 17-6-2001 Cooly No.558 purchased a Lower AC ticket by 107-Up for Rs.900 from current reservation counter .Karachi Cantt and sold it to one passenger named Ma'sood Ahmed Seria for Rs.1,

500. The said coolly paid Rs.200 to you for the reservation and you provided seat on return reservation quota. (b) You have also been awarded the following punishments:--WIT two years on 21-10-1992 WIT two years on 27-4-1995 The above punishments clearly show that you have ceased to be efficient. (2) You are, therefore, proceeded against under Removal from Service (Special Powers) Ordinance, 2000-2001. (Iqbal Samad.Khan) General Manager (Operations) Pakistan Railways, Headquarter Office, Lahore." The appellant replied the above charge-sheet and rebutted the charges levelled against him which were not found satisfactory by the respondents and vide order dated 25-9-2002 he was imposed penalty of reversion from the post of Grad-III (B-11) to Grade-I (B-8). The appellant filed departmental appeal which was rejected on 5-7-2005. Thereafter, he filed the present appeal in the Tribunal on 1-8-2005.

2. We have heard the learned counsel for the parties and have also perused the record.

3. The learned counsel for the appellant vehemently argued that the order dated 25-9-2002 is illegal, against the law is not maintainable and is liable to set. aside on the ground inter alia that the order is bad in law as the appellant has been reverted two steps down which is not the spirit of the service law. Further the order does not specify the period of penalty. Moreso the penalty has been imposed on extraneous consideration which was not the subject of the occurrence in hand rather he was penalized on the basis of his past record which cannot be taken B into consideration and last all of his submission was that no regular inquiry was made when the penalty falls into the category of major punishment which cannot be imposed without holding a regular inquiry. The penalty on the basis of preliminary inquiry cannot be substitute for regular inquiry in which the appellant should have participated and cross-examine the witnesses produced against him. He also- submitted that personal hearing has not been afforded to the appellant before imposing major penalty. The legal submissions of the learned counsel for the appellant are also fortified by the judgment of the Hon'ble Supreme Court placed on the record of the case which supports the case in hand and' according to learned counsel it is a void order made by the respondents which cannot be sustained in the judicial scrutiny and is liable to be set aside.

4. On the other hand, learned counsel of the respondents relied upon the comments filed by the department to oppose the appeal. '

5. Be that as it may, the order imposing penalty dated 25-9-2002 in which the appellant was reverted from Grade-III to Grade-I is bad in law. Further the period for which this reversion is to stay is also indefinite. No period has been given in the impugned order and it is based on preliminary inquiry which cannot be a substitute for regular inquiry which has been dispensed with by the respondents without any reason against the mandate of the superior Court on the subject. In our view the decided case reported as 1993 PLC 1443 is apt' on the subject and fully covers the case of the appellant in which in the same situation a penalty was imposed on a civil servant taking away 2 right and too without specification of period was held as bade in law. Para. 20 of the B said judgment is reproduced as udder:

"The quantum as also. validity of the sentence awarded to the appellant was seriously assailed. He was in BS-19 which he had obtained by move-over. The sentence passed upon him brought him down to the lowest stage of BS-18. Obviously it meant to take away from him practically two scales namely BS-18 and BS-19. This is not warranted by rule 4 of the E&D Rules, 1975. Major penalties contemplated by it authorize: "reduction to lower grade or post or time scale or a lower stage in a time scale." In its plain reading the order did not reduce the appellant to a lower grade, not to a post, nor to a time scale, but it did reduce him to the lower stage in a time scale (BS-18). It will'be realized that the rule visualizes reduction only to a .lower stage in a time scale, as distinguished from the lowest stage which might mean reduction by many stage. The term connotes a singular stage rather than a plural number of stages. Since it is a penal provision,,, it has to be construed strictly so that a could not be taken to be synonymous with more than a,- say two, three, four or five stages. On this plane, the order cannot be sustained." This case in same situation fully covers the legal position, in extenso. No further deliberation in this aspect is needed as"in the recent judgment Of the Hon'ble Supreme Court reported as 2005 SCMR 1306 which has also been relied upon by the learned counsel for the. appellant, the above legal position has been re-affirmed and accordingly we accept the appeal, set B aside the impugned orders dated 25-9-2002 and 5-7-2005 and direct the respondents to restore the appellant in his original position of Grade-III (B-11) from the date of the impugned order, dated 25-9-2002. No order as to costs.

6. Parties be informed. H.B.T./24/FST Appeal allowed.