1993 PLP 497 (PLC(CS))

2. On 27‑7‑1979 the appellant was on duty as Luggage Guard on 7‑UP Tezgam train from Karachi Cana. to Rohri. The said train, after departure from Hyderabad was to stop at Khairpur but was stopped out of turn at Padidan Railway Station, "keeping up the departure signal at on position". It is alleged that when the train stopped at Padidan the appellant had allowed the loading of crates of lemons and fresh vegetables in the luggage. bogie under the purported orders of the D.T.O.; Sukkur. There was another stoppage elsewhere on the way and this led to a complaint to the authorities.

3. Charge‑sheets were issued to a number of persons, including the station staff and the appellant, which was replied. After a lapse of about 13 months the appellant was served with a copy of another informal enquiry, dated 4‑5‑1981 which was replied to on 7‑5‑1981. The appellant was dismissed on 9‑2‑1982 but on appeal to the authorities, the order was revised vide D.S. Pakistan Railway Order, dated 29‑6‑1982 his removal from service was converted to "reduction of grade by one step for a period of three years" and he was ordered to report for duty immediately.

4. Aggrieved by this order the appellant had filed a petition before the Labour Court which came to be dismissed.

5. The petitioner was his own witness and there were two witnesses on behalf of the respondents including Muhammad Bashir, Assistant Transportation Officer (A.T.O.). This Muhammad Bashir, who had held the second enquiry had the following to say during the cross‑examination: "I had not recorded the statement of the applicant on 16‑8‑19$1 as it was only confrontation enquiry and the enquiry was already held at Sukkur .It is incorrect to suggest that applicant was not afforded any opportunity to cross‑examine the witnesses during the enquiry at Sukkur. I do not know if show‑cause notice or charge‑sheet was given at Sukkur in the enquiry as I was not the Enquiry Officer in that enquiry. I do not know if copies of the enquiry proceeding held at Sukkur, were supplied to the applicant. I do nor remember if copes of the enquiry report dated 16‑8‑1981 were given to the applicant till his reinstatement:"

6. The records and the reports of enquiry conducted against the appellant and others held at Sukkur, has unfortunately been lost and in spite of the best efforts could not be traced. The efforts have been detailed in the order of the Labour Court.

7. The case was conducted by the appellant personally before tile Labour court as well as here. He failed to bring out the various admissions and omissions or even the names of the other persons involved in the same incident. However, the enquiry submitted by Muhammad Bashir, which is on the record, mentions their names and Gul Hassan, the Station Master is one of them. The petition filed by Gul Hassan had been dismissed by the Labour Court and the appeal had been allowed by the Tribunal. As back benefits had still been denied he had gone in writ. Both these judgments have been brought on the record. The judgment of the Tribunal inter alia has the following observations: "Inayatullah, the witness of the respondents in his affidavit has alleged that the enquiry was held but he has admitted that the enquiry was held on 29‑7‑1979 and 30‑7‑1979, whereas the show‑cause notice given to the applicant is dated 29‑8‑1979 about one month after the date of enquiry. He has also admitted in the cross‑examination that the show cause notice was given to the applicant after enquiry. From these admissions of the witness of the respondents it is obvious that the Departmental Enquiry in the case of the applicant was not held. The enquiry, if was held before issuing charge‑sheet to the applicant was fact finding enquiry and it cannot take place of the Departmental enquiry as contemplated under Standing Orders Ordinance 15(4). In view of these facts, I find that the respondents have failed to hold departmental enquiry in case of the applicant before passing the impugned order of his removal from service. Since the respondents have failed to comply with the mandatory provisions of the Standing Order 15(4), before passing the impugned order, I find that the impugned order is not. maintainable. I, therefore, set aside the impugned order and direct the respondents to reinstate the applicant in service," There is also the judgment to the Constitutional petition which shows that back benefits had duly been allowed to him.

8. Looking to the record, the benefit thereof has necessarily to be given to the appellant as the enquiry was held in common. I will, therefore set aside the order passed by the Labour Court and allow the appeal so far as the order of reduction in the rank is concerned. He will be restored to his seniority in service, as prior to reduction.

9. Gul Hassan was allowed the back benefits by the High Court but I am afraid I will decline to do so in regard to the appellant, in view of the observations in the case of Muhammad Bashir v. Punjab Labour Appellate Tribunal 1991 SCMR 2087.

10. It is to be seen that the appellant had allowed the loading of the crates of lemons and fresh vegetables though under the rules it could not be done without the written permission of the Vice‑Chairman of the Railways. The way the events unfolded, clearly indicate that a racket was on. The appeal has been allowed only for technical reasons but the role of the appellant was far from blameless. He is not entitled to back benefits.

11. The appeal is allowed in these terms. Orders accordingly. H.B.T./2156/Lb.S Order accordingly.