2008 PLP (C (PLC(CS))

RASHID ALI MIRZA (MEMBER).

Brief facts for the disposal of this appeal, are that the appellant was appointed as relieving Commercial Clerk and was subsequently promoted as Senior Commercial Assistant (Booking). On 9-3-2005, he was issued show-cause notice along with statement of charges by respondent No.2 alleging therein that he had misappropriated an amount of Rs.10,955 during the month of June and July, 2004 while issuing E.F.Ts. to the passengers, which amount was subsequently deposited by him vide C.R. Note No.796312 dated 6-11-2004 and No.796327 dated 20-11-2004. It was further alleged against him in the said show-cause notice that he was awarded punishments of withholding of increments at various times and that he ceased to be efficient.

2. The appellant in his reply to the aforesaid show-cause notice denied the allegations levelled against him. He stated that an amount of Rs.10,995 was remitted by him under the direction of A.C.O.-II, who threatened him for handing over the appellant to Railway Police.

3. Vide order dated 20-4-2005, the appellant was awarded major penalty of dismissal from service under Removal from Service (Special Powers) Ordinance, 2000, against which he preferred a departmental appeal on 29-4-2005 which has remained un-responded hence after expiry of statutory waiting period, he filed the present appeal under section 4 of the Service Tribunals Act, 1973, praying therein to set aside the impugned order, dated 20-4-2005 of dismissal of the appellant from service and reinstate him in service with full back-benefits.

4. We have heard the learned counsel for the appellant as well as Departmental Representative Mr. Mujahid Ali Hashmi L.A. and have perused the record.

5. The learned counsel for the appellant argued that major penalty of dismissal from service imposed upon the appellant was on the basis of preliminary enquiry, which is not tenable under the law. He placed reliance on 2001 SCMR 256; 2001 PLC (C.S.) 296; 2003 PLC (C.S.) 353 and SBLR 2003 TR

164. He further argued that the enquiry was dispensed with under section 5(4) of the Ordinance but no reasons were shown for dispensing with the enquiry. He placed reliance on 1985 PLC (C.S.) 636, 1996 PLC (C.S.) 868, 1997 SCMR 1543=1997 PLC (C.S.) 817 and 2003 PLC (C.S.)

353. Regarding allegation of confession of guilt and later on deposition of the amount by the appellant, the learned counsel argued that the appellant had deposited the amount under pressure and torture. Even otherwise after the shortage was made good, lenient view should have been taken by the respondents but, instead of taking lenient view a major penalty of removal was imposed upon the appellant. He placed reliance on 2003 PLC (C.S.) 497 and 1546. He also argued that before awarding major penalty, the authority did not consider the reply submitted by the appellant properly and applying a judicious mind, non-speaking stereo typed order was passed in a mechanical fashion. In support of his contention, he placed reliance on 2003 PLC (C.S.) 1527 and 2004 PLC (C.S.)

470. He argued that the appellant was not supplied a copy of enquiry report before awarding major penalty, which has vitiated all the proceedings, as such the impugned order is liable to be set aside. He placed reliance on PLD 1981 SC 176, 1987 SCMR 1562, 1996 SCMR 201 and PLJ 2003 TRC (Service)

66. He argued that no proper opportunity of defence was provided to the appellant hence, the entire action of the authority suffers from legal infirmities. He further argued that before awarding major penalty the appellant was not called for and heard in person. He placed reliance on 2005 TD (Service) 328 and 2005 PLC (C.S.) 1527. The learned counsel for the appellant argued that the major penalty was awarded in a summary manner on the basis of show-cause notice which is liable to be set aside. He placed reliance on 2002 SCMR 57, 2003 PLC (C.S.) 395 and 514 and 2003 SCMR

681. He argued that major penalty of removal awarded to the appellant was on the basis of previous punishment. He argued that second punishment on the basis of past punishment cannot be awarded under the law and that minor punishments stood waived of on expiry of two years as has been held 2005 PLC (C.S.) 1544, 2005 PLC (C.S.) 1504 and 2005 PLC (C.S.) 1565. He lastly argued that the allegations levelled against the appellant were denied by him, hence, it was necessary for the respondents to conduct proper, fair and impartial departmental enquiry, which was not done and a major penalty was awarded which is illegal. He relied on 1997 SCMR 1543=1997 PLC (C.S.) 817 and 2004 SCMR 316=2004 PLC (C.S.) 344.

6. The Departmental Representative, while relying on the comments filed on behalf of the respondents submitted that the appellant was involved in misappropriation, which amount was subsequently deposited by him and that he was awarded punishments in the past as such, he was rightly awarded major penalty of dismissal from service.

7. We have carefully considered, the above submissions of both sides. The proceedings against the appellant had been initiated by a show-cause notice issued under Removal from Service (Special Powers) Ordinance, 2000 and he was also punished under the same Ordinance. Broadly speaking the procedure prescribed for action under Removal from Service (Special Powers) Ordinance, 2000 is that the competent authority issues charge-sheet, appoints Enquiry Officer who holds enquiry giving the accused official full chance to defend himself and if the charges are proved a second show-cause notice is issued to the accused along with a copy of the enquiry report and then the accused official is given a chance of personal hearing, whereafter punishment if any is imposed upon the accused official on the charges proved against him. However, in case where the competent authority finds that regular enquiry is not needed for any reason including the availability of documentary evidence on which the matter can be decided or for any other reason for not holding regular enquiry such as confession or admission of an accused official then the competent authority is required to state in the show-cause notice that for such and such reason, the enquiry is dispensed with, but in the instant case we find that no such reason has been assigned in the show-cause notice for dispensing with the regular enquiry. Secondly, in spite of denial of serious allegations of fact by the appellant no regular enquiry has been held against him. We find that there are grave and serious infirmities in the disciplinary proceedings against the appellant which have vitiated the same. Reliance is placed on 1984 PLC (C.S.) 641, 1986 PLC (C.S.) 894, PLD 1994 SC 222 and 1985 PLC (C.S.) 245.

8. Under the circumstances, the order of removal of the appellant cannot be sustained. The appeal is therefore, remanded with direction to the respondent to reinstate the appellant and hold de novo disciplinary proceedings against the appellant on the same allegations/charges within a period of four months. The period of four months shall be counted from the date of receipt of a copy of this judgment by the respondent. The question of back-benefits shall depend upon the result of the enquiry. No order as to costs.

9. Copies of this judgment be sent to the parties (under registered cover) and to the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974. H.B.T./3/FST Order accordingl