1999 PLP 2321 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

This appeal through leave of the Court calls in question the judgment dated 4-12-1993, of the Federal Service Tribunal, whereby Service Appeal No. 145 (L) of 1992 alongwith three other connected matters filed by the appellant and others under section 4 of the Service Tribunal Act 1973 was dismissed.

2. The facts and points noted for consideration at the leave stage were that the appellant while holding the charge of Divisional Signals Engineer. Sukkar in B-18. in Pakistan Railway was proceeded against on account of the Railway accident which took place at Ghotki Railway Station in Sukkur Division on 8-6-1991. On issuing the charge-sheet the appellant was served with a notice. After considering the reply of the appellant, the Competent Authority imposed the penalty of withholding of the appellant's promotion for a period of 3 years vide order dated, 2-2-1992. He moved departmental appeal against the penalty aforesaid, which remained un-responded. He then filed an appeal before the Tribunal.

3. The learned two Members of the Tribunal who were seized of the matter did not agree on the conclusion inasmuch as one learned Member (Rana Rifat Saeed ) allowed the appeal by observing that the minor penalty of with holding of promotion for one year has since become infructuous, the respondent department shall refrain from taking into account this penalty while considering his case for move-over/promotion etc. On the other and, Mr. M. IIyas Lodhi, another learned Member comprising the Bench accepted the appeal of the appellant on the ground that the Inquiry Officer having exonerated him, the punishment imposed by the Authorised Officer was not justified.

4. The learned Chairman of the Tribunal to whom the case of the appellant was referred under section 3-A(b) of the Service Tribunals Act (LXX of 1973) for decision held as under:

"The railway accidents have become common features and detailed inquiry was held in all the cases and both the learned Members have not pointed out any infirmity in the inquiry proceedings, but in my view, there must be cogent grounds for disagreeing with the impugned orders passed by the authorised officer in such cases in which hundreds of people have lost their precious lives. Therefore, in my view punishments have rightly been awarded by the competent authority in all the four appeals, and even if one year period of withholding of promotion has passed, the appellants who are affected by this order, will automatically be considered for promotion but they cannot be exonerated of such serious charges levelled against them. I would, therefore, dismiss all the four appeals. " 4-A. Leave to appeal was granted to consider whether, after difference of opinion between the two learned Members, of Tribunal, dismissal of the appeal by the Chairman, in terms of section 3-A (b) of the Service Tribunals Act (LXX of 1973) without subscribing to one view or the other was unwarranted.

5. Mr. Tanvir Bashir Ansari, learned Advocate Supreme Court representing the appellant, submitted in the first instance that without affording an opportunity of cross-examining the prosecution witnesses and personal hearing to the appellant, the impugned order of stoppage of promotion for 3 years had been passed by the Inquiry Officer which was violative of principles of natural justice and rule 6 of the Government Servants (Efficiency and Discipline Rules, 1973) (hereinafter called as the Rules).

6. We find that the stoppage of promotion of a civil servant for a specified period on the charge of carelessness in the discharge of duties is as serious a matter as convicting a person for crime because his whole career is ruined, therefore, the order of stoppage of promotion must be based on some evidence. This is according to us a serious lapse on the part of the authorised officer to have not afforded an opportunity of cross-examining the prosecution witnesses appearing against the appellant in support of the charges. Having omitted to afford this opportunity to the appellant, resulting in the impugned order, it was violative of the principle of natural justice enshrined in the maxim: "audi alteran partem". The impugned order is, thus, vitiated on this score alone.

7. Section-3-A was added by the Service Tribunals (Amendment) Ordinance, 1978 on 18-3-1978 which enabled the Tribunal to function in Benches consisting of not less than two members of the Tribunal as constituted by the Chairman. In the instant case, as stated earlier, the appeal of the appellant against the impugned order was heard by two Members of the Service Tribunal who were divided in their opinion. The appeal was finally heard by the learned Chairman who totally took a different view and held that the appellant was liable to punishment and while passing his penalty dismissed his appeal.

8. In this view of the matter we are of the considered view that the Chairman should have granted benefit of doubt to the appellant as proceedings were of criminal nature and such benefit had legitimately accrued to him. Another aspect of the case which deserved consideration was that instead of resolving difference of opinion between the two learned Members of the Tribunal, the learned Chairman chose to resort to a totally different course of action, namely, affirmance of the penalty imposed by the competent Authority which had exposed petitioner to serious risk of being found guilty on charges of C which he had been exonerated. Ordinarily in such circumstances, we would have set aside the order imposing the penalty and directed that the proceedings be resumed by allowing the appellant to cross-examine the witnesses and then the case decided afresh as laid down in Iftikharullah v. Secretary, Ministry of Food, Agriculture and Cooperative Food and Agriculture Division, Islamabad (1986 SCMR 1436). The appellant has already suffered the agony of a protracted departmental inquiry and the proceedings, therefore, we would accept the appeal and set aside the order imposing penalty of stoppage of promotion.

9. The appeal is accordingly accepted with no order as to costs. H.B.T./M-289/S Appeal accepted.