2007 PLP (C (PLC(CS))

RASHID ALI MIRZA (MEMBER).

The appellant has tiled appeal under section 4 read with section 2 of the Service Tribunals Act, 1973 challenging his dismissal order, dated 8th April, 2002 passed by respondent No.2 against which the appellant sent his departmental appeal to the respondent No.1 on 20-4-2002 for setting aside the said punishment of dismissal form service, the respondent rejected the 'departmental appeal on 2nd July, 2002.

2. The facts of the case are that 1ppellant joined the respondent-Organization as constable with effect from 13-8-1995. While he was posted at Railway Police Station Rohri and was detained for escort duty with Train 15-Up Karachi Express Night Coach Ex-Hyderabad to Khanewal. The respondent No.2 on 19-9-2001 placed the appellant under suspension under the orders of the I.-G. P.R.P. Lahore issued by respondent No.2. The respondent No.2 issued finial show-cause notice to the appellant on 2-4-2002 alleging therein that on 24/25th July, 2001 while he was on train Escort duty with Train 15-Up Night Coach, carried a family of Mr. Maqsood Ahmed (comprising three members) without tickets from Karachi to Lahore, arranged tickets for them from Rohri to onward by taking money of Rs.2,200 from the said passengers, as proved during the course of the enquiry through S.-I. Special Branch, Lahore. The appellant tendered his reply to the said show-cause notice on 6th April, 2002 and rebutted all the charges. The appellant contended that he had boarded by a train from Railway Station, Hyderabad and not from Karachi and escort duty of the appellant terminated at Railway station Khanewal. The enquiry was conducted by the Inspector Islamuddin of Sukkur Division in which he was not found guilty but subsequently, enquiry of the Sub-Inspector was' of no avail which was arranged through threat and coercion as such, such enquiry report was having no value. The appellant has further stated that after tendering his reply to final show-cause notice, the respondent No.2 called him in-orderly in a room and heard him in person. The appellant again explained the position through verbal submissions to which the respondent No.2 was satisfied with the verbal averments of the appellant. Appellant has further stated that the respondent No.2 dismissed him from service on 8th April, 2002, hence this appeal.

3. The respondents have filed the parawise comments. In their parawise comments, the respondents have stated that appellant was inflicted the following punishments in the past which are as under:-- (i) Censure in 1997 while sleeping on duty. (ii) WIT for one year in 1997, for misbehaving with Assistant Commercial Officer Pakistan Railway, Sukkur in Train No.105-Up Shalimar Express on 4-12-1996, while checking the train. (iii) Dismissed from service on 8-4-2002 for carrying ticketless passengers in Train 15-Up on 24-7-2001 on accepting Rs.2,200.

4. The respondents stated that the appellant picked up the ticketless passengers Mr. Maqsood Ahmed and family, Prom Karachi by 15-Up Night Coach dated 24/25-7-2001 irregularly and out of course and accommodated them unauthorizedly on the Electrical Staff on duty Berth Nos.9 and 13 of Boggy No.11, in reward of Rs.2,

200. During checking by the Army vigilance at Khanewal posted in the Pakistan Railway, these passengers were detected carrying by the police staff by abusing his official position. On the spot Army Vigilance conducted the probe, confronted the constables with the passengers and the Electrical staff on duty and after verification, the statement was recorded by the Army Vigilance Khanewal and a special report was communicated to the Ministry of Railway, Government of Pakistan, Islamabad, and on their directives action was initiated by the respondents under the relevant laws. Since there was overwhelming evidence on the record and it was a fit case to be dealt with under the show-cause notice by dispense with the regular enquiry. However, to afford a fair opportunity of defence to the appellant an enquiry was ordered which was conducted by the independent Police Officer of the Special Branch, Headquarter Office, Lahore, who has held in the report that the appellant is guilty of serious misconduct.

5. We have heard the arguments of learned counsel for the parties and have also perused the record.

6. The learned counsel for the appellant assailed the impugned order as illegal, void as the appellant was not afforded personal hearing in disregard of the rulings of the apex Court. He also argued that major punishment has been imposed upon the appellant on the basis of the fact finding enquiry was conducted in violation of rules and procedure and it was in question answer form. The learned counsel for the appellant also stated that impugned order may be set aside and matter be remanded back to the department for de novo departmental action as per rules. Learned counsel for the respondents also requested that in view of the infirmities as defined by the learned counsel for the appellant the case may be remanded back to the respondents for de novo proceedings.

7. In view of the above facts, we accept the appeal, set aside impugned order and direct the respondents to reinstate the appellant in service from the date of his dismissal from service. The respondents will however, be at liberty to initiate fresh proceedings against the appellant strictly in accordance with law which should be completed within a period of 4 months and the question of back-benefits will be decided on the outcome of these proceedings.

8. No order as to .costs. Copies of judgment be sent to the parties and the relevant quarters wider registered cover under Rule 21 of Service Tribunal (Procedure) Rules, 1974. H.B.T./90/FST Case remanded.