2009 PLP (C (PLC(CS))

ZAHEER AHMED (MEMBER).

This is an appeal against the impugned notification, dated 2-4-2007 (issued on 16-4-2007 and received by the appellant on 17-4-2007) whereby major penalty of dismissal from service was imposed on the appellant under section 3 of Removal from Service (Special Powers) Ordinance, 2000. His departmental appeal dated 24-4-2007 remained un-responded. After waiting for statutory period of 60 days, he filed the instant appeal before the Federal Service Tribunal on 21-7-2007 to invoke the appellate jurisdiction.

2. Brief facts of the case are that the appellant while serving as Assistant Engineer/Track (BS-17) Pakistan Railways, Khanewal, was issued a charge-sheet dated 21-11-2005 along with statement of allegations on account of committing gross misconduct, negligence of duty and careless attitude. The allegations are as under:

"(1) With your connivance Mr. Muhammad Sohail, Front Man of Mr. Faqeer Muhammad, Contractor has illegally cut down 98 green trees at Mian Channu, Chichawatni, Sahiwal Stations and has thus caused a loss of Rs.6,73,750 to the Railways on his account. (2) The illegal cutting of green trees was done in your presence at Chichawatni 2-1-2005, Mian Channu on 5-2-2005 and Sahiwal on 18-2-2005 which confirmed your personal involvement in this illegal activity. (3) Due to ulterior motive and mala fide intention you did not depute any Engineer representative to check the illegal cutting of trees at the above stations. (4) You lodged F.I.R. with District Police Station, Ghala Mandi, on the directive of D.S. Pakistan Railways, Multan but you failed to mention the actual No. of green trees which were cut down at Sahiwal and the name of the main culprit Mr. Muhammad Sohail in the said F.I.R." To ascertain the facts of the case an inquiry was ordered. Syed Ghazanfar Abbas, Deputy P.D./Doubling of Tracks, Pakistan Railways, Headquarters Office, Lahore was appointed as Inquiry Officer who conducted the inquiry and found the appellant guilty of the charges as all the above allegations were proved against him. Conclusion of the inquiry report is as under:

"In the backdrop of the foregoing discussion Mr. Shoaib Iqbal is held responsible for slack supervision, inefficiency ad lack of control and failed to very/authenticate the list of trees submitted by his IOW and identification and ear marking of the specified trees." In the light of the inquiry report a show-cause notice dated 5-1-2007 was issued to him. The appellant replied to the show-cause. notice on 20-1-2007 and denied the allegations levelled against him. His reply was considered not satisfactory. Resultantly the impugned notification dated 2/16-4-2007 was issued. The appellant has now approached the Federal Service Tribunal for seeking relief.

3. The learned counsel for the appellant started his arguments with the plea that the Auction Committee which was constituted for the auction of the dead and fallen trees, lying on Railway Colony at Khanewal, Khanewal-Sahiwal Section including Chichawatni, Mian Channu and Sahiwal Stations, originally included the appellant as a member. Later on his name was deleted and therefore, he had no interest in illegal cutting of trees as he had no influence in the auction of the trees. The Divisional Superintendent Railways was the competent authority for approval of auction as such the allegations that the appellant with connivance of the Front Man of the Contractor illegally cut down the trees at Chichawatni, Mimi Channu and Sahiwal Stations does not seem logical. Since the appellant was not a member of the Auction Committee nor was he overall incharge of the cited operation, he could not have authorized illegal cutting of the trees. He further argued that the main accused in the case was Inspector Works who was the Incharge of the work regarding cutting of the trees, he has been given a minor penalty of two W.I.T. whereas the appellant had been given major penalty of dismissal from service. This is, therefore, a case of discrimination under Article 25 of the Constitution of Islamic Republic of Pakistan. The counsel further argued that the Inquiry Committee found that all trees were cut on closed holidays and the appellant was not required to be present during these holidays. Furthermore, the Inquiry Committee could not establish that the appellant was present when the trees were cut down, therefore, when the appellant was not present he could not have got the trees cut illegally. The counsel further argued that during the inquiry proceedings none of the witnesses levelled any specific charge of dishonesty or corruption against the appellant. He was, therefore, charged with slack supervision, inefficiency and lack of control, which does not warrant a major penalty of dismissal. Furthermore, the Railways authorities did not sustain any loss and the 98 trees are still in the custody of the Railways. On the legal side, the counsel argued that the major penalty of dismissal has been imposed without a regular inquiry and giving a proper opportunity of defence to the appellant. The provisions of Removal from Service (Special Powers) Ordinance, 2000 were therefore, not followed. While concluding his arguments, the counsel stated that the imposition of major penalty of dismissal from service is too harsh and that a major penalty cannot be imposed on the charges of inefficiency and slackness only. He relied on 2005 SCMR 1617, 2003 PLC (C.S.) 317 and 2002 SCMR 610 in support of his contention. On the basis of these arguments the counsel for the appellant prayed that the appellant may be reinstated in service with all benefits.

4. The counsel for the respondents started his arguments by stating that an F.I.R. lodged by the appellant did not mention the exact number of trees which was inefficiency and slackness on his part. Furthermore, the Inquiry Committee after detailed examination of the witnesses has concluded that the appellant was responsible for slack supervision, inefficiency and lack of control and he failed to verify/authenticate the lists of trees submitted by his IOW and failed to identify and earmark the specified trees. The appellant as Assistant Executive Engineer, Incharge of the Section was responsible to properly supervise the cutting of trees in a legal manner. However, he failed to do so. A regular inquiry was conducted in this case and the appellant was also given a chance of personal hearing and his proper defence. The penalty awarded is, therefore, perfectly legal and in accordance with the laid down procedure of Removal from Service (Special Powers) Ordinance, 2000. On the basis of these arguments the counsel for the respondents insisted that the appeal has no merit and should be dismissed.

5. In view of the above discussion, we tend to agree with the counsel for the appellant that the major penalty of dismissal from service is too harsh especially when the other accused Inspector Works has been awarded a minor penalty of W.I.T. for two years. This tantamounts to discrimination as pointed out by the counsel for the appellant. Furthermore, the appellant was charged with inefficiency, slackness and lack of control which does not warrant a major penalty. We are fortified by apex Court's judgment reported as 1997 PLC (C.S.) 345 in this regard.

6. Keeping foregoing in view, the impugned order is set aside; major penalty of dismissal is converted into minor penalty of withholding of W.I.T. for two years from the date of his dismissal. The intervening period will be treated as a leave of kind due.

7. No order as to costs.

8. Parties be informed. H.B.T./9/FST Order accordingly.