2006 PLP (C (PLC(CS))

QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).

The abovementioned two appeals are based on almost same facts and law, therefore, these will be disposed of by this common judgment.

2. Appellants Shahzad Ali Khan and Muhammad Achar had been serving as Constables in Pakistan Railways Police, Karachi Division. They were posted at Railways Police Station Bin Qasim. On 31-1-2002 both the appellants were detailed for escort duty for Train 69-UP Sukkur Express and 26 Down. On 31-1-2002, they were scheduled to escort duty on train 69 Up Sukkur Express, Ex-Karachi City to Railways Station Tando Adam, but both of them absented themselves from such duty. It was alleged that in their absence a dacoity took place in 60--Up Sukkur Express between Landhi and Jangshahi Stations, as such, show-cause notice dated 1-2-2002 under section 2(iii) of the Pakistan Railways Police (E&D) Rules 1996 along with statement of allegations was served upon them for disciplinary action against them. In his reply to the show-cause notice dated 6-2-2002, appellant Muhammad Shahzad Ali admitted that he could not turn up on duty on 31-1-2002 as his son was under treatment of Dr. Ahmed Clinic and due to that he could not inform the S.H.O.,. Bin Qasim or his senior officers about his absence. In his similar reply to the show-cause notice, appellant Muhammad Achar admitted his absence from duty on Train 69-Up Sukkur Express on 31-1-2002 to 1-2-2002. He explained that he could not perform the escort duty due to severe pain in kidneys on that day and that he had remained under treatment for kidney pain earlier also. Both the appellants were placed under suspension and inquiry was ordered against them. In consequence of the inquiry, the inquiry officer held both the appellants guilty of remaining absent without intimation against the service discipline due to which incident of dacoity could not he prevented. On the basis of the inquiry report and after personally hearing the appellants, they were dismissed from service vide order dated 14-2-2002. Against the order of their dismissal, appellants preferred departmental appeals before the D.I.G., Pakistan Railways Police, Lahore, who rejected their appeals, vide order dated 27-6-2002 due to misconduct on their part.

3. Being aggrieved by their dismissal from service and rejection of their departmental appeals, both the appellants preferred separate appeals before the Tribunal on 10-7-2002 and 13-7-2002 under section 4 of the Service Tribunals Act of 1973 praying to set aside the impugned orders of their dismissal from service and rejection of appeals and to reinstate them in service with all back-benefits or to remand the cases to the respondents for de novo disciplinary action as per Rules under 1996.

4. We have heard Mr. Sanaullah Noor Ghouri, the learned Counsel for both the appellants and Mr. Muhammad Asghar, the learned Counsel for the respondents. We have also perused the record as well as the authorities cited at the bar.

5. The learned Counsel for the appellants assailed the inquiry proceedings stating that the respondents failed to hold the inquiry against the appellants in accordance with Rule 7(2) and (3) of Pakistan Railways Police (E&D) Rules, 1996 inasmuch as the appellants were not associated in the inquiry and they were not given the chance to cross examine the witnesses; hence, the inquiry was bad in law. He relied on 1993 PLC (C.S.) 643, 1985 PLC (C.S.) 478, 1999 SCMR 819 = 1999 PLC (C.S.) 409, 1997 SCMR 1073, 1999 SCMR 819, 1983 PLC (C.S.) 17, PLD 1994 SC 275 and PLD 1994 SC 275 = 1994 PLC (C.S.)

612. Further that the inquiry proceedings being defective no major penalty could be imposed upon the appellants on the basis of such inquiry. The learned counsel relied on 1993 SCMR 1440 & 1997 PLC (C.S.)

348. The learned counsel further pointed out that the respondents had not supplied the copy of inquiry proceedings to the appellants; hence, the proceedings against the appellants had been vitiated. He relied on 1988 SCMR 1756, 1987 PLC (C.S.) 528 and 1983 SCMR

229. The learned counsel argued that no second/final show-cause notice was given to the appellants before personal hearing or before imposing the major penalty of dismissal upon them. As such, he contended, the dismissal of the appellants was liable to be set-aside. He relied on 1992 PLC (C.S.) 490 and 1993 PLC (C.S.)

698. The learned counsel also stated .that the impugned order of dismissal was non - speaking order; hence, such order was liable to be quashed. He relied on 2001 MLD 690, 1998 SCMR 2268 and 2000 PLC (C.S.)

857. Lastly, the learned counsel stated that the respondents had not examined the Doctor, who had rendered medical treatment to his son as also the S.H.O. to prove, if any T&T phone was installed at M.Y. Bin Qasim. According to the learned counsel for the above mentioned infirmities, no order of dismissal of the appellants from service could be passed and that the same was, an illegal was liable to be set aside.

6. In rebuttal, the learned Counsel for the respondents Mr. Muhammad Asghar argued that since the appellants had admitted their unauthorized absence from duty the burden of proving the reasonable cause for such absence was on the Appellants, but they failed to do so. He further contended that the appellants failed 'to inform the S.H.O., or concerned officers about absence and they could not assign any plausible reaons for not so informing the concerned inspite of lot of time available to them. The learned counsel stated that all the witnesses concerned were examined by the inquiry officer and the appellants were also examined; that the appellants never asked to cross-examine other witnesses, whose evidence against the appellants were on the point of their absence from duty, which absence having been admitted by the appellants, there was hardly any occasion for the appellants to cross-examine them. Further that non-cross-examination of such witnesses did not cause any prejudice to the appellants due to their admission of absence from duty. The learned Counsel for the respondents further stated that having admitted their absence from duty the burden of proving that they so remained absent due to some plausible or reasonable cause was on them, but they failed to examine any one in support of their plea of bonafide absence. Lastly, the learned counsel referred us to Pakistan Railway Gazette No.16 dated 15-8-1980, relevant portion whereof is reproduced as under: -- "No.66. Acceptance of Private Medical Certificate from the Railway Employees' (Letter No.831-E/156(E-I) dated 27th July, 1980). As a result of Memorandum of Settlement, dated 18th September, 1979, drawn between representative of the United Union of P.R. Workers (C.B.A. for Open line) and the Railways Administration against demand No.9, it has been decided that in case a railway employee at a station where there is no Railwasy Doctor falls ill and he is not fit to travel he may send a request to the concerned Medical Officer to attend to him at his residence/station. If the Medical Officer does not attend, he can obtain Medical Certificate from a Non-Railway Doctor, (Registered Medical Practitioner), which will later be accepted by the Divisional Medical Officer. As soon as the patient is fit to travel, he should report to the Railwy Doctor concerned for obtaining certificae of sickness or fitness, as the case may be." The learned Counsel for the respondents stated that the appellants failed to comply with the above-mentioned instructions. He vehemently urged that the appellants were rightly dismissed from service by the respondents for their dereliction of duty by unauthorizedly remaining absent without intimation as a result of which innocent passengers in the train were looted and deprived of their valuables which fact of dacoity had never been challenged nor denied by the appellants.

7. After hearing the arguments of the learned counsel for the respondents, Mr. Ghouri, the learned counsel for the appellants pleaded that for a petty act of negligent extremely harsh punishment of dismissal had been imposed upon the appellants. He, therefore, alternatively prayed that the major penalty of dismissal be converted into minor penalty on compassionate ground.

8. We have carefully considered the arguments of the learned counsel for the parties and perused the authorities cited at the bar. 8-A. The discrepancies in the disciplinary proceedings against the appellants, pointed out by the learned Counsel for the appellants, make it a case for remand to the respondents to hold de novo inquiry proceedings, but in view of the fact that the appellants have admitted their unauthorized absence from duty for the reason advanced by' them that they failed to attend their duty on medical grounds. If on remand they succeed in the inquiry in establishing in their defence that they actually absented themselves on genuine medical grounds, even then the fact remains that there is no satisfactory explanation on their part about non-informing their superiors about such absence. They could have informed their S.H.O. or any one at the concerned Railway Police Station through any one or by any means during the space of whole day prior to their duty. Their such act of extreme negligence can never be condoned. They must have known that theirs was a very sensitive duty. They could ill-afford to abandon it or be absent without any intimation, as such, despite the discrepancies in the disciplinary proceedings taken by the respondents, their guilt of remaining absent without intimation stands proved, but there is no allegation against them of any collusion, conspiracy or, in any way, their involvement in the dacoity in 69 Up Sukkur Express. Therefore, we do not think it will be advisable to remand the case to the respondents for holding a de novo inquiry against the appellant, for that would be sheer waste of time and putting the parties to further additional burden of expenses on that score. Taking into consideration lapses on either side, we would like to accept the plea of harshness of punishment urged by the learned Counsel for the appellants. We therefore, dismiss the above two appeals modifying the punishment of the appellants by converting their dismissal to withholding of their increments for a period of three years from the date of their dismissal. Resultantly, the appellants are reinstated in service from the date of their dismissal with back-benefits as per modified punishment for the period they were not gainfully employed elsewhere, and for that purpose they shall submit an affidavit before the competent authority. No order as to costs.

9. Copies of the Judgment be sent to the parties and to the relevant quarters as per Rule-21 of the Service Tribunals (Procedure) Rules, 1974. H.B.T./166/FST?????????????????????????????????????????????????????????????????????????????????? Order accordingly.