2008 PLC (C (PLP)

RASHID ALI MIRZA (MEMBER).

While the appellant had been serving as Junior Commercial Assistant (B) at Chanesar Halt, a charge-sheet dated 25-11-1997 along with statement of allegations, containing the following allegations, was issued to him:-- "Case F.I.R. No.4 of 1994, dated 21-1-1994 under sections 420/ 409/468/471, P.P.C. read with section 5(2) Act II of 1997 of R.P.S./Karachi City. That you Rahim Bux Solangi son of Dhani Bux resident of Railway Colony, Karachi City, while posted a Commercial Assistant (Booking) in Booking Officer/KYC on 16-1-1992 deposited Rs.100 with Government revenue against EFT No.310116 as per record and account's foil positions for one passenger booked Ex; KYC to Quetta for train 3-Up Bolan Mail valid for 20-1-1992 whereas physically it was issued against Cash Rs.1,830 and in this while you having dominion over the said public documents you caused wrongful loss to Government and wrongful gain to yourself by abusing your official position. Due to your above said criminal misconduct a criminal case against you was registered at Railway Police Station KYC in which you are on bail from the Court of Special Judge Central Anti-Corruption No.1, Karachi. As you committed misconduct which is punishable under the efficiency and disciplinary Rules, 1973, as such to why the departmental action may not be initiated against you under the extent rules." The appellant replied the said charge-sheet, rebutted the allegations against him. Thereafter, without holding any departmental inquiry major penalty of removal from service was imposed upon the appellant vide order, dated 8-2-2002. The appellant filed a departmental appeal against the impugned order of the punishment of removal from service, which was rejected; hence, he filed this appeal before the Tribunal on 1-7-2002 under section 4 of the Service Tribunals Act of 1973, praying to set aside the impugned order of removal dated 8-2-2002 and to reinstate him in service with all back-benefits.

2. We have heard the learned counsel for the parties and perused the record including the written comments filed on behalf of the respondents.

3. The learned counsel for the appellant argued that although preliminary inquiry into the allegations against the appellant was held, but the appellant had not been given any chance to cross-examine the witnesses; hence, the preliminary inquiry could not be made basis for imposing the major penalty of removal upon the appellant; that no show-cause notice was issued to the appellant; that in view of the serious allegations of fact denied by the appellant, regular departmental inquiry was absolutely essential for bringing home the charge to the appellant, but that had not since been done, the entire disciplinary proceedings against the appellant had been vitiated as held by the apex Court in various authorities. In support of his arguments, the learned counsel for the appellant relied on an identical judgment of this Tribunal reported in 2005 TD (Service) 332, 2004 PLC (C.S.) 1591, 2005 TD (Service) 328, SBLR 2005 Tribunal 7, PLJ 2004 Tr.C. (Services)

166. He also relied on 1993 SCMR 603, 2004 SCJ 455, 1997 TD (Service) 346, 2004 PLC (C.S.) 595, 1986 PLC (C.S.) 894, 1986 CLC 1408 and 1994 PLC (C.S.) 1273. The learned counsel for the appellant contended that since the appellant was involved in a criminal case, authority was supposed to wait for result of the said case and should not have passed the order of removal. He relied on PLJ 2003 TRC (Service) 69.

4. The learned counsel for the respondents has contended that the inquiry was held against the appellant, but he admits that it was a preliminary inquiry against the appellant in which the appellant was not given the chance to cross-examine the witnesses. He admits that no regular departmental inquiry was held into the allegations against the appellant, but his contention is that the allegations mentioned in the charge-sheet, did not require any regular departmental inquiry and the appellant was rightly penalized. So far as personal hearing is concerned, the learned counsel for the respondents stated that since the appellant did not desire for personal hearing, therefore, it was not afforded.

5. We have considered the above arguments of both sides. We do not find ourselves in agreement with the contention of the learned counsel for the respondents that no regular departmental inquiry was needed into the allegations against the appellant. In our opinion, preliminary inquiry mentioned above was not sufficient to impose the major penalty of dismissal upon the appellant as the appellant had denied the serious allegations of fact against him, which could only be proved by a regular inquiry giving the appellant a chance to cross-examine the witnesses and to put up his defence. Admittedly, no chance of cross-examination and putting up his defence was given to him, as such, the disciplinary proceedings against the appellant were vitiated and, therefore, the major penalty of removal cannot be sustained.

6. As such, we allow the appeal, set aside the impugned order of dismissal of the appellant and direct the respondents to reinstate him in service from the date of his removal. However, the respondents will be at liberty to initiate the de novo proceedings against the appellant strictly in accordance with law within a period of four months from the date of receipt of a copy of this judgment. The back-benefits, if any, for the period the appellant was not gainfully employed elsewhere, would depend upon the, result of the inquiry.

7. No order as to costs.

8. Copies of the judgment be sent to the parties under registered cover and to the relevant quarters under Rule 21 of the Service Tribunal (Procedure) Rules, 1974. H.B.T./33/FST Appeal allowed.