MUHAMMAD HALEEM and another vs GENERAL MANAGER (OPERATION)

ORDER

' SAIYED SAEED ASHHAD, J.--- Both the petitioners were dismissed on the ground that they had provided illegal water and electricity connections. Charge-sheets along with the statement of allegations were issued to both of them. It will be useful to reproduce the contents of both the charge-sheets as well as the statements of allegations, as under:--- ' Show-cause notice in respect of Muhammad Haleem

(1) Whereas you are charged with gross misconduct and breach of discipline as per statement of charges attached.

( ) And whereas the competent authority has decided that there is no need of holding an enquiry against you under subsection (4) of section 5 of the Ordinance XVII of 2000 (Removal from Service (Special Powers) (Amendment) Ordinance No,V of 2001 and that proceedings are being initiated under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000, which might entail imposition of a major penalty of "dismissal" from service as specified in section 3 of the said Ordinance.

(3) Now, therefore, you are required to show cause within 7 days from the date of receipt of this notice, as to why the proposed action should not be taken against you

(4) If no response is received from you within the time stipulated above, it would be presumed that either you have no defence to offer and/or you have wilfully declined to do so. The case shall then be decided on "ex parte" without further reference.

' Statement of allegations in respect of Muhammad Haleem.

' You Mr. Muhammad Haleem son of Ghulam Fareed Mate, under P.W.1/KCR (Baldia) are charged with gross misconduct, inefficiency and corruption for the following charges and other relevant circumstances.

(a) You are involved to supply illegal Railways Electric and Water to the outsiders of Muchar Colony including Sultan Hotel.

' You are, therefore, being proceeded against under Removal from Service (Special Powers)

Ordinance, 2000-2001.

' Show-cause notice in respect of Sher Muhammad

(1) Whereas you are charged with gross misconduct and breach of discipline and per statement of charges attached.

(2) And whereas the competent authority has decided that there is no need of holding an enquiry against you under subsection (4) of section 5 of the Ordinance XVII of 2000 (Removal from Service (Special Powers) (Amendment) Ordinance V of 2001 and that proceedings are being initiated under section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000, which might entail imposition of a major penalty of "Dismissal" from service as specified in section 3 of the said Ordinance.

(3) Now, therefore, you are required to show cause within 7 days from the date of receipt of this notice, as to why the proposed action should not be taken against you.

(4) If no response is received from you within the time stipulated above, it would be presumed that either you have no defence to (sic) other order you have wilfully decline to do so. The case shall be decided on "ex parte" without further reference.

' Statement of allegations in respect of Sher Muhammad ' You Mr. Sher Muhammad son of Ghulam Nabi Gate Keeper under P.W.1/KCR (Baldia) are charged with gross misconduct, inefficiency and corruption for the following charges and corruption circumstances.

(a) You are involved to supply illegal Railways Electric and Water to the outsiders of Muchar Colony including Sultan Hotel.

' You are, therefore, being proceeded against under Removal from Service (Special Powers)

Ordinance, 2000-2001.

2. From a bare perusal of aforementioned show-cause notices and statements of allegations it is noted that they are verbatim. It is also noted that the allegations levelled against them were with regard to the illegal supply of electricity and water belonging to railway to the resident of Muchar Colony including one Sultan Hotel. These charges could have been proved only by producing evidence showing that the petitioners were responsible for providing electricity and water belonging to the railways to the residents of Mucher Colony and Sultan Hotel but instead of doing so the respondents in their wisdom thought it fit that there was no need to hold an inquiry without specifying as to why there was no need for holding an inquiry and how the charges/misconduct which were questions of fact would be proved without holding an inquiry. In other words initiation of the proceedings against the petitioners was based on illegalities as the observation of doing away with the inquiry was contrary to the pronouncement made by this Court in a large number of cases that where the allegation/charge/misconduct is of the nature requiring production of evidence to prove the same then holding of a departmental inquiry is a necessary condition and dispensation thereof cannot be made as in the first place there would be no evidence or material in possession of the department to establish and prove the charge/allegation of fact and, secondly that the civil servant proceeded against would be deprived of his right to defend himself properly as it would not be possible for him to cross-examine the witnesses who would depose against him and from their cross-examination he could elicit favourable and beneficial statements. It is a settled principle of law that when the initial order or the very act which relates to the initiation of a proceeding is contrary to law and illegal then all subsequent proceedings and actions taken on the basis of such illegal and unlawful action would have no basis and would fall. If any authority is required in support of the above the same is available from the case of Mansab Ali v. Amir and 3 others PLD 1971 SC 124. It is also surprising that the Tribunal while hearing the appeals of the petitioner got involved and entangled itself in technicalities without taking into consideration the above illegalities. .There is no doubt that the petitioners did not assail their orders of dismissal by filing the departmental appeals and instead they submitted legal notices through their advocates which could not be equated or treated as appeal under the Removal from Service (Special Powers)

Ordinance, 2000 but completely ignored the illegalities and shortcoming committed by the Railway Authorities and on the basis of the failure of the petitioners to comply with the provisions of law penalized them while completely ignoring and overlooking the respondent/Railway Department's illegal, unlawful actions, and contravention of law which resulted in illegal dismissal of the petitioners.

3. In view of the above there is no doubt that entire process initiated by the Department against the petitioners for their dismissal/removal from service smacks of mala fides and animosity besides lacking legal sanctions.

4. For the foregoing facts and reason these petitions merit consideration. Accordingly, they are converted into appeals and are allowed. The impugned judgment of the Tribunal as well as the orders of F dismissal of the petitioners are set aside and they are ordered to be reinstated in service immediately with all back-benefits with the intimation to this Court. No order as to costs.