ALLAH YAR Versus GENERAL MANAGER RAILWAYS

JAVED IQBAL, J.---This appeal by leave of the Court is directed against order, dated 24-6-1997 passed by a learned Division Bench of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby the judgment, dated 21-5-1997 passed by a learned Bench of Lahore High Court (Bahawalpur Bench) dismissing the Constitutional petition preferred on behalf of the appellant was kept intact.

2. Leave was granted by this Court vide order, dated 4-11-1997 which is reproduced hereinbelow in verbatim to appreciate the legal and factual aspects of the controversy:---

"This is a petition for leave to appeal against the order, dated 24-6-1997 of a Division Bench of the Lahore High Court passed in I.C.A. No.46 of 1997, filed by the petitioner against the judgment of a learned Single Judge of the same High Court in Writ Petition No.2755-S of 1994, dismissing the petitioner's aforesaid writ petition, declining the above I.C.A. in limine.

(2) The brief facts are that on 6-4-1991 the petitioner while performing his duty as a Driver in the Railways Department took Goods Train 6201 Up from Samasatta to Khanewal. When he reached Mehr Shah Station, A.S.M. (Assistant Station Master) and pointman demanded Token from him and asked him as to why he had passed "Jangle Maryala" Station without authority. The petitioner was charge? sheeted on 13-4-1991. He submitted his reply, in which he denied the above allegation. After that an enquiry was conducted and in consequence thereof, he was removed from service. Then he filed a departmental appeal, which was allowed on or about 5-6-1993 to the extent that removal from service was reduced to compulsory retirement. After that he approached the Service Tribunal but his appeal was dismissed on 15-4-1994 on the ground that the Tribunal had no jurisdiction. His petition under section 25-A of the I.R.O. was, also dismissed by the Punjab Labour Court on 23-6-1994 i.e., earlier than the above order of the Tribunal. Then he filed the aforesaid writ petition and I.C.A. without any success. The petitioner has, therefore, filed the present petition for leave to appeal.

3. In support of the above petition the petitioner, who has appeared in person, has contended that since the charge against him was violation of GR 120 as is evident from the charge-sheet (at page 30 of the paper book), the Railway Authorities could not have imposed the penalty of removal from service or compulsory retirement as the infringement of the above Regulation entails forfeiture of one month salary as per Railway Regulations. He has relied upon the General Rules for Pakistan Railways with the Subsidiary Rules of the P.W.R. contained in 1970 Edition of the Rules, particularly Rule 397 which reads as under:

'397. Penalty for breach of rules .---Any railway servant committing breach of any of the rules in this Part shall forfeit a sum not exceeding one month's pay, which sum may be deducted by the Railway Administration from his pay (vide section 47(2) of the Act.)'

On the other hand, Mr. Muhammad Aslam Sindhu, learned Advocate Supreme Court appearing for the Railways, has contended that under the Railways (Efficiency and Discipline) Rules, 1975, the department has the power to impose any major penalty in addition to what has been provided in the above Rules.

We are inclined to grant leave to consider, as to whether the judgments of the learned Single Judge and the learned Division Bench are in accordance with law. Leave is, accordingly, granted. "

3. The appellant appeared in person and argued the matter at length. Mr. Muhammad Aslam Sindhu, learned Advocate Supreme Court appeared on behalf of General Manager, Railways (respondent) and supported the impugned order by arguing that no illegality or irregularity whatsoever, has been committed by the forums below and all the necessary formalities were completed as envisaged in the relevant service laws and no injustice has been done to the appellant and in spite of the fact that his negligence has been proved the order of the dismissal was converted to that of compulsory retirement from service.

4. We have carefully examined the respective contention as agitated on behalf of the parties. We have minutely perused judgment, dated 21-5-1997 passed by learned Single Bench and impugned order in the light of relevant provisions of law and record of the case. It has been observed with grave concern that the procedure as enumerated in the Railway Servants (Efficiency and Discipline) Rules, 1975 (hereinafter referred to as the Rules) was never followed in letter and spirit. The procedure as envisaged in the said Rules is summarized hereinbelow:--

"A Railway servant is liable to penalty when he is inefficient; is guilty of misconduct; which means conduct prejudicial to good order or service discipline or contrary to Railway Servants Conduct Rules, or unbecoming of an officer and a gentleman and includes any act on the part of a Railway servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Railway Administration or any officer thereof in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Railway servant; and

The penalties to be, imposed are classified as major penalties and minor penalties. Minor penalties include censure; withholding of promotion or increment for a specified period; stoppage at efficiency bar; recovery from pay of the whole or any part of any pecuniary loss caused to Government by negligence or breach of orders. Major penalties include reduction to a lower post; compulsory retirement; removal from service; and dismissal from service. Dismissal disqualifies for future employment under Government. In the case of removal simpliciter there is no such disqualification.

Where a Railway servant is accused of subversion, corruption or misconduct the authorised officer may require him to proceed on leave, or suspend him. The order of suspension is required to be reviewed every three months. The authorised officer is to determine according to the facts of the case whether the case is to be enquired into by an Inquiry Committee or otherwise. If the appointment of an Inquiry Committee is not considered necessary the authorised officer is required by order in writing to inform the accused of the action proposed to be taken in regard to him and give him a reasonable opportunity of showing cause against that action.

Where an Inquiry Committee is appointed the authorised officer shall frame a charge and communicate it to the accused together with the statement of allegations, and require him within fourteen days to put in a written defence and to state whether he desires to be heard in person: The Inquiry Officer or the Inquiry Committee shall enquire into the charges and may examine such oral documentary evidence in support of the charge or in defence of the accused as may be considered necessary. The accused has the right to cross-examine the witness against him.

The Inquiry Officer or Committee is required to hear the case from day to day and no adjournment is to be given except for reasons to be recorded in writing.

Within ten days of the completion of the proceedings the Inquiry Officer or the Committee is required to submit its report to the Authorised Officer. When the report of the Inquiry Officer or Committee or the explanation of the accused has been received where no Inquiry Officer/Committee is appointed the Authorised Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall pass orders accordingly. If it is proposed to impose a major penalty the Authorised Officer is to forward the case to the Authority alongwith the report or the Inquiry Committee, if any, and his own recommendations. The Authority shall pass such orders as it may deem proper."

5. The proceedings as initiated and finalized against the appellant has been examined in the light of relevant rules the summary whereof has been given hereinabove. It transpires from the scrutiny of record that first charge?sheet was served on 13-4-1991 and the matter remained pending till 13-4-1992 without any justifiable lawful excuse. The second charge-sheet was given subsequently. What was the necessity or justification for issuance of two charge-sheets with such a wide gap in the prevalent circumstances of the case could not be explained. The record is silent to the effect that by whom the inquiry committee was got constituted. The inquiry has been conduced by Traffic Inspector and Loco Inspector, Khanewal. We have carefully perused the inquir3 report and we are of the considered opinion that the mandatory formalities could not be complied with. For instance, the Operating Branch Running Shed report' having substantial bearing on the case was not considered and ignored without any rhyme and reason. Besides that the statement of point man Ch. M. Akram was not recorded on flimsy grounds. It may be mentioned here that his statement was inevitable to determine as to whether the appellant had passed Jangle Maryala without authority and reached Mehar Shah. Inquiry, report is silent about the fact as to whether opportunity of cross-examination was afforded to appellant when the statements of witnesses were being recorded. No such mention whatsoever has been made by the committee in this regard and thus it can be inferred safely that no such opportunity was ever afforded. "In the case Shafiullah Khan v. Government of West Pakistan (PLD 1970 Pesh. 176) where the enquiry was not conducted in accordance with rules, no witnesses were examined in presence of the accused in support of allegations; the accused was denied the right of cross-examination; and no record of evidence was kept, the High Court quashed the inquiry proceedings". "Where a witness gave a statement behind the back of the accused it was held that the proceedings were void as it was necessary that all witnesses should be examined in the presence of the accused". (AIR 1954 Born. 351). The members of inquiry committee had not mentioned the date beneath their signatures and probably a deliberate effort has been made to conceal the exact date for certain obvious reasons. There are certain questions, which are yet to be answered. For instance, it is not known when the committee was constituted and how much time was given for completion of inquiry, whether the stipulated period i.e. 10 days was extended, if so, by whom? The record is absolutely silent and all such details were omitted in the report and thus rule 6(3) and (5) of the Rules, have been violated in a flagrant manner. The committee has failed to point out that which oral or documentary evidence in defence of the accused was examined and in case it was not considered desirable what was the reason for it? The said conduct of the committee was in contravention of the provisions as contained in rule 6(3) of the Rules. The inquiry report is also silent to the effect as to whether the charge was framed and communicated to the appellant together with the statement of the allegations explaining the charge and of any other relevant circumstances after the constitution of committee by the authorized officer as envisaged under rule 6(a) of the Rules. The principles for administrative enquiry have been laid down by this Court in case of University of Dacca v. ? Zakir Ahmad (PLD 1965 SC 90) as follows:--

(1) The administrative authority must act in good faith.

(2) The administrative authority is not bound to treat the matter as if it were a trial or to administer oath or examine witnesses.

(3) The authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the persons sought to be affected to correct or contradict any relevant statement prejudicial to him.

(4) In order to act justly and to reach just ends by just means the Courts insist that the authority should adopt the elementary principles of natural justice unless the same have been expressly excluded.

In Osman Abdul Karim Bawaney v. Collector of Customs, Chittagong (PLD 1962 Dacca 162)' the following principles were laid down with reference to enquiries:--

(1) In conducting an enquiry the Enquiry Officer does not act as a Court but he exercises judicial or quasi-Judicial functions.

(2) He is not bound to conform to the provisions of the Evidence Act, but in exercising judicial or quasi judicial function he must act in a judicial spirit and manner in conformity to well-recognised principles of natural justice.

In the case of Muhammad Nawaz Khan v. Pakistan (PLD 1970 Lah. 811), the following principles were laid down:--

(1) When a public authority directed under a law to make an "enquiry" and the competent authority has to take action on the basis of its report and recommendations it cannot carry out a grotesque caricature of it, but on the contrary, has to conduct it in a manner which does not violate the basic rules of natural justice.

6. In view of the above serious lapses it can be concluded safely that the mandatory procedure as envisaged in the rules was never followed.

7. The responsibility of the incident was fixed as follows by the Inquiry Committee:

"RESPONSIBILITY.

'A' Driver Allah Yar son of Faiz Bux alongwith Fireman Abdul Majid son of Taj Muhammad are responsible for breach of following rules:--

(i) FOR RUBBING ENGRAVED CODE FROM BALL TOKEN SR 328/5(g)

(ii) FOR BEING CARELESS WHILE PASSING STATION AND CABINS. GR 6(e) AND S.R. 120/1

(iii) CREW FAILED TO THROW PREVIOUS TOKEN AT J.M.Y. Violation of S.R. 344/2.

' B' Train Incharge Acting Guard Nazir Ahmad (cabinman) SMA main is also responsible for not exchanging proceed signal with Assistant Station Master J.M.Y. RULE No.338/1(a)."

8. A bare perusal would reveal that three railway employees namely, Allah Yar (appellant), Abdul Majeed (fireman) and Nazir Ahmad (acting guard) were found responsible for the incident but action has only been taken against the appellant which by no stretch of imagination can be termed as fair. The law does not authorize the General Manager Railways to "pick and choose" as exercise of authority is such an arbitrary manner is not conferred upon him which also amounts to discrimination. We are conscious of the fact that "every exercise of discretion is not an act of -discrimination. It becomes an act of discrimination only when it is improper or capricious exercise or abuse of discretionary authority, and the person against whom that discretion is exercised faces certain appreciable disadvantages which he would not have faced otherwise. Where the discrimination is not based on any rational ground bearing upon the subject dealt with, the law will offend against the principle of equality and will be void". In this, regard we are fortified by the dictum laid down in 1992 CLC 219 (DB) + AIR 1965 All. 275 + AIR 1952 SC 75. When the three employees were found equally responsible for the alleged incident why the appellant alone should face the consequences? No satisfactory explanation could be furnished by Mr. Muhammad Aslam Sindhu, learned Advocate Supreme Court for respondents.

9. The appeal filed by the appellant has not been dilated upon diligently but has been disposed of in a haphazard and mechanical manners without taking into consideration as to whether all the mandatory formalities were completed as envisaged under the Rules before initiation of disciplinary proceedings but no one has bothered about it which is really pitiable. The appellate forum is required to examine each and every aspect of the matter in depth and only thereafter a conclusion should be drawn in accordance with record, evidence, prevalent laws, rules made therein, principles of natural justice and settled norms of justice. "In the case of Abdul Hafeez v. Chairman, Municipal Corporation, Lahore (PLD 1967 Lah. 1251) the principles of natural justice were brought out in the following terms:-

"In the absence of anything to the contrary, the approach of a quasi?-judicial tribunal must always be judicial and conform to the principles of natural justice to maintain the rule of law. This is the essence of justice and the very fountainhead which must on no account be allowed to be polluted. No doubt there are no uniform standards of natural justice applicable in all cases and the rule is an elastic one. Its requirement may vary with the constitution of the quasi-judicial tribunals and bodies having regard to the functions to be performed by them and powers and duties entrusted to them the nature and the subject-matter of the dispute and all other relevant circumstances are to be kept in view in applying this golden rule. Nonetheless in this respect certain broad principles are accepted on all hands. They are deducible from the two Latin maxims: "Nemo debet esse judex in propria causa" (no one should be a judge in his own cause and the judges should be above suspicion. (The other maxim of no less importance is "audi alteram partem" (hear the other side)."

"A general principle to regulate service matters is that the competent authority must act independently. The competent authority must apply its mind and come to its own finding. This is particularly necessary when a penalty is being inflicted on an official. Service rights are valuable rights and cannot be treated lightly. It would be a sheer mockery if the competent authority were to merely endorse a finding recorded by some other authority." (PLD 1971 Lah. 734).

10. The pivotal question as to whether the appellant had violated his authority by not obtaining the token could not be proved beyond shadow of doubt. The learned Single Judge has not appreciated the factual and legal aspects of the controversy in its true perspective which in our considered view resulted in serious miscarriage of justice. The learned Division Bench has toed the same line and no mention whatsoever has been made about the prevalent rules, evidence and record of the case which ought to have been considered. Since the inquiry has not been conducted in. accordance with law as such the entire subsequent actions based on the said inquiry report have no legal sanctity whatsoever. In such view of the matter it would be an academic' exercise to discuss the question as to whether punishment should have been awarded for the violation of GR-120 read with rule 397 of General Rules for Pakistan Railways (contained in 1970 Edition) or under the Rules.

11. In the light of foregoing discussion the appeal is accepted and the impugned order is hereby set aside. Consequently the order of dismissal: dated 21-2-1993 which was subsequently converted into compulsory retirement is set aside having no legal sanctity at all as it apparently suffered from inherent legal infirmity which is not curable. The appellant should be reinstated in service with all back benefits from the date of his dismissal from service.

Q.M.H./M.A.K./A-101/S ?????????????????? ??????????????????????????????????????????????? Appeal allowed.