RAFIQ AHMAD TALWAD Versus DIVISIONAL SUPERINTENDENT, LAHORE DIVISION, PAKISTAN RAILWAYS
CH. HASAN NAWAZ (MEMBER).‑‑ While he was serving as Upper Division Clerk in the Commercial Branch of the respondents' department at Lahore, the appellant was served with notice dated 7‑2‑1973 (Annexure `A') calling upon him to submit his explanation in respect of the allegations made in the accompanying charge‑sheet and show cause within seven days of its receipt as to why proceedings against him should not be held for appropriate punishment under the Railway Servants (Efficiency and Discipline) Rules, 1961.
2. The statement of allegations was to the following effect:
" CHARGES
For gross misconduct and fraudulent activities as is evident from the following:
While working 6 Down on 4‑7‑1971, a T.T.E. of Accounts Office detected at Drigh Road a party consisting of two male and a female passengers travelling in Inter Class on the authority of 2nd Class privilege Pass No. 915084, dated 20‑3‑1971 issued by D.S. Lahore, and Inter Class B.P.T. No. 679252, dated 3‑7‑1971 issued in exchange of P.T.O. No. 385040 dated 29‑6‑1971 issued by D.S., Lahore. Both the pass and P.T.O. were available for journey from Lahore to Karachi, the former having been prepared in favour of Mr. & Mrs. Muhammad Rashid with one son aged 7 years and a widow mother and the latter for one adult son of one Abid Ali. When interrogated by the T.T.E. you posed yourself as "Muhammad Rashid a Clerk in Commercial Branch D.S. Office, Lahore", viz. the name given in the Pass and also deposed that the lady travelling with you was not your wife, which was included in the Pass, but she was your relative. The boy travelling on P.T.O. B.P.T. was also not a bona fide passenger as he was not actually the son of the Railway employee in whose name the P.T.O. was shown issued. You say that you had managed to obtain P.T.O. from the holder and to arrange for the journey of the passenger.
The 2nd Class privilege pass mentioned above had been used on a previous occasion for the journey of Mr. Muhammad Rashid, Mrs. Rashid and a son in second class by 16 Dn on 20‑3‑1971, ex Lahore to Karachi in Coach No. 1210 as the reservation chart of the said coach indicated. .
From the above, it is clear that you are responsible for (i) "posing yourself as Mr. Muhammad Rashid, the holder of the pass though actually you were not so, (ii) getting hold of the pass which was one of the passes lying unused in the book which was lost in the pass section of Divisional Office, Lahore and using the same, (iii) you somehow procured the P.T.O. in question and both the pass and the P.T.O. were fraudulently prepared on bogus names and were used by you and (iv) using the privilege pass in question twice; once on 24‑3‑1971 and again on 4‑7‑1971."
3. In response, the appellant submitted explanation dated 21‑2‑1973 (Annexure `B') where he denied the correctness of allegations leveled against him and pleaded that an inquiry had already been conducted into the matter and that he relies upon the explanation already rendered in that inquiry. This was followed by the constitution of an Inquiry Committee consisting of Haji Muhammad Ismail, Office Superintendent and the then Head Clerk Fixation to enquire into the allegations made against the appellant. It appears from the record that the committee could not, for some reason or the other, conclude its proceedings and the matter remained pending for a considerably long time without any report. The appellant has placed on record different letters addressed from time to time by the Inquiry Committee during 'the period from 6‑3‑1973 to 24‑11‑1973 (Annexure C to M) for the purpose of procuring either his attendance or that of necessary witnesses for completion of the inquiry. Thereafter, nothing either happened or was heard about the matter for a period of about four and a half years from 24‑11‑1973 to 21‑5‑1978, when a letter (Annexure `O') was addressed on the subject to the appellant by the Junior Welfare Officer, Pakistan Railways, Lahore asking him to attend his office at 10 a.m. o 6‑6‑1978 for inquiry. In his reply dated 6‑6‑1978 (Annexure `B'), it was submitted by the appellant that he was not in a position to recollect the whole story after the lapse of so much time and that his appearance would not serve any purpose, as the documents `including those signed by the Court in connection with the case, had already been made over to the Inquiry Officer earlier appointed. He also requested that he may be provided with any fording on the subject which had been reached on the basis of the record.
4. The matter was again allowed to rest in the cold storage without any action for a considerably long time till 9‑2‑1981 when another notice (Annexure `Q') was served upon the appellant proposing disciplinary action under the Government Servants (Efficiency and Discipline) Rules, 1973 for the irregularities alleged to have been committed by him in the year 1971. It was accompanied by exactly the same statement of allegations which had already been served on him along with show‑cause notice dated 7‑2‑1973. He was called upon to explain why the proposed action should not be taken against him. In response, he addressed letter dated 18‑2‑1981 (Annexure `R') to the Assistant Personnel Officer (respondent 3) where it was stated that an inquiry on the same allegations had already conducted into the matter and that a false case had been set up against him. He further stated that during the course of previous inquiry, certain documents were taken into possession by the Inquiry Officer and that they were sufficient to establish that he could not possibly be involved in the matter on 4‑7 1971; when he happened to be at Lahore. He asked respondent No. 3 to return the aforementioned documents to him so that he may be able to prepare his defence. Nothing appears to have materialised during the years to come and on 19‑4‑1983, the appellant addressed another letter (Annexure `S') to the Inquiry Officer where he said that inquiry into the matter had already been held by Haji Muhammad Ismail, Assistant Personnel Officer and that the finding arrived at by him had not been duly communicated. He further stated that the case was very old and that it was not possible for him to recollect the relevant facts. He requested that the matter may be decided in the light of the proceedings of the previous inquiry. This was followed by another such letter of 23‑4‑1983 (Annexure `T') where the appellant repeated that his reliance is upon the explanation submitted by him in the previous inquiry conducted on 29‑9‑1973. In letter dated 7‑5‑1983 (Annexure `U') he again requested that the matter may be decided on the basis of the previous inquiry.
5. The Inquiry Officer (Senior Welfare Inspector Co‑operative) found the appellant guilty in his report on 22‑10‑1983 (Annexure `W') and he was then served with second show‑cause notice dated 17‑3‑1984 (Annexure `V') calling upon him to show cause why penalty of removal from service should not be imposed upon him. The appellant's case is that after he had been served with this notice, he met respondent No. 3 in his office who held out a promise that the matter will be reconsidered in a proper manner. However, in spite of this assurance he was removed from service by Order 22‑10‑1984 (Annexure `X') after payment of one month's pay in lieu of notice. By letter dated 5‑11‑1984 he asked for certain documents to be able to prepare his departmental appeal, but his request was turned down by letter dated 14‑11‑1984 (Annexure `Z')
6. After his departmental appeal dated 22‑11‑1984 (Annexure 'AA') addressed to the Divisional Superintendent (respondent No. 1) was rejected through letter dated 24‑12‑1984 (Annexure `BB'), he filed the present appeal under section 4 of the Service Tribunals Act, 1973 on 26‑1‑1985 with the prayer that orders dated 22‑10‑1984 and 24‑12‑1984 regarding his removal from service and dismissal of his departmental appeal may be set aside as being illegal with a direction for his reinstatement in service with consequential benefits.
7. This view of the matter necessitates a recourse to the Inquiry Officer's report dated 22‑10‑1983 made in consequence of fresh disciplinary proceedings initiated on 9‑2‑1981, which ultimately made a basis for the orders of appellant's removal from service; for the purpose of determining whether the finding arrived at by Inquiry Officer and the consequential impugned orders were justified and based on sufficient evidence. The report makes the following reading:
"Enquiry proceedings against Mr. Rafiq Ahmad Talwad, UDC, Commercial Branch and its findings :
Mr. Rafiq Ahmad Talwad, UDC, Commercial Branch of this office, was repeatedly asked to appear before the undersigned vide S.Nos. 48, 50, 51, 53, 54, 55, 57, 59 and 60 to 63 but he failed to do so. He also submitted an application dated 29‑5‑1983 placed at S.No. 52 in reply to our letter at S.No. 51, that he is unable to recollect the content of the charge‑sheet issued to him. He was then informed vide S.No.5~hat he can examine the record of the enquiry before starting the enquiry proceedings, but he did not turn up so far. A letter at his home address was also posted vide S.No. 61 under RAD, which was received back undelivered with postal authorities remarks.
FINDINGS : From the above facts I nave come to the conclusion that the accused is deliberately hesitating to appear before the undersigned in connection with his enquiry of misuse of passes. He was given ample chances to prove his charges baseless but he did not bother to pay any intention. In view of these circumstances, it is recommended that an ex parte decision may be taken against the accused under the pass rules enforced.
Sd/
SWLI/Coop: 22‑10‑1983."
8. It is obvious from the contents of this report that the Inquiry Officer's finding of guilty emanated solely from the consideration that he failed to appear before him m defence of the case even in spite of various opportunities having been granted to him. The Inquiry Officer has rather made it clear that the basis of his conclusion was provided by the fact that the accused deliberately hesitated to appear before him" in connection with the inquiry of misuse of passes. His absence, under the circumstances noticed by the Inquiry Officer, led him to an ex parte recommendation that action against him may be taken under the rules in force.
9. The Inquiry Officer's report, as already pointed out before, leaves no' room for any doubt that his proceedings left everything to be desired. We feel no hesitation in holding that irrespective of the appellant's failure, even though deliberate, to appear before him in defence, he was legally bound under the circumstances of this case to record some evidence against him, which could have provided him with a basis for an adverse recommendation for his removal As the facts go, the disciplinary proceedings were initiated for the first time in the year 1971 on the complaint of Mr. Aslam Sultan, T.T.E. who is alleged to have found him in the process of fraudulent use of second class P. No. 915084, dated 20‑3‑1971 and Inter Class PTO No. 385040; dated 20‑6‑1971. It can be seen from the record that the Inquiry Committee set up in the year 1973 had been trying to procure the attendance of one Abdul Karim Clerk Grade‑III of the Office of D.S. Workshop, Moghalpura, Lahore, to be examined as witness in the inquiry. Further, it appears from the statement of the appellant recorded in the previous inquiry that one Mushtaq Ahmad, Dealer of Dhanni Ram Road, Lahore and another person of the name of Abdul Ghani and his son Abdur Rashid of the same locality were also involved in the matter, as according to the prosecutions case, the passes had been issued in their names. We are of the view that despite the absence of the appellant, it was the duty of the Inquiry Officer to examine these persons in support of the prosecutions case against the accused and an ex parte decision could not have been arrived at merely on the basis of his non appearance. There was a definite charge against him and it could be established only by the examination of certain witnesses or the production of some evidence and the Inquiry Officer could not exonerate himself of his duty merely on the basis of the fact that the appellant had failed to appear; for his non‑appearance by no means justified the presumption that he had committed the alleged irregularities or was guilty of impersonation.
10. We find from the record that the appellant was examined by the previous Inquiry Committee and his statement was recorded. If it was not possible for the Inquiry Officer to procure his attendance during fresh proceedings, he could have made a reference to his previous statement in coming to some conclusion. No such reference has, however, been made in the report and as we have already pointed out before, other persons concerned have not been examined. The Inquiry Officer does not appear to have even made an attempt to procure their attendance, probably under the impression that it was not required on account of appellant's non‑appearance. But this was evidently a mistaken view of the matter, which resulted in a casual and unfounded recommendation for disciplinary action against the appellant. The finding arrived at by the Inquiry Officer did not have the support of any material whatsoever, and as a matter of fact it can hardly be termed as a `finding'. There was nothing before the Inquiry Officer which could have deserved a positive application of mind and we rind it impossible to sustain the impugned order of removal from service, which proceeds on this indifferent) and unsound report.
11. This aspect of the matter apart, we do not find it possible to ignore inordinate delay in conclusion of the disciplinary proceedings. As noticed in the facts of the case, they were started with the issuance of show‑cause notice dated 7‑2‑1973. An Inquiry Committee was set up which had been trying to procure the attendance of the official concerned till the year 1973. Thereafter, complete silence had ensued till 21‑5‑1978 when the appellant was again called upon to appear in the office of Junior Welfare Officer, Pakistan Railways, Lahore. After the exchange of some correspondence, the matter appears to have again been dropped and nothing happened during the next few till 9‑2‑1981, when another notice was issued under the new rules on the same allegations. Even after the service of the notice, the proceedings were fairly protracted and they eventually culminated on 22‑10‑1984 with the appellant's removal from service. We feel constrained to remark that this inordinate delay in finalisation of the disciplinary proceedings resulted in miscarriage of justice. The department has not been able to render any explanation of how this delay came about and who was responsible for it. Further, no action appears to have been taken against those who were responsible for prolongation of the matter. We are of the considered view that the disciplinary proceedings should have been finalised within a reasonable time and there was no justification for this long delay of about fourteen years in the disposal of the matter which must have been a cause of consistent torture to the appellant. We are not aware of any rule to authorised the respondents to finalise the proceedings in accordance with their sweat wish, whatever be the time involved.
12. We might as well deal with another objection raised by the appellant in support of his case. It was pleaded that he was in BPS‑8 in February, 1981 and that respondent No. 3, was not the duly appointed authorised officer at the relevant time. This being so, fresh show‑cause notice along with the statement of allegations, served by him was irregular and of no legal consequence. It is also in his pleadings that respondent No. 2 who was of BPS‑18 Officer was not properly constituted "authority" within the meaning of Government Servants (Efficiency and Discipline) Rules, 1975 and that he acted without lawful authority in passing the impugned order, particularly when the appellant was in BPS‑8 at the relevant time and an Officer of BPS‑20 could be his appointing authority in accordance with the rule 6(3) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 as amended by the President through Notification No. SRO‑146 (1)/84, dated 11‑2‑1984.
13. In so far as these objections are concerned, we feel that the material before us is not sufficient to enable us to record a definite finding. The appellant has placed on record letter dated 21‑12‑1983 (Annexure `DD') addressed by the General Manager (Personnel) to the authorities concerned in the Railways department on the subject of Authority/Authorised Officer under the rules in, respect of employees of BPS‑16 and below in Pakistan Railways. We see that this letter contains only certain proposals for appointment of "Authorised Officer" and "Authority" for comments of the concerned officers who were asked to suggest modification if any to enable the office of General Manager (Personnel) to obtain the approval of the General Manager. We believe that the matter regarding these appointments must have been finalised in due course of time but on the basis o: the documents before us we are not in a position to hold with certainty as to whether respondent No. 3 in this case was the duly appointed authorised officer under the rules. Nor for that matter, we are in a position to say if respondent No.2 was competent to act as "authority" in the matter. It was the respondents' duty to arrange the production of relevant documents to enable us to give a definite finding, which they have failed to do, with the result that there is nothing on the record to refute the appellant's contention on this point.
14. For the reasons mentioned above, the appeal is accepted and the impugned orders dated 22‑10‑1984 and 24‑10‑1984 are set aside. The respondents are directed to reinstate the appellant in service with full back benefits. There will be no order as to costs. Parties to be informed.
M.Y.H./551/Sr. F Appeal accepted.