MUHAMMAD NAWAZ MIRZA vs DIVISIONAL COMMERCIAL OFFICER, PAKISTAN

' MOAZZAM HAYAT (MEMBER).---Appellant Muhammad Nawaz Mirza, a ticket Collector in the service of the respondents, was dismissed from service vide order dated 19-6-2001 passed under the provisions of Removal from Service (Special Powers) Ordinance, 2000, His departmental appeal dated 25-6-2001 was rejected on 29-8-2001. Hence the present appeal wherein the appellant has prayed that the impugned order of dismissal be set aside and he be reinstated into service with back-benefits.

2. A show-cause notice was issued to the appellant on 31-3-2001, The Competent Authority dispensed with formal inquiry on the basis of documentary evidence. The charges leveled against the appellant were that he was in the habit of making false complaints against various vendors and officials for ulterior motives. It was further mentioned in the charge sheet that he had been awarded punishments on various occasions in the past for misconduct but in spite of that he had not improved his conduct and was enjoying bad reputation. These allegations were denied categorically by the appellant in his defence reply dated 13-6-2001.

3. The appeal is resisted by the respondents. A legal objection has been taken that the appeal is time-barred. On merits it is submitted that the punishment of dismissal has been imposed upon the appellant by the Competent Authority in accordance with law.

4. We have heard the learned counsel for the parties and have also perused the record.

5. It is submitted by the respondents that the departmental appeal filed by the appellant had been rejected on 29-8-2001 whereas the present appeal was filed on 23/24-10-2001 beyond, the stipulated period of 30 days, therefore, it was time-barred. The learned counsel for the appellant has argued that the appeal rejection order had come to the knowledge of the appellant on 20-9- 2001, therefore, the period of 30 days for filing the appeal started from 20-9-2001 and for that reason the appeal filed on 5-10-2001 cannot be treated as time-barred. We agree with the argument advanced by the learned counsel for the appellant: It is stated by the appellant in his memo of appeal that the appeal rejection order came to his notice on 20-9-2001. This contention of the appellant has not been controverted by the respondents. They have not been able to prove that the appellate order dated 29-8-2001 had ever been conveyed to the appellant. In the circumstances we hold that the appeal rejection order had come to the knowledge of the appellant on 20-9-2001, therefore, appeal filed by him on 15-10-2001 could not be treated as time- barred. The objection is overruled.

6. The appellant has been punished for his past punishments awarded to him for his misconduct.

On the past punishments no employee can be punished twice. Article 13 of Constitution of the Islamic Republic of Pakistan, 1973 is very clear on this point. It clearly says that no person can be vexed twice on the same charge. Since the appellant had been punished for his past misconduct, therefore, these punishments on the principle of double jeopardy could not be made basis for the impugned order of dismissal.

7. The appellant was served with a show-cause notice and proceedings were initiated against him under section 5(4) of Removal from Service (Special Powers) Ordinance, 2000. It was observed in this notice by the Competent Authority that formal inquiry was not needed in view of available documentary evidence. It was not explained in this show-cause notice as to what were the documents and what was the nature of those documents. The appellant was never provided the details of available documentary evidence to enable him rebut the same. The notice, therefore, suffers from a legal infirmity and the penalty imposed upon the appellant on its basis cannot be upheld. The Competent authority had dispensed with a formal inquiry by passing a mechanical order. He did not pass a speaking order containing reasons. The appellant should not have been condemned on the strength of a mechanical order. Similar view has been expressed by the Federal Service Tribunal Islamabad in its judgment dated 16-6-2003 passed in Appeal No,816(R)

(C.S.)/2002. That appeal was also filed by a Ticket Collector by the name of Tahir Abbas against Pakistan Railways. The Bench comprised of Mr. Justice (Retd.) Aman Ullah Abbasi, Chairman and Mr. Moazzam Hayat, Member. The judgment was initiated by Mr. Moazzam Hayat, Member. The present judgment is also being recorded by him. Following the law laid down in the aforementioned appeal we hold that the respondents had not passed a legal and valid order for dispensing with a formal inquiry.The appellant was also not given a right to rebut the documentary evidence stated to be available against him. He was not given the details of those documents. The omission on the part of the respondents to give details of the documents and to supply copies of such documents on demand resulted into miscarriage of justice. If it was not possible to give copies to the appellant he should have been allowed their inspection.

8. For the above reasons we accept the appeal and set aside the impugned order. The appellant is reinstated into service with back-benefits. However, the respondents shall be at liberty to take appropriate action against the appellant strictly in accordance with rules and observations recorded by us above.

9 There shall be no order as to costs. Parties are informed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.