Full Judgment Text & Judicial Ruling

2008 P L C (C

2008 P L C (C.S.) 1274

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Moazzam Hayat, Members

Mirza AZEEM BAIG

Versus

GENERAL MANAGER (PERSONNEL), PAKISTAN RAILWAYS, HEADQUARTERS, LAHORE and 2 others

Appeal No.185(L)(C.S.) of 2000, decided on 25th June, 2003.

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3, 4(1)(b)(iii), 5 & 6---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Appeal---Employee was removed from service after charge-sheeting and holding inquiry against him on charge of theft---Criminal case was also registered against employee, in which he was acquitted by competent Criminal Court---Witnesses, who appeared in departmental inquiry proceedings against employee, did not appear before Criminal Court while the charge of theft was same in both proceedings---Said conduct of witnesses, examined by Inquiry Officer in Departmental inquiry proceedings, was very relevant while determining the guilt of employee which ultimately resulted into his removal from service---Inquiry Officer was required to give definite finding as to the guilt of employee, but from his inquiry report it appeared that he was not very confident about his findings recorded against employee---Inquiry Officer however had adopted a correct legal procedure in conducting inquiry as he had recorded statements of witnesses and had also allowed employee right to cross-examine said witnesses---No defect appeared in inquiry proceedings except said minor irregularity, which had not affected inquiry proceedings in any manner---Charge against him on basis of which he was removed from service was proved---Punishment of removal from service awarded to employee, however, appeared to be very harsh, particularly when witnesses did not appear against him in criminal case against him---Punishment of removal from service, was converted into his compulsory retirement.

Mian Jaffar Hussain for Appellant.

Rana Abdul Majid for respondents.

Date of hearing: 25th June, 2003.

JUDGMENT

MOAZZAM HAYAT (MEMBER).--- Mirza Azeem Baig appellant was a Pump Fitter in BPS-5 in the service of the Pakistan Railways. He was posted in Central Fire Station, C&W Shops. Mughalpura when he was removed from service vide order dated 30-8-1999. His departmental appeal dated 15-9-1999 was rejected on 22-11-1999. Hence this appeal wherein it is prayed that the impugned order of removal from service be set aside and the appellant be reinstated into service with back-benefits. Along with appeal an application under Section 5 of the Limitation Act, 1908 has also filed for condonation of delay.

2. The appellant was charge-sheeted on 12-9-1998. It is stated that he was caught red-handed on 30-8-1998 by Railway Police while he was stealing 175 pieces of carbons belonging to the Pakistan Railways. The stolen articles were recovered from his possession for which a case was registered against him at the Railway Police Station under section 14-6-79 (Hudood Ordinance) read with section 411 P.P.C. vide F.I.R. No.65 of 1998 dated 30-8-1998.

3. A regular inquiry was initiated against the appellant. On the basis of inquiry a final show-cause notice was issued to him. In his reply the appellant denied all the allegations against him. On the strength of the inquiry report the impugned order of removal from service was passed against him.

4. The appeal is resisted by the respondents. It is stated that the appellant was involved in a case of theft which was proved in the departmental inquiry. It is maintained that the appellant has been awarded the penalty which he deserved in view of the gravity of charge.

5. The appellant was tried by the Criminal Court on the same charge on which the present departmental proceedings were initiated against him which resulted into his removal from service. Surprisingly the witnesses appearing in the inquiry proceedings did not appear before the Criminal Court which resulted into his acquittal. We fail to understand as to why the witnesses did not appear before the Criminal Court. Bailable and thereafter non bailable warrants of arrest were issued against them but even then they did not appear in the Criminal Court. It is for this reason that the Criminal Court was compelled to acquit the appellant on the charge on which he has been removed from service. From the conduct of the prosecution witnesses we find some grain of truth in this assertion of the appellant that he was implicated in the theft case by head constable Abdul Sattar due to his personal enmity.

6. There is no cavil with the proposition that a charge of criminal misconduct is totally different from a charge of misconduct defined by the E&D Rules and acquittal in a criminal case does not bar departmental disciplinary proceedings. But the present case is peculiar in nature. Exactly on the same charge on which he was removed from service the appellant was tried by the Criminal Court. Same witnesses were required to appear before the Criminal Court as well as before the Inquiry Officer, they appeared before the departmental Inquiry Officer but for reasons best known to them they did not appear before the Criminal Court. This conduct of the witnesses, examined by the Inquiry. Officer, is very relevant while determining the guilt of the appellant which ultimately resulted into his removal from service.

7. We have perused the report of the Inquiry Officer. The relevant portion of his inquiry report is "so in the light of the above situation, it is decided that "the accused seems to be guilty." The inquiry Officer was required to give definite finding as to the guilt of the appellant. From his above report it appears that he was not very confident about his findings recorded against the appellant. But may be that what he wanted to convey was that the appellant was guilty of the charge of theft. The Inquiry Officer had adopted a correct legal procedure in conducting the inquiry. He had recorded the statements of witnesses and had also allowed the appellant right to cross-examine them. We find no defect in the inquiry proceedings except for a minor irregularity referred to above in the concluding Para of his inquiry report. This minor irregularity has not affected the proceedings in any manner.

8. The charge against the appellant was proved in the inquiry. It is only the quantum of punishment with which we are concerned. It appears to be very harsh. Moreso when the witnesses did not appear against him in the criminal trial. This gives birth to a reasonable presumption that the witnesses were hostile towards him. Keeping in view the fact that the appellant has served the Railways for about 25 years we convert the penalty of his removal from service into his compulsory retirement.

9. There shall, however, be no order as to costs. Parties be Informed.

H.B.T./37/FST Order accordingly.

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