Full Judgment Text & Judicial Ruling

2012 P L C (C.S.) 166

[Federal Service Tribunal]

Before Sayed Mehar Hussain Shah and M.A. Aziz; Members Syed ZAHIR SHAH

Versus

DIVISIONAL SUPERINTENDENT,

PAKISTAN RAILWAYS, KARACHI and 2 others .

Appeal No.330(K)(CS) of 2003, decided on 26th February, 2011.

Removal From Service (Special Powers) Ordinance (XVII of 2000)---

---Ss. 3, 5, 6 & 10---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Major penalty of removal from service was imposed upon the appellant without issuing show-cause notice or holding a regular departmental inquiry---Ex parte action was taken against the appellant, whereby major penalty of removal from service was imposed upon him---Validity---Before awarding major penalty upon a delinquent employee, a regular departmental inquiry was necessary, where accused/employee was to be provided full chance of defence as enshrined in the maxim "audi alteram partem ", which was lacking in the case---Impugned order imposing major penalty of removal from service upon the appellant was set aside; he was ordered to be reinstated in service, with direction to the department to initiate and hold de novo departmental proceedings against the appellant by providing full chance to him to cross-examine the witnesses and to defend himself properly---Such proceedings would be initiated and completed within a period of 120 days---Question of back benefits would depend upon the outcome of such proceedings.

2000 PLC (C.S.) 2044; PLD 2001 SC 980; 1980 SCMR 850; 1999 SCMR 841; 2002 SCMR 57 and 2003 PLC (C.S.) 395/514 ref.

Sanaullah Noor Ghouri for Appellant.

Ms. Sayeeda Bilquis for Respondents.

Date of hearing: 20th December, 2010.

JUDGMENT

SAYED MEHAR HUSSAIN SHAH, (MEMBER).--- The appellant through this appeal has challenged the order dated 30-7-2002 whereby major penalty of removal from service was imposed upon the appellant under the Removal from Service (Special Powers) Ordinance, 2000. Against the said penalty, appellant preferred a departmental appeal on 12-8-2002 which was rejected on 12-10-2002 and allegedly-obtained by the appellant on 1-10-2003; hence, this appeal. An application under section-5 of the Limitation Act has also been filed along with the appeal.

2. The main thrust of the arguments of learned counsel for the appellant was that major penalty of removal from service was imposed upon the appellant without issuing show cause notice or holding a regular departmental inquiry, which is not-legal and in support of his arguments, learned counsel relied on 2000 PLC (C.S.) 2044, PLD 2001 SC 980, 1980 SCMR 850, 1999 SCMR 841, 2002 SCMR 57 and 2003 PLC (C.S.) 395/514.

3. Learned counsel appearing for the respondents did not contest the above arguments, advanced on behalf of the appellant's side and left the matter before the Tribunal to decide the same in accordance with law.

4. We have heard the arguments of both sides and have carefully perused the material placed on record. So far as the point of limitation is concerned, we like to reproduce hereunder order. recorded in diary of this Tribunal dated 5-4-2006:---

"5/4/2006.

Before: Qazi Muhammad Hussain Siddiqui and Mr. Rashid Ali Mirza, Members.

Present: Mr. Sanaullah Noor Ghouri, Advocate for the appellant. Syeda Bilquees, Advocate for the respondents.

Advocate for the parties are present. Heard them and perused the record. The contentions of the Learned Counsel for the appellant is that the appellant was removed from service vide order dated 30-7-2002.' He had filed departmental appeal against said order well within time on 12-8-2002. His departmental appeal was rejected vide order dated 12-10-2002 a copy of the rejection order was `conveyed' to him on 1-10-2003 when the appellant visited the office of the respondent No. 1.

It is not known why for more than one year the rejection order of the departmental appeal was not conveyed to the appellant, but then in the written comments, in para-11, the respondents themselves had admitted that - the appellant had attended the office'.on 1-10-2003 and had received the order of rejection of his deparimental appeal. The respondents have not stated, if during the intervening period, they had sent a copy of the said rejection order to the appellant.

Under the circumstances, the appeal cannot but be declared to be within time. The appeal is within jurisdiction of the Tribunal. It is, therefore, admitted. Security Adjourned to 7-9-2006.

Sd/ MEMBER

Sd/- MEMBER"

Since a Bench of this Tribunal had earlier took up the issue and admitted the appeal to be within time, therefore, issue of limitation has already been decided.

5. It has been stated in the memo. of appeal that appellant was granted .leave, which was denied by the respondents in their comments, and being a controversial issue this could have been decided only when a regular departmental inquiry would have been conducted, which has not been done in this case. The ex parte action was taken against the appellant whereby major penalty of removal was imposed upon him. It has by now a well settled principle of law that before awarding major j penalty upon a delinquent employee, a regular departmental inquiry is necessary where the accused was to be provided full chance of defence as enshrined in the maxim "audi alteram partem which is lacking in this case.

6. The upshot of the above discussion is that the impugned order dated 30-7-2002 imposing major penalty of removal from service upon the appellant is set-aside as well as the appellate rejection order dated B 12-10-2002. The appellant is ordered to be reinstated in service. However, the respondent --. department is directed to initiate and hold de novo departmental proceedings against the appellant by providing full chance to the appellant to cross-examine the witnesses and to defend himself properly. Such proceedings shall be initiated and completed B within a period of 120 days from the date of receipt of a copy of this judgment. The question of back benefits shall depend upon the outcome of such fresh proceedings. No order as to costs.

7. Parties be informed accordingly.

H.B.T./5/FST Order accordingly.

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