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Petitioner: MUHAMMAD IBRAHIM BAJWA VS Respondent: CHAIRMAN, PAKISTAN RAILWAYS
1983 P L C (C
1983 P L C (C. S.) 844
[Federal Service Tribunal]
Present: Mr. Justice Shah Abdur Rashid, Chairman, A. O. Raziur Rehman and Brig. (Reid.) Abdur Rashid, Members
MUHAMMAD IBRAHIM BAJWA
versus
CHAIRMAN, PAKISTAN RAILWAYS AND ANOTHER
Appeal Na. 42 (R) of 1981, decided on 11th December, 1982.
(a) Service Tribunals Act (LXX of 1973)‑
‑‑Ss. 2 (a) & 4 read with Civil Servants Act (LXXI of 1973), S. 2 (t) (b) (iii) and Workmen's Compensation Act (VIII of 1923), S. 2 (n) Head Train Examiner of Pakistan Railway employed in Divisional Office‑Not qualified to be treated as "workman" under Workmen's Compensation Act, 1923‑A Civil servant‑Within jurisdiction of Service Tribunal.
(b) Civil service‑
----Disciplinary action‑Penalty order‑Communication of‑Order passed by competent authority after due consideration ‑Communica tion over signature of subordinate officer‑Does not make it invalid or defectives.
(c) Government Servants (Efficiency and Discipline) Rules 1973‑--
--R. 6 (4)‑Enquiry procedure‑Enquiry to be held from day to day‑Adjournment for more than 7 days at a time to be reported to Authorised Officer‑Purpose of rule to ensure expeditious comple tion of enquiry‑Non‑compliance‑Irregularity‑But does not affect validity of proceedings.
(d) Government Servants (Efficiency and Discipline) Rules, 1973‑
----R. 6 (3)‑Enquiry procedure‑Evidence‑Evidence of all witnesses completed‑One prosecution witness already examined requesting for being re‑examined‑President of Enquiry Committee granting‑ such request and recording again evidence of such witness in absence of other Members of Enquiry Committee and 'accused‑Serious irregularity vitiating proceedings.
(e) Civil service‑
‑‑Disciplinary action‑Prejudice‑Official transferred despite his request on genuine grounds for not being transferred due to lack of education facilities of school and college going children at new station of posting‑Transfer order sought to be implemented despite directions of higher authorities to defer same till end of education year‑Casual leave granted cancelled after proceeding and then penalty of stoppage of increment imposed on charge of not carrying out transfer order and absence from duty‑Transfer order withdrawn subsequently under orders of Read of Department and Minister‑in charge but again after placing official under suspension charge sheeting him on old allegations contained in anonymous complaint already looked into twice by some officers finding official not guilty of alleged charges‑Such action, held, indicative of unduly stern and unsympathetic attitude not desirable either from point of view of administration of justice or fairplay and competent authority found determined to take action irrespective of propriety of such action Action, in circumstances, held, not without element of prejudice and personal or purely subjective considerations‑Alleged irregularities and malpractices presented in charge‑sheet in magnified form‑Such irregularities of utilizing services of subordinate employees a common place in the department and only charge established in enquiry-Penalty order passed by competent authority without his own application of mind but relying too much on note of a subordinate- Penalty of removal from service converted by appellate authority to that of reversion to lower rank, in circumstances, altered by Service Tribunal to that of stoppage of increment for two years without cumulative effect‑Service Tribunals Act (LXX of 1973), S. 4.
Kokab Iqbal for Appellant. Muhammad Yousuf for Respondents.
Date of hearing : 15th July, 1982.
JUDGMENT
A.O. RAZIUR REHMAN (MEMBER).‑By a Notification, bearing No. 725 E/l/46 (P‑1), dated 9‑8‑1980, the appellant, who was then Head Train Examiner. Quetta, was removed from service with effect from the same date by order of the Divisional Superintendent, Pakistan Railways, Quetta. A departmental appeal was filed by the appellant before the Chairman, Pakistan Railways, Lahore, on 18‑8‑1980, in response to which the Chairman was pleased to convert the punishment of removal from service to reversion to the post of Senior Train Examiner, for a period of two years, vide Pakistan Railways Headquarters Office, Lahore No. 925‑E/JPO‑X/ Appeals, dated 7‑1‑1981 addressed to the Divisional Superintendent, Pakistan Railway, Quetta. Against this order of the departmental appellate authority, the appellant preferred an appeal before this Tribunal on 7-2‑1981, which came up for hearing on 14‑7‑1982 and 15‑7‑1982, and is being disposed of by this order.
2. The facts of the case, as disclosed in the Memo. of Appeal and the documents filed by the appellant, and not denied by the respondents are that, on 25‑5‑1980, the Divisional Mechanical Engineer, Pakistan Railways, Quetta, the Authorized Officer, placed the appellant under suspension and on 28‑5‑1980, served him with a charge‑sheet, accompanied by a statement of allegations, on ground of serious irregularities amounting to misconduct and required hint to show cause against the imposition of a major penalty under rule 4 (1) of the Government Servants (Efficiency and Discipline) Rules, 1973, or of a lesser penalty under the same rule. The statement of allegations reads as follows :‑
"As reported by the Deputy Martial Law Administrator, Quetta, the following serious irregularities were committed by you during the period you worked as Hd. T. X. R., Quetta :‑
(i) Balli Masih used to get his monthly salary froth Railway Depart ment without performing job there. In turn he was employed for carriage of your children to school and back
(ii) Sultan Muhammad, a Cooli, was being used as cook at your residence.
(iii) Muhammad Nazir, a Cooli, used to look after the buffaloes at your residence.
(iv) Ali Gohar, a fitter, used to provide three seers of milk daily to your residence.
(v) You got your furniture made through a carpenter of Railway Department.
(vi) Ahmad, a fitter, used to pay Rs. 150 per month to you and did not perform his job at Railway.
(Sd.) Divl. Mechanical Engineer,
P. R., Quetta.
28‑5."
3. He was required to show cause within 7 days of the receipt of the charge‑sheet as to why the proposed action should not be taken against him and was also asked to put in his written defence, if any and to state whether he desired to be heard in person.
4. The appellant replied to the charge‑sheet by his letter dated 28‑5‑1980, in which he denied all the charges and also alleged that the charges had been framed against him only for causing him embarrassment, since they had already been looked into in his absence twice by the then C. W; 1, Mr. Saghir Ahmad, who could, not hold the appellant responsible for the allegations contained in an anonymous complaint of the month of November, 1979, sent by the Martial Law Authorities to the Divisional Mechanical Engineer, Pakistan Railways, Quetta
5. As for the charges themselves, the explanation given by the appellant in regard to each was as shown below:
Charge
Explanation
(i) Employment of Balli Masih on carrying the appellant's children to school and back and payment to him of monthly salary from the Railway without his performing any job there.
Balli Masih was never employed for the said alleged work and the children were going to school in a rickshaw hired from one Inayat, who had nothing to do with the Railways. So far as Balli Masih is concerned, he was working in the cycle shift at the station and was still continuing there when the appellant had nothing to do with him.
(ii) Employment of Sultan Muhammad, Cooli, as a cook at the appellant's residence.
No such Cooli was working at Quetta.
(iii) Employment of Muhammad Nazir, Cooly, to look after buffaloes at the appellant's residence.
The said Cooly was working at the appellant's residence as his Khalasi with the approval of the D. M. E., Quetta, vide his endt. On letter No. 1‑6‑E, dated 30‑12‑1979, addressed to the same authority
(iv) Daily supply of 3 seers milk by a Fitter, Ali Gohar by name.
The appellant took milk from Ali Gohar on cash payment for 15 days only. Thereafter, he got his own buffalo shifted from Shorkot Road, alongwith his children and, there fore, he did not have to buy milk from Ali Gohar.
(v) Getting personal furniture made by a carpenter of the Railways.
The Railway carpenter cannot make furniture and if anyone claimed to have done it for the appellant, he should be brought face to face to prove the charge.
(vi) Payment to the appellant, of a sum of Rs. 150 p m. by Ahmad, a Fitter of the Railways, for not doing any work.
There was no Fitter by the name of Ahmad working there but one Ahmad, Helper was working as a peon in the Divisional Office, Quetta.
6. In addition, the appellant asserted that when all the concerned persons had refuted these charges in their statements during the enquiry held in the absence of the appellant, he could not be charged with these offences. He, therefore, asked for a copy of the report of enquiry already held in the matter. He further alleged, mentioning by name the concerned employees, that they were utilized by the Head Train Examiner who had relieved him earlier of the assignment and that they were still working for the said Head Train Examiner, even though he had already been transferred to Sibi. He also alleged that one Shabrati, an S. S. Fitter, was actually being misused by somebody else and yet no charge had been framed in regard to this matter.
7. While offering his explanation as above the appellant drew attention to the point that, although the anonymous petition against him had been received in the office of the Authorized officer, the Divisional Mechanical Engineer as far back as November 1979 and no action had been taken against him at that time, it was difficult to understand why he was placed under suspension after a lapse of six months. The explanation submitted by the appellant was considered by the Divisional Mechanical Engineer, who rejected it and ordered an enquiry to be conducted by the Assistant Executive Engineer and the Assistant Mechani cal Engineer, by his order recorded on the file on 31‑5‑1980. Formal order was, however, issued on 8‑6‑1980, in which, however, reference was wrongly made to another charge‑sheet bearing the same number, which had been issued on 31‑5‑1980. The enquiry was held in the middle of July and concluded on 25‑7‑1980 and the findings recorded and signed an 27‑7‑1980. However, before action on the report could be taken one of the witnesses made request for further recording of hid evidence, which was done on 4‑8‑1980 i.e. 8 days after the original enquirys had been concluded and the findings recorded. The evidence was recorded in the absence of the appellant. Nevertheless, on the basis of this report, the Divisional Superintendent ;ordered the removel from service of the appellant on 9‑8‑1980, which was conveyed to the appellant on the same date, as already mentioned in the beginning.
8. A number of grounds have been put forward by the appellant for setting aside the impugned orders. These are summarised below:
(i) The order dated 9‑8‑1980, has been signed by the Assistant Personnel Officer, Quetta and not by the Divisional Superinten dent (respondent No. 2), who was the competent authority in the m1tter.
(ii) The competent authority had not applied his mind to the case in deciding the matter.
(iii) The order dated 7‑1‑1981, in respect of which respondent No. 1, i.e. the Chairman. Pakistan Railways, was the competent authority has also not been signed by the said authority.
(iv) The Divisional Mechanical Engineer, who was the Authorized Officer in this case, does not figure in the proceedings and respon dent No. 2, the competent authority, eliminated the Authorized Officer and passed the impugned order dated 9‑8‑1980, without any advice from him.
(v) The enquiry was not conducted according to rules and the case was adjourned several times for more than 7 days without the matter being reported to the Authorized Officer.
(vi) After the completion of the enquiry and the submission of the report, additional evidence of one of the witnesses, Mr. Mohammad Shafi, Senior Train Examiner, was recorded after a lapse of more than 7 days, thus completely vitiating the proceedings.
(vii) The removal of the appellant was originally ordered on the basis of a charge‑sheet dated 31‑5‑1980, which pertained to the allegation of endorsing, to Respondent No. 1. the copy of reply of the charge‑sheet dated 28‑5‑1980 and, since the alleged misconduct was not of such a serious nature to justify removal from service, the punishment cannot be upheld.
(viii) The conduct of Respondent No. 2 was throughout motivated by mala fide and due to grudge which he bore against the appellant and, therefore the entire proceedings against him stood vitiated. The mala fide of respondent No. 2 is apparent from his action in withholding his increment for one year, by an order dated 17‑8‑1980, after the order of removal dated 9‑8‑1980. The mala fide is also proved by the punishment order dated 8‑7‑1980 passed by the said respondent on the ground of not carrying out transfer order had been cancelled by the Minister for Railways himself.
9. Against the above, the stand of the respondents is as under:
(i) The order of removal from service was passed by the competent authority, namely. the Divisional Superintendent and it was only conveyed to the appellant by the Assistant Personnel Officer and that this fact was clearly mentioned in the communication issued to the appellant conveying the said order.
(ii) The order was passed by the Divisional Superintendent, after careful consideration.
(iii) In regard to the second order also, the actual decision was taken by the competent authority, respondent No. 1, although, it was conveyed to the appellant through the Divisional Superintendent, Quetta, by the Chief Personnel Officer, Headquarters Office, Lahore.
(iv) The Authorized Officer, namely, the Divisional Mechanical Engineer, Quetta, was very much in the picture and it was on his recommendation that the competent authority, namely, the Divisional Superintendent, Quetta, passed the impugned order of removal from service.
(v) The enquiry commenced on 15‑6‑1980 and continued regularly with the exception of a six days, break when the appellant did not attend, for which he was administered written warning to attend.
(vi) The mala fide is denied and it is explained that the order withholding the increment for one year, conveyed after his removal from service, had actually been passed earlier.
10. Apart from the above, a preliminary objection was raised by the respondents that the appeal was not maintainable because the appellant not being a Civil Servant, within the meaning of the Civil Servants Act, 1973, it was outside the jurisdiction of this Tribunal.
11. We have heard both the parties in great detail and perused the documents produced by them either on their own or at our instance. As a result thereof, we have come to certain findings and conclusion which we shall put down after dealing with the grounds of the appeal and the replies thereto, one by one.
12. Before dealing with the appeal on facts, we would like to dispose of the preliminary objection referred to above. A civil servant has been defined in the Civil Servants Act, 1973, as under
"civil servant" means a person who is a member of an All‑Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include‑
(i)-------------------------------------------------
(ii)-------------------------------------------------
(iii) a person who is a "worker" or "workman" as defined in the Factories Act, 19'4 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923).
So far as the definition of a "worker" and "workman", as laid down in the Factories Act and the Workmen's Compensation Act, is concerned, the position is that under the Factories Act,, ,1934, `worker" has been defined as .
"worker" means a person employed directly or through an agency whether for wages or not, in any manufacturing process, or in clean ing any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room/place where no manufacturing process is being carried on.
And a "workmen" under the Workmen's Compensation Act, 1923, has beer defined as
"any person (other than a person whose employment is of a casual' nature and who is employed otherwise than for the purpose of the employer's trade or business) who is‑ ,
(i) a railway servant as defined in section~3 of the Railways Act, 1890 (IX of 1890,) not permanently employed in any administrative district or sub‑divisional office of a railway and not employed in any such capacity as is specified in Schedule It, or
(ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II. (Schedule II ( is the list of persons who are included in the definition of "workman"). From a reading of all these definitions together, it appears that an employee of the Railways cannot be treated as a "civil servant" unless he is either employed permanently in one of the offices mentioned, in a job other than any of those shown in Schedule II of the Workmen's Compensa tion Act or, it employed in such a job, receives monthly wages exceeding one thousand rupees. So far as the appellant is concerned, he was at the time of the passing of the impugned order employed in a Divisional Office as Head Train Examiner and therefore, not qualified to be treated as "workman". Besides, he was drawing a salary of Rs. 1010 and, therefore, even if he fell within the category of "workman" in terms of Schedule II, he could not be treated as a "workman", because he was drawing wage exceeding Rs. 1,000. In view of this position, we cannot accept the objection raised by the respondents to treating the appellant as a "civil servant'". The appeal, therefore, is not outside the jurisdiction of this Tribunal and cannot be dismissed on the basis of the technical objection raised by the respondents, which is rejected.
13. Dealing with the case on merits, we shall examine the points raised by the appellant, one by one, in the light of the replies given by the respondents to each of these points:
(i) So far as the first point raised by the appellant is concerned there is no merit in the objection raised. The order of removal from service, passed on 9‑8‑1980, clearly says that the explanation received in response to the notice issued to him had been carefully considered by the Divisional Superintendent, Pakistan Railways, Quetta and, in accordance with his order, the penalty of removal from service had been imposed, with effect from 9‑8‑1980 (afternoon). Therefore, the signing of the order by the Assistant Personnel Officer does not make the order invalid or defective.
(ii) It is not wholly true that the competent authority had not applied his mind to the case. As claimed by the respondents, and as verified from the record of the case, the order was passed by the Divisional Superintendent after consideration of the case on merits. But, it is true, as will be explained later, that the said authority had not fully complied with the requirements of law in this behalf.
(iii) In regard to the subsequent order, dated 7‑1‑1980, reducing the punishment from removal from service to reduction in rank from the post of Head Train Examiner to that of Senior Train Examiner, it is apparent from the text of the order itself that the matter had been considered by the Chairman, Railway Board, the Appellate Authority, who had passed the order in question. The fact that the order had been conveyed to the appellant by the Chief Personnel Officer, through the Divisional Superintendent, Pakistan Railways, Quetta does not, in any way vitiate the order.
(iv) It is not true, as verified from the case file, that the Divisional Mechanical Engineer, the Authorized officer, had not figured in the proceedings and that the competent authority, namely, the Divisional Superintendent, had passed the impugned order, dated 9‑8‑1980, without any advice from the Authorised Officer. It is seen from the record of the case that the Divisional Mechanical Engineer, Quetta, the Authorised Officer, has figured at all relevant stages. It was the Authorised Officer who placed the appellant under suspension on 28‑5‑1980 and served him with a charge‑sheet accompanied by a statement of allegations. Again, it was the same officer, who considered the reply to the charge‑sheet submitted by the appellant and rejected it and ordered an enquiry to be conducted by two officers nominated by him The report submitted by the Enquiry Committee, was also examined by the Authorised Officer, who put up the case to the competent authority for awarding a major punish ment. Therefore, there is no merit in the allegation that the competent authority had completely eliminated the Authorised Officer.
(v) From the relevant record, it does appear that the Enquiry Committee commenced its enquiry on 15‑6‑1980 and concluded it on 25‑7‑1980, while the report was signed on 27‑7‑1980. There is no indication, on the papers on which the statements of witnesses were recorded, as to the date on which these witnesses were examined. Neither the witnesses had put down the dates nor the Members of the Enquiry Committee had cared to do so. However, it appears that about 14 or 15 witnesses were examined, including the appel lant, during the period 15‑6‑1980 to 25‑7‑1980. Whether this was done at one stretch, from day‑to‑day. or by breaks and whether the intervals were of more than seven days, we are unable to determine. Quite strangely, neither the Members of the Enquiry Committee nor the witnesses appear to have considered it necessary to put down the dates on which they signed the evidence recorded. However, we do not consider this a very important point. The rules, no doubt, lay down that the enquiry should be held from day to day and, if any adjournments are given for more than seven days at a time, the matter should be reported to the Authorised Officer. The purpose of this rule is to ensure expeditious completion of the enquiry. If this requirement is not complied with, in any case, it is an irregularity but not one which affects the validity of the proceedings. We therefore, do not attach any importance to the point raised by the appellant in this behalf.
(vi) It is true that after the evidence of all the witnesses had been recorded, Mr. Muhammad Shafi, Head Train Examiner, Sick Line, Quetta, who had also been examined earlier on 21‑7‑1980, made an application on 28‑7‑1980 to the President of the Enquiry Committee, requesting that he may be re‑examined, because, on the previous occasion, he could not get the real statement recorded, on account of domestic worries, and was now compelled by his conscience to disclose the facts This request of the witness was granted by the President of the Enquiry Committee, who recorded his statement on 4‑8‑1980, in the absence of the appellant as well as the other Members of the Committee. This was a serious irregularity, which has certainly vitiated the proceedings. Although, in a note under the heading "Discussion on Findings", on which no date has been given, the President of the Enquiry Committee has stated that Mr. Shafi's statement had not been taken into consideration and "the same findings are being given which were framed in the presence of the other Members of the Enquiry Committee, we are unable to accept this statement of the President for reasons to be discussed later.
(vii) It is true that the removal order referred to a charge‑sheet dated 31‑5‑1580. This charge‑sheet was subsequent to the original charge sheet and was served on the appellant on the ground that he had endorsed a copy of his reply to the first charge‑sheet in contravention of the rules and had, therefore, been guilty of misconduct. Punish ment of removal from service could not surely be justified merely on the ground of endorsing a copy of the reply to the higher authority. But. the fact is that the date of the charge‑sheet mentioned in the removal order was a clerical mistake and it was, the very next day, corrected by a memo. dated 10‑8‑1980. There is, 'therefore, no merit in this point also.
(viii) So far as the allegation of mala fide is concerned, the appellant, apart from drawing our attention, in his grounds of appeal, to the orders passed on 17‑8‑1980 and 8‑7‑1980, also narrated in detail, in the main body of his memo. of appeal, the facts and circumstances, which, according to him, clearly proved…
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