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Case No. 27 of 1979, decided on 9th February, 1980.

‑‑‑ S. 25‑A‑Dismissal on account of misconduct‑Order passed based up,)n findings of ex parte enquiry‑Enquiry report not placed before Court‑Charge refuted by petitioner‑No evidence to support allegations‑Explanation of accused not refuted in evi dence produced before Court‑Holding of impartial and free inquiry not proved‑Impugned order, in circumstances, set aside awarding reinstatement with full back benefits.

Date of institution: 5th April, 1979.

Din Muhammad has filed the present petition against Divisional Superintendent Pakistan Railways, Rawalpindi and others under section ' 25‑A of the 1‑R.O., 1969.

The facts alleged in the petition are that the petitioner was employed by Respondent establishment as Blacksmith. He was served with a charge sheet Exh. P. W. I/1 (R. W. 1/6) to the effect that he returned back on T. R. B by R. 446‑Down on 3rd August, 1978, without replacing U. S. Tie bars at Mile No. 22/22‑24 and at Mile No. 23/10‑14. Thus wasting the whole day alongwith hamerman, one Gangman, one gangman of M. D. X. and one Gangman of T. E. B. Gang and endangering safety of a train. Secondly that he refused to carry out the order of Permanent Weigh ing Inspector MDX on 6th August, 1979, to go to P. D. by R. 44‑Up for replacement of U. S. Tie Bars, with hamerman and one Gangman of MDX Gang and thirdly that he obstructed work and wasted time while on duty. On the basis of this charge an enquiry was conducted and he was found guilty vide Exh. PW1/5. The impugned order of his dismissal is Exh P W 1/10, Exh. PW1/1l is the Departmental appeal and Exh. P W 1/12 is the grievance notice. The averments made in the petition have been refuted in reply.

Evidence of the parties has been recorded, arguments heard and record perused.

In this case the respondent Establishment has not placed any enquiry proceeding on the file From Exh. D. X. 1/ 1 alleged statement of the petitioner it transpires that he had submitted a written‑statement on 31st August, 1978. Even this statement has not been placed on file. The peti tioner has categorically denied having sent Exh. D X/I and has denied the signature thereon. The onus on this denial had shifted to the respondent who did not care to, prove the signature of the petitioner on Exh. D X/l. Hence the alleged ex parte enquiry was contrary to the provision of law if held at all. The proceedings of this ex parte enquiry have also not been placed on a file. The learned counsel for the respondent produced the proceedings of the alleged enquiry in the Court at the time of argument which was perused and returned to him, but was not accepted in evidence as nn request to this effect was made by the learned counsel for the respon dent. Even the charges are not proved from this enquiry. The respondent establishment has not proved in the Court in evidence adduced by them that the blacksmith could have replaced U. S. Tie Bars without the assistance of a mate and without necessary arrangement to stop the in coming train on the line when work was going thereon. The enquiry proceedings that have been placed on record pertain to events of July. 1978 and did not pertain to the charges levelled in the charge‑sheet Exh. P.W. 1/1. There is absolutely no evidence in support of the allega tion in the charges and the explanation submitted by the respondent has not been refuted in he evidence produced in the Court. Therefore in view of the above circumstance I hold that in absence of Enquiry proceedings and in absence of independent, impartial and free enquiry the charges levelled against the petitioner have not been proved. There is not even an iota of evidence to warrant an order to conduct a second enquiry. The ex pare enquiry if at all held has not been proved an therefore tile petitioner was apt given a chance to embark upon defence. Hence the impugned order of his dismissal is set aside and the petitioner reinstated with full back wages and back benefits from the date of his dismissal.

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