Find a Lawyer

Appeal No. KAR‑157 of 1984, decided on 31st October, 1984.

‑‑‑Rr. 5(3) & 6‑‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38(3)‑‑Railway driver retired compulsorily from service on charge of over-speeding resulting in derailment of train‑‑Charge‑sheet served‑ No enquiry held‑‑Facts finding enquiry report of Federal Government Inspector of Railway relied for, passing impugned penalty order‑ Argument that summary procedure was adopted hence no enquiry was necessary‑‑Show‑cause notice procedure, held, could be adopted where evidence against accused was overwhelming or accused had substantially admitted allegation‑‑Report of Federal Government Inspector not indicating that accident was mainly for reason of over-speeding and accused was actually over-speeding‑‑Impugned order in absence of enquiry with defence opportunity to accused, in circumstances, held, bad in law‑‑Order of Labour Court setting aside impugned penalty order, in circumstances, upheld by Appellate Tribunal.

1980 P L C 502 rel.

Rasheed Ahmed for Appellant.

A.R. Puri for Respondent.

Date of hearing: 29th October, 1984.

This appeal is directed against the impugned order of the Sind Labour Court No. III at Karachi, dated 2‑5‑1984. The learned Labour Court set aside the impugned dismissal of the respondent holding that it was illegal and without proper enquiry.

2. An application under section 25‑A, I.R.O., 1969, for reinstate ment and back benefits was filed by the respondent against the Divisional Superintendent, Pakistan Railways, Karachi. The respondent was punished and compulsorily retired from service by the impugned order, dated 10‑2‑1983. This order was challenged by the respondent as illegal on the grounds that no departmental or domestic enquiry was held and that he was not called upon to lead defence and that he was made scape‑goat for protecting influential officers.

3. The facts are that the respondent was a Railway Driver and that he took Awami Express from Karachi Cantonment to Rohri on 1‑1‑1981. The train derailed between the Railway Stations Lundo and Sarhari causing damage to the rear wagons resulting in injuries to the passengers. Federal Government Inspector of Railways came to the site and made spot investigations and submitted his report in the month of February or March, 1981. In consequence of his report the Authorized Officer issued a charge‑sheet, dated 26‑11‑1981, to the respondent for misconduct of over-speeding. The respondent was called upon to put in his written defence under rule 6 of the Railways Servants (Efficiency & Discipline) Rules, 1975. The respondent submitted his explanation that he was not at fault as the speed was not more than 80 kilometres per hour as required under the Rules. The respondent was put under suspension and, therefore, he filed an application No. 211 of 1981 before the Labour Court No. V, Karachi, against the order of suspension. But, the said application was dismissed by the learned Presiding Officer on 8‑5‑1982. The respondent was ultimately punished by compulsorily retirement from service.

4. The department imposed penalty relying on the report of the enquiry held by the Federal Government Inspector of Railways. The said enquiry was a fact‑finding enquiry and the respondent was not given any chance to defend himself. On the basis of the report of the Federal Government Inspector of Railways, the Divisional Superintendent had issued a charge‑sheet wherein he clearly mentioned that the procedure under rule 6 of the Railways Servants (Efficiency & Discipline) Rules may be followed. The very mention of rule 6 meant that a departmental enquiry had to ensure. This was not done and no enquiry of any sort was conducted. No witness was examined or cross‑examined in presence of the respondent. No defence witness was examined. The respondent was summarily removed on the basis of preliminary investigation conducted by the Federal Government Inspector of Railways as the Divisional Superintendent Karachi felt that he has no authority to overrule the findings of the Federal Government Inspector of Railways. These were the grounds mentioned in the impugned order and, therefore, the respondent was reinstated. His reinstatement was due to the lack of legal enquiry.

5. The learned counsel Mr. Choudhry Rasheed Ahmed for Railway argued on behalf of the appellants and Mr. A.R. Puri argued on behalf of the respondent.

6. The arguments of Mr. Choudhry Rasheed Ahmed are that the domestic enquiry under Order 15(3) or (4) of the Standing Orders Ordinance, 1968, was not necessary as the enquiry was held under rule 5(3) of the Railways Servants (Efficiency & Discipline) Rules, 1975. He referred me to the charge‑sheet issued against the respondent wherein rule 6. is deleted. That means the enquiry was to be held under rule 5(3). This enquiry was a summary enquiry based on show‑cause notice. The arguments of the learned counsel are not forceful A and a summary procedure as adopted is based on a show‑cause notice. I am referred to the authority reported in 1980 P L C 502. The authority observes as under: ----

"However, I would like to point out that the precondition for taking action under clause (3) of rule 5 of the Railways Servants (Efficiency & Discipline) Rules, 1975, that is, to decide the case merely on the basis of the show‑cause notice and the explanation submitted by the employee, is that the authorised officer must be satisfied and decide that it is not necessary to have an inquiry conducted through an Enquiry' Officer. For such satisfaction there should be adequate material before him."

7. There may be cases where the evidence against the employee is overwhelming or the employee has substantially admitted the allegations against him. In that case mere show‑cause notice would be sufficient.

8. Let us see whether there is overwhelming evidence against the respondent and that what the respondent has to say in his defence. The earlier enquiries held both by Federal Government Inspector of Railways and by the show‑cause notice, have not taken into consideration the defence of the respondent. I have read with anxious attention the enquiry report of the Federal Government Inspector of Railways. In nutshell he has given following reasons for the derailment. His conclusion are as under: ---‑

"On the basis of the evidence and discussion in Chapter 3, I have come to the conclusion that the derailment was caused due to the combined effect of the following factors:‑

(a) Metal failure of the two main leaves of the bearing spring of the 11th coach leading trolly, caused the spring assembly to twist outwards.

(b) The spigot of the main bearing spring, also had metal flaw at the bottom, which provided sufficient play for the axle‑box to work out.

(c) Over-speeding, on the track, under a speed restriction coupled with other deficiencies in the coach, generated heavy side lurches, which forced out the axle‑box and the defective spring, which caused the accident."

9. The real reason of the derailment were metal failure of the two main leaves of the bearing spring of the 11th coach leading trolly, caused the spring assembly to twist outwards, and secondly, the spigot of the main bearing spring, also had metal flaw at the bottom. The speed itself is not the only cause of the derailment although it might have accelerated the defects already in the wagons. So, the main reason for the punishment of the respondent is the finding of the over-speeding. The Divisional Mechanical Engineer No. 1 whose report is on the record and is as under: ---‑

"Since the distance No. 7.57 K.M. was covered in 7 minutes the speed works out to be 65 K . M . against the restriction of 80 K.M.H. on the section from Lundo to the site of the accident. Driver, therefore, cannot be held responsible for over-speeding after Lundo and causing accident on this account. He may, however, be taken up for over-speeding between Shahdadpur and Lundo but the extent of over-speeding has not been correctly worked out in the report. The cannon of justice, therefore, demands that the report on the over-speeding be reviewed."

10. The version of the Federal Government Inspector of Railways and the Divisional Mechanical Engineer are quite in conflict and in this enquiry the defence of the respondent is not led. Therefore, considering all the facts on record the conclusion is that over-speeding may not be the real cause of the derailment and the derailment took place on account of the mechanical defects in the wagons and due to the lurches and oscillation of the wagons. The oscillation and lurches could happen even in the low speed say 30 kilometres per hour.

11. On the whole, since the enquiry did not take into consideration all the facts relating to derailment and there was no opportunity given to respondent, the so‑called enquiry under rule 5(3) of Railways Servants (Efficiency & Discipline) Rules, 1975, was bad in law. Moreover, it appears that main reason of the derailment was due to mechanical defects in the wagons. The order of the learned Labour Court is maintained and the appeal is hereby dismissed.

A. E.

Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.