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Application No.13 of 1985, decided on 31st May, 1986.

‑‑‑S.25‑A‑‑Termination of service‑‑Order of termination could not have retrospective effect‑‑Termination order made with retrospective effect, held, would not become null and void but would be effective from issuance date.

‑‑‑S. 25‑A‑‑Dismissal for misconduct‑‑Domestic Inquiry‑‑Inordinate delay‑‑Effect of‑‑Delay of 3 months in issuance of second show‑cause notice after receipt of findings of enquiry and 3 months more in issuance of termination order, not explained‑‑Inference of mala fide, in circumstances, would be drawn.

‑‑‑S 25‑A‑‑Dismissal for misconduct‑‑Order passed while taking into consideration charges which were not communicated‑‑Such Order, held, as not tenable in law.

‑‑‑S. 25‑A‑‑Grievance petition against dismissal for misconduct‑‑Objection that departmental remedy having not been exhausted petition was not maintainable, repelled.

1983 S C M R 769 rel.

Muhammad Bashir Awan for Applicant. M.

Ishaque Abbasi for Respondent.

The applicant was appointed as a Fireman on 24‑9‑1970 and was said to have been promoted as Sub‑Fireman on 1‑5‑1978. He claims to be covered by the provisions of Labour Laws. He is said to have been removed by D.P.O. Railways on 12‑11‑1984 on the ground of absence from duty from 16‑4‑1984. A charge sheet in this case was issued on 2‑5‑1984 and one enquiry committee submitted .its report on 13‑6‑1984. A show‑cause notice was then issued to him on 27‑9‑1984. After receiving the termination letter he issued the grievance notices on 17‑12‑1984 and 14‑1‑1985 but the same were never replied. Accordingly, he brought petitions for his reinstatement with back benefits. His grievance is that the respondent No. 3 was not competent to issue any charge sheet or constitute any Inquiry Committee or also to issue any show‑cause notice. He also, pleaded that in fact he was refused duty by the respondent No.3 though he repeatedly appeared for duty.

2. In the reply statement filed by the respondent it has been pleaded that the applicant was governed by the Efficiency & Discipline Rules. It has been denied that the applicant was presenting himself for duty from 16‑4‑1984 onwards. It has also been asserted that the respondent No.3 was the Authorised Officer and so he had correctly issued the charge sheet etc. It has also been asserted that this petition is not maintainable because the applicant has not exhausted the available remedy by preferring departmental appeal to the Divisional Superintendent, Pakistan Railways, Karachi as has been intimated to him through the impugned termination order.

3. In support of his case, the applicant alone examined himself and produced a number of documents to prove his assertions. On behalf of the respondent one Head Clerk Mirza Sabir Raza alone was examined. I have then heard Mr. M. Bashir Awan, Advocate for the applicant, and Mr. M. Ishaque Abbasi, counsel for the respondent. I have also considered the material on record.

4. It has been contended on behalf of the applicant that the impugned order is of no legal effect on a number of counts viz; (1) that it was passed after being influenced by number of other charges never intimated to the applicant; (2) that it is with retrospective effect; (3) the proceedings were initiated by incompetent authorities; and (4) the copies of the proceedings were neither supplied to the applicant despite requests nor the same have been produced in this Court. Mr. Awan submits that A.W.M. had issued the charge sheet and also appointed the enquiry committee though hi was not Authorised Officer in the case of the applicant. Mr. Ishaque however submitted that A.W.M. is a 17 Grade Officer and so he is competent in pursuance of letter dated 21‑12‑1983 issued by the General Manager (Personnel) Headquarter Office, Lahore. The perusal of this letter shows that it is only a suggestive circular and the proposals to, be submitted by the concerned Divisional Offices were to be finalized and approved by the General Manager before its implementation. No document has however been produced by the Railways to show that this proposal was finally approved at any stage. However, the applicant has a19b not produced any evidence to show that this A..W.M. was incompetent to initiate any proceedings against him and so prima facie it has to be held that the proceedings were initiated against the applicant by a competent authority.

5. Mr. Ishaque has conceded at the bar that the termination cannot be given retrospectivie effect and so it will be deemed to be effective from the date of its issuance. However, he does not agree with Mr. Awan that simply because the termination order was retrospective in effect, it became null and void. I have also no hesitation in concurring with the submissions of Mr. Ishaque Abbasi.

The most important point involved in this case is whether the termination of the applicant was warranted by law. It has been the plea of the applicant that he was not permitted to cross‑examine the witnesses nor he was supplied with any copy of the proceedings despite demand. The witnesses were also not said to have been examined in his presence. Mr. Abbasi submits that the proceedings were made in accordance with law and full opportunity of defence was afforded to the applicant. He however, admitted the non‑supply and non‑production of the proceedings. If the grievance of the applicant throughout is that the enquiry was not conducted in his presence, the burden to rebut this allegation would certainly be on the respondent. Admittedly the proceedings have not been brought on record of this Court nor even the Inquiry Officer has been examined in this case. The Authorities who initiated proceedings against the applicant or who passed the final order have also not been tendered in evidence. The applicant had admittedly demanded the copies of the proceedings but the same were also refused: In this view of the matter it cannot be urged on behalf of the respondent that there had been fair and impartial enquiry against the applicant. The impugned order is thus liable to be set‑aside on this score alone.

7. The charge against the applicant is of continuous absence from 16‑4‑1984. However, as per para. 2 of the enquiry report A/15 it appears that the H.T.K. who reported the absence of the applicant, admitted that the applicant had attended on few dates during this period of absence. As aforesaid, the plea of the applicant is that he was regularly presenting himself for duty but was refused. There was some dispute in regard to the timings of duty of the applicant. In view of this evidence as per the enquiry report itself, it cannot be said that the applicant had deliberately absented from duty continuously from 16‑4‑1984 particularly when he had also admittedly submitted his application dated 28‑4‑1984 A/9.

8. Record shows that the charge sheet was issued on 2‑5‑1984, the enquiry committee was appointed apparently on or about 14‑5‑1984 but the report was submitted on 13‑6‑1984. The second show‑cause notice was, however, issued to the applicant on 27‑9‑1984 after more than 3 months of the submission of the report and still the termination was ordered but some time in December, 1984. The reasons for such inordinate delay has neither been explained nor appears to be reasonable but speaks of mala fide. Not only this that document R/3 whereby the removal was said to have been ordered by DME‑11 shows that the termination order was passed on considering four more charges which were never communicated to the applicant. Accordingly, the impugned order will not be tenable in law.

9. It has been contended by Mr. Abbasi that the applicant did not exhaust departmental remedy before approaching this Court and so this application is pre‑mature. This plea is also misconceived and so it is repelled. Reliance can be placed on 1983 S C M R 769. It has also been contended by Mr. Abbasi that the termination order passed by DME‑11 but he was not impleaded in these proceedings. This objection is also untenable for the simple reason that the removal order was communicated to the applicant by the D.P.O. Karachi and so there was no occasion for the applicant to implead the DME‑11 as party to these proceedings.

10. In view of the above, this petition is allowed. However, it will be open to the respondent to hold a fresh enquiry on the charge sheet already issued to the applicant but if such an enquiry is considered necessary by the respondent, the same should be completed and also finalized within 3 months hereof. Till such time the applicant would no doubt be reinstated in service but the question of his back benefits would depend upon the result of such an enquiry. If the respondent does not either choose to hold fresh enquiry in this case if the same is not finalized within 3 months hereof, the applicant shall be entitled to all back benefit.

A. E.

Petition allowed.

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