2001 S C M R 256

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Javed Iqbal, JJ

ALLAH YAR --- Appellant

versus

GENERAL MANAGER, RAILWAYS HEADQUARTERS,

LAHORE and another---Respondents

Civil Appeal No. 1254 of 1997, decided on 4th October, 2000.

(On appeal from the order of the Lahore High Court, Bahawalpur
Bench, Bahawalpur, dated 24-6-1997 passed in ICA 46 of 1997).

(a) Railways Servants (Efficiency and Discipline) Rules, 1975---

----S. 4---General Rules for Pakistan Railways, R.120---Removal from

service of Railways employee---Constitution of Pakistan (1973),
Art.212(3)---Leave to appeal was granted by Supreme Court to
consider as to whether the judgment of High Court was in accordance
with law.

(b) Civil service---

---- Administrative enquiry---Principles.

Following are the principles for administrative enquiry:--

(1) The administrative authority must act in good faith.

(2) The administrative authority is not bound to treat the matter

as if it were a trial or to administer oath or examine witnesses.

(3)' The authority can obtain information in any way it thinks

fit, provided it gives a fair opportunity to the person sought to
be affected to correct or contradict any relevant statement
prejudicial to him.

(4) In order to act justly and to reach just ends by just means the
Courts insist that the authority should adopt the elementary
principles of natural justice unless the same have been expressly
excluded.

University of Dacca v. Zakir Ahmad PLD 1965 SC 90 ref.

(c) Civil service----

---- Administrative enquiry---Judicial or quasi judicial proceedings---

Rules of natural justice---Applicability---Following principles are laid
down with reference, to enquiries:--

(1) In conducting an enquiry the Enquiry officer does not act as

a Court but he exercises judicial or quasi-judicial functions.

(2) He is not bound to conform. to the provisions of the

Evidence Act, but in exercising judicial or quasi-judicial
function he must act in a judicial spirit and manner in
conformity to well-recognised principles of natural justice.

(3) When a public authority is directed under a law to make an

"enquiry" I and the competent authority has to take action on
the basis of its report and recommendations it cannot carry out a
grotesque caricature of it, but on the contrary, has to conduct it
in a manner which does not violate the basic rules of natural
justice.

Osman Abdul Karim Bawaney v. Collector of Customs, Chittagong

PLD 1962 Dacca 162 and Muhammad Nawaz Khan v. Pakistan PLD
1970 Lah. 811 rel.

(d) Constitution of Pakistan (1973)----

----Arts. 2-A, 4 & 25---Equality of citizens, principle of---Exercise of

discretion by Authority---Scope---Exercise of discretion is not an act of
discrimination--Discretion becomes an act of discrimination only when
it is improper or capricious exercise or abuse of discretionary authority,
and the person against whom that discretion is exercised faces certain
appreciable disadvantages which he would not have faced otherwise---
Where the discrimination is not based on any rational ground bearing
upon the subject dealt with, the law offends against the principle of
equality and is void.

1992 CLC 219; AIR 1965 All. 275 and AIR 1952 SC 75 ref.

?(e) Appeal---

----Appellate forum is required to examine each and every aspect of the

matter in depth and only thereafter conclusion should be drawn in
accordance with record, evidence, prevalent laws, rules made therein,
principles of natural justice and settled norms of justice.

Abdul Hafeez v. Chairman, Municipal Corporation, Lahore PLD 1967

Lah. 1251 ref.

(f) General Rules for Pakistan Railways (1970 Edition)-?---

---- Rr.??????????? 120 & 397---Compulsory retirement---Employee on

the charges of violation of rules??? and negligence was dismissed from
service---Dismissal from service was converted into compulsory
retirement in departmental appeal---Service Tribunal dismissed appeal
of the employee on the ground that Tribunal had no jurisdiction ---
Employee remained unsuccessful before Labour Court as well as the
High Court---High Court had not appreciated the factual and legal
aspects of the controversy in its true perspective which resulted in
serious miscarriage of justice---High Court had also made no mention
about the prevalent rules, evidence and record of the case which ought
to have been considered---Inquiry having not been conducted in
accordance with law, the entire subsequent actions based on that
inquiry report had no legal sanctity---Order of dismissal of employee,
which was subsequently converted into compulsory retirement, suffered
from legal infirmity which was not curable and the same was set aside--
-Employee was ordered to be reinstated in service with back benefits
from the 'date of his dismissal from service.

Shafiullah Khan v. Government of West Pakistan PLD 1970 Pesh. 176;

AIR 1954 Bom. 351 and PLD 1971 Lah. 734 ref.

Appellant in person.

Muhammad Aslam Sindhu, Advocate Supreme Court and Mahmud?ul-

Islam, Advocate- on-Record for Respondents.

Date of hearing: 4th October, 2000.

JUDGMENT
JAVED IQBAL, J.---This appeal by leave of the Court is directed
against order, dated 24-6-1997 passed by a learned Division Bench of
the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby the
judgment, dated 21-5-1997 passed by a learned Bench of Lahore High
Court (Bahawalpur Bench) dismissing the Constitutional petition
preferred on behalf of the appellant was kept intact.

2. Leave was granted by this Court vide order, dated 4-11-1997 which
is reproduced hereinbelow in verbatim to appreciate the legal and
factual aspects of the controversy:---

"This is a petition for leave to appeal against the order, dated

24-6-1997 of a Division Bench of the Lahore High Court passed
in I.C.A. No.46 of 1997, filed by the petitioner against the
judgment of a learned Single Judge of the same High Court in
Writ Petition No.2755-S of 1994, dismissing the petitioner's
aforesaid writ petition, declining the above I.C.A. in limine.

(2) The brief facts are that on 6-4-1991 the petitioner while
performing his duty as a Driver in the Railways Department
took Goods Train 6201 Up from Samasatta to Khanewal. When
he reached Mehr Shah Station, A.S.M. (Assistant Station
Master) and pointman demanded Token from him and asked
him as to why he had passed "Jangle Maryala" Station without
authority. The petitioner was charge? sheeted on 13-4-1991. He
submitted his reply, in which he denied the above allegation.
After that an enquiry was conducted and in consequence
thereof, he was removed from service. Then he filed a
departmental appeal, which was allowed on or about 5-6-1993
to the extent that removal from service was reduced to
 compulsory retirement. After that he approached the Service
Tribunal but his appeal was dismissed on 15-4-1994 on the
ground that the Tribunal had no jurisdiction. His petition under
section 25-A of the I.R.O. was, also dismissed by the Punjab
Labour Court on 23-6-1994 i.e., earlier than the above order of
the Tribunal. Then he filed the aforesaid writ petition and I.C.A.
without any success. The petitioner has, therefore, filed the
present petition for leave to appeal.

3. In support of the above petition the petitioner, who has

appeared in person, has contended that since the charge against
him was violation of GR 120 as is evident from the charge-sheet
(at page 30 of the paper book), the Railway Authorities could
not have imposed the penalty of removal from service or
compulsory retirement as the infringement of the above
Regulation entails forfeiture of one month salary as per Railway
Regulations. He has relied upon the General Rules for Pakistan
Railways with the Subsidiary Rules of the P.W.R. contained in
1970 Edition of the Rules, particularly Rule 397 which reads as
under:

'397. Penalty for breach of rules.---Any railway servant

committing breach of any of the rules in this Part shall forfeit a
sum not exceeding one month's pay, which sum may be
deducted by the Railway Administration from his pay (vide
section 47(2) of the Act.)'

On the other hand, Mr. Muhammad Aslam Sindhu, learned

Advocate Supreme Court appearing for the Railways, has
contended that under the Railways (Efficiency and Discipline)
Rules, 1975, the department has the power to impose any major
penalty in addition to what has been provided in the above
Rules.

We are inclined to grant leave to consider, as to whether the

judgments of the learned Single Judge and the learned Division
Bench are in accordance with law. Leave is, accordingly,
granted. "

3. The appellant appeared in person and argued the matter at length.

Mr. Muhammad Aslam Sindhu, learned Advocate Supreme Court
appeared on behalf of General Manager, Railways (respondent) and
supported the impugned order by arguing that no illegality or
irregularity whatsoever, has been committed by the forums below and
all the necessary formalities were completed as envisaged in the
relevant service laws and no injustice has been done to the appellant
and in spite of the fact that his negligence has been proved the order of
the dismissal was converted to that of compulsory retirement from
service.

4. We have carefully examined the respective contention as agitated on

behalf of the parties. We have minutely perused judgment, dated 21-5-
1997 passed by learned Single Bench and impugned order in the light
of relevant provisions of law and record of the case. It has been
observed with grave concern that the procedure as enumerated in the
Railway Servants (Efficiency and Discipline) Rules, 1975 (hereinafter
referred to as the Rules) was never followed in letter and spirit. The
procedure as envisaged in the said Rules is summarized hereinbelow:--

"A Railway servant is liable to penalty when he is inefficient; is

guilty of misconduct; which means conduct prejudicial to good
order or service discipline or contrary to Railway Servants
Conduct Rules, or unbecoming of an officer and a gentleman
and includes any act on the part of a Railway servant to bring or
attempt to bring political or other outside influence directly or
indirectly to bear on the Railway Administration or any officer
thereof in respect of any matter relating to the appointment,
promotion, transfer, punishment, retirement or other conditions
of service of a Railway servant; and

The penalties to be, imposed are classified as major penalties

and minor penalties. Minor penalties include censure;
withholding of promotion or increment for a specified period;
stoppage at efficiency bar; recovery from pay of the whole or
any part of any pecuniary loss caused to Government by
negligence or breach of orders. Major penalties include
reduction to a lower post; compulsory retirement; removal from
service; and dismissal from service. Dismissal disqualifies for
future employment under Government. In the case of removal
simpliciter there is no such disqualification.

Where a Railway servant is accused of subversion, corruption

or misconduct the authorised officer may require him to proceed
on leave, or suspend him. The order of suspension is required to
be reviewed every three months. The authorised officer is to
determine according to the facts of the case whether the case is
to be enquired into by an Inquiry Committee or otherwise. If the
appointment of an Inquiry Committee is not considered
necessary the authorised officer is required by order in writing
to inform the accused of the action proposed to be taken in
regard to him and give him a reasonable opportunity of showing
cause against that action.

Where an Inquiry Committee is appointed the authorised officer

shall frame a charge and communicate it to the accused together
with the statement of allegations, and require him within
fourteen days to put in a written defence and to state whether he
desires to be heard in person: The Inquiry Officer or the Inquiry
Committee shall enquire into the charges and may examine such
oral documentary evidence in support of the charge or in
defence of the accused as may be considered necessary. The
accused has the right to cross-examine the witness against him.

The Inquiry Officer or Committee is required to hear the case

from day to day and no adjournment is to be given except for
reasons to be recorded in writing.
 Within ten days of the completion of the proceedings the
Inquiry Officer or the Committee is required to submit its report
to the Authorised Officer. When the report of the Inquiry Officer
or Committee or the explanation of the accused has been
received where no Inquiry Officer/Committee is appointed the
Authorised Officer shall determine whether the charge has been
proved. If it is proposed to impose a minor penalty he shall pass
orders accordingly. If it is proposed to impose a major penalty
the Authorised Officer is to forward the case to the Authority
alongwith the report or the Inquiry Committee, if any, and his
own recommendations. The Authority shall pass such orders as
it may deem proper."

5. The proceedings as initiated and finalized against the appellant has

been examined in the light of relevant rules the summary whereof has
been given hereinabove. It transpires from the scrutiny of record that
first charge?sheet was served on 13-4-1991 and the matter remained
pending till 13-4-1992 without any justifiable lawful excuse. The
second charge-sheet was given subsequently. What was the necessity or
justification for issuance of two charge-sheets with such a wide gap in
the prevalent circumstances of the case could not be explained. The
record is silent to the effect that by whom the inquiry committee was
got constituted. The inquiry has been conduced by Traffic Inspector and
Loco Inspector, Khanewal. We have carefully perused the inquir3
report and we are of the considered opinion that the mandatory
formalities could not be complied with. For instance, the Operating
Branch Running Shed report' having substantial bearing on the case
was not considered and ignored without any rhyme and reason. Besides
that the statement of point man Ch. M. Akram was not recorded on
flimsy grounds. It may be mentioned here that his statement was
inevitable to determine as to whether the appellant had passed Jangle
Maryala without authority and reached Mehar Shah. Inquiry, report is
silent about the fact as to whether opportunity of cross-examination
was afforded to appellant when the statements of witnesses were being
recorded. No such mention whatsoever has been made by the
committee in this regard and thus it can be inferred safely that no such
opportunity was ever afforded. "In the case Shafiullah Khan v.
Government of West Pakistan (PLD 1970 Pesh. 176) where the enquiry
was not conducted in accordance with rules, no witnesses were
examined in presence of the accused in support of allegations; the
accused was denied the right of cross-examination; and no record of
evidence was kept, the High Court quashed the inquiry proceedings".
"Where a witness gave a statement behind the back of the accused it
was held that the proceedings were void as it was necessary that all
witnesses should be examined in the presence of the accused". (AIR
1954 Born. 351). The members of inquiry committee had not
mentioned the date beneath their signatures and probably a deliberate
effort has been made to conceal the exact date for certain obvious
reasons. There are certain questions, which are yet to be answered. For
instance, it is not known when the committee was constituted and how
much time was given for completion of inquiry, whether the stipulated
period i.e. 10 days was extended, if so, by whom? The record is
absolutely silent and all such details were omitted in the report and thus
rule 6(3) and (5) of the Rules, have been violated in a flagrant manner.
The committee has failed to point out that which oral or documentary
evidence in defence of the accused was examined and in case it was not
considered desirable what was the reason for it? The said conduct of the
committee was in contravention of the provisions as contained in rule
6(3) of the Rules. The inquiry report is also silent to the effect as to
whether the charge was framed and communicated to the appellant
together with the statement of the allegations explaining the charge and
of any other relevant circumstances after the constitution of committee
by the authorized officer as envisaged under rule 6(a) of the Rules. The
principles for administrative enquiry have been laid down by this Court
in case of University of Dacca v.? Zakir Ahmad (PLD 1965 SC 90) as
follows:--

(1) The administrative authority must act in good faith.

(2) The administrative authority is not bound to treat the matter as if it

were a trial or to administer oath or examine witnesses.

(3) The authority can obtain information in any way it thinks fit,
provided it gives a fair opportunity to the persons sought to be affected
to correct or contradict any relevant statement prejudicial to him.

(4) In order to act justly and to reach just ends by just means the Courts
insist that the authority should adopt the elementary principles of
natural justice unless the same have been expressly excluded.

In Osman Abdul Karim Bawaney v. Collector of Customs, Chittagong

(PLD 1962 Dacca 162)' the following principles were laid down with
reference to enquiries:--

(1) In conducting an enquiry the Enquiry Officer does not act as

a Court but he exercises judicial or quasi-Judicial functions.

(2) He is not bound to conform to the provisions of the

Evidence Act, but in exercising judicial or quasi judicial
function he must act in a judicial spirit and manner in
conformity to well-recognised principles of natural justice.

In the case of Muhammad Nawaz Khan v. Pakistan (PLD 1970 Lah.

811), the following principles were laid down:--

(1) When a public authority directed under a law to make an "enquiry"

and the competent authority has to take action on the basis of its report
and recommendations it cannot carry out a grotesque caricature of it,
but on the contrary, has to conduct it in a manner which does not
violate the basic rules of natural justice.

6. In view of the above serious lapses it can be concluded safely that

the mandatory procedure as envisaged in the rules was never followed.
7. The responsibility of the incident was fixed as follows by the Inquiry
Committee:

"RESPONSIBILITY.

'A' Driver Allah Yar son of Faiz Bux alongwith Fireman Abdul Majid
son of Taj Muhammad are responsible for breach of following rules:--

(i) FOR RUBBING ENGRAVED CODE FROM BALL TOKEN SR

328/5(g)

(ii) FOR BEING CARELESS WHILE PASSING STATION AND

CABINS. GR 6(e) AND S.R. 120/1

(iii) CREW FAILED TO THROW PREVIOUS TOKEN AT J.M.Y.

Violation of S.R. 344/2.

' B' Train Incharge Acting Guard Nazir Ahmad (cabinman)

SMA main is also responsible for not exchanging proceed signal
with Assistant Station Master J.M.Y. RULE No.338/1(a)."

8. A bare perusal would reveal that three railway employees namely,

Allah Yar (appellant), Abdul Majeed (fireman) and Nazir Ahmad
(acting guard) were found responsible for the incident but action has
only been taken against the appellant which by no stretch of
imagination can be termed as fair. The law does not authorize the
General Manager Railways to "pick and choose" as exercise of
authority is such an arbitrary manner is not conferred upon him which
also amounts to discrimination. We are conscious of the fact that "every
exercise of discretion is not an act of -discrimination. It becomes an act
of discrimination only when it is improper or capricious exercise or
abuse of discretionary authority, and the person against whom that
discretion is exercised faces certain appreciable disadvantages which he
would not have faced otherwise. Where the discrimination is not based
on any rational ground bearing upon the subject dealt with, the law will
offend against the principle of equality and will be void". In this, regard
we are fortified by the dictum laid down in 1992 CLC 219 (DB) + AIR
1965 All. 275 + AIR 1952 SC 75. When the three employees were
found equally responsible for the alleged incident why the appellant
alone should face the consequences? No satisfactory explanation could
be furnished by Mr. Muhammad Aslam Sindhu, learned Advocate
Supreme Court for respondents.

9. The appeal filed by the appellant has not been dilated upon diligently
but has been disposed of in a haphazard and mechanical manners
without taking into consideration as to whether all the mandatory
formalities were completed as envisaged under the Rules before
initiation of disciplinary proceedings but no one has bothered about it
which is really pitiable. The appellate forum is required to examine
each and every aspect of the matter in depth and only thereafter a
conclusion should be drawn in accordance with record, evidence,
prevalent laws, rules made therein, principles of natural justice and
settled norms of justice. "In the case of Abdul Hafeez v. Chairman,
Municipal Corporation, Lahore (PLD 1967 Lah. 1251) the principles of
natural justice were brought out in the following terms:-

"In the absence of anything to the contrary, the approach of a

quasi?-judicial tribunal must always be judicial and conform to
the principles of natural justice to maintain the rule of law. This
is the essence of justice and the very fountainhead which must
on no account be allowed to be polluted. No doubt there are no
uniform standards of natural justice applicable in all cases and
the rule is an elastic one. Its requirement may vary with the
constitution of the quasi-judicial tribunals and bodies having
regard to the functions to be performed by them and powers and
duties entrusted to them the nature and the subject-matter of the
dispute and all other relevant circumstances are to be kept in
view in applying this golden rule. Nonetheless in this respect
certain broad principles are accepted on all hands. They are
deducible from the two Latin maxims: "Nemo debet esse judex
in propria causa" (no one should be a judge in his own cause
and the judges should be above suspicion. (The other maxim of
no less importance is "audi alteram partem" (hear the other
side)."

"A general principle to regulate service matters is that the

competent authority must act independently. The competent
authority must apply its mind and come to its own finding. This
is particularly necessary when a penalty is being inflicted on an
official. Service rights are valuable rights and cannot be treated
lightly. It would be a sheer mockery if the competent authority
were to merely endorse a finding recorded by some other
authority." (PLD 1971 Lah. 734).

10. The pivotal question as to whether the appellant had violated his
authority by not obtaining the token could not be proved beyond
shadow of doubt. The learned Single Judge has not appreciated the
factual and legal aspects of the controversy in its true perspective which
in our considered view resulted in serious miscarriage of justice. The
learned Division Bench has toed the same line and no mention
whatsoever has been made about the prevalent rules, evidence and
record of the case which ought to have been considered. Since the
inquiry has not been conducted in. accordance with law as such the
entire subsequent actions based on the said inquiry report have no legal
sanctity whatsoever. In such view of the matter it would be an
academic' exercise to discuss the question as to whether punishment
should have been awarded for the violation of GR-120 read with rule
397 of General Rules for Pakistan Railways (contained in 1970
Edition) or under the Rules.

11. In the light of foregoing discussion the appeal is accepted and the
impugned order is hereby set aside. Consequently the order of
dismissal: dated 21-2-1993 which was subsequently converted into
compulsory retirement is set aside having no legal sanctity at all as it
apparently suffered from inherent legal infirmity which is not curable.
The appellant should be reinstated in service with all back benefits
from the date of his dismissal from service.

Q.M.H./M.A.K./A-101/S ??????????????????
??????????????????????????????????????????????? Appeal allowed.