PLJ 2022 Tr.C. (Note) 62
Civil Servants (Efficiency & Discipline) Rules, 1973--
----R. 4(1)(b)(iv)--Service Tribunals Act, (LXX of 1973), S. 4--Appellant was serving in Pakistan Railways--Booking of parcel--No authority to checking of parcel--Registration of FIR--Acquittal from charge--Issuance of charge sheet--Allegations of misconduct and breach of trust--Inquiry report--Dismissal from service--Dismissal of appeal--Honourable acquittal--Proceedings were initiated on basis of video--Non-recording of evidence regarding bribery or corruption--In case of honourable acquittal by a Court of Law, it would be wrong to draw up a departmental proceedings on same set of facts--It is well established by now that normally where accused is acquitted honourably and completely exonerated of charge, it would not be expedient to continue a departmental proceedings on very same charges--Proceedings against appellant were initiated on basis of video viral on ARY, which were not conducted in consonance with law--It is also admitted fact that no evidence whatsoever was recorded except looking ARY prepared video aired on 03.12.2014 and conclusion made by inquiry officer was based on surmises and conjectures--Inquiry officer and appellate authority failed to consider that there is no evidence of bribery or corruption--No evidence was recorded which held appellant responsible for said allegations--There was no loss to Railway and inquiry was not conducted in accordance with Rules, envisaged in Government Servants (Efficiency & Discipline) Rules, 1973, the impugned orders under circumstances are harsh and not warranted by law are hereby set aside--Appeal was allowed.
[Para 8, 11 & 12] A, B, C, D & E
PLD 2019 SC 675 ref.
Mr. Babar Rajpar, Advocate for Appellant.
Ch. Jaffer Hussain, Advocate for Respondents.
Date of hearing: 30.7.2020.
PLJ 2022 Tr.C. (Note) 62
[Federal Service Tribunal, Islamabad]
Present: Qazi Khalid Ali, Chairman and Rizwan Ali Dodani, Member
versus
GENERAL MANAGER, PAKISTAN RAILWAYS, HEADQUARTER OFFICE, LAHORE and 5 others--Respondents
Appeal No. 10(K)CS of 2020, decided on 30.7.2020.
Judgment
Qazi Khalid Ali, Chairman.--Khadim Hussain son of Jumma Khan resident of Karachi has filed this appeal under Section 4 of the Service Tribunals Act, 1973 (Act LXX of 1973) against the impugned order dated 31.01.2015 whereby the Divisional Commercial Officer has awarded major penalty of “Dismissal from Service” under Rule 4(1)(b)(iv) of Civil Servants Efficiency & Discipline) Rules, 1973. He filed departmental representation on 23.02.2015 but the same had not been responded.
2. The brief facts necessary for the adjudicating of this appeal are that the appellant joined Pakistan Railways on 25.01.1987 as Junior Commercial Assistant Parcel (SCAP) in BS-7 with unblemished record of service. He was responsible for accepting items for transportation, as per rule of the department and he had been acting strictly in accordance with law. That, on 23.11.2014 at 11.00 hours, one Syed Waseem Qaiser approached him in the office for booking of parcel of household items. Appellant checked the CNIC and got filled the requisite Form, from the said client and after completion of all the codal formalities booked the consignment, weighing 20 KG, while charging Rs. 220/- against bill No. 784171/2 CPHHE. There is no Scanner or X-Ray Machine available at the Karachi Cantt Station. The booking staff had also no authority to check the contents of the parcel and thus appellant was not knowing what was inside the parcel and believed Syed Waseem Qaiser that it contained household items. The parcel was handed over to the delivery staff then it was made over to the Guard of the Train who also did not make any complaint. It is further averred that there was no mechanism to check the wrong declaration of any Shipper. The consignment was received in Lahore Parcel Office and remained there for more than 4 days. The management of ARY Channel plotted and fabricated a story outside the Railway Station boundary, the parcel was opened and banned items were shown as received. That the Respondent No. 1, afterwards held a press conference and brushed aside the allegations of ARY Channel and condemn the said act by them. The report of the Channel was bogus and was termed as act of black-mailing, but subsequently the FIR No. 194/2014 dated 03.12.2014 under Section-13/20/65 of A.O., 9-A CNSA, 3/4 PEHO, 109 PPC in P.S. Railway Police was registered. The appellant faced the trial and acquitted by the trial Court vide judgment dated 29.04.2019. The department issued charge sheet for misconduct and breach of trust and a fact finding inquiry was ordered. The report was prepared on 14.01.2015, holding the appellant guilty for taking illegal and banned item in passenger train and recommended action against him, charge sheet was issued, containing the allegations. The appellant submitted the reply, but ultimately, he was dismissed from the service on 31.01.2015. His departmental representation dated 02.03.2015 also met the same fact. No regular inquiry was conducted. The department defended action of the appellant in the press conference but later in altogether different instance, dismissed the appellant from service. That the fake video was also prepared to show the voice of the appellant which was tempered one. The appellant alleged his innocence and prayed for his reinstatement.
3. The respondents resisted the appeal and filed the written objections, inter-alia, contending that the respondents have been proceeded exparte vide order dated 22.06.2015 because of their failure to file their written objections. The Respondents No. 4, 5 & 6 were deleted from the list of the respondents.
4. In the first round of litigation, the appeal was dismissed by this Tribunal on 02.03.2017 and order of this Tribunal dated 28.03.2017 in R.P. No. 34/2017 in appeal No. 1268(R)/CS/2015 dated 02.03.2017, in appeal No. 1268(R)/CS/2015 through Civil Appeal Nos. 1919 & 1920 of 2019 out of Civil Petition Nos. 1522 & 1523 of 2017 before Hon’ble Supreme Court of Pakistan which have been accepted vide order dated 20.09.2019. The operative part is reproduced hereunder for the sake of convenience:
“3. Consequently, by consent the impugned judgments of the Federal Service Tribunal dated 28.03.2017 and 02.03.2017, are set aside and the matter is remanded to it for deciding it afresh after taking new evidence in the matter, if necessary. The petitions are converted into appeal and are allowed in the above terms. All the CMA s are disposed of”.
5. Mr. Badar Ahmed Rajpar, learned counsel for the appellant contended that the appellant was a Booking Clerk. He received consignment from a private person under his signatures. He had no authority to open the parcel and check its contents. He fell prey to conspiracy. No regular inquiry was conducted as required under the Government Servants (Efficiency & Discipline) Rules, 1973 and Railway Servants (E&D) Rules, 1975. The record was not provided to the appellant and no prosecution witness were examined either. Even the complainant had not appeared before the inquiry officer and thus on the basis of erroneous assumptions, the appellant was awarded major penalty of dismissal from service. He further contended that now as a further development of the case, the appellant has now been acquitted in FIR No. 197 of 2014 P.S. Railway Police, Lahore by the learned 1st Class District Court, Lahore, on 29.04.2019. Likewise, the appellant was also acquitted by learned Special Court (Central-II) Lahore vide order dated 31.07.2019 has also pleased to acquit the appellant under Section 249-A Cr.P.C. in FIR No. 197/2014. He produced the certified 31.07.2019. Same were taken on record and copies whereof have been supplied to learned advocate for respondents.
6. Conversely, Ch. Jaffer Hussain, learned advocate for the respondents stated that the appellant was responsible for booking of arms and ammunition deliberately and intentionally. He had been afforded the opportunity of personal hearing and was confronted with the evidence against him. Although, appellant have been acquitted in both criminal case but the departmental proceedings and criminal proceedings are in different jurisdiction therefore the acquittal in criminal case does not affect the departmental proceedings under Efficiency & Discipline Rules. The appeal is liable to be dismissed. In support of his contentions, he relied on Coaching Tariff of Pakistan Railways, Pakistan Railways Commercial Manual, 1988, Judgments of this Tribunal dated 11.11.2016 09.11.2018 in Appeals No. 200(R)CS/2015 and 150(K)CS/2016.
7. We have heard the rival arguments of learned counsel for the parties and minutely perused the record as well as case law on the subject.
8. The question of initiating departmental action after an acquittal by a Court of Law on the same facts of the case is not quite free from difficulty. In case of acquittal with benefit of reasonable doubt, it may quite permissible to initiate departmental proceedings even on the same set of facts, for is still a point to be decided by the employer as to whether a person should be or should not be allowed to continue in service. But in case of honourable acquittal by a Court of Law, it would be wrong to draw up a departmental proceedings on the same set of facts. It is well established by now that normally where the accused is acquitted honourably and completely exonerated of the charge, it would not be expedient to continue a departmental proceedings on the very same charges or ground or evidence.
9. We have been also able to lay our hands on the judgment of Honourable Supreme Court of Pakistan titled as Senior Superintendent of Police, Government of Sindh, Hyderabad and others vs. Iqbal Ahmed and another (2004 PLC (CS) 115), wherein Honourable Supreme Court observed as under:
“6. The higher police authorities did not give weight to the acquittal order of the respondents passed by a Court of competent jurisdiction inasmuch as there was no other charge or show-cause notice against the respondents. Keeping in view the circumstances, the Tribunal had considered the case in its proper perspective. The impugned judgment is well-reasoned and in accordance with the principles laid down by this Court”.
After acquittal from Court of law, nothing remain against the appellant.
10. In addition to the above, it is also of paramount importance that the imposition of major penalty without conducting a regular inquiry has been prohibited by the Hon’ble Supreme Court of Pakistan through the following judgments:-
“1. 2004 SCMR 316 (Pakistan International Airlines Corporation through Managing Director, PIAC, Head Office, Karachi Airport, Karachi vs. Ms. Shaista Naheed);
2. 2004 PLC (CS)524 (Abdul Rehman Zulfiqar vs. Secretary Education Government of the Punjab, Schools Education Department, Civil Secretariat,
3. 2002 SCMR 57 (Rashid Mehmood vs. Additional Inspector-General of Police and 2 others);
4. 2000 SCMR 1868 (Superintendent of Police Headquarter,
5. 1393 SCMR 603 (Alamgir vs.
11. On perusal of the record minutely, we have observed that the proceedings against the appellant were initiated on the basis of video viral on ARY, which were not conducted in consonance with law. We have also been able to lay our hands at judgment of Hon’ble Supreme Court of Pakistan titled as Ishtiaq Ahmed Mirza and 2 others vs. Federation of Pakistan and others (PLD 2019 Supreme Court 675), which has outlined following parameters which are required to be followed while using the audio/video as admissible evidence. For the sake of convenience, para-11 of the report at pages 697 and 698 are reproduced as under:
“11. The precedent cases mentioned above show that in the matter of proving an audio tape or video before a Court of law the following requirements are insisted upon:
* No audio tape or video can be relied upon by a Court until the same is proved to be genuine and not tampered or doctored.
* A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video is per se admissible in evidence in view of the provisions of Section 9(3) of the Punjab Forensic Science Agency Act, 2007.
* Under Article 164 of the Qanun-e-Shahadat Order 1984, it lies in the discretion of a Court to allow any evidence becoming available through an audio tape or video to be produced.
* Even where a Court allows an audio tape or video to be produced in evidence such audio tape or video has to be proved in accordance with the law of evidence.
* Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, has to be produced so as to rule out any possibility of tampering with the record.
* An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.
* The person recording the conversation or event has to be produced.
* The person recording the conversation or event must produce the audio tape or video himself.
* The audio tape or video must be played in the Court.
* An audio tape or video produced before a Court as evidence ought to be clearly audible or viewable.
* The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognizes such voice or person.
* Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.
* The voices recorded or the persons shown must be properly identified.
* The evidence sought to be produced through an audio tape or video has to be relevant to the controversy and otherwise admissible.
* Safe custody of the audio tape or video after its preparation till production before the Court must be proved.
* The transcript of the audio tape or video must have been prepared under independent supervision and control.
* The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.
* The source of an audio tape or video becoming available has to be disclosed.
* The date of acquiring the audio tape or video by the person producing it before the Court ought to be disclosed by such person.
* An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.
* A formal application has to be filed before the Court by the person desiring an audio tape or video to be brought on the record of the case as evidence”.
12. We have also very carefully examined the inquiry report and also watched the ARY video clip in presence of the learned counsel for the parties and the appellant. On our confrontation, the appellant stated that it is a tempered and concocted report. It is admitted fact that charge sheet was issued to the appellant on 16.12.2014. The appellant had submitted the reply of charge sheet and denied the allegations. It is also admitted fact that no evidence whatsoever was recorded except looking the ARY prepared video aired on 03.12.2014 and the conclusion made by inquiry officer was based on surmises and conjectures whereas the appellant in his reply had stated that the inquiry conducted by worthy Dy. DS/Ops at DY CCM/M, Lahore and proved that Syed Waseem Qaiser approached appellant while he was performing his duty as outward parcel and offered him for booking of banned item was not correct. He offered me to book two cartons household effect (HHE) duly properly packed. He filled up Risk Note Form ‘A’ endorsed his address, Mobile No. 0345-2981166 and also provided the photocopy of CNIC No. 42501-6836137-5 and also endorsed the name of receiver at Lahore Mr.Asif thereafter weight 20 KG, he issued the PW bill No. 784171 dated 26.11.2014 on usual charges of Rs. 210/-. So he had not violated Railway Rules and not allowed any one to transport illegal banned and dangerous items by defence of appellant, then the appellant’s version cannot be denied right away. The inquiry officer and appellate authority failed to consider that there is no evidence of bribery or corruption. The inquiry officer never recorded the statement of Syed Waseem Qaiser, Mr. Asif neither Railway Staff and ARY TV and relying on ARY TV Programme, without viewing the same in the light of the above statement of the appellant. No evidence was recorded which held appellant responsible for the said allegations. There was no loss to the Railway and the inquiry was not conducted in accordance with the Rules, envisaged in the Government Servants (Efficiency & Discipline) Rules, 1973, therefore, .the impugned orders under the circumstances are harsh and not warranted by law are hereby set aside.
13. The upshot of the above discussion, the appeal is accepted and the appellant is ordered to be reinstated in service from the date of dismissal. No order as to costs.
14. Parties be informed accordingly.
(Y.A.) Appeal accepted
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