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Petitioner: Mirza MUHAMMAD SHARIF VS Respondent: CHAIRMAN, WAPDA, WAPDA HOUSE, LAHORE and others.
Court Name: Federal Service Tribunal Judge(s): Amanullah Abbasi, Muhammad Iqbal Khan Title:Mirza MUHAMMAD SHARIF vs CHAIRMAN, WAPDA, WAPDA HOUSE, LAHORE
and others. Case No.: Appeal No,37(Q)CS of 2001 Date of Judgment:2002-09-17 Reported As: 2003 PLC (C.S.) 600 Result: Appeal dismissed Judgment ' This appeal is directed against order dated 13-1-2001 imposing major penalty of dismissal from service on the appellant against which departmental appeal dated 8-3-2001 has not evoked any response from the respondents despite expiry of statutory period of ninety days. 2The brief facts of the case are that appellant Mirza Muhammad Sharif joined WAPDA as Junior Engineer (B-17) in June, 1980. He earned his next promotion as Executive Engineer (B-18) in September, 1996. He was awarded Pride of Performance for his professional services rendered to the Authority. The appellant worked as Regional Store Manager, Quetta Electric Supply Company (QESCO), Quetta from 12-2-1999 to 12-10-2000. The appellant as per' his statement had been agitating against the auctions held from time to time by the respondent-Company to sell WAPDA stores at the price lower than the reference/minimum pre-determined assessed rates. His protests in this regard, he alleged, produced no result. He last protested against the irregularity committed in the auctioning of Government store at a price lower than the reference price vide his letter dated 6-10-2000: He was transferred from the post of Regional Store Manager with effect from the same dated i,e, 6-10-2000. He was placed under suspension vide letter dated 27-10-2000. Three enquiries were conducted first one related to the stealing of WAPDA store material when a Suzuki van containing WAPDA stores was apprehended by Police, and the others two related to charges of surplus and shortages found in the Regional Store supervised by the appellant during 12-2-1999 to 12,10-2000. The second Inquiry Committee was constituted vide QESCO letter dated 25th November, 2000 on the basis of charge-sheet served to the appellant vide letter dated 5-11-2000. In this enquiry charges at(a),- (b), (d) and (e) stood proved. The third enquiry was conducted by WAPDA vide letter dated 24-11-2000 as amended vide letter dated 11-12-2000. This Committee
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recommended that, disciplinary proceedings initiated by Chief Executive, QESCO may be withheld till the constitution of another Committee composing Inventory Control/Store Experts from WAPDA is constituted to determine the exact surpluses and shortages of material in the WAPDA Regional Store, Quetta. The appellant was dismissed from service vide Chief Executive, QESCO letter dated 13-1-2001. Hk departmental appeal dated 8-3-2001 has not been responded to despite lapse of statutory period of ninety days. He filed present appeal in the Service Tribunal on 2-7-2001. 3. Learned counsel for the appellant has challenged the basis of the charge-sheet dated 25-11- 2000. He pointed out that the charge-sheet was issued on 25-11-2000 when the Government Servants Removal from Service (Special Powers) Ordinance, 2000 had already come into the field. Accordingly under section 12 thereof all proceedings initiated on the commencement of the Ordinance are to be governed by the provisions of this law. Institution of disciplinary proceedings against the appellant under the WAPDA Employees (E&D) Rules, 1978 was unlawful, null and void. The learned counsel further averred that the Chief Executive, QESCO was not the competent authority to dismiss the appellant from service and in support of his argument he placed reliance on relevant provisions of WAPDA Act, 1958-and to the case-laws reported in PLD 1973 Lahore 188, 1998 PLC (C.S.) 664 and 2002 PLC (C.S.) 259. The learned counsel further submitted that since the appellant had, from time to time, objected to auction procedures adopted by the respondent- Company- for auction of the WAPDA Stores at a price lower -than the pre-determined reference price, he had incurred the wrath of the senior officers of the Company and his last objections regarding the auction procedure contained in his letter dated 6-10-2000 proved the last nail in the coffin which led to his transfer from the position of Regional Store Manager on the same day. The learned counsel further informed us that discrimination has been shown to the appellant as other officer involved of the alleged SCAM such as Senior Store Keeper, Assistant Store Manager and successor of the appellant were exonerated while the appellant was punished for shortage of stores which did not contain shortage of air-conditioner and computer as alleged in the charge- sheet dated 25-11-2000 as observed by the Enquiry Committee. He further submitted that other two enquiries conducted by Lt. Col Naveed Azam Khan and WAPDA, the appellant was not held responsible for theft of WAPDA material and in the surpluses and 'shortages occurring in the Store. He finally submitted that WAPDA has not considered the appellant's reply dated 29-12-2000 to the show-cause notice dated 22-12-2000 and thus Chief Executive QESCO has not applied his judicious mind to all the relevant material provided on record by imposing the major penalty of dismissal from service vide order dated 13-1-2001. 4. The learned counsel for the respondent-Authority submitted that the fact-finding enquiry conducted by Lt. Col. Naveed is in a different case fiat connected with the charges raised against the appellant in the charge-sheet dated 25-11-2000. In that enquiry he was only summoned as witness as he had remained In charge of the Regional Store from which the articles were stolen and apprehended by Police on 23-10-2000. He was only punished for charges leveled against him in the charge-sheet dated 25-11-2000. He has thus brought irrelevant consideration in the case to flummox the matters. He further submitted that the appellant's transfer was a routine matter and not prompted by his protests and objections raised by him from time to time and in his letter of 6- 10-2000. He submitted that no discrimination was shown to the appellant as cases of *officers involved in the SCAM were decided, keeping in view the gravity of the charges in respect of each. Finally, he argued that Chief Executive QESCO is the competent authority as requisite powers have been delegated to him to deal with disciplinary cases. 5. Arguments heard and documents perused. 6. Let us first examine the point raised by the learned counsel for the appellant regarding application of the WAPDA Employees Efficiency and Discipline Rules, 1978 in the processing of the appellant's case instead of the Removal from Service (Special Powers) Ordinance; 2000 [RFS
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(Special Powers)] which was enforced with effect from 27-5-2000. The disciplinary proceedings in the case commenced with the issuance of charge-sheet to the appellant with effect- from 25-11- 2000 under WA PDA Employees Efficiency and Discipline Rules, 1978. Thus the entire proceedings under the WAPDA Employees Efficiency and Discipline Rules, 1978 were rendered unlawful and void ab initio when the RFS (Special Powers) Ordinance 2000 was already in the field. It was surprising that the learned counsel for the respondent did not know that this Ordinance was in force even on 23-8-2002 when the present appeal was heard and that it has superseded all other laws/rules governing disciplinary matters. 7.' Another crucial point raised by the learned counsel for the appellant was that the CEO was not competent authority to dismiss the appellant from service. In this regard he invited our attention to section 20 of the Pakistan WAPDA Employees Act, 1958 which is reproduced below:- "20. Delegation of powers to Chairman, etc.---The Authority by general or special order delegate to the, Chairman or a Member or ' Officer of the Authority, any of its powers, duties or functions under this Act subject to such conditions as it may think fit to impose." ' The respondent-Company has produced order dated 31-8-2000 whereby administrative and financial powers have been delegated, amongst others, to the Chief Executive, QESCO, possibly in exercise of powers delegated vide section 20 of the Act reproduced above. A close scrutiny of section 20 of the Act would make it clear that the requisite powers as stipulated therein can be delegated to the Chairman, Member or Officer of the Authority subject to prescribed conditions. The question to ponder is whether CEO QESCO is an officer of the Authority? Sections 17 and 18 of the WAPDA Act, 1958 empower the Authority to employ officer, servants, experts and consultants for performance of its functions and also prescribed procedure for their appointment including their terms and conditions of service, including initiation of disciplinary action against them. Sections 17 and 18 are reproduced as under:- "17 "Employment of officers and servants.--.-(1) The Authority may from time to time employ such officers and servants, or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit." "18 "Recruitment and conditions of service and disciplinary Dowers.---The Authority shall prescribe the procedure for appointment, and terms and conditions of service of its officers and servants, and shall be competent to take disciplinary action against its officers. And servants." It is clear from the above that the Authority appointed the appellant as Junior Engineer (B-17) in exercise of the powers vested in the Authority under the provisions of section 17 of the Act. Authority was also competent to prescribe the procedure for his terms and conditions including disciplinary action against him under section 18. It would thus mean that it is only the Authority who is competent to take disciplinary action against the appellant who is its employee and who had initially recruited him. It will also be observed that the Authority under section 18 can, inter alia, take disciplinary proceedings against its officers and servants and not against the consultants and experts who although recruited under section 17 along with its officers and servants are not subject to disciplinary action under section 18 of the Act. As such orders against them, if warranted, will be taken as per agreement executed between such experts/consultants and the Authority separately. They do not fall within the purview of section 18 of the Act. We can thus conclude that employee of the Authority are divided into three categories viz, officers, servants and consultants/experts. Section 18 caters to the terms and conditions of its officers and servants excluding consultants/experts. Such consultants/experts in which category CEOs are included as experts and consultants cannot be termed as officers of the Authority and delegated powers in terms of section 20 of WAPDA Act, 1958. The distribution companies such as QESCO have entered into agreement with the Authority under section 8(2) of the WAPDA Act, and the CEOs are on deputation
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to the Authority from their respective parent departments. They cannot, therefore, be treated as officers of the Authority in terms of section 17 of the Act. 8. The respondent-Authority has produced orders dated 31-8-2000 whereby administrative and financial powers have been delegated to the Chief Executive Officers of QESCO possibly in exercise of powers delegated under section 20 of this Act as reproduced above. The letter dated 31-8-2000 is reproduced below:- "OFFICE ORDER ' Authority has decided that Chief Executive Officers DISCO's and NTDC (except GENCO's) shall exercise administrative and financial powers of General Manager." It is evident from the above letter that the C.E.Os of PESCO and NTDC (except GESCO) have been delegated financial and administrative powers of the General Manager. In view of the discussion above, CEOs not being the officers of the Authority cannot be delegated such powers under section 20 of the Act. The letter dated 31-8-2000, therefore, does not carry legal sanction. Our above argument is further reinforced by Rule 2(4) of WAPDA Efficiency and 'Discipline Rules, 1978 as reproduced below:- " 2(4)Employees means a person who has been directly recruited by the Authority or who has been absorbed in the service of the Authority on transfer from, or on termination of his lien in his parent department/organization." ' It is clear from the above that the appellant is not the employee of the company as he was not directly recruited by them in terms of the above rule. On the same analogy the CEO's of the distributing companies like QESCO are not that employees of WAPDA as they are not directly recruited by WAPDA and serve the companies on deputations from other departments possibly for a specified period. Hence in our view they do not fulfill the mandatory requirement of Rule 2(4) of Efficiency and Discipline Rules, 1978 and hence delegation of financial and administrative powers to the CEOs of distribution Companies and NTOCs in terms of section 20 of WAPDA Act, 1958 is unlawful and therefore, the Authority's letter dated 31-8-2000 is of no legal consequence. In this regard we also derive strength from 2002 PLC (CS) 259, the relevant portion of which is reproduced below:- "8. PESCO a Power Distributing Company was framed under section 8(5)(b) of WAPDA Act, 1958. For N.-W.F.P. The rights, liabilities and properties of WAPDA corn rising that Administrative Division known as Power Area Electricity Board of N.-W.F.P. Were also taken over with the object to expand and extend the business and activities of such Board or any part thereof including, without limitation, the business of a Public Electricity Distribution and Supplier. An agreement known as "Operation and Development" was 'executed by and between the WAPDA and PESCO on 21-6-1998 at Lahore, whereby it was agreed that the employees of WAPDA during the subsistence of the said agreement shall remain in the employment of WAPDA and were not in any matter be considered to establish employer-employee relations between the Company and employees. There is no cavil with this proposition that , the proposition that the petitioner is still an employee of WAPDA and his services are regulated by WAPDA Employees (Efficiency and Discipline) Rules, 1978 and respondent have also taken the same stand in their reply/written statement. In para. 2 of the preliminary objections it was admitted:- "That the petitioner is an employee of WAPD.A. And, therefore, a civil servant by virtue of section 17(1-B1 of the WAPDA Act, 1958, and amendment of section 2 of the Service Tribunals Act, affected by Act XVII of 1997, therefore, adequate remedy for the petitioner is available before Service Tribunal." "11. This in Khurshid Anwar v. Chief Executive PESCO (Writ Petition No,71 of 1999) had in paragraph 11 held that the power vide office orders dated 11-5-1999 were delegated to the Chief Executive PESCO much after the service of the show-cause notice to the petitioners (Khurshid Anwar and another)
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and therefore, the explanation as well as show-cause notice issued by the Chief Executive PESCO were illegal and without lawful authority. It was also held that action against them under WAPDA Employees (Efficiency and Discipline) Rules, 1978 could be initiated and we were informed at bar that after re-initiating proceedings against them under the said Rules. Their services were terminated. They challenged the termination order through writ petition filed before Circuit Bench Abbottabad, which was dismissed with the observation that the writ petition was not maintainable due to bar contained under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973. (12) In view of the dicta contained in the above-cited judgments we are of the view that the writ petition in hand is not maintainable due to bar retained in Article 212(3) of the Constitution of. The Islamic Republic of Pakistan, 1973. (13) The learned counsel for the petitioner vehemently argued that respondent No,1 being stranger, could not be delegated with power under section 20 of WAPDA Act and office order, dated 11-5- 1999 is without lawful authority. No doubt respondent No,1 has been authorized to act as (competent authority/appellate authority) vide office order, dated 11-5-1999, whereas the impugned explanation was issued on 24-3-2002 and show-cause notice on 20-6-2000 (Annexure IV), therefore, the action- against the petitioner was initiated after respondent No,1 had been authorised to act as "competent authority/appellate authority". The question as to which respondent No,1 who is a "stranger" (as per argument of the learned counsel for the petitioner) could be delegated with any powers to act as "competent authority/appellate authority" vide office order dated 11-5-1999 cannot be gone into by this Court while exercising our Constitutional jurisdiction to be contained in Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973 and determination of said question would fall under the domain and _jurisdiction due to bar contained in Article 212(3) of the Constitution of the Islamic. Republic of Pakistan, 1973 and determination of said question would fall under the domain and jurisdiction of Federal Service Tribunal." ' The underlined portions are very significant to understand the rationale involved in the WAPDA Act and Rules, especially the portion at "A" above whereby agreements executed with Distributing Companies clearly stipulate "that employees of WAPDA during the subsistence of the said agreement will remain in the employment of WAPDA and were not in any matter be considered to establish employer-employee relations between the Company and employer." The appellant thus remains employee of WAPDA against whom disciplinary action cannot be taken by Company itself under section 18 of the WAPDA Act. 9. In nutshell the above discussion enables us to arrive at the following conclusions:- (i) The appellant is an officer of the Authority employed under section 17 of the WAPDA Act, (ii) The C.E.O.s, QESCO is not an officer of the-Authority, not being directly recruited by the Authority under section 17 and not subject to prescribed terms and conditions of service being not an officer of the Authority under section 18 of the Act, and (iii) The High Court has left the question of delegation of powers to be CEOs of the DISCOs and NTDC to act as Competent Authority/Appointing Authority to be decided by the Service Tribunal. 10. It will also be useful to refer to Rule 2(2) and (3) of the Efficiency and Discipline Rules, 1978 which are reproduced below:- "Rule 2(2) "Appointing Authority" means the officer designated as such.By any rules or by any orders of the Authority. (3) "Competent Authority" means the Authority or the appointing authority, or an officer to whom the appointing authority is subordinate or an officer designated by the Authority to exercise powers of the competent authority.
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Drawing strength from sections mentioned above of the WAPDA Act, 1958 mentioned read with E&D Rules, 1978 as quoted above and judgment reported in 2002 PLC (CS) 259 we have no hesitation to conclude and agree with the learned counsel for the appellant that C.E.O., QESCO being not an officer of the Authority in terms of the section 20 of the Act, did not have authority to dismiss the appellant being directly recruited employee of the Authority from service vide his orders dated 13- 1-2001 and even the Authority violated the provision of section 20 by delegating administrative and financial powers of the GMS to the CEOs of DISCOs and NTDC vide order dated 31-8-2000 who are not officers of the Authority. These powers are at best meant to enable them to perform day to day routine administrative and financial powers for ensuring smooth and efficient operations of the Company and that these orders do not confer on them the powers to act as "Appointing Authority" or competent Authority in respect of the officers of the Authority who remain employees of the Authority during the tenure of the agreement executed between the Electric Distributing Companies and the Authority. The C.E.O. QESCO, therefore, cannot award major penalty to an officer recruited by the Chairman/Authority and who continues to be an employee of the Authority as held in the case-law 2002 PLC (C.S.) 259. 11. Now adverting to the merit of the case we find force in the argument of the learned counsel for the appellant that the appellant had earned displeasure of the C.E.O., QESCO by repeatedly protesting against selling the WAPDA Stores at lower price than the pre-determined reserve price for this purpose and his last letter in this regard dated 6-10-2000 had precipitated his transfer from the position of Regional Store Manager. His "obstinate" attitude may have annoyed the senior officer of QESCO. On 23-10-2000 the Police apprehended a Suzuki Van containing WAPDA material allegedly stolen from the Regional Store. Accordingly an enquiry was instituted to probe the theft case and Lt. Col. Naveed Azam Khan conducted the enquiry. The Findings, Opinion. And recommendations of the first Enquiry Report are reproduced below:- "FINDING OF THE COURT After having gone through the statements and seeing the material, following are the findings:- (a) Mr. Mirza Sharif had handed over his charge to Sher Muhammad about eleven days prior to this incident. (b) The material caught by the police of WAPDA. (c) Mr. Abdul Ghaffar, Mr. Alvi and Mr. Ain-ud-Din know each other. (d) Mr. Alvi's son met Mr. Ghaffar, however, Mr. Alvi made a wrong statement. (e) The material caught by police is being looked after and is under custody of Mr. Ain-ud-Din and Mr. Alvi. (f) There is no deficiency of surplus stock of items (recovered by police) in store. (g) The stock on ground and ledger is same. (h) There is no system of checking on the gate of store. (i) The gate keeper slip is never given to the man drawing material. (j) the delivery of small quantity store can be made up any time by storekeeper. (k) The store was not sealed after the incident. (1) On checking the record store has regularly been issued. OPINION OF THE COURT ' After going through the statements and findings Court opines that Mr. Alvi and Mr. Ain-ud-Din are involved in malpractices and have provided the material to Mr. Abdul Ghaffar. RECOMMENDATIONS OF THE COURT ' After going through the opinion .The Court recommends following:- (a) Strict disciplinary action be taken against Mr. Alvi for following:- (1) Providing store material to Mr. Abdul Ghaffar. (2) Giving wrong statement thus trying to mislead the Court. (h) Strict disciplinary action be taken against Mr. Ain-ud-Din for providing material to Mr. Ghaffar.
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(c) Mr. Sher Muhammad the Store Manager be warned to be strict and careful in dealing and managing the store affairs. (d) Gate keepers be posted to Regional Store to have additional checking on the material being drawn. (e) An individual with no red ink entry be posted as storekeeper. (t) All vacant/ authorized post be filled up so as to lessees the burden of store and have being control by the storekeeper." ' As is evident this enquiry recommended disciplinary action against certain functionaries of the company who were associated with the Store and held them responsible for the theft of the Store material. No action was taken against them by the Company. We do not agree with the respondent that the appellant was punished for charges levelled against him in excess and shortages in the Regional Store and not because of the apprehension of Suzuki Pickup containing store articles of the WAPDA Regional Store. The appellant was suspended on 27-10-2000 as a sequel to the apprehension for Suzuki Van on 23-10-2000. The Company thus seriously doubted his involvement in the theft case as such suspended him. 12. Then came the stock taking of the Store, which was carried out on 7-11-2000. i,e, one month after the transfer of the appellant from the Regional Stores. The verification of the stores was carried out in the absence of the appellant. Which has been admitted by the learned counsel for the respondents. The appellant was not associated with the Store verification process so as to determine the excesses and shortages in his presence. Normally such verifications of the stocks are done at the time of transfer of the officer supervising the affairs of the store or at the least by associating them in the process. The verification found some excesses and shortages in the store which were reflected in the charge-sheet dated 25-11-2000. The Enquiry Committee constituted vide order dated 21-2-2001 held the appellant responsible for charges at (a), (b), (d & e) of the charge-sheet and based on these charges dismissed the officer from service vide order dated 13- 1-2001. The…
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