Full Judgment Text & Judicial Ruling

1990 P L C (C

1990 P L C (C.S.) 533

[Federal Service Tribunal]

Present: Ally Madad Shah, Chainnan, Khawaja Abdul Jalil and Ch. Hasan Nawaz, Members

RAFAQAT ALI

Versus

SUPERINTENDING ENGINEER, III CIRCLE, ELECTRICITY,

WAPDA and others

Appeal No. 54(L) of 1985, decided on 28th December, 1989.

Per Syed Ally Madad Shah, Chairman [Agreeing with Hasan Nawaz, Member [Majority view]‑

(a) Civil service‑

‑‑‑ Removal from service‑‑Appellant Meter Reader was removed from service for tampering with meter and meter reading on report made by Sub‑Divisional Officer without holding regular inquiry‑‑Two versions made about case against appellant and explanation tendered by appellant needed regular inquiry in interest of justice‑‑Order of removal was set aside and appellant was reinstated in service, observing that Department might initiate fresh proceedings against appellant in accordance with law‑‑Back benefits ordered to be paid subject to result of fresh proceedings.

Per Hasan Nawaz, Member‑Contra--[Majority view]

(b) Civil service‑‑

‑‑‑ Removal from service‑‑Disciplinary proceedings‑.Appellant was removed from service without holding a regular inquiry although nature of allegations against him and plea set up in defence by him necessitated that a regular inquiry should have been held after serving a charge‑sheet and issue of statement of allegations‑ Appellant as such had had no opportunity of cross‑examining witnesses and produce his evidence in defence‑‑No positive evidence was produced to prove fault of appellant and it was, in fact, a case of two versions‑‑Strong evidence was not available to prove that it was appellant and none else who tampered with meter and meter reading‑‑Held, it was in interest of jutice that he should have been allowed to lead evidence and defend himself‑‑Order of removal of appellant from service set aside and appellant reinstated in service.

1982 S C M R 126; Appeal No. 21CKL) of 1984; Muhammad Aslam Assi 1 v. Chairman, Area Electricity Board, Gujranwala and another 1989 P L C (C.S.) 221; F.M. Shamsi v. Pakistan International Airlines Corporation and another 1988 P L C (C.S.) 451 and Lal Muhammad and another v. Government of Sindh 1980

SCMR850rel.

Per Khawaja Abdul Jalil, Member‑‑Hasan Nawaz, Member‑‑Contra‑‑

(c) Civil service‑‑

‑‑‑ Removal from service‑‑Appellant a Meter Reader in WAPDA, charged for tampering with seal of meter and meter reading‑‑Contention that he was removed from service without holding of a proper inquiry and involved owing to enmity of Lineman with appellant's father‑in‑law‑‑Contention not substantiated by appellant's own conduct‑‑Appellant was caught red‑handed and no explanation was given by him although full opportunity was afforded to him to explain allegations‑‑Appeal against his removal from service dismissed in circumstances after conclusion reached to the effect that holding of regular inquiry was not necessary.

Mian Mahmood Hussain for Appellant.

M. Yawar Ali Khan for Respondents.

Date of hearing: 25th May, 1989.

JUDGMENT

KH. ABDUL JALIL (MEMBER).‑‑Appellant, Rafaqat Ali was a Meter Reader in Kot Radha Kishan, Sub‑Division of respondent WAPDA when he was removed from service by the Superintending Engineer, III‑Circle, Electri city, WAPDA, Lahore Cantt. (respondent No. 1) vide impugned order dated 30‑9‑1984 at Annexure `E' in consequence of disciplinary proceedings taken against him under the Pakistan WAPDA . (E&D) Rules, 1978. His appeal dated 27‑10‑1984 to the departmental appellate authority did not evoke any response within the statutory period of ninety days. The appellant filed this appeal before this Tribunal under section 4(1) of the Service Tribunals Act, 1973 on 26‑2‑1985 before the expiry of 120 days from the submission of his departmental appeal.

2. We have heard the counsel for the parties. The appellant was served with a show‑cause notice dated 4‑7‑1984 under sub‑rule (iv) of rule 5 of Pakistan WAPDA (E&D) Rules, 1978 requiring the appellant to explain the following allegations against him:

"(1) ‑On receipt of complaint on 7‑5‑1984 from Mr. Mahboob Alam of Raja Jang against you, the, S.D.O. Kot Radha Kishan Sub‑Division along with Mr. Noor Muhammad, LS‑1 and the complainant raided the site at Ref. No. 1362‑101703‑83 and found that you were tampering the seals of the meter against the above Ref. No. One M&T seal bearing No. MO/4 of the said meter was found lying broken between your feet while you were standing on box near the site of the meter and you were found tampering the second seal of the same meter at the time of raid.

(2) that you have also tempered the reading of aforesaid Ref. No in Batch of reading list as 1084 whereas the actual reading 1306 entered in the Forwarding List.

Sd/‑ Superintending Engineer, III Lahore Circle, Elcy. WAPDA, Lahore."

The basis for this show‑cause notice was the report dated 8‑5‑1984 at Annexure 'R/1' submitted by the Sub‑Divisional Officer (Electricity) WAPDA, Kot Padha Kishan, Sub‑Division to the Executive Engineer, Kot Lakhpat Division, Lahore. This, report reads as follows:

"It is submitted for your kind information that at about 12.00 noon on 7‑5‑1984, the undersigned received an information from Mr. Mahboob Alam of Raja Jung and Mr. Noor Muhammad L.S.I of Kot Radha Kishan Sub‑Division, that Mr. Rifaqat Ali, L.D.C. (working as Meter Reader) of Kot Radha Kishap Sub‑Division is going to reverse a meter at village Handal.

On complaint undersigned along with Mi. Mahboob Alam and Noor Muhammad L.S.1 visited the premises of Mr. Alam Radha s/o Nabi Bux,

Village Handal reference No. 1362‑101703.83 and found that one M&T seal bearing No. MO/4 was lying in the feet of Mr. Rafaqat Ali Meter Reader on a Box.

Mr. Rafaqat Ali Meter Reader was standing on the Box with upper seal of the meter in his hand, whereas lower seal of the meter was missing, it seems that he was trying to break the upper seal of M&T.

The supply of the consumer was disconnected and Meter No. 4286689 with T.L. No. KRK‑2385 removed and meter taken into custody along with M&T seal No. MO/4 and one No insulated plier found near the meter.

The matter has been reported to the Police vide this office Memo. No.660, dated 7‑5‑1984 to register F.I.R. against the (Meter Reader) Mr. Rafaqat Ali, L.D.C.

The appellant submitted his reply to respondent No. 1 on 14‑7‑..1984 praying therein that he should be exonerated of both the charges. The appellant's explanation of the allegations made against him in the show‑cause notice is in the following terms:

"1. ALLEGATION No. 1:

The truthfulness and veracity of the allegation is denied It is, however, pointed out that on 7‑5‑1984, M/s. Mahboob Alain, Lineman of Khudian Sub‑Division and Muhammad Yaqoob, ALM of Kasur Sub‑Division No.3 who were known to me, came to me in the Sub‑Division. Mr. Mahboob Alain, Lineman stating that one of his relatives was residing in village Hundal and the meter installed at his premises was not functioning correctly, requested me to check the meter. As a show of good gesture and sense of co‑operation with Departmental Employee, I accompanied Mr. Yaqoob, ALM, having conveyance with him, went to the site, leaving Mr. Mahboob in office.

After reaching the site, I noticed one side seal of the meter lying broken ` down. On my enquiry from the women at home, they told me that M/s. Mahboob Alain and Muhammad Yaqoob (who was accompanying me) had broken down the seal of the meter, which surprised me. I was yet there when the S.D.O. Kot Radha Kishan in the company of Mr. Noor Muhammad L/S‑I of Kot Radha Kishan Sub‑Division and Mahboob Alain (aforesaid) raided the premises, removed the meter and in spite of knowing the factual position, got me placed under suspension.

In view of above, I plead not guilty. It may, however, be pointed out that my father‑in‑law is residing in Raja Jang while Mr. Mahboob Alain, LM I of Khudian Sub‑Division is also resident of Raja Jang and due to some conflict with my father‑in‑law, Mr. Mahboob Alain having become revengful, and due to enmity, with my father‑in‑law, involved me in this case. It is, therefore, requested that 1 may kindly be exonerated from the allegation.

2. ALLEGATION No II:

Denied. The meter reading of this consumer was correctly recorded by me as 1084 index with an advance of 42 Units ‑ but while posting the present meter reading of the consumer it was posted as 1284, while the advance remained the same viz 42 Units. While, however, comparing the meter readings recorded and posted in the Meter Reading List, the error was noticed and was corrected within the notice of my superiors. As far as the reading 1306 existing at the index of meter detected by the S.D.O. Kot Radha Vishan is concerned, it is submitted that this is the result of mischievous action on the part of M/s. Yaqoob Alain and Mahboob Alain, LM who tampered the meter and advanced the meter reading, just to involve me due to enmity with my father‑in‑law.

In view of the true facts explained above, I plead not guilty. It is, therefore, humbly requested that I may kindly be exonerated from both the allegations."

As will be seen from the above, the appellant's plea is that it was on the report of Mahboob Alain, Lineman of Khudian Sub‑Division and Muhammad Yaqub, Assistant Lineman of Kasur Sub-Division that he went to the village Hundal along with Muhammad Yaqub, ALM to check the meter of a relative of Mahmood Alain, Lineman who remained behind his office. On reaching the site he found that one seal of the meter which had been removed was lying on the spot and on his inquiry, the womenfolk of the house informed him that this had been done by Mahboob Alain and Muhammad Yaqoob. In the meantime, the Sub -Divisional Officer, Kot Radha Kishan reached the spot alongwith Mahboob Alain, Lineman‑I, Khudian Sub‑Division and Noor Muhammad, Superintendent‑I and removed the meter. The appellant's further contention is that he has been involved in this false case by Mahboob Alain on account of his enmity with the appellant's father‑in‑law who is the resident of the same place as Mahboob Alain, Lineman, namely, Raja Jang.

2‑A. In support of the appellant's contention that the meter had been tampered with by Mahboob Alain, Lineman, Khudian, Sub‑Division and Muhammad Yaqoob, ALM, he has produced an affidavit of the consumer, Ch. Allah Rakha. This affidavit is of no avail to the appellant for the following reasons:

(i) It is admitted by Ch. Allah Rakha in his affidavit that he was not present in his house when this occurrence took place and that he came to know about it from his family members. His statement amounts to hearsay and has therefore, no evidentiary value.

(ii) No evidence is required to come to the conclusion that the tampering of the meter of Ch. Allah Rakha must have been done by the appellant with the consumer's collusion as the ultimate beneficiary would have been the consumer at the cost of WAPDA respondent. He is, therefore, interested in absolving the appellant so that his efforts for restoration of electricity connection could succeed.

3. The appellant's plea that he had been involved in this case owing to the enmity of Mahboob Alam, Lineman Khudian Sub‑Division with the appellant's father‑in‑law is also unsustainable in view of the conduct of the appellant himself. Had it been so, the appellant would not have agreed immediately at the request of Mahboob Alam to visit the house of Choudhry Allah Rakha, consumer, with a view to checking the meter installed there. He should have suspected 'a foul play when, according to him, Mahboob Alam did not accompany him to the site though Choudhry Allah Rakha consumer was, according to the appellant, a relative of Mahboob Alam and not of Muhammad Yaqoob, Assistant Lineman who accompanied the appellant to the spot.

4. The appellant was caught red‑handed while he was tampering with this meter and there is no explanation from the appellant as to why the S.D.O., Kot Radha Kishan should have played in the hands of Mahboob Alam, a subordinate official, in order to concoct a false case against the appellant.

5. We do not agree with the plea of the appellant that a formal inquiry should have been held against the appellant by the competent authority instead of resorting to summary procedure. The first charge relating to the tampering of the meter is based on the raid conducted by the Sub‑Divisional Officer and thus the evidence on which it was based was fully known to the appellant. In these circumstances, the decision of the competent authority that it was not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee is unassailable.

6. The learned counsel for the appellant has contended that the second allegation relating to the tampering with the reading of this meter in the reading list was an extraneous matter as it did not arise from the report of the S.D.O., Kot Lakhpat and, therefore, the impugned order should be set aside. In support of his arguments, the learned counsel for the appellant has relied on the case reported as 1982 S C M R 126. In the said case, the Supreme Court has upheld the order of Lahore High Court accepting the Constitutional petition of respondent Muhammad Aslam setting aside the order of dismissal made against Muhammad Aslam by the appellant Islamabad Club on the following grounds:

"(a) That the findings given by the Inquiry Officer taken into consideration by the competent authority for dismissing the respondent went far beyond the charge framed against the respondent, with the result that the respondent did not have a proper opportunity of defending himself in respect of the matters found against him by the Inquiry Officer; and

(b) that a second show‑cause notice against the proposed order of dismissal was not given to the respondent, who could have shown that dismissal was not the proper punishment for the acts of misconduct alleged against him."

This case is distinguishable from the case reported as 1982 S C M R 126 as it does not suffer from any of the flaws reproduced in para.6. The second allegation against the appellant was conveyed to him in the show‑cause notice and he was given full opportunity to explain it. After considering the appellant's explanation to the first show‑cause notice, the appellant was served with a second show‑cause notice dated 20‑8‑1984 wherein he was required why all or any of the penalties described in rule (iv) of Pakistan WAPDA (E&D) Rules, 1978 to the extent of major punishment of termination/dismissal from service should not be imposed on him. The appellant was also given personal hearing by the competent authority on 12‑8‑1984 and 20‑9‑1984. We are thus convinced that full opportunity was provided to the appellant to explain the allegations against him.

7. For the above reasons, we do not see any force in this appeal and dismiss it with no order as to costs.

8. Parties to be informed.

CH. HASAN NAWAZ (MEMBER).‑‑

9. I have had the advantage of going through the leading judgment recorded by my learned brother. With respect to what has been said in this judgment, I have got a ‑different view regarding the mode of disciplinary proceedings in this case, which ultimately resulted in the passage of the impugned order of removal from service. I am constrained to hold that the nature of allegations against the appellant and the version set up in defence necessitated, in the interest of justice, a regular inquiry which could be possible only by serving him with a charge‑sheet accompanied by a statement of allegations, where he would have had 'the opportunity‑to cross‑examine the witnesses and produce evidence in defence. The summary procedure adopted in this case cannot be said to have promoted the ends of justice. These arc the grounds in support:

(1) Detailed address has been made by my learned brother to show‑cause notice dated 4‑7‑1984 served on the appellant under rule 5(iv) of the Rules, the S.D.O: s report dated 8‑5‑198.1 and his explanation in response to the allegations made against him. Reference may also be made, with advantage, to the impugned order dated 30‑9‑198.1 (Annexure `E'), which shows that it was, inter alia, based on the "Preliminary Enquiry Report of S.D.O. Kot Radha Kishan Sub‑Division, Lahore dated 8‑5‑1984".

(II) Although the S.D.O.s re‑port dated 8‑5‑1984 has been termed as "Preliminary Enquiry Report", it may be pointed out that it was only a complaint against the appellant and not an inquiry report, as no preliminary enquiry was held in this case. It was only this complaint which made a basis for the initiation of disciplinary proceedings. Even though preliminary enquiry, had any such been held, and the consequential report would not have been of any value, this circumstance has been mentioned with a view to point out that the complaint which seems to have played a vital role in leading the competent authority to a finding of guilty and ultimate passage of the impugned order, was lesser in value than the report of a preliminary enquiry, which could have been only as a result of some sort of enquiry, may be without the association of the accused.

(III) The allegations against the appellant were such in nature,, as required the production of evidence for their proof; which could be possible only by adopting the procedure laid down under rule G of the Rules. A charge‑ I sheet should have been framed with a statement of allegations for a regular inquiry into the matter where the appellant would have had the opportunity of cross‑examining the witnesses. As the story goes, the S.D.O. went to the spot on information received from Mr. Mahboob Alam, Lineman of Khudian Sub‑Division and Noor Muhammad, Line Superintendent of Kot Radha Kishan Sub‑Division, who were alleged to have accompanied him and were present at the time of raid. There is absolutely no reason whatever why the statements of those persons should not have been recorded in the presence of the appellant who would have had the opportunity of cross‑examining them, particularly when, as it would appear from his pleadings in defence, he had serious objections against their veracity.

(IV) Then, as it can be seen from the appellant's explanation in writing, he set up a positive counter‑‑version in defence. Whatever be its worth and whether it was sound or otherwise, he should in all fairness have been given an opportunity to substantiate it, irrespective .of the consideration that the S.D.O. concerned could not be interested in involving him in a false case. In my view, this could not be a matter of opinion or presumption and the accused should have been given an opportunity to establish that he was falsely involved on account of the circumstances stated by him in his explanation and that the S.D.O.'s informers were interested against him. Denial of this opportunity has resulted in denial of justice, which should not only be done but also appear to have been done, a result that could possibly be achieved only by following the proper procedure.

(V) Further, rules of procedure must be followed to avoid an arbitrary order. They have been framed to obviate the possibility of an unjust order and in implied acknowledgement of the infirmity of human mind and thinking, which can be affected by prejudices and other such outward influences. This procedure ensures an opportunity to an accused person to expose, by cross‑examination or otherwise, those prejudices and the resulting infirmity of mind. That in certain cases, the exercise of this right fails to expose the aforementioned infirmity and bring those prejudices to light, would not derogate anything from its value and utility in the fair administration of justice. The test of its importance and significance lies not as much in the production of tangible results, as in the fact alone that this right has been allowed to be exercised; simply because it makes it appear that justice has been done, the necessity of which can hardly be over‑emphasised.

(VI) The right to defend is a cardinal principle of justice. In the present case, however, under its peculiar circumstances, it seems to have been denied, because there was no justification for jumping to the conclusion that what the S.D.O. had said in his report was a gospel truth. The accused should have, been given an opportunity to establish that the information conveyed to the competent authority was false, and this could be possible only by holding a regular and proper inquiry.

(VII) It would not be expedient to come to any conclusion in This case on the basis of available material, regarding the guilt or otherwise of the appellant. However, certain circumstances should be pointed out in the interests of justice, in further support of the view I have taken. As already noticed, the S.D.O. proceeded to the spot on receiving an information through M/s. Mahboob Alam, Lineman and Noor Muhammad, Line Supdt. I that the appellant who was working as Meter Reader in Kot Radha Kishan Sub‑Division was going to reverse a meter at village Handal. It was mysterious as to how these people came to now that he was going to reverse the meter. It was equally mysterious as to how they could manage a raid exactly at the time when the appellant was standing on the box and tampering with the meter. It is also worth notice that from the available material, there is nothing to show where village Handal was situated and what was its distance from the place whence the S.D.O. or the appellant started, which is pointed out t highlight as to how the S.D.O's visit was made to coincide with that of appellant. All these facts have been made out with reference to appellant's defence that he has been falsely involved in the case at the instigation of Mahboob Alam, Lineman of village Raja Jang whose relations were inimical with the appellant's father‑in‑law who belongs to the same village. Due notice may also be talon of the defence version that after reaching the site, it was found by the appellant that one side seal of the meter was lying down broken and on inquiry he was informed by the womenfolk of the house that the seal had been broken by Mr. Mahboob Alam aforesaid and Muhammad Yaqoob, Assistant Lineman of Kasur Sub‑Division.

(VIII) Another mentionable fact is the appellant's statement in his explanation that Mahboob Alam, Lineman of Khudian Sub‑Division and Muhammad Yaqoob ALM of Kasur Sub‑Division came to him with a request for checking a meter of Mahboob Alain's relative at village Handal and that Muhammad Yaqoob accompanied him to the spot. It is a material circumstance that he admitted the presence of this person at the consumer's house, while being conscious of the fact that he was hostile. While avoiding an observation in respect of the effect and bearing of this admission on the merits of his explanation and the defence version, it can be asserted without fear of contradiction that the examination of this Muhammad Yaqoob as witness in this case would have made a very valuable contribution in promoting the end's of justice. This could evidently be possible only if an inquiry would have been held in the case. It may be repeated for the sake of emphasis that the S.D.O's report was by no means the last word.

(IX) The appellant has relied upon the affidavit of Ch. Allah Rakha consumer in support of the assertion that he never tampered with the meter and that he is innocent. This affidavit may not constitute reliable evidence, but that is besides the point. What is of real importance is the fact that the weakness of appellant's evidence would not be material, considering that the case against him should have independently been established by the department to justify the passage of impugned order. We must insist on the existence of reliable positive evidence against the appellant and the punitive order cannot be based on the weakness of his case.

(X) Another aspect of matter also deserves some notice. Tampering with the meter is one thing and doing it in collusion with the consumer is quite another. No evidence might have been required to establish that the meter was tampered with at the instance of the consumer because he was the one to be its beneficiary. But this fact alone will not conclude the matter and positive evidence must have been produced to show that the meter was in fact tampered with by the appellant. It was only after the establishment of this fact 'that the matter of collusion could become relevant.

(XI) The S.D.O's complaint which made a basis for the issuance of a show‑cause notice (Annexure‑A) was that on visiting the premises of Mr. Allah Rakha consumer along with M/s. Mahboob Alam and Noor Muhammad, he found that (a) Mr. Rafaqat Ali, Meter Reader (Appellant) was standing on a Box with upper seal of the meter in his hand; (b) that lower seal of the meter was missing; and that (c) it seems that he was trying to break the upper seal of M&T. The defence is that on…

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