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Petitioner: KHURSHID AHMED SHAIKH and another VS Respondent: CHAIRMAN, WAPDA and others
Court Name: Federal Service Tribunal Judge(s): Barkat Ali Baloch, Akbar M. Memon, Nazar Muhammad Shaikh Title: KHURSHID AHMED SHAIKH and another vs CHAIRMAN, WAPDA and others Case No.: Service Appeal No,130 and 131(K)(CE) of 2000 Date of Judgment:2002-09-06 Reported As: 2004 PLC (C.S.) 1422 Result: Appeal accepted
JUDGMENT
JUDGMENT ' NAZAR MUHAMMAD SHAIKH (MEMBER).---These appeals which have been filed under section 4 read with section 2-A of the Federal Service Tribunals Act, 1973 have common matter and question of law and, as such, are proposed to be disposed of by this single judgment. In both these appeals, the appellants have impugned respondent's Orders Nos.C&I/DD(C)/08001/978/99/458-63, dated 13-2-2000 and No,C&I/DD(C)/08001/978/99/485-88, dated 15-2-2000, whereby appellants Khurshed Ahmed Sheikh and Abdul Qavi Shaikh have been compulsorily retired by the respondents in exercise of powers conferred upon them under section 17(1-A)(a) of WAPDA Act, 1958 without issuance of any show-cause notice. For facility of reference, the impugned order dated 13-2-2000 in respect of appellant Khurshid Ahmed Sheikh is reproduced hereunder:-- "OFFICE ORDER ' The Authority in its meeting held on 8th February, 2000 in exercise of powers conferred upon it vide section 17(1-A)(a) of WAPDA Act, 1958, has decided to retire Mr. Abdul Qavi Sheikh, Jr. Engineer under Chief Engineer (GSO) N.T.D.C., Lahore from service. The retiring officer, in addition to the retiring benefits admissible to him under the terms and conditions of his service, if any, will be entitled for a pay of three months under the provisions of section 17(1-AB) of the WAPDA Act, 1958. BY THE ORDER OF THE AUTHORITY (HASHMAT ALI KAZMI) DIRECTOR CONFIDENTIAL (C&I)" ' Similar order was also issued in respect of appellant, Abdul Qavi Shaikh. 2. The facts of both the appeals are almost identical and minor differences are highlighted separately. Both these appellants, Khurshid Ahmed Sheikh and Abdul Qavi Sheikh joined the service of respondent-Organization as Junior Engineers in March, 1977 and June, 1987 respectively. Appellant Khurshid Ahmed Sheikh was promoted as Senior Engineer on 18-12-1986 and was posted
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as Deputy Director (STG), WAPDA under Chief Executive N.T.D.C., WAPDA House, Lahore, when he was compulsorily retired. Appellant Abdul Qavi Sheikh had still not earned his promotion and was posted as Jr. Engineer in N.T.D.C. At Lahore at the time of his premature retirement. 3. The appellant, Khurshid Ahmed Sheikh was suspended vide respondent's office order dated 13- 8-1996 but was reinstated on 17-11-1996 in pursuance of orders passed by the Hon'ble Lahore High Court in Writ Petition No,16130/1996 filed by appellant Khurshid Ahmed Sheikh. He was awarded major punishment by downgrading two stages in the time-scale for a period of one year vide respondent's order dated 9-7-1997 which order on his appeal was set aside and he was exonerated by the respondents from the allegations levelled against him vide 0.0., dated 1-1-1999. 4. The appellant, Abdul Qavi Shaikh, who had by now rendered almost ten years of service had unblemished record and was neither ever punished nor reprimanded nor any adverse entry was recorded in his ACR. The appellant, Abdul Qavi Shaikh, had meritorious record, which was commended by his superiors. 5. In this backdrop, the appellants were compulsorily retired from service by the respondents' impugned orders dated 13-2-2000 and 15-2-2000. 6. Mr. Shabbir Ahmed Awan, Advocate, for the appellant Khurshid Ahmed Sheikh, while articulating his arguments recalled the facts of the case and stated that the impugned order dated 13-2-2000 was void and unlawful and was passed in disregard of the established maxim of "audi alteram partem" which according to Supreme Court's judgment in Anisa Rahman's case reported in 1994 SCMR 2232 was to be read into every statute even if not specifically stated. He further argued that the respondent's impugned order was not a speaking order as no reason had been mentioned to compulsorily retire the appellant, which was violative of section 24-A of the General Clauses Act. He further stated that impugned order also violated rule 3 of the WAPDA Employees' Retirement Rules, 1979 which were also referred to by the Supreme Court in its judgment in the case of WAPDA v. Zulfiqar Ali reported in 2002 PLC (C.S.) 128. The learned counsel for the appellant also argued that master-servant relationship which was being claimed as a ground to issue the impugned order, was misplaced as this concept of master-servant did not find any mention in the Constitution of 1973. In support of this contention, he cited Supreme Court's judgment in the case of Muhammad Ashraf reported in 2000 PLC (C.S.) 796. He further stated that since the appellant was exonerated from the allegations levelled against him he had meritorious record without any other blemish. He further stated that since there was nothing adverse in service record, the respondent's had no justifiable cause to prematurely retire the appellant from service which has implicit stigma and his image has been tarnished. In support of his contentions, the learned counsel also cited the following rulings reported in:-- "(1) Federal .Service Tribunal's judgment in Appeal No,1278-90(K) of 1999; (2) 1986 SCMR 18; (3) 1986 SCMR 840; (4) 1992 SCMR 774; (5) 1992 PLC (C.S.) 1199; (6) 1999 PLC (C.S.) 475; (7) 1998 SCMR 137 = 1998 PLC (C.S.) 161 (8) 1998 SCMR 1445; (9) 2000 PLC (C.S.) 1029; (10) Federal Service Tribunal's judgment in Appeal No,1062-R/99, Zulfiqar Ali v. WAPDA; (11) Federal Service Tribunal's judgment in Appeal No,16(Q)/2000, Abdul Kareem Baloch v. WAPDA; (12) NLR 2001 (Service) 212; and (13) Appeal No,374(1)(C.S.) 2000".
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7. Mr. Manzoor Ali Khan, learned counsel for appellant, Abdul Qavi Shaikh emphatically argued the appeal and stated that the appellant in his ten-year career with the respondent-Organization had never been charge-sheeted nor had he been ever reported upon adversely and nor any allegation of any impropriety had ever been levelled against him. He further argued that during his tenure he had discharged his duties with exemplary devotion and efficiency which was evident by substantial reduction in line losses to 5.6% as against the target of 9.0% which resulted in huge financial gain to the respondent-Organization despite adverse law and order situation in the area. The learned counsel for the appellant further stated that the appellant had launched intensive recovery campaign and during his tenure highest recovery was registered by the Sub-Division where he was posted. He further stated that S.E. Circle 1, Hyderabad, while reviewing the appellant's performance commended his dedication and performance vide his letter No,GH-I/HESCO/DCM/ Performance/13031, dated 20-9-1999 in the following words: "(i). His over all performance is found quite satisfactory during the year under report. He is the only officer who has significantly reduced the line losses and brought down to the target i.e 5.6% against target of 9% (Progressive losses 6/99). (ii) The percentage realization of his Sub-Division as also retained satisfactory and in the month of June, 1999 it was highest amongst all Sub-Divisions i,e, 117.30 (01/RL). (iii) He has controlled the trippings of electricity in his area .By carrying out extensive patrolling on the feeders of his Sub-Division and kept the lines maintained. (iv) The rate of damaged transforms is very negligible only of Nos. Transformers was damaged and replaced promptly. (v) There is no public complaint against him duritig his tenure in the Sub-Division ending 30-6- 1993. He deserves for any Special reward/recognization as a token if his dedicated services for Hyderabad Electric Supply Company, Hyderabad." ' The learned counsel for the appellant stated the respondent's impugned order dated 15-3-2000 was also mala fide and discriminatory in nature as no officer of other Sub-Division was proceeded against under section 17(1-A)(a) of the WAPDA Act, 1958 where electricity theft was detected. He cited the cases of theft .Detection in Bachani Oil Mills, Tando Allayar, Pakistan Textile Mills, Latifabad Division, Bawani Weaving Mill Hali Road, Hyderabad, Kohistan Oil Mills, Kotri, Liaqat Cotton Mills Kotri, Federtex Industries Ltd., Hyderabad and Shah Yar Textiles Kotri where alone theft of Rs,8.10 million was detected. He stated that while no action was taken against others whereas despite his efficient performance he was prematurely retired which was discriminatory and violative of Article 25 of the Pakistan Constitution, 1973. The learned Advocate for the appellant further argued that M/s. Almas Flour Mills where the alleged theft of electricity was detected were made to pay Rs,721,271 for the use of unauthorized power from December, 1998. The learned counsel for the appellant further argued that the appellant bad unjustly and arbitrarily retired the appellant in disregard of the principle of natural justice which was violative of the established legal maxim of "audi alteram partem". He also stated that the appellant has been deprived as his livelihood in violation of Article 2A of the 1973 Constitution not to mention that is premature retirement impliedly carried stigma. 8. The learned counsel for the appellant stated that the Supreme Court had upheld the dismissal of Muhammad Ibrahim Mangrio and others in its judgment reported in PLD 2001 SC 77 as they had not exhausted the remedy of departmental appeal/review/representation. He stated that the appellant had, therefore, filed the Departmental Appeal on 15-3-2000 addressed to the WAPDA which remained unresponded. 9. The learned counsel for the appellant further argued that the written objections of the respondents indicated that a secret inquiry was conducted against the appellant, which was used to prematurely retire the appellant without affording him an opportunity to defend the allegations.
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He further stated that secret inquiry cannot be used to remove him from service. Any allegations had to be proved by due processes before the respondent could retire him prematurely. He further stated that the impugned order was issued under section 17(1-A)(a) of WAPDA Act, 1958 only as a ruse to avoid formal disciplinary proceedings against the appellant for which there was no material available with the respondents. 10. The learned counsel for the appellant cited Supreme Court's judgments reported in 2002 PLC (C.S.) 128 (WAPDA v. Zulfiqar Ali), 1998 SCMR 1445 and unreported judgment of the Supreme Court in Appeal No,1078/2000, dated 22-11-2000 in WAPDA v. Gulzar Khan where the action of the respondents under section 17(1-A)(a) of the WAPDA Act, 1958 was held to be not sustainable in law as the appellants in these cases were deprived of their vested right of personal hearing, the impugned order carried stigma, or order was passed in colourable exercise of powers and violated principle of natural justice. The learned counsel for the appellant also cited Federal Service Tribunal's judgments in the cases of Zulfiqar Ali v. WAPDA (Appeal No, 1062(R)/1999), Faizuddin Junejo v. Chairman WAPDA and others (Appeal No,4 (K)(C.S.)/2000), Abdul Kareem Baloch v. WAPDA (Appeal No, 16(Q)(C.S.)/2000), Abdul Jabbar Channa v. Federation of Pakistan wherein it was held that premature retirement orders without assigning any reason or simply upon levelling allegations without proving them were not sustainable in law. The learned counsel for the appellant also relied on the Supreme Court's judgment in the case of Government of N.-W.F.P. v. Mejee Flour Mills and General Mills (Pvt.) Ltd., Mardan and others reported in 1997 SCMR 1804 wherein their Lordship referred to the Supreme Court's observation reported in PLD 1990 SC 1092 which reads as under:-- "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Clup Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedent and fair informal procedure. Somehow, in our context, the wide-worded conferment of discretionary powers reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often than is necessary apart from the exercise of such power appearing arbitrary and capricious at times." ' The learned counsel for the appellant also cited the judgment of Federal Service Tribunal in the case Gulzar Khan Jogezai v. Chairman WAPDA and others in Appeal No,21(Q)/1999 to support his contentions which was upheld by the Supreme Court in its judgment in Appeal No,1078 of 2000. 11. Mr. Siddiq Mirza, Advocate, for the respondents-Organization vehemently opposed the appeals. His primary objection was that these appeals were time-barred and, therefore, not maintainable. Elaborating his objection, the learned counsel for the respondents stated that the impugned orders were passed on 13-2-2000 and 15-2-2000 and since WAPDA's Rules were non-statutory the appellants should have come straight to the Federal Service Tribunal in appeal and not filed appeals to the Chairman WAPDA who was not competent appellate authority to decide Appeals against Authority's decisions. He further .Stated the appellants unnecessarily wasted time in filing appeals with WAPDA and, therefore, their appeals had become time-barred. The learned counsel for the respondents cited the judgments on this point reported in 2002 PLC (C.S.) 1083, 2002 SCMR 1138 and 1993 SCMR 1. 12. The learned counsel for the respondents further argued that the respondents had prematurely retired the appellants strictly in accordance with the provisions of section 17(1-A)(a) of the WAPDA
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Act, 1958 which stipulated that no reasons were required to be recorded for taking action against the appellants under the said section and that neither show-cause notice nor any charge-sheet was required to be issued. In support of his contention, he cited the Supreme Court's decision reported in PLD 1999 SC 1106 in the case of Zeba Mumtaz v. First Wormen Bank Ltd. And others where it was held that the Bank having its own Staff Service Rules where there was a provision for termination simplicitor and, therefore, no interference by the Supreme Court was called for. The learned counsel for the respondents further stated that WAPDA's Services Rules were non-statutory and, as such, the WAPDA employees were governed by the master-servant relationship. He stated any employee whose services have been terminated cannot claim any remedy or relief. In support of his point, he cited the judgments reported in 1993 SCMR 346 (WAPDA and others v. S. Jamil Ahmed), 1999 SCMR 311 (HBFC v. Inayatullah Shaikh) and 1988 SCMR 597 (ADBP and two others v. Muhammad Sharif). The learned Advocate for the respondents also recalled the Supreme Court's judgment in Aijaz Nabi Abbasi v. WAPDA (1992 SCMR 774) where WAPDA's right to terminate, the services of any employee without assigning any reasons was upheld. The learned Advocate for the respondent also cited Supreme Court's judgment in the case of Aleem Jaffer v. WAPDA and others reported in 1998 SCMR 1445. The Supreme Court's judgment in the case of Amanullah v. WAPDA reported in 1999 SCMR 2159 was also flagged by the respondents learned counsel. 13. The learned counsel for the respondents further argued that the appellants had been prematurely retired as a matter of generosity otherwise the appellants had been involved in theft of electricity with consumers for which they could have been awarded major penalty of dismissal under WAPDA's/E&D/Rules. He stated that the appellants had been retired without any stigma and with pensionary benefits and that they should be grateful to the respondents for their magnanimity shown towards the appellants. 14. In rebuttal, Mr. Shabir Ahmed Awan, learned Advocate for the appellant stated that the impugned order was appealed against the authority. He further stated that in view of Ibrahim Mangrio's case, which was dismissed, as the appellants in that case had not exhausted the remedy of Departmental Appeal therefore appeal to the Authority was submitted in time. He further stated that since the impugned order was void, no limitation runs against illegal and unlawful order. He again, stated that the master-servant relationship was not relevant anymore. Concluding his rebuttal, he again referred to Supreme Court's judgment in the case of WAPDA v. Zulfiqar Ali where the WAPDA's order to premature retire the appellant under section 17 (1-A) (a) of the WAPDA Act, 1958 was set aside. 15. Mr. Manzoor Ali Khan, learned Advocate for the appellant rebutting the arguments of the learned counsel for the respondents stated that the appellant had filed Departmental Appeal to WAPDA keeping in view Ibrahim Mangrio's case. He also referred to the written objections of the respondents wherein it had been alleged that the appellant was involved in power theft in collusion with consumers and stated that in such an eventuality it was incumbent upon the respondents to prove these allegations against the appellant under WAPDA's/E&D/Rules by due process and not under section 17(1-A)(a) of WAPDA Act, 1958 which was unlawful. 16. We have heard the arguments advanced by the counsel for the appellants and the respondents and perused the record and the citations. 17. First, we would like to advert to the preliminary objection of the learned counsel for the respondents on the limitation issue. He had argued that the WAPDA's Rules were, non-statutory and therefore, the appellants should have filed appeals against the impugned orders before the Federal Service Tribunal instead of filing Departmental Appeals. The learned counsel for the respondent has ignored the basic fact that the appellants were terminated under section 17(1-A) (a) of the WAPDA Act, 1958, which is a statute and not part of WAPDA's /E&D/Rules and it is not relevant here whether WAPDA's Rules are statutory or non-statutory. Since appeal, review or
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representation for redressal of any grievance is the inherent basic right of an aggrieved person, it has to be recognized by any Authority irrespective of its provision or otherwise in the rules. Furthermore, if the appellants had wrongly filed appeal with the WAPDA it was incumbent upon the respondent to either forward the appeal to the appropriate Appellate Authority or return the appeals to the appellant intimating that no appeal could be filed against the impugned order or with any other appropriate minute. In this regard, we rely on the Supreme Court's judgments reported in 1988 SCMR 1458 and 1993 SCMR 715. The respondents, however, chose to maintain silence and gave no response to the Departmental Appeal, which prompted the appellants to knock the doors of the Federal Service Tribunal. It would be relevant to recall the contention of WAPDA in Ibrahim Mangrio's case where it was argued by their counsel as under:- "3. The learned counsel for respondent WAPDA, Mr. Aurangzeb Mirza, submitted that third proviso of subsection (1) of section 17 firstly applies to those employees of the Authority who had been sent from Electricity Department to the Authority under section 17(1) of W APDA Act. The learned counsel contended that Article 2A of the Constitution is not attracted to section 17 and amendments made in the sections from time to time till to date. The learned counsel contended that vires of law cannot he looked into and decided by this Tribunal under its jurisdiction conferred upon it by the Service Tribunals Act, 1973 and the Rules framed thereunder, and the provisions as brought into section 17 by afore-mentioned amending Ordinances is not contrary to Qur'an and Sunnah and the judgments relied upon by the learned counsel for the appellant, are not applicable to the fact of this Appeal. The learned counsel for the respondents contended that departmental appeal is a must in view of judgment in the case of Gulbat Khan v. WAPDA, reported as 1992 SCMR 1789 and again affirmed by the august Supreme Court of Pakistan in judgment reported as 1998 SCMR 137, in terms of section 4 of the Service Tribunals Act, 1973. The learned counsel vehemently contended that assumption of jurisdiction by this Tribunal is condition precedent of Departmental. Appeal and if an appellant does not fulfil the condition precedent before invoking the jurisdiction of this Tribunal, the appeal will not be competent and the hearing of the same by this Tribunal will be without having jurisdiction and any judgment delivered thereon will be coram non judice." ' Now, in this case the respondents are taking the stance that no Departmental Appeal was necessary. The necessity to exhaust remedy of Departmental Appeal has also been enunciated in Gulbat Khan's case (1992 SCMR 1789) besides express stipulation in section 4 of the Federal Service Tribunals Act, 1973. The appellants being mindful of Ibrahim Mangrio's appeal had filed Departmental Appeal to WAPDA in view of the above facts, we do not find the objection of the learned counsel for the respondents in respect of limitation and filing of Departmental Appeal as sustainable. 18. The afore-mentioned facts already indicate that the appellant Khurshid Ahmed Sheikh was exonerated from the allegations levelled against him and there being nothing adverse against him on record nor did the respondents produce any other material against him we assume that the appellant had clean and meritorious service career of 23 years with the respondent-Organization. 19. The appellant Abdul Qavi Shaikh who had rendered more than ten years' service and as stated earlier he had never been charge-sheeted or suspended and there was nothing adverse available in his record. On the contrary his Superintending Engineer had eulogized his performance in reducing line losses and recommended him for "special reward/recognition as a token of his dedicated services for Hyderabad Electrict Supply Company, Hyderabad." 20. Thus, the career of the two appellants was without blemish and/or any adverse fact and the respondents had therefore, no cogent or justifiable reasons to prematurely apply guillotine to their service career and deprive them of their livelihood without levelling and/or proving any allegation against them such action of the respondent's being in blatant violation of the appellants' Constitutional rights and was also in conflict with the WAPDA's Rules.
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21. The learned counsel for the respondent averred to the concept of master-servant relationship and argued that WAPDA's Rules being non-statutory the respondent could dispense with the services without assigning any reason. The learned counsel for the appellants contested this claim and settled the concept of master-servant relationship was not applicable here and further referred to High Court's judgment in Muhammad Ashraf's case reported in 2000 PLC (C.S.) 796 where their Lordships ruled as under:- "We also find that the concept of the law of Master and Servant does not emanate from any Constitutional provision or even a statute or some Injnctions of Holy Qur'an or Sunnah of the Holy Prophet (Peace be upon him)." ' In view of this ruling we do not find respondent's reliance on the master-servant relationship concept palatable and we, therefore, disregard it. 22. Adverting to the question whether the respondents could compulsorily retire or remove any official under section 17(1-A)(a) of the WAPDA Act, 1958 without issuance of show-cause notice or affording personal hearing. There is plethora of judgments on this point and the most famous being the Anisa Rahman's case reported in 1994 SCMR 2232 where their Lordships ruled as under:- "7. From the above-stated cases, it is evident that there is judicial consensus that the Maxim audi alteram partem is applicable to judicial as well as to non-judicial proceedings. The above Maxim will be read into as a part of every statute if the right of hearing has not been expressly provided therein. In the present case respondent No,1 in its comments to the writ petition (at page 41 of the paper book) admitted the fact that no show-cause notice was issued to the appellant nor she was heard before the impugned order dated 6th August, 1991 reverting her to Grade VI from Grade VII was passed. In…
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