Full Judgment Text & Judicial Ruling

1996 P L C (C

1996 P L C (C.S.) 1103

[Federal Service Tribunal]

Before M. Ilyas Lodhi, Rana Rifat Saeed and Misbah Ullah Khan, Members

FIDA MUHAMMAD KHAN

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA Lahore and another

Appeal No. 455(R) of 1992, decided on 16th March, 1993.

West Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑

‑‑‑‑S.17(1‑A)‑‑‑Removal from service‑‑‑Civil servant was removed from service with immediate effect by giving him thirty days' pay in lieu of notice after conducting inquiry against him on allegation that he had received huge amount as illegal gratification from residents of Afghan Refugees Camps on pretext to get those camps electrified‑‑‑Enquiry Report and statements of witnesses established that complainants did pay amount to civil servant through a middle man‑‑‑Civil servant was removed from service after affording him opportunity of personal hearing and after fulfilling prescribed formalities, but as amount of illegal gratification had been returned to complainants, keeping in view length of service of civil servant and fact that quantum of punishment was excessive, order of removal of civil servant from service, was modified to that of compulsory retirement.

Muhammad Kashtoonish Khan for Appellant.

Manzar Alain alongwith Dibar Ghouri, Assistant Director, WAPDA and Muhammad Roshan, Head Clerk, D.R. for Respondents.

Dates of hearing: 23rd and 24th February, 1993.

JUDGMENT

ILYAS LODHI (MEMBER).‑‑‑In this appeal the appellant has challenged the order of his removal from service dated 25‑10‑1992 under section 4 of the Service Tribunals Act, 1973.

2. Briefly, the facts of the case are that while the appellant, Fida Muhammad Khan was posted as SSO‑I at 33 K.V. Grid Station, Rawalakot of SS&TL Division, Rawalpindi was suspended on the charge of misconduct/ commission of fraud under WAPDA (E&D) Rules, vide order dated 22‑6‑1992. Subsequently he was served with the following show‑cause notice on 21‑6‑1992:‑‑

"Subject: SHOW CAUSE NOTICE UNDER SECTION 17(1‑A)

You, Mr. Fida Muhammad Khan have been accused of having received Rs.1,89,000 on 20th May, 1991 and 28,000 on 25th May, 1991 making a total of Rs.2,17,000 as illegal gratification from Maulvi Muhammad Mansoor and others residents of Afghan Refugee Camps Nos. I and II Ghazi, Tarbela in connivance with one Mr. Bismillah Jan, a Refugee and his son‑in‑law named Muhammad Iqbal for electrification of the Refugee Camps. This unethical/fraudulent action on your part is prejudicial to the interest of Authority, damaging its reputation.

(2) With a view to satisfying requirements of natural justice and ensuring fairplay, the Authority has decided to serve you with this notice to show cause within 7 days of receipt thereof as to why you should not be retired or removed from service under section 17(1‑A) of WAPDA Act, 1958.

(3) In case no reply is received within the stipulated period, it will be presumed that you have nothing to say in your defence and an ex parte action will be taken against you.

(4) You will have the right of personal hearing before the Authority, if you so desire."

3. He replied to the show‑cause notice on 15‑7‑1992, denying the charge levelled against him, alongwith a photocopy of an affidavit from the complainant, Moulvi Muhammad Mansoor, stating in affirmation that the name of the appellant was wrongly included in the complaint, which we withdraw. Being not satisfied with the photocopy, the Chief Engineer directed the Executive Engineer for production of original affidavit of the complainant which was produced by the Executive Engineer (E) vide his letter dated 14‑9‑1992 Having not been satisfied, the Authority, in exercise of powers conferred on it under section 17(1‑A) of the WAPDA Act, 1958 removed the services of the appellant on 25‑10‑1992 with immediate effect by giving him 30 days' pay in lieu of notice. He filed this appeal on 12‑12‑1993.

4. The learned counsel for the respondent‑Authority submitted that a complaint from the various complainants against the appellant was received through the Speaker of National Assembly, that the appellant had received an amount of Rs.2,17,000 illegally from the residents of Afghan Refugees Camps Nos.I and II at Ghazi, Tarbela on the pretext to get these camps electrified. Consequently an investigation was carried out by the Director,. Investigation, WAPDA, who substantiated the charges against the appellant in his report. He stated that the offence of the appellant was so heinous, causing damage to the reputation of the Authority they decided to proceed against the appellant under section 17(1‑A) of the WAPDA Act. He was proceeded accordingly by issuing him a show‑cause notice. He was also afforded an opportunity of personal hearing and after fulfilling the prescribed formalities the appellant was removed from service. Regarding issuing of an affidavit, the learned counsel for the respondent‑Authority, submitted that this affidavit was obtained by the appellant fraudulently as such it has no value without their examination. If the appellant was so sure of his case he could produce it to the Investigation Officer during the course of investigation, which he avoided with motives. The contention of the appellant is wrong that he was not afforded an opportunity of personal hearing.

The Authority had given him lull opportunity of personal hearing, which had also been mentioned in the impugned order dated 25‑10‑1992. The affidavit which the appellant had submitted itself, shows that he was known to the people of that area who complained against him. The learned counsel prayed that, the appellant has no case and is liable to be dismissed.

5. We have heard the parties and examined the complaint lodged by Moulvi Muhammad Mansoor through Speaker of National Assembly, and also his affidavit in support of the appellant. In this respect, the respondent ?Department was asked to produce the record of the inquiry report. After examining the Enquiry Report and statements of witnesses, it has been established that the complainants did pay money to the appellant through a middle man Mr. Muhammad Iqbal, for installation of the electrification of the Afghan Refugees Camp. As regards the affidavit submitted by the appellant, it appears that it has been obtained after the date when the money was returned to Moulvi Muhammad Mansoor. We are of the view that the WAPDA Authority has not violated any law/procedure in taking the disciplinary action against the appellant. Since the amount of illegal gratification has been returned to the complainant, we feel that the quantum of punishment is excessive and requires consideration, and also keeping in view the length‑of service of the appellant. We, therefore, partly accept the appeal and modify the order of removal of the appellant to that of compulsory retirement. Ordered accordingly.

6. No order as to costs.

7. Parties be informed.

H.B.T./53/Sr.F ??????????????????????? ??????????????????????? ??????????? ??????????? Order accordingly.

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