' QAZI MUHAMMAD HUSSAIN SIDDIQUI, MEMBER---This is an appeal under section 4 read with section 2A of the Service Tribunals Act of 1973 against the order dated 17-5-2001 of the Respondents whereby the Appellant was dismissed from service and also against the order dated 19-7-2001 whereby Appellant's departmental appeal dated 9-6-2001 was rejected.
2. Relevant facts of the case are that the Appellant joined the Respondents-Organization Karachi Electric Supply Corporation Limited on 16-12-1978 as Meter Reader and was lastly working as Inspector when he was served with a show-cause notice dated 23-10-2000, which is reproduced as under:- "Ref. No,: ZCB (SDZ)/Admin/9959-712k13883 Dated: October 23rd, 2000.
Mr. Raees Ahmed/9959/7, Meter Inspector, Saddar Billing Zone, K.E.S.0 ttd , Karachi.
' SUB: SHOW-CAUSE NOTICE ' It has been reported by Mr. Imran, MC No,512-66-238500, that you have received Rs,2000/- (Rupees Two Thousand only) for correction of his energy bill by decreasing meter reading and same has been divided in between you and Mr. Tahir Ali, this act on your part consftte misconduct under KESC Rules you are hereby directed to Show Cause as to why disciplinary action should not be taken against you. Reply should reach to undersigned within (03) days time failing which necessary disciplinary action will be initiated..
(Sd.)
OFFG: ZONAL CONTROLLER BILLING SADDAR ZONE."
2. The appellant replied the show-cause notice, denying the allegations against him. Then following charge-sheet was served on him:- "SUB: CHARGE-SHEET.
' It has been complained by one of the consumers namely Mr. Imran Majeed of Qadri Centre, to the Army Monitoring Team posted at Saddar Zone that you received a sum of Rs,2,000 (Rupees two thousand only) from him as illegal gratification on the pretext of getting his bill corrected. You were issued a Show-Cause Notice by Zonal Controller Billing (Saddar Zone) in this regard and your reply to the said Show-Cause Notice was declared unsatisfactory by the Zonal Controller Billing. During the investigation carried out by the Army Monitoring Team, you have even confessed before the Army Monitoring Team that you had received the said amount from the consumer for getting his bill corrected/revised.
' The above act on your part amounts to misconduct defined under Clause 14(b) and (d) of the KESC Service Rules which warrants severe disciplinary action against you.
' You are, therefore, hereby charge-sheeted and called upon to explain within seven (07) days on receipt of this charge-sheet as to why you should not be dismissed from the service of the Corporation for committing the above act of misconduct.
' In case of you fail to reply to the charge-sheet within stipulated period, it will be assumed that you have no defence to offer in the said charge of misconduct and further disciplinary action will be taken against you as kr rules.
(Sd.)
(MAHMOOD BASHIR)
CHIEF CONTROLLER BILLING-I."
3. The Appellant submitted his reply to the charge-sheet on 9-12-2000 wherein he denied the allegations against him and stated that he had not made any statement in writing before the Army Monitoring Team, however, he added that the military officials had got ' imposed' (sic) his signatures by harassing him. Not finding reply of the Appellant satisfactory, the Respondents orders inquiry against him appointing Hasan Zain Arif, Controller Billing, Government and Misc. Zone, as Inquiry Officer. Inquiry was, accordingly, conducted and vide inquiry report, having no date, the Inquiry Officer concluded as under:-- "Conclusion ' Notwithstanding the complainant himself is a thief of electricity, bad pay master and was apprehended due to "Kunda" found at his premises for using electricity unauthorisedly, did not submit any written complaint against the accused. But, in consideration of the written confess signed by the accused albeit the confess was not written by the accused himself, and given to Army Monitoring Team during interrogation, for which the accused claimed that the same was signed under duress (the claim could not be proved by the accused during enquiry proceedings), is not acceptable in norms in consideration that the accused is an educated person and serving in KESC since long and in the opinion of the Inquiry Officer, any educated person may not put his signatures under duress and otherwise in such a case he might have complained to seek justice to higher ups of KESC or senior Army Officials instantly. Under the circumstances, the charges of Misconduct under section 14(b) and (d) of KESC Service Rules and Conditions of Service, are established.
(Sd.)
(HASAN ZAIM ARIF) Enquiry Officer. Controller Billing (Government and Misc. Zone)"
4. On the basis of the findings of the Inquiry Officer contained in the inquiry report the Deputy Chief Admin Officer (Services) dismissed the Appellant vide letter dated 17-5-2001. His departmental appeal as mentioned above, was rejected; hence, this appeal with a prayer to set aside the impugned dismissal order dated 17-5-2001 and to reinstate the Appellant with all consequential benefits.
5. In the comments, filed on behalf of the respondents, it was stated that the action against the Appellant was initiated by the Army Monitoring Team on the report of the consumer Imran Majeed, that full opportunity to defend himself against the charges was given to the Appellant, that the charge of misconduct was established against him on the basis of his own confession for taking illegal gratification of Rs,2000 as per statement made by him and that the Appellant failed to prove that he had signed his confession under duress. The Respondents filed a photostat copy of the confession/admission of the Appellant dated 23-10-2000 which reads as under:-{{URDU TEXT}} During the inquiry proceedings, the Respondents did not examine complainant Imran Majeed and witness Javed. However, they examined their departmental witness Anwar Tanoli. They did not examine any other witness. The Appellant was also examined. P.W. Anwar Tanoli and the accused cross-examined each other.
6. Now, the precise point for determination in this case is:-- "Whether on the admitted signatures of the Appellant on his so-called confession (not in his handwriting), the major penalty of dismissal imposed upon him was justified."
7. We have heard the counsel for the parties and have carefully gone through the record of the case.
8. We shall first deal with the legal aspect of this case and discuss the following points raised by counsel for the Appellant during his arguments:--
(i) That the proceedings against the Appellant had been drawn and penalty of dismissal imposed upon him under KESC Service Rules and Conditions of Service. This was illegal as after the promulgation of the Removal from Service (Special Powers) Ordinance, 2000 (hereinafter referred to as Ordinance 2000) on 27-5-2000 the proceedings against the Appellant should have been taken under the said Ordinance which overrides any other law for the time being in force.
(ii) That the inquiry report was not supplied to the appellant and no final show-cause notice was served upon him. He was also not given an opportunity for personal hearing.
' The learned counsel, in view of his above mentioned submissions, contended that the proceedings against the Appellant and the punishment awarded to him were absolutely illegal. In support of the above mentioned point (i) the learned counsel cited 2003 PLC (C.S.) 600. On the other points he cited 1993 PLC (C.S.) 114, PLC 2000 (C.S.) 526, 2001 SCMR 526 and 1999 SCMR 841.
9. The disciplinary proceedings against the Appellant were initiated by issuing him a show-cause notice dated 23-10-2000 and the charge-sheet was issued to him on 29-10-2000 for misconduct defined under clause 14(b) and (d) of the KESC Service Rules, when the Removal from Service (Special Powers) Ordinance, 2000 was already in the field, having been promulgated on 27-5- 2000. As per section 11 thereof the Ordinance overrides all other laws. It reads as under:-- "11. Ordinance to override other laws.---The provisions of this Ordinance shall have effect, notwithstanding anything to the contrary contained in the Civil Servants Act of 1973 (LXXI of 1973), and the rules made thereunder and any other law for time being in force."
10. In view of overriding effect of the Ordinance, 2000, proceedings against the Appellant could not have been taken and penalty of dismissal imposed upon him under the Service Rules of the Respondents-KESC, as such, the proceedings against the Appellant were illegal, void ab initio, null and void. The view is supported by an earlier decision of this Tribunal reported in 2003 PLC (C.S.)
600.
11. So far as the supply of the copy of the inquiry proceedings to the accused/Appellant, issuing of final show-cause notice against the proposed punishment/penalty and providing an opportunity of personal hearing, are concerned, as per decisions of the superior Courts, these have become mandatory, even if these are not provided specifically in any law, dealing with the efficiency and discipline proceedings against an employee, as these have become necessary under the universal provision of natural justice. The authorities, cited by the learned counsel for the Appellant and many other authorities of the superior Courts as also Service Tribunals, support such contention.
The learned counsel for the Respondents has not been able to show us anything contrary to what has been stated above.
12. Reverting to the crucial point pertaining to the signature of the Appellant on his so-called 'confession, an analysis of the oral and documentary evidence will have to be undertaken. The learned counsel for the Appellant has taken us through the entire record of the case. As per inquiry report (page-3) clause (f) of the findings, "the complainant had not lodged any written complaint against the accused". However, along with their comments, the Respondents have filed a photostat copy of the complaint of one Imran Majeed dated 23-10-2000 which reads as under:--{{URDU TEXT}} ' The above mentioned report in urdu has been signed by one Imran in English. A perusal of this report shows that the alleged incident of receiving Rs,2000 had taken place in the month of April, 2000.Whereas, the re.Port of the incident was made about six months after that. Secondly, that the money had been taken by Tahir Ali and Raees Ahmed Khan (Appellant) jointly and that they had taken the money for correcting the swelled bill of electricity of complainant Imran Majeed and Javed. Now, Imran Majeed and Javed have not been examined by the Respondents and no reason for that has been assigned. There is, therefore, no evidence of the demand of money, the payment of the money, the purpose for which money was paid and the recovery of the said money, if any.
On the other hand, the show-cause notice dated 23-10-2000 alleges that a sum of Rs,2000 had been received by Appellant Raees Ahmed and the bill was to be corrected by decreasing the Meter Reading. It was further alleged in the show-cause notice that a sum of Rs,2000 of illegal gratification was divided between the Appellant and Tahir Ali. Mysterious though it may appear, there is absolutely no mention of Tahir Ali in the charge-sheet dated 29-11-2000, issued to Appellant Raees Ahmed. Surprisingly, the Respondents have filed along with their comments an affidavit dated 6-4-2001 of Imran Majeed clarifying that it was Tahir Ali, who had come to his shop at Qadri Centre and that he had given the money to Tahir Ali Shah. The learned counsel for the Respondents has not been able to show us why and how the name of Tahir Ali has been omitted in the said charge-sheet and what action, if any, had been taken against Tahir Ali on the affidavit of Imran Majeed.
13. Anwar Tanoli, Senior Foreman in the Respondents Organization has been examined in the inquiry proceedings as departmental witness. His evidence was in support of the Appellant and against the complainant Imran Majeed. He stated that there had never been a complaint against the Appellant, that in his opinion the record of the Appellant was clean and that the Appellant had been falsely involved in the case by the complainant, who was himself a habitual thief of electricity and was a bad pay master. He stated that Appellant Raees Ahmed and Tahir Ali had raided the house of Imran Majeed and subsequently the Army Monitoring Team had also raided the house of Imran Majeed and had arrested Imran Majeed, but released him without realizing outstanding dues from him. The action against Appellant Raees Ahmed was initiated on the alleged complaint of person like Imran Majeed and that too was about the alleged incident of taking money which had taken place about six months ago. It is not known how and why the Appellant had confessed/admitted his guilt about a past and closed transaction for which there was absolutely no evidence. It is to be noted here that the alleged confession/admission was not in his handwriting, but it admittedly bore his signature. It was said to be written down by one of the members of the Army Monitoring Team. In his reply to the show-cause notice dated 23-10-2000 and in his reply to the charge-sheet the Appellant denied receiving of money from complainant Imran Majeed. He stated that he had been, falsely involved in this case as some consumers of the locality were annoyed with him for reporting against them for using "kunda" and committing 'theft of electricity. About his signature on the so-called confessional statement, he stated that he had signed the said documents before the Army Monitoring Team due to coercion and under duress.
14. The Inquiry Officer did not accept the plea of Appellant of signing the confessional statement under duress for the reasons that the Appellant had not made any complaint to any higher authority about that. It is pointed out here that the alleged complaint against the Appellant and Tahir Ali was made on 23-1-2000 and promptly on the same day' proceedings against the Appellant were initiated by issuing him the show-cause notice and he had replied the show-cause notice just after three days, denying the allegations against him. Since disciplinary proceedings against, the Appellant were started within no time, he had hardly any occasion to make a complaint to anyone against obtaining of his signature under duress. It is true that the burden of poof of duress or coercion shifts on the person, who takes such plea, but it does not absolve the complainant side' from proving its case first. In the instant case, as discussed above, the Respondents have utterly failed to prove the incident taking the money by the Appellant from Imran Majeed for correcting the electricity bills, as such, mere admission of the Appellant to have signed a document (not written by him) and that too at the instance and before Army Monitoring Team (which was the Law Enforcing Agency) cannot be said to be voluntary admission or confession. The confessional statement does not bear the 'name or signature of the person who had recorded it and none has been examined to prove the fact that the Appellant had, voluntarily and of his own free will and consent put his signatures on it. We are at a loss to understand how could the Army Monitoring Team take action on a stale and 'belated incident reported by one whom they had found stealing the electricity and had released him for reasons not known. And why they should not have taken any action against Tahir Ali Shah. All this adversely reflects on the role of Army Monitoring Team and goes to show that there was something fishy in the entire episode of taking money by the Appellant and Tahir Ali Shah and later on Appellant Races Ahmed only signing the alleged confessional statement. The documents brought on record by the Respondents are conflicting and mutually contradictory. These lack proof leading to a conclusion that the case of the Respondents against the Appellant is devoid of any truth.
15. In the backdrop of the facts of the case, discussed by us above, we are of the considered view that there could be no occasion for the Appellant to have signed the confessional statement of his own free-will and consent, as such, we are not convinced of any misconduct against the Appellant.
In the case of Raja Ali Gul Mangi v. Managing Director, Pakistan State Oil Co. Ltd., and others reported in 2004 PLC (C.S.) 929 signature obtained under coercion was held to be of no use being not out of free-will and this view was upheld in SBLR 2004 SC 16. Accordingly, we have come to the conclusion that the penalty of dismissal imposed upon the Appellant was not justified. We further hold that on the basis of evidence brought on record by the Respondents no punishment, whatsoever, could be imposed on the' Appellant. We would therefore, not allow the economic murder of the Appellant in the shape of his dismissal from service only on the basis of his signature on a confessional statement before the person in authority, which has not been proved by any evidence. We, therefore, accept the appeal and set aside the impugned order. Consequently we direct the Respondents to reinstate the Appellant in service.
16. So far as the question of back-benefits is concerned, in the memo. Of appeal the Appellant has prayed for awarding him all consequential benefits. In the supporting affidavit dated 15-8-2001, he has stated that he was jobless. This was not rebutted by the Respondents, therefore, the Appellant is entitled to full back-benefits from the date of his dismissal till the date of his reinstatement minus whatever earned by him during the intervening period, for which he shall submit an affidavit before the competent authority.
17. Parties be informed accordingly.