' AKBAR M. MEMON (MEMBER).---Since the facts of all these appeals are almost identical, as such, we intend to decide the same by this single judgment.
2. Appellants hereinabove, who were working with the respondents in different capacities, as shown in the chart, mentioned above, have challenged the order dated 13-3 -2000 whereby appellant Riaz Ahmed Shaikh in Appeal No,188(K)/2000 was removed from service w,e,f, 16-8-1999 under section 2(b) of KESC Removal from Service Ordinance No,X of 1999 re-promulgated as Ordinance No,XVII of 1999. The order in question is reproduced hereunder:-- "THE KARACHI ELECTRIC SUPPLY CORPORATION LTD. Managing Agents: THE PAKISTAN ELECTRIC AGENCIES LTD.
Ref: PSD/T/H559-0/2000/ Date 13-3-2000.
' Through Z.M. (Societies)
(1) Mr. Riaz Ahmed Shaikh (2) Mr. Riz Ahmed Shaikh S/o Peer Bux, S/o Peer Bux, E.No,H-559-0, E.No,H- 559-0, J.O.A., 0C-IV, D-II, J.O.A., 0C-IV, D-II, K.E.S.C. LTD., 739/16, Federal 'B' Area, Karachi. Karachi ' SUBJECT: REMOVAL FROM SERVICE.
' This has reference to the show-cause notice No,AD(D-II)- 1/4D/99/1001 dated 31-7-1999 issued to you under section 2(b) of Ordinance X of 1999 and your reply dated 13-8-1999.
' In this connection I am directed to inform you that the Competent Authority in exercise of the powers conferred under section 2(b) of KESC Removal from Service Ordinance No,X of 1999 repromulgated as Ordinance No,XVII of 1999 dated 24th September 1999, has decided to remove you from the service of the Corporation. Accordingly you are hereby removed from the service of the Corporation with effect from 16-8-1999.
' You are directed to deposit/surrender all the belongings of the Corporation including KESC Vehicle immediately and contact the Chief Accountant for settlement of your dues after obtaining clearance certificate on the prescribed pro forma from the concerned departments.
(Sd.)
MAJOR OIC (PERSONNEL)
(SHAHEED HUSSAIN)" .
3. Mr. Ch. Rashid Ahmed, learned counsel for the appellants has stated that appellant in Appeal No,188(K)(CE)/2000 had served the respondents for eleven years with neat and clean record. He has contended that the appellant was, however, issued a show-cause notice dated 31-7-1999 on the allegations of receiving illegal gratification. The said show-cause notice was replied where the appellant denied all the allegations whereafter, without holding proper inquiry the impugned order was issued on 13-3-2000 where the appellant was removed from service w,e,f, 16-8-1999. In this connection, he has contended that the executive order cannot be passed retrospectively. At the same time he has contended that the appellant was charge-sheeted on 31-7-1999 whereas, the impugned order was passed on 13-3-2000 effective from 16-8-1999, but in the meantime, the appellant was promoted as Supervisor (E), which promotion was confirmed vide order dated 27-1- 1999 and he received the salary during this period. He has contended that the appellant then filed his departmental appeal and after rejection thereof, the present appeals have been filed. He has contended that in identical appeals, appellants, who served the respondents were terminated from service without any just cause were ordered to be re-instated, as such, on the rule of consistency, these appeals be allowed and the appellants be reinstated with all back benefits. He has lakly contended that the rejection order, passed by the Authority on 27-4-2000 is neither speaking one nor any reason has been assigned therefor, also merits consideration. In support of his contentions, he has also placed reliance on photostat copies of judgment in Appeal Nos.1083(K)/1999 and 160 to 165(K)/2000, 211(K)(CS)/ 2001, Civil Petitions for Leave to Appeal Nos.1001-K to 1013-K of 2002, 1157(K)/1998 (sic) SCMR 1178 and 1997 SCMR 1552.
4. Mr. Nadeem, learned counsel for the respondents, has argued that since the allegations against the appellants about receiving illegal gratification stood proved in their own statement, which was recorded by the Inquiry Committee, the impugned order, is liable to be sustained. He has contended that the respondents were within their powers under Ordinance X of 1999 re- promulgated as Ordinance X VII of 1999 to have issued the notification whereby the appellants were removed from service. In such circumstances, he has contended that the appeals are liable to be dismissed.
5. Mr. Ch. Rashid, learned counsel for the appellants, in reply, has contended that the Inquiry Committee had recorded the statements of the witnesses as well as of the appellants prior to the issuance of the show-cause notice/charge-sheet, which fact is evident from the dates. He has contended that the inquiry report submitted by the Inquiry Committee shows that the Committee had submitted the report on 21-7-1999 whereas, the show cause notice was issued on 31-7-1999. He has contended that the statement was obtained per force, as is evident from the departmental appeal wherein mention has been made about the filing of suit by the appellants. He has further contended that the Inquiry Committee had initiated the inquiry against as many as ten employees, but case of employees like Messrs. Engineer Ejaz Mirza, Foreman Abdul Qadeer Shaikh, SOA Anwer Lasi and Meter Reader Ismail was initiated afresh and no further action was recommended, excepting warning, as is evident from the inquiry report dated 29-4-2000. In such circumstances, he has contended that it is a case of discrimination as in respect of the same transaction four officials were exonerated after holding fresh inquiry whereas, in case of the present appellants, without holding proper inquiry or without affording proper chance to them to put up their defence, they have been removed from service, on the basis of the report of the Inquiry Committee, conducted much prior to the issuance of the show-cause notice.
6. After hearing the arguments of the learned counsel, appearing for the parties, we have gone through the appeals files and so also the inquiry report as well as the case-law cited by Mr. Ch. Rasheed.
7. In the instant appeals, there is nothing on record to show that the case of appellant Riaz Ahmed Shaikh had any adverse entry or that his record remained blemished. Record also shows that the impugned order has been issued on the basis of the report, submitted by the Inquiry Committee on 21-7-1999 where no doubt statement of the present appellant was recorded, but no witness was examined in their presence, nor they were given any chance to cross-examine such a witness. The interesting aspect of the case is that the inquiry report is dated 21-7-1999 whereas, the show-cause notice/charge-sheet was issued on 31-7-1999, which shows that the Advocate, appearing for the appellants has rightly argued that it was a sort of executive/administrative inquiry, prior to the issuance of show cause notice. We have gone through the contents of the inquiry report, but the same has not been conducted in accordance with the provisions of law, as has been held in a case of Allah Yar v. General Manager, Railways Headquarters, Lahore and another reported in 2001 SCMR 256. In the said authority at placitum (B) it was held:-- "----Administrative enquiry---Principles.
' Following are the principles for administrative enquiry:--
(1) The administrative authority must act in good faith.
(2) The administrative authority is not bound to treat the matter as if it were a trial or to administer oath or examine witnesses.
(3) The authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the persons sought to be affected to correct or contradict any relevant statement prejudicial to him.
(4) In order to act justly arid to reach just ends by just means the Courts insist that the authority should adopt the elementary principles of natural justice unless the same have been expressly excluded."
8. At the same time, we would be failing in our duty, if point of discrimination is not taken into consideration. It is pertinent to bring on record that in the report of the Inquiry Committee dated 21- 7-1999, mention appears in respect of the four employees namely Messrs Engineer Ejaz Mirza, Foreman Abdul Qadeer Shaikh, SOA Anwar Lasi and Meter Reader Ismail, but no action was taken against them alongwith the present appellants. In their case a regular inquiry was conducted afresh and on the recommendation of the Inquiry Committee vide report dated 29-4-2000, no action was taken against them and they were simply warmed as is evident from the inquiry report page-140, supplied by the Advocate for respondents.
9. The third point is that the executive order cannot be passed retrospectively, which fact has rightly been argued by Mr. Ch. Rashid Ahmed by placing reliance a 1985 SCMR 1158.
10. The surprising aspect of the case is that three of the appellants namely Riaz Ahmed Shaikh, Irfan Ahmed Qureshi and Muhammad Rehan Khan in Appeal Nos.188(K)(CE)/2000, 189(K)(CE)/2000 and 18/90(K) (CE)/2000 respectively, who were ordered to be removed from service, vide order dated 13-3-2000 effective from 16-8-1999, got their promotion on 24-8-1999, 24-9-1999 and 7-8-1999 respectively and had received the benefits, but were subsequently ordered to be removed from service vide impugned orders dated 13-3-2000 effective from 16-8-1999. This appears to be a sort of unique example on the part of the respondent, who have no care for the rules nor they have been able to visualize their acts in a proper perspective.
11. Since it is a case where no proper inquiry was conducted nor proper chance was afforded to the appellants to put up their case and since their statements were recorded much prior to the issuance of show-cause notice/charge-sheet, the entire exercise on the part of the respondents, is liable to be vitiated as they have not only discriminated the present appellants, but have issued orders of their promotion on different dates whereafter they have been ordered to be removed from service. Even otherwise, the rejection order does not seem to be speaking one and no proper reason for rejecting the departmental appeals have been assigned by the Authority, which is also against the principals, enshrined in the decision of the Tribunal in case of Malik Muhammad Tariq v.
Agriculture Development Bank of Pakistan Head Office, Islamabad through Chairman reported in 2002 PLC (C.S.) 1480 where it was held:- - ---Principle---An order, even an executive order passed by a competent Authority, must be speaking one and should be well-reasoned."
' This being the position and considering the fact that in identical appeals where the removal was under the provisions of Ordinance X of 1999 was set aside by this Tribunal in Appeals Nos.1278(K) to 1290-(K) of 1999 on 20-8-2002 which judgment has been maintained and leave to appeal was declined by the Hon'ble Supreme Court on 16-12-2002, we intend to reproduce para-5 of the Judgment of Hon'ble Supreme Court in CPLC Nos.1001-K to 1013-K of 2002:-- "5. We have considered the arguments advanced by the learned counsel for the parties and minutely scanned the material available on record. We have also perused the initial order of appointments issued by the Corporation in favour of the respondents, wherein it is not mentioned that the service of the respondents will be terminated or they will be retired from service without giving any reason. The perusal of the record shows that all the contesting respondents stood confirmed in their respective posts and then subsequently, after earning satisfactory reports and unblemished performance during the service, have been promoted in their respective scales, having reached the stage, without giving any show cause notice, they have been abruptly ordered to be retired from service. Thus by passing the order of retirement, the Corporation has not only violated the settled terms and conditions of service of the respondents, but at the same time, the aforesaid order violates the basic principles of audi alteram partem, because no show-cause notice of any opportunity of hearing has been given to any of- the respondents. This Court had time and again held that the principles of natural justice enshrined in the Maxim "Audi alteram partem" may not be violated and should be adhered in all respects. We find that the action of the Corporation in ordering the retirement of the abovementioned respondents ahead of time and without hearing them is totally against the law. So far as the point of discrimination is concerned, in our considered view, the Corporation has failed to give plausible explanation regarding this situation whereby the employment of as many as twelve confirmed and regular employees, comprising the top heirarchy of Engineering Service have been abruptly thrown out from their jobs, without any reasons and on the other hand, after ousting confirmed and experienced Engineers, the Corporation has embarked upon the activity of fresh Engineers on contract and other basis. If there was anything adverse against the respondents, the same could be inquired into through proper method of departmental inquiry. It also reveals from the record that a number of employees, who were terminated/dismissed, have been re-instated and taken back by the Corporation. On our considered opinion, the impugned judgment is self-explanatory and the Tribunal has discussed each and every aspect of the case. It would be advantageous to refer here its relevant paragraphs, which read as under:
14. In view of the above facts and circumstances of the case, respectfully agreeing with the quoted law of the Hon'ble Supreme Court and other superior Courts as well as this Tribunal and for the reasons and the discussion, made above, we are of the view that the appellants have been treated discriminatory with mala fide intention. No reason, or any charge has been levelled against them for their abrupt and ahead of time retirement, ordered by the respondents through the impugned order, which cannot be sustained on facts as well as on law. We declare this impugned order as void order, having been passed illegally and in violation of all the principles of natural justice and fair play. Consequently, we allow all the above appeals of the appellants and set aside the impugned order of their retirement dated 10-8-1999. It is further ordered that the appellants may be taken back on their respective jobs as they were holding on 10-8-1999, having been re-instated hereby with all back benefits.
15. However, if there any adverse charges of lack of performance, inefficiency, negligence and corruption against all or any of the appellants, the same can be inquired into by the respondents in proper method and through proper inquiry in accordance with Rules and Regulations, applicable to the appellants'."
12. At the same time, we will be failing in our duty, if we don't make mention of the statement of the appellant, recorded by the Inquiry Committee, which can be termed as 'confessional statement where details have been given about the entire transaction and its distribution. No doubt, learned counsel for the appellant has argued that it was a statement, which was obtained per force, against which he filed civil suit, but there is no document available on file to substantiate his arguments excepting the fact that such mention appears in the departmental appeal about the filing of civil suit. Be that as it may, but we cannot loose the sight of the fact that in spite of the above statement which was recorded much prior to the issuance of the show-cause notice which report was submitted on 21-7;1999 whereas, show-cause notice was issued on 31-7-1999 and after its reply, the impugned order was passed on 13-3-2000. Surprisingly , in between these two periods, the appellant' and others were promoted on 24-8-1999 and also considering the fact that four of the incumbents against whom similar allegations were in the field, were exonerated with warning, leads to an inference that such statement has no value. If at all the alleged statement was with the respondents how they could have lingered on the matter and allowed the appellants to work till March, 2000. It is also noteworthy that after one month of the issuance of the charge-sheet, the appellants were promoted knowing that such a statement was available with the respondents, then too , their promotion orders were issued on the contrary prove that the statement so recorded was considered to be of less importance when such promotions were made.
13. Considering all these hard facts, we are of the view that since extreme punishment of removal from service has been awarded without following the norms of natural justice, the respondents cannot take shelter of provisions of Ordinance No,X of 1999 re-promulgated as Ordinance No,XVII of 1999, as such, we set aside the impugned order dated 13-3-2000 in respect of all the appellants and direct the respondents to re-instate appellants on the same position from which they were removed from service with all back-benefits, provided they file affidavits with solid proof that they did not work for gain anywhere else during this period and so also to adjust whatever has been received by them under the impugned orders within three months of this judgment. There will, however, be no embargo on the respondents, if there is any charge of inefficiency or corruption against any of the appellants then, such proceedings can be initiated under the law.
14. With this observation all appeal stand allowed with no order as to costs. Parties be informed accordingly.