' NAZAR MUHAMMAD SHAIKH (MEMBER).---This appeal is directed against the respondents order dated 8-4-2002 whereby appellant has been retired under section 17(1-A) (a) of the Pakistan WAPDA Act 1958. Appellant filed departmental representation to the respondent No.
1. Which was duly considered by the respondents and rejected vide order dated 7-6-2002.
2. The background of the case is that the appellant was appointed as Junior Engineer in WAPDA on 20-9-1987 and he was last posted as SDO in Hyderabad Electricity Supply Company (HESCO) at Sukkur when he was served with the impugned order retiring him from service. The learned counsel for the appellant assailed the impugned order on the following grounds:
1. Appellant was not issued mandatory show-cause notice before retiring him from service under section 17(1-A)(a) of the Pakistan WAPDA Act, 1958, and in this regard he relied on the ruling 2000 PLC (C.S.) 405.
2. Appellant was not afforded a personal hearing, which was in violation of the principle laid down in the ruling reported in 1999 PLC (C.S) 818.
3. Appellant was not supplied with the copy of the inquiry report and he was not even associated with the so-called inquiry which the learned counsel for the appellant alleged that it was actually a Fact-finding Enquiry on which the appellant could not be retired from service. In this regard he placed reliance on the rulings reported in 2003 PLC (C.S.) 7 and 353.
4. The impugned order was not a speaking order as no detailed reasons for passing the said order have been given by the respondents which was in violation of section 24-A of the General Clauses Act, 1897 and was also hit by rulings reported in 2003 PLC (C.S.) 857 and 2003 DD (Services) 247.
5. The learned counsel referred to the rulings of the apex Court in respect of action taken by the respondents without providing any chance to the accused employees to vindicate their position before retiring them in a similar manner. In this regard, reliance was placed on ruling reported in 2002 PLC (C.S.) 128, 2003 SCMR 1949, 2003 PLC (C.S.) 663 and 2003 PLC (C.S.) 1370 and 1343.
3. The learned counsel for the respondents vehemently opposed the appeal and stated that the appeal was badly time-barred and as such was. Not maintainable. He stated that the impugned order dated 8-4-2002 was passed by WAPDA Authority and such order can only be appealed against to the Ministry or the Federal Service Tribunal. He stated that the Appellant instead of availing these two options, filed his departmental representation before the Chairman, WAPDA, which was not maintainable. He stated that the appellant should have come straightaway to the Tribunal and as such the time wasted in filing appeal before the Chairman WAPDA was not in order and, therefore, the appeal had become time-barred. The learned counsel for the respondents further stated that the appellant was SDO and in terms Labour Laws, he was an "employer" and all the legal infirmities pointed out by the learned counsel for the appellant related to the "workman" and not to the employer. In this regard he relied on the ruling of the Hon'ble Supreme Court of Pakistan in the case of SSGC v. Ghulam Abbas and others reported in 2003 PLC (C.S) 796. He further argued that the Federal Service Tribunal's judgments cited by the learned counsel for the appellant were distinguishable from the facts of the present case and, therefore, not applicable.
4. The learned counsel for the appellant in rebuttal stated that the appeal was not time-barred as the departmental representation was duly considered by the respondents and rejected vide appellate order dated 7-6-2002. He further pointed out that the appellant was a civil servant within the meaning of section 2-A of the Service Tribunals Act, 1973 and, as such, the grounds submitted by him'were fully applicable to him. He also contended that since the inquiry report was not supplied to the Appellant it had prejudiced his right of defence. He also reiterated that rulings of the Hon'ble Supreme Court of Pakistan cited by him were fully applicable to the facts of the present case.
5. We have heard the learned counsel from both sides and also perused the record and the citations.
6. The facts very clearly indicate that the appellant has been deprived from service by his premature retirement from service under section 17(1-A)(a) of the Pakistan WAPDA Act 1958. The facts also indicate that the incident, which promoted the respondents to resort to action against the appellant was same in which four other officers of Hyderabad Electric Supply Company (HESCO) were involved namely Mr. S.M. Abbas Shah, Mr. Allah Dino Somro (appellant), Mr. Khalid Raoof Durrani and Mr. Maqsoodul Hassan Naqvi. The other three officers have been reinstated by the Federal Service Tribunal. In this regard the appellant's learned counsel presented Federal Service Tribunal's latest judgment dated 17-2-2004 in the case of S.M.
Abbass Shah v. WAPDA Appeal No.652(R)(CS) of 2002. The learned Counsel for the appellant also cited Federal Service Tribunal's judgment in the case of Sardar Masood Iqbal Khan v. Chairman WAPDA in Appeal No.374(L)(CS) 2000 in which the appellant was retired under section 17(1-A(a) of Pakistan WAPDA Act, 1958. In that case the appellant was neither issued show-cause notice nor afforded personal hearing and the Tribunal held as under:-- "The fact remains that the appellant was condemned unheard in violation of principle of natural justice enshrined in maxim; ' audi alteram partem'. As the appellant has been condemned unheard, we have no alternative but to set side the impugned order and reinstate the appellant in service. But it will always remain open for the respondents to commence proceedings under the prevailing rules, if the acts of omission and commission of appellant attract the penal provisions of relevant laws and the guilt of accused is established through regular enquiry. As regards present appeal, the same is allowed with no order as to costs. The appellant is reinstated in service with back-benefits."
' The Federal Service Tribunal's judgment cited above is based on the ruling of the Hon'ble Supreme Court of Pakistan reported in 2002 PLC CS 128 which inter alia reads as under:-- "It is further to be observed that under section 17(1-A)(a) of the Act, the Authority enjoys a right to retire any person employed from his service without assigning any reason but if from the perusal of record it can be spelled out that such action is being taken against him in exercise of jurisdiction in a colourful manner with mala fide intention then it becomes all the more necessary to extend right of hearing to an affectee employee as in the case of Shah Imroze (1986 SCMR 840). Shaikh Abdul Waheed and 2 others v. WAPDA (PLD 1988 SC 35) and WAPDA v. Sheikh Zulfiqar Ali (PLD 1988 SC 693) it has been held that the Tribunal after examining all the relevant factors can set aside order passed by the Authority when the order under section 17(1-A)(a) of the Act is mala fide and tainted with mala fide bias and not passed with bona fide. Subsequently in the case of Aijaz Nabi Abbasi v.
Water and Power Development Authority and another (1992 SCMR 774), it was held that summary powers conferred upon the Authority to remove or retire an employed person does not mean that the authority enjoys such powers unfettered or unbridled or arbitrary. The object of conferring such powers seems to be to make easier for the Authority to remove from service surplus or inefficient and/or corrupt employees without holding long drawn departmental enquiry in order to make the establishment more viable and efficient and, therefore, exercise of above power to achieve the above objective. It is to be exercised in good faith by the repository of the power, untainted with bias or mala fides or considerations other than the above objective and, therefore, any action in violation of the above basic norms will warrant interference by the Tribunal and Supreme Court."
7. Besides this the learned counsel for the appellant cited judgments dated 2-9-2002 on the same issue in appeals Nos.130 and 131(K) (CE)/2000 in case of Khurshid A. Shaikh and Abdul Qavi Shaikh v. Chairman WAPDA where the Appellants were also compulsorily retired from service under section 17(1-A)(a) of the Pakistan WAPDA Act, 1958 which were accepted. He also cited FST's judgment dated 8-5-2002 in the case of Qadir Bux Noonari v. WAPDA in Appeal No.174 (R)(CS)/2001.
Similarly in the rulings of the apex Court cited by the learned counsel for the appellant, their lordships have set aside the respondent's order under section 17(1-A) of the WAPDA Act, 1958, as such, orders were held to be in violation of principles of natural justice.
8. The contention of the respondent's learned counsel that the legal infirmities flagged by the appellant were not applicable as he was an "employer" is not sustainable as the afore-mentioned rulings of the Hon'ble Supreme Court and the FST relate to officers of the respondents-Organization. Reliance placed by the learned counsel on the ruling of apex Court in SSGC v. Ghulam Abbas and others (2003 PLC (C.S) 796) is, therefore, misconceived.
9. Furthermore, the perusal of the enquiry report indicates that enquiry committee recommended disciplinary action against the appellant under E&D Rules which was not done with the mala fide intention of the respondents to deprive him of an opportunity to defend the allegations which is his inherited right before any adverse action could be passed against him. The impugned order has deprived the appellant of an opportunity to continue in respondents' service till the normal age of superannuation which has been cut short by premature retirement which in any case impliedly carries stigma. Appellant had also claimed unblemished service in respondent-Organization which fact had not been denied specifically by the Respondents in their comments and no incident of any lapse on the part of the Appellant was produced before the Tribunal.
10. In view of the above discussion we accept the appeal and set aside the impugned order dated 8-4-2002 and also the appellate order dated 7-6-2002 and reinstate the appellant in service with full back-benefits. Respondents are free to initiate fresh proceedings against the Appellant in accordance with therelevant law and afford full opportunity to him to defend the allegations, if any.
Announced in open Court. No order as to costs. .