SAEED AHMED ZAIDI, MEMBER. - Brief facts of the case are that the Appellant while serving as Regional Election Commissioner in the Election Commission of Pakistan, was compulsorily retired vide impugned order dated 6.5.2006 under the provisions of Removal from Service (Special Powers) Ordinance, 2000. A perusal of the show-cause notice dated 11.2.2006 reveals that there were following charges against the Appellant:-
(i) You have never concentrated on performance of official functions and discharge of your duties;
(ii) You have been criticizing and levelling allegations against the high officials of the Election Commission;
(iii) Your performance remained unsatisfactory throughout the period of your service;
(iv) You have failed to accomplish the assignment regarding discrepancies in the electoral rolls;
(v) You have time and again miserably failed to comply with the orders of the Competent Authority;
(vi) You have tried to malign the Hon'ble Member Election Commission, Balochistan;
(vii) You have failed to see off Hon'ble Member Election Commission from Balochistan and receive him at the Airport in compliance with the Hon'ble CEC's orders, dated 21st January, 2004;
(viii) You have been abusing and calling names to the officers of the Commission and their family members using insulting and dirty language and have been threatening them of dire consequences;
(ix) You have in order to embarrass the office got published in the Press stories of your reversion in violation of Rule 22 of the Government Servants (Conduct) Rules, 1964;
(x) You in your shot span of posting as PEC, Balochistan, Quetta have committed serious regularities in the appointments and promotions of officials.
2. The Appellant replied to the show-cause notice but the same was not found satisfactory and the Appellant was subjected to major penalty of compulsory retirement from service.
3. The Appellant's counsel argued that the impugned order being an order under Removal from Service (Special Powers) Ordinance, 2000, this Tribunal had the jurisdiction to adjudicate upon the matter. He has contended that this Tribunal's judgment dated 3.3.2008 in M.Ps. Nos. 612 and 613/2007 in Appeals Nos. 570(R)CE/2005 and 973(R)/CE/2004 - Tariq Latif v. Election Commission was not attracted as the order impugned in the present appeal has been passed under the Removal from Service (Special Power) Ordinance, 2000.
4. Arguing on merits, the counsel for the Appellant contended that major penalty has been imposed on the Appellant but no regular inquiry was conducted which was against the law as laid down by the Hon'ble Supreme Court vide its judgments reported as 1993 SCM R 603, 1997 SCM R 1543, 2001 SCMR 1533, 2003 SCM R 207, 2004 SCMR 294 and 146. It was further contended that the matter involved factual controversies and, therefore, regular inquiry was mandatory, It was also argued, that the allegations against the Appellant were ambiguous and the Appellant's explanations and denials in this regard have been totally ignored. Similarly, some of the charges did not even constitute an offence under the rules e.g. Insistence by a Member of the Commission that he be received at the Airport by the Appellant a lady officer when a protocol officer was already assigned and available for this duty.
5. The counsel for the Appellant also assailed the impugned order on the ground that the show- cause notice has not been issued by the Chief Election Commissioner but by the Secretary of the Election Commission who was not the competent Authority in respect of the Appellant as per Election Commission (Officers and Servants) Rules, 1989 and consequently till the proceedings were void ab initio.
6. The Appellant's counsel further contended that no specific penalty was proposed in the show- cause notice which was against the law and reiterated the notice. The next contention of the counsel for the Appellant was that impugned order has been passed in gross violation and principles of natural justice as no personal hearing was afforded to the Appellant.
7. The counsel for the respondents, on the other hand, pressed his preliminary objection that this Tribunal did not have the jurisdiction in respect of employees of Election Commission, It was contended that the Appellant was not a civil servant as she was governed by the Election Commission (Officers and Servants) Rules, 1989, framed by the Chief Election Commissioner, with the approval of the President, in exercise of the powers conferred on him under Article 221 of the Constitution of Islamic Republic of Pakistan, It was argued that this Tribunal judgments in Appeals Nos. 40(R)/76, 570(R)CE/2005, 973(R)CE/2004 has consistently held that it did not have the jurisdiction in respect of employees of Election Commission.
8. We have considered the arguments of both the sides and find that the question whether government servants and corporation employees, as defined in the Removal from Service (Special Powers) Ordinance, 2000 can approach this Tribunal against the orders passed under the said Ordinance, has been considered in depth by this Tribunal in its judgment dated 22.3.2008 in Appeal No. 378(R)CE/2004 Humayun Akhtar v. W APDA and it has been held as follows:- "19. The jurisdiction of this Tribunal shall however, continue to be available to a person aggrieved of an order under the Removal from Service (Special Powers) Ordinance, 2000 as provided under Sections 10 and 11 ibid. The reason for this is not far to seek as the R.S.O., 2000 does not use the term "civil servant" but only refers to a person in Government Service or a person in corporation service and allows any such persons if aggrieved of an order under the said Ordinance, to approach this Tribunal in accordance with law.
22. The removal from Service (Special Powers) Ordinance, 2000 is a special law providing special remedies and forum. The Hon'ble Supreme Court of Pakistan as already held in Anwar Parvez v.
Chairman, Board of Intermediate and Secondary Education, Abbotabad and 2 others (2005 SCM R 1603) and Federation of Pakistan through D.G. Military Lands and Cantonment Rawalpindi and others v. Syed Ibrahim Shah (NLR 2006 Service 51), has taken note of the special features of the said special legislation. Under S. 10 therefore, appeal lies before the Federal Service Tribunal against any final order passed against the aggrieved person."
9. Following the afore-mentioned judgment, we hold that this Tribunal has the jurisdiction in respect of orders passed under the Removal from Service (Special Powers) Ordinance, 2000 and appeals against the same were competent before this Tribunal under Section 10 of the said Ordinance.
10. We would first take up the argument of the Counsel for the Appellant that the impugned order has not been passed by the Competent Authority i.e. Chief Election Commissioner. We do not find any force in this argument. The fact that the order has been issued under the orders of the Chief Election Commissioner is mentioned in the order itself. The mere fact that the impugned order has been communicated by a lower level officer, does not imply that it has not been passed by the competent authority.
11. As far as the merits of the else, are concerned, we find that a major penalty of compulsory retirement has been imposed upon the Appellant without holding a regular inquiry. We find force in the contention of the learned counsel for the Appellant that most of the allegations against the Appellant were not only not specific but also been denied by the Appellant, In these circumstances, a regular inquiry was necessary for the determination of factual controversies by an Inquiry Officer or an inquiry committee as envisaged by the said Ordinance, In its judgments reported as 1997 SCM R 1543 Basharat Ali v. Director Excise & Taxation the Hon'ble Supreme Court has laid down the rule that where facts are disputed, a regular inquiry was necessary as the initial burden to prove the facts was on the Department. Similarly, in its judgment reported as 2004 SCM R 316 Shaista Naheed v. PIA the Hon'ble Supreme Court has held that in cases of major penalty, a regular inquiry was essential. The same view was maintained by the Court in Inspector General Police, Karachi v.
Shafqat Mahmood 2003 SCMR 2007, and Muhammad Idrees Khan v. Ministry of Railways (2006 SCM R 104).
12. It also appears that the appellant was not granted a personal hearing before passing the impugned order because she did not expressly ask for the same, It is trite law that no one can be condemned unheard and must be afforded an opportunity to explain whenever an adverse order is contemplated (2007 SCM R 307). The Hon'ble Supreme Court has in its judgment reported as 2005 SCM R 678 Hazara (Hill Tract) Improvement Trust v. Mst. Qaisra Elahi and others has held that the principle enshrined in the maxim audi alteram partem is one of the most important principles of natural justice and its violation is always considered enough to vitiate even the most solemn proceedings. Consequently, the Appellant should, have been afforded a personal hearing before the impugned order was passed and in the absence of such a hearing, the impugned order would not be sustainable.
13. For the reasons mentioned in paragraphs 8 to 12 we set aside the impugned order and direct that the Appellant be reinstated in service with effect from the date of impugned order. The Respondent-Department shall however be free to hold a regular inquiry into the charges against the Appellant, through an Inquiry Officer or an Inquiry Committee and complete the same within a period four months. The question of back-benefits shall depend upon the outcome of the inquiry.
14. No order as to costs. Parties be informed.