' SYED MANSOOR ALI SHAH, J.--- Brief facts of the case are that the petitioner is working as Deputy Manager (Operation) with respondent LESCO. Vide letter dated, 1-1-2010, Competent Authority (Respondent No,2) initiated an inquiry against the petitioner under the Removal from Service (Special Powers) Ordinance, 2000 and appointed Messrs Muhammad Alam, Senior Audit Officer and Zia-ul-Latif, Superintendent Engineer (respondent No,4) as the Inquiry Committee Statement of Allegations dated, 25-1-2010 accompanied the said letter.
2. The Petitioner has challenged letters dated 1-1-2010 as well 25-1-2010 on the ground that one of the Inquiry Officers (i.e, respondent No,4) is not "higher in rank" than the petitioner and therefore, cannot sit in on an inquiry against the petitioner. The petitioner, therefore, prays that an independent inquiry officer be appointed in place of respondent No,4 in the matter.
3. It is also prayed that respondent No,3 be directed to entrust the matter in hand to NAB or FIA for probing into the conduct of respondent No,2 with the additional prayer that respondent No,2 be restrained from performing his functions as Chief Executive Officer of LESCO.
4. Counsel for the petitioner made the following submissions in support of his petition:---
(i) That the inquiry of the petitioner be conducted by any other officer, but respondent No,4. He further submitted that there are serious allegations pending against respondent No,4 who is acting under the dictation of respondent No,2 and therefore, is not a fit person to be appointed as an Inquiry Officer;
(ii) That respondents Nos.2 and 4 are bent upon getting rid of the petitioner and therefore, initiation of proceedings under The Removal from Service (Special Powers) Ordinance, 2000 smacks of mala fide. Counsel relied on "S.M.E. Bank Limited through Kaiser H. Naseem, President v. Mehfooz Elahi Piracha and 2 others 2003 PLC (C.S.) 1282" and Civil Aviation Authority through Director-General v.
Javed Ahmad and another 2009 SCMR 956;
(iii) That there are judgments of the superior Courts wherein it has been laid down that Inquiry Officer must be a person senior in rank than a person against whom inquiry has been initiated and relied on: "Nisar Ahmad Kiyani v. Azad Government of the Sate of Jammu and Kashmir and another 1992 PLC (C.S.) 1135" Mian Muhammad Hayat Superintendent Engineer v. Government of West Pakistan. And another PLD 1964 (W.P.) Lah.
264."
(iv) That such an inquiry can be quashed in writ jurisdiction and relied on: Mian Nisar Ahmed v.
Secretary Government of Pakistan, Ministry of Finance, Islamabad and others 1996 MLD 2045.
(v) That respondent LESCO is under obligation to act justly, fairly and in accordance with law, which includes the compliance of the judgment of the superior Courts.
(vi) Learned counsel read out ground (a) of the petition to highlight the factual allegations levelled against respondent No,2.
5. Mr. Anwar Kamal, Advocate for the respondents submitted that LESCO is a Company incorporated under the Companies Ordinance and 100% shareholding of the company is owned by the Government. He further submitted that the umbrella company looking after the affairs of LESCO is PEPCO which is also a company incorporated under the Companies Ordinance, 1984. He further submitted that proceedings initiated under RSO are strictly in accordance with law. He argued that under sections 3 and 5 of the RSO the competent authority of the petitioner is respondent No,2 i.e, the Chief Executive Officer of LESCO. He also pointed out that RSO stood repealed vide Act No,III of 2010 dated, 6-3-2010, however the proceedings initiated prior to the said Act have been saved and are to continue under section 2(2) of Removal from Service (Special Powers) (Repeal) Act, 2010 (Act HI of 2010) dated, 6-3-2010. He submitted that instant petition is premature because the inquiry has just been initiated and no final order has yet been passed against the petitioner.
6. On the question whether respondent No,4 was senior in rank than the petitioner Mr. Anwar Kamal, Advocate, submitted that respondent No,4 is not only senior from the petitioner in rank but also in grade. He referred to the seniority list as on 31-5-2006 of Senior Engineers (Senior Engineers equal to Managers whereas XEN equal to Deputy Managers under the new nomenclature assigned to these posts) shows that the name of respondent No,4 appears at Sr. No,270 and his date of joining WAPDA is 4-2-1980 whereas the name of the petitioner appears at Serial No,495, who joined WAPDA on 9-2-1982. According to the counsel, respondent No,4 is at least 225 positions senior to the petitioner. He further referred to a letter dated, 18-5-2009 to show that respondent No,4 was granted time-scale up-gradation in BPS-19 with immediate effect and therefore, the said respondent is not only senior to the petitioner but also enjoys higher grade. Learned counsel further referred to Office Order dated, 16-10-2009 issued by Pakistan Electric Power Company (PEPCO), which shows that the petitioner while working as Manager (Operation) Vehari Circle MEPCO was transferred and placed at the disposal of Cheif Executive Officer, LESCO. The contention of the learned counsel is that the said transfer took place on the direction of the PEPCO and not on the behest of respondent No,2 as alleged by the petitioner.
7. Responding to the character and standing of the Inquiry Officer (respondent No,4), learned counsel submitted that he is an upright and an honest officer carrying un-blemished reputation and a man who can resist pressure and put up a fight against corruption, therefore, he was appointed as one of the inquiry officers, in the present case by respondent No,2, who is the competent authority under section 5 of the Removal from Service (Special Powers) Ordinance, 2000. Learned counsel contended that F.I.R. Was registered against one Mr. Ghulam Murtaza Bajwa on 4-2-2010 for stealing electricity and as a backlash an F.I.R. Has been filed against respondent No,4. He further pointed out that a departmental inquiry is also pending against Mr. Ghulam Murtaza Bajwa.
8. In response to the allegations levelled against respondent No,2, by the petitioner in ground (a) of the petition, learned counsel submitted that respondent No,2 took over the charge of the post of Chief Executive Officer on 8-10-2009 at a time when according to Transparency International, Pakistan Power Sector was listed as the second most corrupt sector in Pakistan and efforts have been made by respondent No,2 to weed out the corruption from the said sector. The present petition is a manifestation of the backlash for taking strict measures against corruption.
9. Addressing the arguments on the allegations levelled against respondent No,2, learned counsel submitted that the earlier management had obtained 26 connections from Warid Telecom in the year 2005 without advertising for the said contract. He further submitted that due to the poor service of Warid Telecom the need to change the said telecom services was under process when the Chief Executive Officer (respondent No,2) took over the charge, public advertisement had already been issued on 27-7-2009, Mobilink and Telenor Cellular companies had been short listed and evaluation report was also duly prepared which was finally approved by the respondent No,2 on 26-11-2009. Therefore, respondent No,2 has been successful in procuring contract on the basis of public transparency.
10. He further submitted that MOU placed on record is fabricated and the petitioner must be penalized for placing such documents on record, which is supported by an affidavit.
11. Addressing the allegation loss of Rs,2 Billion the counsel submitted that LESCO has been involved in excessive billing and after holding meeting by the EXNs (Deputy Managers (Operation) of all the regions) including the petitioner, it was decided that excessive billing needs to be corrected and as a result 1 million units alone were refunded to WASA: Show-cause notices have been issued to the concerned officers, who remained involved in the said over billing. The said show-cause notices have been placed on record by the learned counsel. Regarding third allegation pertaining to NEPRA learned counsel submits the LESCO had moved a review petition praying for higher tariff, which was rejected with the direction that LESCO has to bring losses down and maintain the current tariff.
12. Hafiz Tariq Nasim Advocate in his rebuttal submitted:---
(i) That counsel for the respondent relied upon proposed seniority list and submitted that it has no value in the eyes of law. In support of his contention he relied on section 8(4) of the Civil Servants Act 1973. He however frankly admitted that he had no knowledge if the petitioner had filed any objections against the said proposed seniority list.
(ii) That upgradation of scale does not make the petitioner senior in rank.
(iii) Counsel vehemently submitted that the allegations levelled against respondent No,2 have not been replied to by respondent No,2 and no counter affidavit has been placed on the record. He submitted that in absence of counter affidavit, the factual pleas raised by the petitioner stand admitted and relied on Muhammad Gul Kakar v. Province of Baluchistan 1986 PLC (C.S.) 560 and Messrs Holy Family Hospital through Administrator v. Government of Sindh and another 2009 PLC (C.S.) 824.
13. In response to the above, Mr. Anwar Kamal Advocate submitted that proposed seniority list has not been objected to by the petitioner besides the same has attained finality. He further submitted that time scale upgradation to BPS-19 makes respondent No,4 senior to the petitioner. Vide order dated, 11-2-2010 comments were directed to be filed by respondent No,1 only, besides the affidavit placed on record is of the Legal Director of the company and therefore fully covers the requirement of the counter-affidavit. He further submitted that this is a test case where respondents are trying to stand up against corruption and to fight the mafia and this petition is nothing but an attempt to scare the respondents which is also clear from the fact that during the pendency of the case, several newspapers carried the news items regarding this case and has placed press clipping on the record. He lastly submitted that considering the conduct of the petitioner, it would be appropriate to dismiss the petition.
14. Arguments of the counsel have been heard and the documents as well as the case law cited at the bar has been reviewed.
15. The prayers made by the petitioner in the writ petition are as follows:---
(ii) The impugned Charge Sheet/Statement of allegations dated, 1/25-1-2010 may kindly be declared illegal, be set aside.
' OR ' As an alternate, respondent No,1 may kindly be directed to reappoint an independent Officer of higher in rank than the petitioner as Inquiry Officer affording a fair chance to the petitioner to defend his case.
(iii) The respondent No,3 be directed to entrust the matter to NAB or FIA for probing into the respondent No,2's conduct/ misdeeds/corrupt practices and during hat time, the respondent No,2 be restrained from performing his functions as Chief Executive of LESCO.
(iv) The respondent No,3 be directed to re-inquire the representation of the petitioner dated 19-12- 2009 through NAB.
16. I take up the first prayer made by the petitioner. Inquiry has been initiated against petitioner under the Removal from Service (Special Powers) Ordinance, 2000 ("RSO) on 1-1-2010 and respondent No,4 and one Muhammad Alam, Senior Audit Officer, LESCO have been appointed as the Inquiry Committee by the Competent Authority. In addition Statement of Allegations have been served on the petitioner. However, instead of facing and joining the inquiry and replying to the said Statement of Allegations, the petitioner has directly approached this Court with the grievance that appointment of respondent No,4 in violation of the law settled by the superior courts, in as much as that the Inquiry Officers must always be senior in rank from the person under inquiry. Learned counsel relied on Mian Muhammad Hayat Superintendent Engineer v. Government of West Pakistan and another PLD 1964 (W.P.) Lah 264, and "Nisar Ahmad Kiyani v. Azad Government of the State of Jammu and Kashmir and another 1992 PLC (C.S.) 1135 in support of this contention.
17. In Mian Muhammad Hayat Superintendent Engineer v. Government of West Pakistan and another PLD 1964 (W.P.) Lah. 264 the matter before the Court was the interpretation of Rule 8 (1) of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960. For ready reference Rule 8 (1) is reproduced hereunder:-
8. Appointment and procedure of Inquiry Officer
(1) Where a Government servant is proceeded against under clause (a), or clause (b) or clause (c) of rule 3, and the authority decides that the allegations against him, if proved, call for a major penalty, the authority shall appoint an officer, senior in rank to the person proceeded against, to be inquiry officer and to conduct the proceedings against him and may also prescribe a time limit within which the inquiry should be completed by the Inquiry Officer, unless prevented by very special circumstances to be recorded by him in writing." (Emphasis supplied)
18. While explaining the meaning of "senior in rank", Anwar-ulHaq, J. Spoke for the Court in the following manner:--- "15. Now the question is how to determine whether "an officer is senior in rank" to another. One obvious criterion is the salary drawn by the two officers who are being compared. Another guide is furnished by what is known as the "warrant of precedence" prescribed by the Central Government, indicating the relative position or seniority enjoyed by the officers inter se, and vis-a-vis the holders of representative offices and other members of the public occupying high social rank. Judged by both these criteria, Mr. Moiz-ud-Din Ahmad, who is a Member of the Board of Revenue, is clearly an officer senior in rank to the petitioner who is a Superintendent Engineer, drawing less pay and occupying a much lower position in the "warrant of precedence." Thus we see no illegality in the appointment of Mr. Moiz-ud-Din Ahmad as an Inquiry Officer in this case." (Emphasis supplied)
19. The above view is based on the interpretation of Rule 8(1) of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, which specifically provided that Inquiry Officer must be senior in rank to the person proceeded against. In "Nisar Ahmad Kiyani v. Azad Government of the State of Jammu and Kashmir and another 1992 PLC (C.S.) 1135, Rule 6(5) of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 came up for discussion once again. For ready reference Rule 6(5) of the above rules reproduced hereunder:--- Rule 6(5) "If under sub-rule (2) the authorized officer considers that an inquiry is necessary, he shall appoint an Inquiry Officer or an Inquiry Committee consisting of two or more persons who or one of whom shall be of the rank senior to that of the accused or if there are more than one accused, senior to all the accused." (emphasis supplied)
20. Even in the above case the question arose because the aforementioned rule provided that an Inquiry Officer must be senior in rank from the officer proceeded against.
21. No such provision or requirement exists in the Removal from Service (Special Powers) Ordinance, 2000 or Civil Servants (Efficiency B and Discipline) Rules, 1973. The above cited judgments have interpreted existing rules; which already provided for Inquiry Officer to be senior in rank that the officer under inquiry. Therefore, the cited judgments do not lay down an independent principle of law that an inquiry officer must always be senior in rank from the person under inquiry, as has been argued by the counsel for the petitioner.
22. However, perusal Rule 8(1) of West Pakistan Government Servants (Efficiency and Discipline)
Rules, 1960 appears to be based on logic and reason. It is hard to imagine that a junior officer will be quipped with necessary confidence and the requisite experience to inquire into the allegations levelled against his senior officer. A junior officer, who might still continue in service after the inquiry under the senior officer, might not be able to do justice to the inquiry entrusted to him. Even on touchstone of good governance, a junior officer does not appear to be competent as well as experienced enough to be able to conduct a meaningful inquiry of his senior officer. The requirement of an inquiry officer senior in rank to the officer proceeded against is not mentioned in the Removal from Service (Special Powers) Ordinance, 2000 or the Civil Servants (Efficiency and Discipline) Rules, 1973, it is also not specifically excluded on the other hand. Being a matter of due process, fairness, equity and procedural propriety, the principle can be safely read into the said rules, in the larger interest of carrying out a meaningful, effective and transparent inquiry and in order to strengthen good governance. Therefore, the principle that in order to carry out an effective inquiry, the inquiry officer must be senior to the person inquired against in the manner laid down in Mian Muhammad Hayat Superintendent Engineer v. Government of West Pakistan and another PLD 1964 (W.P.) Lah. 264 can be conveniently read into the Civil Servants (Efficiency and Discipline)
Rules, 1973 and the RSO.
23. This principle has been honoured in the present case, respondent No,4 is senior to the petitioner for the following reasons:--
(i) Proposed Seniority List of Senior Engineers (Non-Generation) dated, 3-5-2000 shows respondent No,4 to be at serial No,270 and the petitioner to be at Serial No,495. Which is 225 positions below respondent No,4. The date of joining of the petitioner is 9-2-1982 and that of the respondent No,4 is 4-2-1980. Petitioner was specifically asked if he has laid challenged to the said Seniority list and the answer was in the negative therefore the said seniority list is admitted.
(ii) Vide Office Order dated 18-5-2009 respondent No,4 was allowed Time Scale Up-gradation in BPS-19 against 7.5% quota w.e.f, 18-5-2009. Therefore, not only is respondent No,4 senior but also higher in grade from the petitioner (in grade BPS-19 instead of BPS-18 as is the case with the petitioner).
24. Even otherwise, in the present case an Inquiry Committee has been appointed as opposed to an inquiry officer and the petitioner has not specifically challenged the rank or seniority of the second member namely Muhammad Alam.
25. For the above reasons I hold that respondent No,4 is senior in rank than the petitioner and therefore fully meets the wisdom of the principle discussed above.
26. The second allegation hurled against respondent No,4 is regarding his alleged partiality because an F.I.R. Is pending against him which was filed by one Ghulam Murtaza Bajwa and that respondent No,4 has close ties with respondent No,2 (Chief Executive Officer, LESCO). It has been argued that respondent No,4 lodged an F.I.R. Against one Ghulam Murtaza Bajwa and as a backlash an F.I.R. Was lodged against respondent No,4. At the very outset such allegations carry factual controversy and cannot be ordinarily gone into by this Court. Secondly, there is no definitive judicial determination regarding the allegations raised, therefore, pendency of proceedings cannot be used as a ground to argue mala fide or partiality of a particular officer. No serious consideration can be given to this argument, as there is no definitive judicial finding from a Court of competent jurisdiction against either of the parties.
27. It is also pointed out that respondent No,4 was placed at the disposal of respondent No,2 by Managing Director, PEPCO on 15-1-2010 therefore, the submission of the counsel for the petitioner that respondent No,4 was appointed to work under respondent No,2 at the behest of respondent No,2 appears to be incorrect.
28. For the reason given above, the first prayer of the petitioner is dismissed. Respondent LESCO and the Inquiry Committee are directed to complete the inquiry initiated against the petitioner strictly in accordance with law expeditiously.
29. Second and third prayers of the petitioner seek direction from this Court for probing into the affairs of respondent No,2 by various agencies namely; NAB, FIA, Anti-Corruption Establishment etc. Learned counsel for the petitioner vehemently stressed by highlighting certain events (reproduced above in paragraph vi) to urge this Court that inquiry against respondent No,2 be directed. The counsel for the respondents vehemently refuted the allegations levelled by the petitioner (as reproduced in preceding paras 8-11).
30. The said factual controversy between the parties cannot be a subject matter of the present proceedings exercised by this Court, as it requires recording of evidence. However, in order to satisfy the conscience of the Court, I heard the versions of both the counsel. I am satisfied with the reply to the allegations given by the counsel for the respondents. I am, therefore, not inclined to exercise jurisdiction in this regard. I, however, add that the view of this Court regarding the factual allegations raised by the petitioner are at the most tentative. The petitioner is therefore free to approach appropriate authorities mentioned above, for proper investigation of the said allegations, if so advised. It is made clear that the findings of this Court regarding these allegations will not come in the way of any such investigation, if initiated by the petitioner.
31. For the above reasons, this petition is dismissed. The appointment of the Inquiry Committee inclusive of respondent No,4 vide letter dated, 1-1-2010 is upheld with the direction that the said inquiry be completed expeditiously strictly in accordance with law.