' This is a petition under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 submitted by Mohammad Kemal ex-Vehicle Driver, WAPDA, Buchan, District Attock. The petitioner has submitted that .He was employed as Vehicle Driver at 220 KV Grid Station WAPDA Burhan District Attock but he was suspended because of an alleged misconduct vide letter, dated 18th April, 1979 as clarified vide letter, dated 26th April, 1979. He was served two charge sheets by the respondent vide letter, dated 27th June, 1979. The charges against him related to misconduct, subversion and disobedience. The petitioner replied to the charge sheets and gave detailed explanation of his version. He was given a show cause notice an 14th July, 1979 and the petitioner again denied the charges against him vide his letter, dated 14th July, 1979. He was finally dismissed from service 'vide letter, dated 17th July, 1979.
2. It has been submitted that he has been dismissed as a result of personal grudge and disliking and his dismissal was against law and in violation of the principles of justice for the reasons that the charges levelled against him did not constitute misconduct under the law, the charge sheet was time barred and the misconduct was not proved. He was also condemned unheard and no enquiry was held and he was dismissed because he had moved an application alleging corrupt practices against the concerned officials. His appeal was also rejected and he has therefore, submitted this petition with the prayer that the respondent be directed to re-instate him with all back benefits and the cost may also be awarded.
3. The respondent who was asked to furnish his comments on the petition submitted that the petitioner was a WAPDA employee and was a Civil Servant in view of WAPDA Amendment Act, 1975 and only the Services Tribunal had the jurisdiction in the case which merited dismissal on that ground alone. This point has already been thrashed out in a number of cases that the Commission has the jurisdiction under the Pakistan Essential Services (Maintenance) Act to deal with case o WAPDA employees. The preliminary objection is therefore, ruled out.
4. It was also submitted by the respondent that the enquiry committee comprising of XEN, Resident Engineer and the Assistant Engineer has held the petitioner guilty and that he was given full opportunity of being heard and that the petitioner had participated in the Inquiry.
5. On 12th July, 1979 Mr. Anwar Elahi SSO II on behalf of respondent submitted a copy of an agreement arrived at between the parties. In clause (3) of that agreement the petitioner had stated that he did not want to persue the case submitted in the NIRC and agreed to withdraw the same. Since the petitioner was not present on that day the case was therefore, adjourned to 20th of July, 1980. The petitioner stated on that day that he was made to sign the agreement under duress and inducement. His learned counsel submitted that the agreement had no legal value and could not debar him from proceeding further with this case. He quoted 1976 PLC 901 and prayed that the case be argued on that point.
6. I heard the arguments of both the parties on 28th July, 1980. The respondent submitted that the agreement was signed between the parties in presence of Inayatullah and Muhammad Khan and both the witnesses had stated that it was agreed between the parties that the respondents would withdraw their cases from the Court of Additional Deputy Commissioner and the petitioner would withdraw his case from the NIRC. The learned counsel for the petitioner submitted that there cannot be any estoppel against the statute and that the agreement was signed under duress and co pulsing. The petitioner himself stated that he had not agreed to with raw this case from the Commission. The learned Counsel for the petitioner further submitted that in a case reported in 1976 PLC 901 it was held that although the petitioner had received payments in full and final settlement of his claim he could not be estopped from proceeding against the respondent under the law. The learned counsel also referred to section 28 of the Contract Act in this connection. After hearing the arguments of both the parties I decided to proceed further in this case and I heard the arguments of both the parties on 4th September, 1980.
7. The learned counsel for the petitioner submitted that it was an admitted position that no enquiry was held after the charge sheets were served on the petitioner on 27th June 1979. He submitted that for misconduct an enquiry was must. He submitted that a show-cause notice was served on him on 14th July, 1979 and the petitioner had submitted his reply but no enquiry notice was sent and his services were terminated with mala fide intentions and in that letter no reference to any enquiry has been made. He further submitted that copies of the dismissal orders were sent to S.P.
Attock and Manager, Employment Exchange which showed that the respondent had a grudge against the petitioner.
8. The learned counsel for the respondent submitted that the allegations made by the petitioner against the officers could not be proved in the enquiry committee proceedings conducted by XEN, Resident Engineer and Assistant Engineer. He submitted that out of the 4 charges against the officers, three were not proved and on the 4th charge no decision was given by the Enquiry Committee. He further submitted that the enquiry held into the incidence of attack by Rifle proved that he did attack Mr. Anwar Elahi. His services were, therefore, terminated because he was found guilty of the misconduct.
9. The petitioner was suspended from service vide letter No, IIN/ 493/GB-5, dated 18th April, 1979 by the Senior Engineer on account of misconduct for physically attacking Mr. Anwar Elahi SSO-II in Control Room. This office order was further modified vide order dated 26th April, 1979 under which the petitioner was to receive half of his basic pay, full medical allowance during the suspension period. The petitioner was served with two charge sheets by the Senior Engineer vide his letter, dated 27th June, 1979. The petitioner was not served with any charge sheets alongwith the suspension order, dated 18th April, 1979 or 26th April, 1979 or subsequently thereafter.
10. I have thoroughly gone into the enquiry proceedings and I find that the Enquiry Committee had submitted two enquiry reports to the Superintending Engineer GS0 Circle Rawalpindi both on 6th May, 1979. The enquiry report No, 2921-23/C-I, dated 6th May, 1979 concludes that the rift between the SSO-II and the Driver increased after the complaint lodged by the driver against A.E. And SSO-H.
It goes on to say that "had the Senior Engineer taken timely action, on the complaint of the driver instead of routing the application to Superintending Engineer because all the documents were available in his own office, this clash might have not occurred". This enquiry report has been sent to the S.E. With reference to his Letter No, 2460/4/101, dated 23rd April, 1979 which has not been placed on the record. It further indicates that the petitioner was not found guilty and the Senior Engineer could be held responsible for not taking timely action to avert the incidence.
11. The second enquiry report has also been sent to the S.F. GSO Circle Rawalpindi in reference to office order No, 3484/41/101, dated 19th April, 1979. This order has also not been placed on record and it is not, therefore, possible to ascertain as to what precisely the charges were against the petitioner. The enquiry committee in this enquiry report has dealt with 4 allegations levelled by :he petitioner and the committee concluded that the charges 1 to 3 were not correct and that regarding charge No, 4 it is difficult to assess whether the parts were actually replaced or otherwise because the vehicle was off the road and the dismantle register was silent. This enquiry report was also not against the petitioner but in connection with the allegations made by the petitioner and it was concluded that out of the 4 allegations three were not proved by the committee. The S.E. Vide his Letter No, 3325/4/101, dated 6th June, 1979 sent copies of these enquiry reports to the Senior Engineer Burhan for taking disciplinary action against the petitioner under the relevant E & D Rules.
12. On 27th June, 1979 the Senior Engineer served two charge-sheets on the petitioner containing the allegations framed against him on account of misconduct and subversion and directed him to submit his defence reply within 10 days of the issue of the letter. The petitioner submitted his defence reply on 7th July, 1979. On 10th July, 1979 the Senior Engineer issued a show cause notice to the petitioner saying that the defence reply submitted by him was not satisfactory and that the report of the enquiry committee also proved him to be guilty of misconduct and he should therefore show cause why he should not be dismissed from service. The Respondent failed to submit any Inquiry Report in which the petitioner has been found guilty of misconduct. The petitioner submitted a reply to this show-cause notice on 14th July, 1979. On 17th July, 1979 the petitioner received an office order saying that he has been dismissed from service on account of gross misconduct and subversion and that he was also disqualified from future service of WAPDA.
13. The Petitioner was suspended from service vide letter, dated 18th April, 1979. He was not served with any charge sheets and an enquiry committee was constituted which concluded enquiry on two charge-sheets copies of which have not been made available to the Commission. On the result of this enquiry the petitioner was served with two charge-sheets and was asked to submit his reply. He submitted his reply to these charge-sheets and no enquiry was held on the charges framed against him and his services were terminated. The learned counsel for the petitioner has submitted a case-law reported in 1978 PLC 233 in which a similar situation has been discussed.
The enquiry held before service of charge-sheet was illegal and an enquiry was a must after the petitioner was served with charge-sheets, dated 27th June, 1979. I, therefore, hold that the petitioner has been dismissed from service without reasonable excuse' and the order of dismissal is, therefore, illegal and I, therefore, direct that he should be reinstated with full back benefits. This will, however, not debar the Respondents from proceeding against the petitioner in accordance with the law.