' HAFIZ ABDUR REHMAN ANSARI (CHAIRMAN).--- The appeal is directed against judgment/order dated 11-2-2011 passed by learned Judge of Punjab Labour Court No,9, Multan, whereby the learned judge was pleased to accept the grievance petition of respondent No,1 Abdul Rehman and set aside the departmental disciplinary order dated 14-7-2005 and 13-8-2005 and also set aside the original order dated 26-9-2000 of compulsory retirement of respondent No,
1. The learned judge declared the compulsory retirement order as illegal and unlawful and directed the appellant to allow benefits of intervening period w,e,f, 16-9-2000 through his compulsory retirement dated 24- 8-2004.
2. Precise brief facts of the instant case are that Abdul Rehman respondent No,1 had filed a grievance petition under section 46 of the Industrial Relations Ordinance, 2002 before the Punjab Labour Court No,9, Multan contending that an Enquiry Committee comprising Malik Imtiaz Ahmad Deputy Commercial Manager D.G. Khan Circle convener, Ch. Muhammad Ashraf Deputy Director Accounts Office of Chief Accountant MEPCO Multan, Muhammad Shahbaz Assistant Audit Officer MEPCO Multan and Major Farhat Division Commandant, Muzaffargarh constituted for investigation and fixing the responsibility of Cash embezzlement under head of RCO Fee deposited into the Bank of Punjab, Muzaffargarh vide its report held the respondent petitioner Abdul Rehman working as Account Assistant along with other officers / officials working in R.O. Office, Muzaffargarh negligent in the performance of their duties and involved in the embezzlement of cash. The involvement of the respondent petitioner was made on the ground that he had confessed his crime before Rao Zilladar Manager Corporate Accounting MEPCO and Sabir Hussain Revenue Officer on 26-11-1999 and in his reply to Question No,9 before the Enquiry Committee stating that he had not done the said fault deliberately and that Mr. Saeed Accountant as well as Alim-ud-Din UDC were his accomplices in the commission of offence. In view of aforementioned report submitted by the enquiry Committee, the petitioner was proceeded against under the Pakistan WAPDA Employees Efficiency and Discipline Rules, 1978 and he was compulsorily retired from service with immediate effect vide office order dated 26-9-2000 made by the Chief Executive MEPCO, Multan. The petitioner challenged the said order in Service Appeal No,124/(L)CS of 2001 before the learned Federal Service Tribunal, Lahore Bench, which was accepted and the said order was set aside with liberty to the respondents to proceed against the petitioner under the Provisions of Removal from Service (Special Powers) Ordinance, 2000 if so desired vide judgment dated 21-7-2004. In pursuance of the aforementioned judgment passed by the learned FST, Lahore Bench the petitioner was reinstated in his service provisionally vide order dated 24-8-2004 and show-cause notice No,1341 dated 8-7-2004 was issued to the petitioner by the Executive Engineer MEPCO Division Muzaffargarh along with the statement of allegations comprising the same allegations as mentioned above under the Removal from Service (Special Powers) Ordinance, 2000. The petitioner denied the allegations levelled against him. However his written reply was not found satisfactory and penalty, "down to initial pay scale for the period of two years" was imposed upon him by Deputy Manager Operation. MAPCO Division, Muzaffargarh vide office order dated 14-7- 2005, which was assailed by the petitioner in appeal. His departmental appeal was partly accepted and aforementioned penalty was reduced as down to initial pay scale for a period of one year by the Manager Operation MEPCO Circle, ' Muzaffargarh vide office order dated 13-8-2005. The petitioner assailed both the aforementioned orders dated 14-7-2005 and 13-8-2005 in Service Appeal No,565(L)CS of 2005 before the learned FST Lahore Bench, which abated in view of the judgment passed by the Hon'ble Supreme Court of Pakistan dated 27-6-2006. Thereafter the petitioner sent grievance to the respondents on 21-9- 2006, which was not responded and ultimately he filed the instant grievance petition on 23-9-2006 praying for setting-aside both the aforementioned impugned orders dated 14-7-2005 and 13-8- 2005, issuance of direction to the respondents to consider the intervening period i,e, from the date of his compulsory retirement till his reinstatement as per decision of learned FST as on duty with back benefits including grant of annual increments promotion etc.
3. The MEPCO department filed the written statement contending that the petitioner has not come to this court with clean hands, concealed the material facts from the court. Earlier the petitioner filed service appeal before the learned FST, which was accepted and penalty order for the compulsory retirement was set-aside on 21-7-2004. In compliance of that judgment, Abdul Rehman was reinstated in his service and fresh proceedings were initiated against him according to the judgment passed by learned FST.
4. Abdul Rehman respondent No,1 entered in the witness-box and tendered documents Exh.P-1 to Exh.P-15 in the support of his petition before labour court. Contrarily Rana Shafqat Nadeem Revenue Officer MEPCO Alipur Division appeared as RW-1 and documents Exh.R-1 to Exh.R-12 were tendered in the support of the contentions of the appellants.
5. Learned counsel for the appellant assailed the impugned judgment of the grounds that the grievance petition filed by respondent No,1 was hopelessly time barred and liable to be dismissed on this sole point, learned counsel for the appellant further submitted that the grievance petition was bad for misjoinder and non-joinder of parties as the MEPCO was not impleaded through the Chief Executive MEPCO. Learned counsel submitted that penal / disciplinary action was taken against respondent No,1 in accordance With law and the allegation levelled against respondent No,1 had been proved through the enquiry / investigation and respondent No,1 was afforded full and fair opportunity of personal hearing but the respondent could not prove himself innocent. He further submitted that respondent did not served the grievance notice to the employer prior to the filing the grievance petition. He further submitted that learned judge did not apply judicial mind to the facts of the case, while deciding the case and that the impugned order dated 11-2-2011 passed by the learned Judge Labour Court is based on surmises and conjectures.
6. Learned counsel for the respondent contended that no regular enquiry was held against the respondent and officers who made the enquiry was not produced as witnesses and there is nothing on record to what amount the respondent caused the loss to the department.
7. I have heard the learned counsel for both the parties at length and minutely perused the record of the case.
8. After issuance of show cause notice dated 8-7-2004 to Abdul Rehman, Deputy Manager Operation, MEPCO Division Muzaffargarh sought report of Assistant Manager (CS) MEPCO, Muzaffargarh about the detail of cash embezzlement committed by the respondent No,1 through letter memo. No,1977-78 dated 10-12-2004 Exh.P-6 and letter No,1991-92 dated 23-12-2004 Exh.P-7.
In reply to the said letter Assistant Manager (CS) MEPCO, Muzaffargarh sent his report vide letter memo. No,3190 dated 6-1-2005 according to which Mr. Abdul Rehman LDC, respondent No,1 was not involved in the commission of embezzlement and recommendation for his exoneration from the charges/allegations levelled against him was made by the Assistant Manager (CS) MEPCO, Muzaffargarh.
9. The recommendation was made in favour of the respondent in the enquiry report and nothing is on record how much embezzlement was made by the respondent. Mere assertion on the part of MEPCO officials to allege that the employee- made the embezzlement of huge amount is not sufficient unless the same is proved and produced through some substantial evidence in the instant case MEPCO badly failed to prove the allegation of embezzlement through substantial evidence of the appellant. Further MEPCO/WAPDA has no statutory rules to deal the service disciplinary matters of its employees, nor could proceedings be initiated against the petitioner under the Removal from Service (Special Powers) Ordinance, 2000 beside the issuance of direction by the learned member of Federal Service Tribunal and its judgment dated 21-7-2004. It is held in Mobeen-us-Salam case that if the department has no statutory rules for its employees Federal Service Tribunal has no jurisdiction. Admittedly it is proved from the record that no regular enquiry was held against him and no opportunity of personal hearing was afforded to the respondent. As such he was condemned unheard, which is against the principle of natural justice and audi alteram partem. The whole case of the department revolves around the statement of Rao Zilladar Manager Corporate Accounting and Sabir. Hussain Revenue Officer in whose presence the petitioner allegedly confessed the commission of offence on 26-11-1999 who was not summoned by the competent authority before imposing the penalty upon him on the basis of show cause notice dated 8-7-2004. Even MEPCO failed to produce Rao Zilladar Khan Manager Corporate Accounting and Sabir Hussain Revenue Officer before the court. As such non-appearance of these two important witnesses before the court in the witness box allegedly before them Abdul Rehman had made confession smashed the case of the MEPCO of allegation of embezzlement.
10. In the light of above discussion the appeal of MEPCO is dismissed and the judgment passed by Presiding Officer, Punjab Labour Court No,9, Multan is upheld. No order as to costs.