SYED SAEEDUDDIN NASIR, J.--- By this common judgment, we intend to dispose of aforementioned two constitutional petitions; inasmuch as, the points of law involved in both these matters are similar and the facts are also almost identical.
2. Facts of the case, in brief, are that the petitioners are graduate engineers (B.E. Electrical) and have more than 12 years' service at their credit in BS-16. The petitioners were considered and promoted as Graduate Engineers BS-17 in the light of decision of the Board of Directors, in its 83rd meeting held on 29-6-2012 and pursuant to recommendations of promotion board as well as approval of CEO HESCO vide office order dated 11-10-2013. Therefore, it can easily be said that the petitioners were found eligible for promotion and were promoted after fulfilling all legal formalities.
The petitioners were performing their duties as Junior Engineers (BS-17), in HESCO since 11-10-2013 and were receiving their salaries and other benefits as admissible under the rules, however, vide Office Order dated 27-5-2014, the validity of which has been impugned by way of this petition by the petitioners, the promotion order of the petitioners dated 11-10-2013 was cancelled and the petitioners were reverted to the post of LS-1 (BE holders). It is next stated in the petitions that upon investigation, it transpired from the impugned order that the same had been issued in pursuance of the recommendation of an Enquiry Committee, the proceedings of which were initiated and made behind the back of the petitioners and the petitioners were never made a party to any enquiry proceedings, nor they were informed about the allegations being enquired into by the Enquiry Committee. Thereafter, the impugned order was also issued without first providing an opportunity of hearing to the petitioners to defend themselves at the enquiry proceeding. The petitioners were never issued any show-cause notice by the respondents and, according to the petitioners, they were condemned unheard.
3. Messrs Barrister Zamir Ghumro, the learned counsel for the petitioners in Constitutional Petition No,D-1045 of 2014 submitted that for the manifest reason, the impugned order is not sustainable under the law and has been issued in sheer defiance of principle of natural justice and in violation of settled principles of law. The petitioners are shocked and stunned by issuance of the impugned order dated 27-5-2014, whereby the promotions made in favor of the petitioners have been withdrawn. They further submitted that the impugned order does not mention any reason whatsoever for taking such an action against the petitioners; the impugned order has been issued in hast and suffers from serious illegal infirmities; inasmuch as, the settled principle of natural justice has been deliberately disregarded; the impugned order has been issued without considering that the earlier Notification pertaining to the promotions of the petitioners, which had been acted upon as petitioners started receiving their respective remunerations and benefits of BPS-17. Furthermore, the impugned order was issued without considering the vested rights which have been accrued in favor of the petitioners and cannot be destroyed without giving ample opportunity of hearing to the petitioners of being heard. Learned counsel for the petitioners next argued that the impugned order dated 27-5-2014 has been issued in violation of section 21 of the General Clauses Act, 1897 and is ultra vires, illegal and unlawful; that under the doctrine of locus Poenitentiae, as enshrined in section 21 of General Clauses Act, 1897, a decision can be withdrawn but only as long as decisive steps have not been taken and vested rights have not been created. In the present case, decisive steps have been taken, when the petitioners were remunerated in BPS-17 for approximately 8 months and consequently vested rights were created. It was, therefore, not available to the departmental authority to withdraw such a vested right without even issuing a notice to the petitioners. For the sake of convenience section 21 of General Clauses Act, 1897 is reproduced as under:--- "21. Power to make, to include power to add to, amend, vary or rescind orders, rules or bye-laws.
Whereby by any [Central Act] or Regulation, a power to "[issue notification], order, rules, or bye- laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any 12[notifications], orders, rules or bye-laws so issued]."
4. Learned counsel for the petitioners next argued that valuable rights created in favor of the petitioners have been revoked by the impugned action without giving the petitioners an opportunity of hearing; unless excluded by law, the rules of natural justice require that an order passed by a competent authority conferring rights on third party cannot be recalled without serving a show-cause notice, granting hearing and giving valid grounds for the decision taken, otherwise, not only would vested rights be subject to whim and fancies but the sanctity and force of the order of the competent authority would also vitiate; section 21 of the General Clauses Act, 1897 postulates that an authority which passes an order is competent to vary, rescind or cancel the order passed by the authority but such power is not absolutely as the same is subject to certain limitations. When the order sought to be varied or cancel is communicated to other party, a valuable right accrues to the party and the issuing authority becomes functus officio to vary, rescind and/or cancel its earlier order. Learned counsel further argued that no adverse order can be passed against a person without affording the other person a chance of hearing. In the present case, the impugned order not only violates the principle of natural justice, but is also in contravention of Articles 4, 9, 14 and 18 of the :Constitution of Islamic Republic of Pakistan, 1973. It is well-settled law that no one should be condemned-unheard and the impugned order adverse to the interest of the person has been passed behind his back and without providing him an opportunity of hearing. Article 4 of the Constitution provides a due process and mandates that everyone is to be treated in accordance with law. Administrative discretion, which is structurally unfettered and discriminatory cannot be said to have been exercised in accordance with law and, therefore, fails to pass the test of due process under Article .4 of the Constitution. Learned counsel submitted that the reversion is a penalty and the same cannot be imposed except in disciplinary matters that too strictly in accordance with law and after conducting regular enquiry and after making the person party to such enquiry proceedings, which are going to ultimately affect adversely such person; the impugned order has been issued in violation of certain principles of law and natural justice i,e, audi alterm partem, therefore the learned counsel for the petitioners submit that the impugned order dated 27-5-2014 should be declared as ultra vires, illegal, unlawful, without jurisdiction and of no legal effect.
5. Controverting the argument of the learned counsel for the petitioners. Mr. Muhammad Arshad S. Pathan, the learned counsel for respondents Nos.2 and 3 has vehemently argued that the respondent No,2 HESCO being a separate sanctity having no statutory rules and under the Notification of PEPCO, the rules have been borrowed from the WAPDA, therefore, the petitions merit no consideration and are liable to be dismissed on that score alone; the petitions are not maintainable, as the HESCO, which is working under the management of PEPCO as per the orders issued by the Government of Pakistan, Ministry of Water and Power, which has been reproduced by PEPCO in their office orders dated 17-10-2007 and 20-10-2007; the formation of DISCOs, which has been made under the management of PEPCO and having no statutory rules except by office order dated 8-1-2008, issued by PEPCO wherein it has been made clear that the companies will continue to be governed for all intents and purposes by rules and orders enforced in WAPDA and such arrangement shall be valid until such time, as the companies notify their own Service Rules and Regulations. This clearly proves that HESCO having no statutory rules, its actions are not amenable to writ jurisdiction of this Court. In this regard, learned counsel for respondents Nos.2 and 3 has placed his reliance on the case of Mubeen-Ul-Islam reported in PLD 2006 Supreme Court 602 and subsequent decision by the apex Court reported in 2013 SCMR 1707, wherein, according to him, the honourable Supreme Court of Pakistan held that "where condition of service of employee of a statutory body are not regulated by rules/regulations framed under the statutes but only rules or instructions issued for its internal use, in violation thereof cannot normally be issued for writ jurisdiction" and in the present case admittedly HESCO having no statutory rules, as has been admitted by the petitioners in their petitions, makes the petitions not maintainable. He further contends that maintainability in the present case before travelling towards merits is the sole consideration and should be taken up first by this Court; besides, that the petitioners have failed to point out any illegality in the order or the observations of the enquiry, held/conducted in full- fledged manner by the PEPCO authorities through their superior officers and the petitioners have failed to challenge the same, as they did not question the same anywhere, pursuance to which order dated 27-5-2014 has been issued in pure compliance thereof. He further argued that as far as the merits of the petitions is concerned, besides the maintainability of the same, the order in respect of the promotions of LS-I to SDO were illegally got issued/obtained by playing fraud and misrepresentation as there was no post available against promotion quota for UTS (upper technical subordinate) Graduate Engineers and the Board of Directors of HESCO in its 83rd meeting never approved 10 available seats of direct appointment/direct induction quota to 5% promotion quota reserved for UTS Graduate. He next argued that there are number of BE Pass employees inducted LS-1 and for that 5% promotion quota is fixed, which is also reflected in the order dated 11- 10-2013, which has been withdrawn by the authority, as being illegal and unlawful vide order dated 27-5-2014, which was based upon the report of the high level enquiry committee regarding the illegality and irregularity committed by the individual for the reasons best known to them. He also argued that as soon as the promotion orders of the petitioner were issued and came to the knowledge of the Union and general public, a lot of complains were made from all corners and such enquiry was conducted by the PEPCO, and such fact also came to the knowledge of M.D.
PEPCO and being the top man in the hierarchy of PEPCO, PEPCO authorities have taken serious action whereby the then Admn. And HR Director HESCO has initially been suspended and was ordered to report to Head Office PEPCO and disciplinary proceedings are under process against the HESCO officials; the office order dated 11-10-2013, wherein it has been mentioned that the decision of Board of Directors in its 83rd meeting agenda No,3 and on the recommendation of Promotion Board as well as approval of Chief Executive HESCO Hyderabad on 11-10-2013 basing upon which the order dated 11-10-2013 was issued, it is relevant to mention that in the minutes of 83rd meeting, which is annexed with the instant petition at page-43, agenda No,3 is titled as "conversion of 10 posts of Matriculation Quota of Upper Technical Subordinate to Graduate Quota for accommodation of qualified UTS as Junior Engineer in HESCO recommended by HR Committee".
In furtherance of the Above, agenda No,3 (available at page-43), further reveals that the then Admin & HR Director briefed that they had 37 vacant posts of Junior Engineers to fill in these posts the policy says that ratio 70:30 is adopted. The 70 posts required to fill in from direct quota and 30 through promotion. The promotion quota is further distributed as under:---
(i) Upper Technical Subordinate (LS- I/SSO-I)BE 5%
(ii) Upper Technical Subordinate (LS- I/SSO-I)B.Tech 5%
(iii) Upper Technical Subordinate (LS- I/SSO-I)Diploma Holder 12.5%
(iv) Upper Technical Subordinate (LS- I/SSO-I)Matriculation 7.5% Learned counsel for respondents Nos.2 and 3 also argued that perusal of the above clearly reveals that the quota detailed above, is to be observed, but in the present case the then Admn and HR Director failed to explain and place the correct figure. He further argued that even approval of agenda No,3 of 83rd Board of Directors' meeting wherein the conversion of 10 posts of Matriculate quota has been recommended, is to be taken into consideration according to the aforesaid chart, but not even single post was available for promotion in matriculation quota, but the office order dated 11-10-2013, which got issued by the petitioners in collusion with the then Admin and HR Director, was illegal unlawful and without any lawful authority and for the time being cannot be enforced; that the provision of section 21 of General Clauses Act, 1897 cannot be applied in respect of the illegal and void orders, which are by no means sustainable under the law. The allegation regarding withdrawal of the order by the HESCO alone also lost its force; inasmuch as, said order is based upon hi-fi enquiry conducted by the PEPCO Authority and in compliance thereof the Enquiry Committee not only suggested to withdraw the said order but also suggested penal action against the officials involved, as such the allegation levelled against the officials of HESCO presently working has no force. He submitted that the enquiry in the above matter has been conducted on the basis of complaints of the Chairman, Labour Union (CBA) and MD PEPCO,' who came to know about the illegal and unauthorized promotions and the outcome of the enquiry and consequent withdrawal of promotion order has already been acted upon. In support of his contentions, learned counsel for the respondents Nos.2 and 3, relied upon PLD 2009 SC 789, 2010 SCMR 487, 2013 SCMR 1707, 2007 SCMR 1835, 2013 SCMR 375, 2013 PLC (C.S.) 229 and 2011 SCMR 408.
6. In Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 789), the Judges of the Superior Courts, who were appointed as Judges/Chief Justices of the High Courts between 3- 11-2007 to 22-3-2009, were removed from their offices and were declared as unconstitutional, void ab initio and of no legal effect; inasmuch as, Mr. Justice Abdul Hameed Dogar was declared as was never a Constitutional Chief Justice of Pakistan, therefore, appointments of all Judges of the Supreme Court of Pakistan, Chief Justices of the High Courts and Judges of the High Courts, made in consultation with him were also declared as unconstitutional, void ab initio. In this case the Honourable Supreme Court had denied the hearing in the interest of natural justice and observed that the determination of the principle of Audi Alterm Partem could not be pressed into service, which otherwise was not universally recognized due to certain limitations and further observed that issuance of show-cause notices was not a principle of universal limitation.
7. The learned counsel for respondents Nos.2 and 3 has made an effort to equate the facts and circumstances of this case to the case in hand and has submitted that the petitioners did not have a right to be heard before passing of the impugned order and that demotion of the petitioners to their previous rank/grade has not effected their eligibility, integrity, entitlement, qualification and their removal to the previous rank/grade, from which they were promoted did not amount to a stigma. In our view, this judgment was passed in peculiar circumstances and cannot at all be applied to the facts and circumstances of the present case and, therefore lends no support to the contention of learned counsel
8. The next case relied upon by learned counsel for the respondents Nos.2 and 3 is Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed (2013 SCMR 1707). The relevant portion of this judgment is reproduced as under:--- "50(ii). Where conditions of service of employees of a statutory, body are not regulated by Rules/Regulations framed under .The Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant' ."
Therefore, the learned counsel asserts that relationship of the petitioners and the respondents Nos.2 and 3 is one that of 'Master and Servant' and since the rules and instructions issued for the internal use of respondent No,2, any violation thereof cannot be enforced through writ jurisdiction and, therefore, the present constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not maintainable. Interestingly, the same judgment has been relied upon by Mr. Zamir Ghumro, the learned counsel for the petitioners. He while arguing his case on the point of maintainability of instant petition, has referred to the aforesaid judgment, the relevant partition of which is as under:--- "59. For what has been discussed above, the cases of this Court reported as (Pakistan International Airlines Corporation PLD 2010 SC 676, Executive Council Allama Iqbal Open University 2010 SCMR 1484 and Hyderabad Electric. Supply Co. 2010 PSC 1392 Supra), we observe with respect, did not declare or enunciate any principle of law but were rendered in their own peculiar facts and circumstances and may not be treated as precedent on the issue we are seized of, because:---
(i) The issue before this court in Executive Council Allama lqbal Open University supra was only whether the Service Tribunal had jurisdiction to hear the appeal in view of the law laid down in Mubeen-us-Salam's case supra and whether the writ jurisdiction under Article 199 of the Constitution could be invoked in the event of violation of Ordinance, 2000.
(ii) In all the above cases, the point that irrespective of the Rules/Regulations being non-statutory the promulgation of Ordinance, 2000 was a statutory intervention and any violation thereof would be amenable to writ jurisdiction was not considered. In Hyderabad Electric Supply Co. 2010 PSC 1392 Supra, there was no allegation that there was any violation of any provision of the Ordinance, 2000 and enforcement of Service Rules was sought which were found to be non-statutory.
(iii) Neither the mandate of Articles 4 and 10A of the Constitution nor the law laid down in Civil Aviation Authority through Director-General v. Javed Ahmed (2009 SCMR 956) and Azizullah Memon v Province of Sindh (2007 SCMR 229) was considered in those cases."
9. The next case relied upon by learned counsel for the respondents Nos.2 and 3 is Executive District Officer (Education) v. Muhammad Younas (2007 SCMR 1835) wherein it was held that "Principle of locus poenitentiae would not be attracted to an order of appointment secured by fraud and misrepresentation." This case-law has been relied upon by learned counsel for the respondents Nos.2 and 3 in the backdrop of his arguments that the promotion orders of the petitioners were obtained by playing fraud and misrepresentation. This case also does not lie support to the arguments of learned counsel for respondents Nos.2 and 3; inasmuch as it cannot be unilaterally decided by the respondents Nos.2 and 3 as to whether or not any fraud or misrepresentation was played by the petitioners for their promotions without affording an opportunity of being heard. The factum of fraud and misrepresentation can only be established after holding a free and fair enquiry, to which the present petitioners should have been a party and should have been allowed to defend themselves under due process of law, which admittedly has not been done in the present, therefore, the case-law cited by learned counsel for respondents Nos.2 and 3 is not relevant.
10. The next case relied upon by learned counsel for the respondents Nos.2 and 3 is Muhammad Nadeem Arif v. Inspector-General of Police (2011 SCMR 408), wherein also it was held that award of benefit to a person in violation of law could not attract the principle of locus poenitentiae and the departmental rules, which were followed by the Department and which were in conflict to the constitution. Such rules should be ignored and should not remain operative.
11. The next case relied upon by learned counsel for the respondents Nos.2 and 3 is Pakistan Steel v.
Muhammad Aslam Chaudhry 2013 SCMR 375), wherein the Honourable Supreme Court granted leave to appeal to consider the question whether an employee of an Corporation like Pakistan Steel Mills, who was proceeded against under Removal from Service (Special Powers) Ordinance, 2000, would have no remedy to challenge such an order.
12. Mr. Zamir Ghumro, learned counsel for the petitioners in rebuttal has drawn attention of the Court to an office order dated 8-1-2008, which states as under:--- "It is notified that the services of all employees working in the companies will continue to be governed for all intents and purposes by the Rules and Orders in force in WAPDA. This arrangement shall be valid until such time companies notify their own Service Rules and Regulations.
Any amendment in WAPDA Rules/Instructions w,e,f, 20-10-2007 will accordingly be adopted after endorsement/ approval of M.D. PEPCO.
This issues with the approval of Managing Director PEPCO. "
13. The learned counsel for the petitioners submits that in view of this Office Order the petitioners should have been dealt with in accordance with the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978. Rule 5 of which contemplates the enquiry procedure and Rule 6 contemplates as to how the Enquiry Committee or Enquiry Officer is to be appointed. He vehemently argued that in view of the arguments advanced by him hereinabove and the case- law, the petition is maintainable and the impugned order is liable to be set aside. The learned counsel for the petitioners further relied upon the following case-law:---
(1) Anisa Rehman v. PIAC (1994 SCMR 2232),
(2) Pakistan International Airlines (PIAC) v. Nasir Jamal Malik (2001 SCMR 934)
(3) Federation of Pakistan v. Noor Jamal (2004 SCMR 294)
(4) Federation of Pakistan v. Abdul Basit (2012 SCMR 1229),
(5) Mansab Ali v. Amir (PLD 1971 Supreme Court 124),
(6) Muhammad Dawood and others v. Federation of Pakistan and others (2007 PLC (C.S.) 1046),
(7) Mumtaz Hussain Bhutta v. Government of Pakistan (2014 PLC (C.S.) 229).
(8) Tahir Abbas v. FESCO (2011 PLC (C.S.) 354) and
(9) Deedar Hussain Jakhrani and others v. Federation of Pakistan through Secretary Establishment and others (2011 PLC (C.S.) 203).
In the aforesaid case-law, it is held that the employer who itself framed Rules as well as Regulations for its domestic purpose was bound to strictly follow/adhere to the same. Deviation from such Rules and Regulations is bound to violate the principle of natural justice enshrined in the maxim "audi alteram partem" i,e, no one is to be condemned unheard and in such a circumstance the aggrieved employees of the statutory corporation can maintain writ under Article 199 of the Constitution.
14. Mr. Jawaid I. Bukhari, learned counsel for the respondent No,1 PEPCO has briefly argued and has mainly adopted the arguments of Mr. Muhammad Arshad S. Pathan, learned counsel for the respondents Nos.2 and 3 on the points of maintainability of the petitions and locus poenitentiae, argued that award of benefit of locus poenitentiae to a person without legal entitlement is not avoidable. To substantiate his arguments on such point, he relied upon 2001 SCMR 934.
15. Turning now to the petition bearing C.P.No,D-1139 of 2014. Mr. Shahab Usto, the learned counsel for the petitioners, inter alia, impugns the validity of the Office Order dated 30-5-2014, issued by respondent No,4, the C.E.O. (HESCO), through which the promotion orders of the petitioners, who were promoted from the post of Junior Engineers to Senior Engineers, were recalled, is illegal, void ab-initio. He submits that in pursuance of the recommendation of the Promotion Board of the HESCO, twenty four officers, including some of the petitioners, were promoted from junior engineers (BPS-17) to senior engineers (BPS-18), vide office order dated 9-12-2013 and 11-12-2013 The petitioners' promotions were made on the recommendations of the Promotion Board duly and lawfully constituted by the Board of Directors of the HESCO. The petitioners were the senior-most or most qualified engineers and as is reflected from their seniority list they had completed their required years of service and done the mandatory course; therefore, they were eligible and fit for promotion from junior engineers to senior engineers in accordance with the rule and order of their seniority. The learned counsel further submits that since the HESCO and other Power Companies have not framed their separate rules and regulations, therefore, pursuant to an Office Order dated 8-1-2005, the service of all employees working in the HESCO and other public sector power companies are governed for all intents and purposes by the Rules and Orders in force by WAPDA.
Hence, the Pakistan WAPDA Service of Electrical Engineers Rules, 1965, are applicable in the instant case of the promotions of the petitioners in HESCO and all the qualifications that are laid down by the Rules, 1965 were duly met by the petitioners in order to be promoted to BPS-18. He further argued that the respondent HESCO is a limited company registered under Companies Ordinance, 1984 and by virtue of Memorandum and Articles of Association, it has a separate entity and is competent to run its management and administration independently and decide the cases of promotion in respect of its employees through a duly appointed Selection Board. He next argued that the guidelines for the Promotion/Selection Board, issued by Pakistan Electric Power Company (Pvt.) Limited (PEPCO) clearly and explicitly declare that the Selection Board shall consider the cases of eligible officers of BS-17 and above, The relevant portion of the same is reproduced as under:- "1. General: The Selection Board shall consider the cases of eligible officers of BS-17 and above in order of seniority and shall either recommend a case for promotion to the next higher grade or for suppression or deferment. While recommendation for special assignment/field, the principle of right man for the right job will be kept in view, because this principle directly contributes to increasing the efficiency, productivity and revenue earning for the department as well as job satisfaction for the individual."
He further argued that while deciding the cases of the petitioners for promotion the Selection/Promotion Board in HESCO not only took into account the above mentioned PEPCO's 'guideline' but also deliberated on the 'Working Paper' that contained all the details of the eligible candidates. Thus, the Board finally cleared the cases of the petitioners after satisfying itself that the petitioners matched all the required qualifications as mentioned in the Rules, 1965 and the Guidelines. After being promoted and assigned with new duties the petitioners have rendered their services for more than 8 months to the utmost satisfaction of their superiors.
16. In Karachi Development Authority v. Wali Ahmed Khan (1991 SCMR 2434), the honourable Supreme Court did not interfere in the judgment of the High Court under Article 199 of the Constitution whereby the petitions were allowed because the action of the authority was tainted with malice notwithstanding the non-statutory nature of Regulations under which the employee was being governed.
In Mrs. Anisa Rehman v. PIAC and another (1994 SCMR 2232), the scope of judicial review was further enlarged despite Regulations being non-statutory and violation of principles of natural justice was held to be a valid ground to invoke writ jurisdiction under Article 199 of the Constitution.
In the said case, the employee was aggrieved of an order of demotion passed without hearing her and the said right of hearing was not being claimed by her through statutory provision. This Court, nevertheless, held that the principles of natural justice were part of law and the order of the authority was struck down.
In Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman (1995 SCMR 650), the Court held that the Corporation was bound by its Regulations though those may be non- statutory and struck down the order of the authority which was violative of those Regulations. It also laid down parameters of exercise of this discretionary jurisdiction.
In House Building Finance Corporation through Managing Director, Karachi and another v.
Inayatullah Shaikh (1999 SCMR 311), the honourable Supreme Court while reiterating the earlier view that the Corporation may terminate the service of an employee under Regulation 11 simpliciter qualified it with a proviso: provided it acts in good faith and in the interest of Corporation. Though the principle of 'Master and Servant', was reaffirmed, yet the Court did not interfere with the judgment of the High Court whereby the writ petition had been allowed and the employee of the House Building Finance Corporation was reinstated since the order of the competent authority terminating the service of the employee had not been placed before the High Court.
In Pakistan International Airlines Corporation (PIAC) v. Nasir Jamal Malik (2001 SCMR 934), the PIA had challenged the judgment of the Service Tribunal wherein it had allowed respondents- employees' appeal and directed their reinstatement as their services had been terminated without assigning any reason but it was left to the organization to proceed against them in accordance with law. The honourable Supreme Court upheld the judgment of the Service Tribunal and reiterated the law laid down in Mrs. Anisa Rehman. v. PIAC (1994 SCMR 2232) to the effect that the employees of PIAC were governed by the principle of "Master and Servant" but put a rider that "the employer who itself has framed Rules as well as the Regulations for its domestic purposes is bound to strictly follow/adhere them because deviation therefrom is bound to violate settled principles of justice including the one enshrined in the maxim Audi alteram partem i,e, no one is to be condemned unheard."
17. Mr. Shahab Usto, learned counsel for the petitioners, submits that none of the petitioners/promotees has been accused of making any effort to, or using any influence on, the Board to get. Promotion. The promotions have been made by the competent authority, that is the Board. Of Directors, on the recommendation of the Selection Board and on its own accord and in the normal course of management in order to meet the manpower requirement of senior engineers and more importantly to run the company more efficiently and productively. Thereafter, the petitioners have rendered their services for more than 08 months to the utmost satisfaction of their superiors and met all the given targets and achieved the desired revenue/distribution/operational results which were assigned to them in their individual, capacity/posting; the same Members/ Directors of the Board who recommended/approved the petitioners' promotions have been promoted/rewarded for their performance, but on the other hand, the petitioners' promotions have been nullified by one stroke of pen as void ab initio without giving the petitioners any opportunity of being heard and without showing any plausible cause of fault of the petitioners to make them suffer with major penalty or reversion from their present posts to the, lower grade. The learned counsel further argues that although the petitioners' promotions have been arbitrarily reverted, however, the petitioners have no knowledge or information/intimation of the reason/cause that led to the infliction of a major penalty upon them without giving a opportunity of hearing, which is a violation of natural justice, law and constitution and the HESCO has revoked the promotions of the petitioners under undue pressure in spite of the fact that it is an independent entity and its management and administration should be run by the Board of Directors as per the Article 55 of its Memorandum and Articles of Association; inasmuch as, HESCO is registered under section 32 of the Companies Ordinance, 1984, which clearly mentions that the management powers rest with the Board of Directors of HESCO. According to learned counsel, the competent authority that could have the actual understanding and information as to the company's manpower requirements and available vacancies was the Board of Directors of HESCO. The petitioners got to know about the so call enquiry being conducted against them only when they received the cancellation order showing a reference of the so-called enquiry proceedings before the enquiry committee having been conducted by the General Manager, Monitoring and Surveillance (GM&S). The learned counsel has vehemently argued that the so called Enquiry Committee has no legal authority nor any right to undo/over-rule the promotions of the petitioners made by the competent Authority .i,e, the Board of Directors HESCO in accordance with the rules and procedures: the so call Enquiry Committee was constituted by the PEPCO MD, and that such enquiry is corum non judice against the norms of natural justice and fairness.
Despite the fact that the petitioners/promotees are the direct affectees of the so call enquiry, yet they have not been made party to such enquiry proceedings, nor were they accorded any opportunity of being heard before inflicted with major penalty or reversion. He placed his reliance on Office Order dated 8-1-2008, which has been reproduced as under:- "It is notified that the services of all employees working in the companies will continue to be governed for all intents and purposes by the Rules and Orders in force in WAPDA. This arrangement shall be valid until such time companies notify their own Service Rules and Regulations.
Any amendment in WAPDA Rules/Instructions w,e,f, 20-102007 will accordingly be adopted after endorsement/approval of M.D. PEPCO.
This issues with the approval of Managing Director PEPCO."
Above office order categorically states that "It is notified that the services of all employees working in the companies will continue to be governed for all intents and puroses by the Rules and Orders in force in WAPDA. This arrangement shall be valid until such time companies notify their own Service Rules and Regulations. Any amendment in WAPDA Rule/Instructions w,e,f, 20-10-2007 will accordingly be adopted after endorsement/approval of MD, PEPCO." In this regard, learned counsel for the petitioners has referred to Article 43 of the Memorandum of Associations of HESCO. Which reads as under:- "43. General Power.--- To carry on any other businesses or activities which the Directors consider capable of being carried on directly or indirectly for the benefit of the Company and to do all such other things as, may be deemed incidental or conducive to the attainment of the above objects or any of them."
Learned counsel for the petitioners has further referred to Rules 5 and 6 of WAPDA Employees (E&D)
Rules, 1978, which are reproduced herein below for the sake of convenience:---
5. Inquiry Procedure.---The following procedure shall be observed when a WAPDA employee is proceeded against under these rules:---
(i) In case where a WAPDA employee is accused of subversion, corruption or misconduct, the competent authority may require him to proceed on leave or, suspend him, provided that any continuation of such leave or suspension shall require approval of the next higher authority after every three months.
(ii) While under suspension, as aforesaid, the employee shall inform the appointing authority about his movements and shall not leave his station/place of posting without permission in writing of the appointing authority.
(iii) The competent authority shall decide whether in the light of facts of the case or the interest of justice an inquiry should be conducted through an Inquiry Officer, or Inquiry Committee. If he so decides, the procedure indicated in ,Rule 6 shall apply.
(iv) If the competent authority decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall---
(a) by order, in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) give him an opportunity to submit a written explanation against the action proposed to be taken, within a period of not more than 14 days from the day the explanation letter has been communicated to him, and will also require the, accused to state at the same time in his written explanation whether he desires to be heard in person: Provided that no such opportunity shall be given where the competent authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
(a) On receipt of the report of Enquiry Officer or Enquiry Committee, the competent authority shall consider the same and if on such consideration he is of the tentative opinion that a penalty be imposed upon the accused he shall provisionally determine penalty to be imposed, and shall so inform the accused, supply him a copy of the report, and call upon him to show cause within a reasonable time not less than seven days and not more than fourteen days from the day the notice has been served on him, why the penalty proposed be not imposed. The competent authority shall take into consideration the cause shown by the accused, hear him in person, and determine whether charge has been proved and then notwithstanding anything contrary in any other rule, office order or instructions shall pass such orders as he may deem proper.
(b) The above procedure of determining provisionally penalty to be imposed, asking the accused to show cause, and affording him an opportunity of personal hearing shall also apply to cases where the accused was issued Explanation Letter under rule 5(iv) and the explanation submitted by him was found unsatisfactory.
(6) Procedure to be observed when an Inquiry Officer or an Inquiry Committee is to be appointed.?--- Where an Inquiry Officer or an Inquiry Committee is to be appointed, the competent authority shall:---
(1) Frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration.
(2) Require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day of charge has been communicated to him, to put in a written defence and to state at the same time whether he desires to be heard in person.
(3) The Inquiry Officer or the Committee, as the case may be shall inquire into the charge/or circumstances and may examine such oral or documentary evidence in support of the charge/plea or in defence of the accused as may be considered necessary, and the accused shall be entitled to cross-examine the witness evidence against him.
(4) The Inquiry Officer or the Committee, as the case may be shall hear the case from day-to-day and no adjournment shall be given except for reasons to be recorded in writing. However, every adjournment with reasons therefore shall be reported forthwith to the competent authority.
Normally no adjournment shall be for more than a week.
(5) Where the Inquiry Officer or the Committee, as the case may be, is satisfied that the accused is hampering, or attempting to hamper the progress of the inquiry, he or it shall administer a warning and if thereafter he or it is satisfied that the accused in acting in disregard of the warning, he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as he or it thinks best suited to do substantial justice.
(6) The Inquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the competent authority submit his or its findings and the grounds thereof to the competent authority.
Learned counsel submitted that the aforementioned procedure ought to have been adopted by the respondents Nos.2 and 3 in respect of their employees while reverting them from their senior positions to junior positions in view of the aforementioned Office Order dated 8-1-2008. In order to substantiate his arguments, learned counsel for the petitioners placed his reliance on the following cases:--- 1 Pakistan Defence Officers' Housing Authority v. Jawaid Ahmed (2013 SCMR 1707).
2. Muhammad Asif v. Federation of Pakistan (2013 SCMR 1205).
3. Anisa Rehman v. PIAC (1994 SCMR 2232)
4. Zahir Jan v Province (2003 SCMR 681).
5. Federation Pakistan v. Noor Jamal (2004 SCMR 294)
6. Pakistan International Airlines Corporation v. Shaista Naheed (2004 SCMR 316).
7. Federation of Pakistan v. Abdul Basit (2012 SCMR 1229).
8. Pakistan International Airlines (PIAC) v. Nasir Jamal Malid (2001 SCMR 934).
9. Mumtaz. Hussain Bhutta v. Government of Pakistan (2014 PLC (C.S.) 229).
10. Munsif Shah v. PEPCO (2013 PLC (C.S) 223).
11. Habibullah Energy Limited v. WAPDA (PLD 2014 Supreme Court 47).
12. Ghazanfar Ali Khan v. F.O.P. (PLD 2014 Lahore 375).
13. Abdullah Ismail v. Sindh Industrial Trading Estate Ltd. (1997 CLC 783).
14. Mansab Ali v. Amir (PLD 1971 Supreme Court 124).
15. Pakistan v. Muhammad Himayatullah (PLD 969 Supreme Court 407).
18. We have heard the learned counsel for the petitioners as well as the respondents Nos.1, 2 and 3, perused the case-law cited by the learned counsel and material documents available on record, and come to the conclusion that instant constitutional Petitions are maintainable under Article 199 of the Constitution of Pakistan, 1973 for the reasons, inter alia, that the petitioners have been condemned unheard and there is no other alternate, efficacious and speedy remedy available to them to enforce their rights.
19. Upon being confronted by the Court a question as to whether or not did HESCO invite the present petitioners to participate in the enquiry proceedings, as a consequence of which the petitioners were demoted from their cadres, and as to whether or not the respondents Nos.2 and 3 HESCO issued any show-cause notice to the petitioners in both the petitions to show cause as to why an action of reversion should not be taken against them reverting them from their present cadre to the inferior one. Mr. Muhammad Arshad Pathan, the learned counsel for the respondents Nos.2 and 3 candidly admitted that indeed neither the petitioners were made party to the enquiry proceedings before the Enquiry Committee nor were given an opportunity to say something in their defence or an opportunity to be heard before the impugned office orders were issued against the petitioners.
20. When the learned counsel for the respondents Nos.2 and 3 was asked about powers and functions of the Competent Authority, which ordered the enquiry proceedings and formed Enquiry Committee, and to justify the act and powers of the so-called Competent Authority to initiate the enquiry proceedings in question, the learned counsel miserably failed to justify the veracity of such order made by some government official to hold such enquiry proceedings on the basis of some so-called complaints the origin of which is still obscure till today. In the light of this, it can very easily be said that the enquiry proceedings were not ordered to be initiated, by any Competent Authority under any valid Rule or Regulation of any Government Department for the time being enforced, therefore, we hold that the enquiry proceedings, conducted by the Enquiry Committee, were coram non-judice, without Jurisdiction, mala fide, void ab initio, tainted with malice and of no legal effect. Moreover, the affected persons were also not made a party to these enquiry proceedings, which took place surreptitiously in a clandestine manner behind the back of the petitioners and without giving them show-cause notices, the petitioners were served with the impugned orders, without affording an opportunity to the petitioners of being heard. The contentions of the learned counsel for the respondents Nos.2 and 3 that since HESCO does not have its own statutory Rules and the "Removal From Service (Special Powers) Ordinance, 2000 has been repealed, the petitioners cannot maintain a writ/constitutional petition under Article 199 of the Constitution of Pakistan, 1973; inasmuch as the Office Order dated 8-1-2008, whereby PEPCO stated that the Employees of all Power Companies shall be governed by the WAPDA Rules (supra) is only in order to manage its internal operations and that same are not Statutory Rules, has no force at all. It is about time that the status of the aforesaid Office Order is determined in order to provide some legal course to the employees of the Corporate Bodies, which are performing functions in connection with the Federation or a Province. This is a very strange situation, so to speak that whenever a question is raised with regard to the aforesaid adoption of WAPDA. Rules, before the Court, HESCO takes a somersault and says that since the same are non-statutory Rules, not framed by HESCO, but merely adopted by it, therefore, the employees of HESCO cannot take benefit thereof and cannot be dealt with under the said Rules. In our view this is quite an unfair exercise being undertaken by HESCO, whereby it wants to keep all its employees in a continued servitude. HESCO cannot approbate and reprobate at the same time. Even otherwise, we see no reason for such a dereliction of the said .WAPDA Rules by HESCO.
21. In the latest judgment of the honourable Supreme Court reported in 2013 SCMR 1707, which has been relied upon by both the parties in different contexts, clearly addresses to the situation like one in hand. At page 1748 the honourable Supreme Court held that where in the case of employees of statutory corporate bodies, which do not have Statutory Rules, statutory intervention in the form of RSO "Removal from Service (Special Powers) Ordinance, 2000 should not have been overlooked in the case of Hyderabad Electric Supply Company (2010 PSC 1392) (Supra). The said judgment of the honourable Supreme Court further states that even otherwise the benefit of Articles 4 and 10-A of the Constitution of Pakistan, 1973 ought to have been given by the honourable Supreme Court in those cases. The Honourable Supreme Court further held in the aforesaid case-law that in such circumstances and or prevailing with instant petitions the petitioners can invoke constitutional jurisdiction under Article 199 of the Constitution to seek enforcement of their rights guaranteed under Article 4 of the Constitution, which, inter alia, mandates that every citizen shall be dealt with in accordance with law and Article 10-A of the Constitution that for the determination of civil rights and obligations or any criminal charge against him a person shall be entitled to a fair trial and due process of law . "
22. In view of the facts and circumstances narrated hereinabove and the relevant case-law cited by the learned counsel for the parties, in both the aforesaid petitions, we are of the considered view that the petitioners, despite the fact that they are not governed by any Statutory Rules, and that statutory intervention of Removal from Service (Special Powers) Ordinance, 2000 is also not there due to repeal of the same, nevertheless, the petitioners are still entitled to invoke jurisdiction of this Court under Article 199 of the Constitution and maintain a writ petition in order to enforce their fundamental rights under Articles 4 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973. The enquiry proceedings were initiated at the behest of some obscure and illegal source, which was bereft of any legal or moral authority and was arbitrary capricious void ab initio, mala fide, tainted with malice, coram non judice and of no legal effect, and therefore, are liable to be set aside. Consequently, the impugned notices dated 27-5-2014 in C.P. No,D-1045 of 2014 and 30-5- 2014 in C.P. No,D-1139 of 2014 are also set aside being void, ab initio and of no legal effect.
23. Since we have heard the learned counsel for the parties at great length, therefore, we convert the aforesaid petitions into regular hearing and allow the same as prayed with this common judgment as a result of which the petitioners shall be restored back to their positions to which they were posted prior to issuing of the impugned office orders. However, if the respondents want to take any action against the present petitions, they can do so strictly according to law and after giving due opportunity to the petitioners of being heard. In this regard the respondents Nos.1 and 2 can employ WAPDA Rules as a mechanism to initiate enquiry and to issue show-cause notice, inasmuch as, the said Rules provide comprehensive procedures for both sides. Parties to bear their own costs.