Respondent Muhammad Asghar S/o Nazir Ahmed Ex-Lineman filed grievance petition u/S. 46 of IRO, 2002 mentioning the facts that he was appointed since 1995 as Assistant Lineman in the appellant-department and performing his duties when on 31.10.2006 a show-cause notice under Section 5(4) of the Removal from Service (Special Power) Ordinance, 2000 was issued under the allegations that one Muhammad Sarwar S/o Muhammad Suleman submitted a complaint before the Manager (OP) MEPCO Circle Vehari that respondent accepted Rs. 15,000/- as illegal gratification for energizing/getting sanction a Tube-well connection, the allegation was false and fabricated, however, no proper enquiry was conducted and vide order dated 22.11.2006 he was imposed major penalty as removal from the service. Feeling aggrieved the respondent preferred departmental appeal which ended in his dismissal vide order dated 02.04.2008. The respondent sent grievance notice and filed grievance petition before the learned trial Court on the ground that no enquiry was conducted as required under Section 15(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Even otherwise, he was not afforded opportunity to defend himself nor any evidence was recorded; that alleged complainant sworn affidavit in favour of the respondent exonerating him from the allegation of taking illegal gratification from him. Prayed that grievance petition be allowed and impugned dismissal order from the service be set-aside.
2. This grievance petition was resisted by the appellant-department through written reply wherein six preliminary objections were raised on the ground that it was filed beyond the period of limitation, estoppel, no cause of action, mis-joinder and non joinder of necessary parties. On factual side it was agitated that Removal from Service (Special Power) Ordinance, 2000 was applicable; hence learned trial Court had no jurisdiction to entertain and try the grievance petition.
On factual side all the assertions made by the respondent were refuted on the grounds that show- cause notice was issued and proper opportunity to defend was afforded to the respondent, hence in these circumstances the impugned dismissal order was lawful, prayed for dismissal of the grievance petition.
3. Learned trial Court recorded the statement of PW-1 Muhammad Sarwar S/o Muhammad Suleman the alleged complainant who levelled allegation of bribery against the respondent who submitted his affidavit as Ex.P.1. The statement of respondent Muhammad Asghar was recorded as PW-2 who also submitted his affidavit as Ex.P. 1/1 and got exhibited further documents Ex.P.2 to Ex.P.11.
4. On the other hand the appellant department examined Muhammad Akram SDO as RW-1 and learned counsel for the appellant got exhibited documentary evidence Ex.R.1 to Ex.R.28 and closed the evidence.
5. Learned trial Court vide impugned judgment dated 01.02.2012 allowed the grievance petition with the direction for the reinstatement of the respondent since 23.11.2006 along-with 50% back benefits.
Feeling aggrieved the appellant-department has preferred this appeal.
6. Learned counsel for the appellant contends that the impugned judgment passed by the learned trial Court is against the law and facts of the case; that respondent was compulsory retired on 22.11.2006 vide order Ex.P.4; that the appellant filed departmental appeal which was decided but learned trial Court did not consider these aspects and allowed the grievance petition without any lawful justification; that respondent was awarded a major penalty under Removal from Service (Special Powers) Ordinance, 2000, hence jurisdiction of the trial Court was barred and learned Federal Service Tribunal was the proper forum. Prayed that while setting aside the impugned judgment passed by the learned trial Court, the appeal be allowed.
7. On the other hand learned counsel for the respondent has opposed the arguments advanced by the learned counsel for the appellant on the grounds that Mobeen ul Islam (PLD 2006 SC 602) case was decided in July, 2006 while action against the respondent was taken in October, 2006, hence forum had already been decided by the honorable Supreme Court of Pakistan, therefore objection in respect of jurisdiction is without any lawful justification; that no proper enquiry was held against the respondent; that allegation against the respondent that he received an illegal gratification was never brought on records; that show-cause notice was barred by time; that learned trial Court has rightly allowed the grievance petition after correct appraisal of evidence, hence prayed that while upholding the judgment passed by the learned trial Court, appeal be dismissed.
8. I have heard learned counsel for the parties and perused the records of the trial Court minutely.
9. Admittedly, the respondent was a workman and in the light of judgment cited as 2012 PLC 442 titled Water and Power Development Authority through Chairman WAPDA and 2 others vs. Abdul Rehman and another and 2011 SCM R 1451 titled Rashid Ahmed vs. Chief Executive Officer, GEPCO and others, the, appellant department has no statutory rules and the respondent employee being a workman the Removal from Service (Special Power) Ordinance, 2000 is not applicable, hence learned trial Court had the jurisdiction to entertain and try the grievance petition.
10. As far as objection raised by the learned counsel for the appellant that grievance petition was filed beyond the period of limitation is concerned, if the copy of departmental appeal Ex.P.6 is seen it was sent through proper channel which was received in the office on 06.12.2006. The copy of letter dated 14.02.2008 Ex.P.7 written by Manager (OP) MEPCO Circle Vehari to Deputy Manager (OP)
MEPCO Mailsi where a direction was issued for disposal of the appeal shows that it remained pending with the appellant department till then and ultimately it was decided vide order dated 02.04.2008. The grievance notice Ex.P.9 was sent by the respondent on 30.04.2008 and the grievance petition was filed on 21.05.2008, hence it was within prescribed period of 30 days, therefore this objection which has been dealt in by the learned trial Court in Para 9 of the judgment has no force.
11. As far as the enquiry against the respondent is concerned as no proper procedure was adopted as provided under Para 12(3) read with Para 15(4) as annexed under Schedule u/S. 2(g) of Standing Orders, Ordinance, 1968 (amended up to date) applicable in Punjab, therefore whole of the inquiry proceedings whereby alleged show-cause notice u/S. 5(4) of Removal from Service (Special Power) Ordinance, 2000 was issued and subsequent passing of dismissal order from service were illegal, against the law and procedure applicable, hence those were rightly set-aside by the learned trial Court vide impugned judgment dated 01.02.2012, therefore to that extent this appeal merits dismissal.
However, as no proper inquiry was conducted in respect of alleged allegation of taking illegal gratification against the respondent who perhaps subsequently managed to win-over the complainant Muhammad Sarwar PW-1, therefore it requires a proper inquiry. In these circumstances, it is left open with the appellant department if feel appropriate to hold de-novo inquiry and proceed further in accordance with the law. If the appellant department opts to conduct de-novo inquiry it must be concluded within two months positively.