MIRZA VIOAS RAUF, J. The petitioner, Muhammad Arshad Rafique, by way of instant petition assails the vires of Notification dated 2nd of June, 2014 whereby he was placed under suspension with immediate effect and until further orders.
2. Precisely the facts relevant and necessary for the adjudication of instant petition are that the petitioner initially joined Water and Power Development Authority (i.e. WAPDA) as a civil servant in the year, 1979 as SDO. Later on he was promoted as XEN in 1993. In the meanwhile, Cabinet Committee on Privatization approved a strategic plan for restructuring the Power Wing of WAPDA which was subsequently acknowledged by the Economic Coordination Committee and Council of Common Interests as the "Restructuring Policy". By virtue of said policy, functions of WAPDA were bifurcated in two entities and in this way, WAPDA was made responsible for Water and Hydropower Development and an incorporated entity, PEPCO was vested with the responsibility of Thermal Power Generation, Transmission, Distribution and Billing which functions were to be performed through corporatized nine distribution companies termed as "DISCOs", four generation companies "GENCOs" and a National Transmission Dispatch Company "NTDC". In furtherance of the Restructuring Policy, "LESCO" was duly incorporated as a Public Limited Company under the Companies Ordinance, 1984 on 18.02.1998 as one of nine Distribution Companies. Upon incorporation of "LESCO" on 16.01.2003, the petitioner was absorbed in the same against the post of XEN. The petitioner with the efflux of time earned gradual promotions. Initially, he was promoted in BSP-19 by the Competent Authority and resultantly, he became Chief Engineer in the year 2012. The petitioner was ultimately appointed as Acting Chief Executive office of 'LESCO" on 12.07.2013. Finally, the petitioner was placed under suspension vide Notification dated 2nd of June, 2014, hence this petition.
3. Mr. Muhammad Raza Qureshi, Advocate representing the petitioner submitted that impugned notification is not sustainable because such powers can only be exercised by the Board of Directors. He added that neither any reasons have been assigned for placing the petitioner under suspension nor he was afforded any opportunity of hearing in this regard. Learned counsel maintained that impugned notification is without jurisdiction. Learned counsel contended that as per terms and conditions of the employment, the services of the petitioner are to be regulated by the rules in vogue in WAPDA and as per Rule 5 of the Efficiency & Discipline Rules, 1978, the petitioner cannot be placed under suspension for an indefinite period. In support of his contentions, learned counsel placed reliance on Suo Motu Case No. 18 of 2010; in the matter of Violation of Public Procurement Rules, 2004 (PLD 2011 SC 927), Engineer Ghazanfar Ali Khan and others vs. F.O.P. and others (2014 CLD 664), Pakistan Telecommunication Company Limited through General Manager and another vs. Muhammad Zahid and 29 others (2010 SCMR 253) and Muhammad Arshad Kaleem vs. Chairman Town Committee etc. (NLR 1990 Service 96).
4. Conversely, Hafiz Tariq Naseem, Advocate for respondent No.1, while resisting the instant petition submitted that till date no service rules or regulations have been framed by 'LESCO' and though WAPDA Service Rules and Regulations are adopted but the instant petition is not maintainable in absence of statutory Rules. Learned counsel contended that Federal Government is the appointing authority of the petitioner and it has every power to place the petitioner under suspension. Learned counsel emphasized that the petitioner is involved in various criminal cases on the allegation of corruption and under the rules he can be placed under suspension. Learned counsel maintained that suspension is not a penalty and the instant petition is not maintainable.
Relied on Abdul Wahab and others vs. HBL and others (2013 SCMR 1383), Government of N.W.F.P. vs. I.A. Sherwani and another (PLD 1994 SC 72), Ghaffar Ali and others vs. Provincial Police Officer, Khyber Pakhtunkhwa and others (2014 PLC(C.S.) 558) and Muhammad Haroon vs. Water and Power Development Authority (PLD 1978 Lahore 1108).
5. On the other hand, leaned counsel for rest of the respondents, while adopting the arguments of Hafiz Tariq Naseem, Advocate added that the petitioner has already applied for Leave Preparatory to retirement, which is under process. It is also argued that disciplinary proceedings are shortly to start.
6. I have heard learned counsel for the petitioner as well as respondents and also perused the record with their assistance.
7. First of all I would like to deal with the objection of learned counsel for the respondents qua maintainability of instant petition. There is no cavil to the proposition that the constitutional petition is only maintainable on behalf of an employee whose services are to be governed by the statutory rules as is laid down in the case of Abdul Wahab (supra), relied by learned counsel for respondent No.1. It is observed that instant petition was admitted for regular hearing vide order dated 07.03.2016 and at the time of its admission the status of the petitioner as being an employee whose terms and conditions of service are to be regulated by the statutory rules, is not denied by the respondents. Furthermore, clause 4 of offer of employment to the petitioner deals with the Rules relating to service, discipline and other matters, which reads as under:-
4. Rules relating to Service, Discipline and other matters.
4.1. You will be governed by the Company's rules and regulations relating to service, discipline and other matters, after such rules and regulations are notified by the Company. For your information, these rules and regulations will be based on the corresponding rules in force in WAPDA, and the Company will adopt the same to the maximum extent possible after approval of the board of directors of the Company.
4.2 Until such time that the Company notifies its own rules and regulations, you will continue to be governed for all intents and purposes by the rules in force in WAPDA at this time.
It is quite obvious from the above that rule making powers and adoption was bestowed upon the Board of directors of company. In pursuance thereof through office order dated 11.01.2008 Rules and Orders in force in WAPDA were adopted. There is no cavil that corresponding rules which are prevailing in WAPDA i.e. The Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 are statutory in nature, so there is no legal impediment in the way of petitioner to invoke the constitutional jurisdiction of this Court. Guidance in this respect can be sought from Muhammad Tariq Badr and another vs. National Bank of Pakistan and others (2013 SCMR 314), Pakistan Telecommunication Company Limited through General Manager and another vs. Muhammad Zahid and 29 others (2010 SCMR 253) and Engineer Ghazanfar Ali Khan and others vs. F.O.P. and others (2014 CLD 664).
8. Now next comes the status of suspension, the petitioner was placed under suspension vide notification dated 2nd of June, 2014 issued by the Government of Pakistan, Ministry of Water and Power. In this context, the first and foremost question is the authority of Federal Government to place the petitioner under suspension. Record reveals that vary posting of the petitioner as Acting C.E.O. of LESCO was made by the competent authority of Ministry of Water and Power (Development and Entities Wing) by way of notification dated 12th of July, 2013, thus by virtue of section 21of the General Clauses Act, 1897, the Authority appointing the petitioner as C.E.O. LESCO is also equipped with the power to undo the same. Furthermore by virtue of clause 5 of terms of employment of the company, the Federal Government has the complete authority to make applicable certain laws to the officers and employees of the Company. Not only this but section 3(3) of The Pakistan WAPDA Act (XXXI of 1958) equips the Federal Government with the supervisory authority. The same is reproduced below for ready reference and convenience:- Section 3(3). The Federation Government may, from time to time, issue such directives as it may consider necessary on matters of policy and the Authority shall comply with such directives; and if a question arises whether any directive relates to a matter of policy, the decision of the Federal Government shall be final.
Thus, no cavil left that Federal Government is overall incharge and controlling authority of the Company.
9. Learned counsel for the petitioner while referring Suo Motu Case No. 18 of 2010; in the matter of Violation of Public Procurement Rules, 2004 (supra), though emphatically contended that the petitioner cannot be suspended for indefinite period but it is observed with all reverence that the principles laid down in the said judgment by the Hon'ble Apex Court are founded on entirely different facts and even as per principles enunciated in the said case, the matter of suspension of an employee is left at the judicial discretion of the Court while holding "that the power of suspension, therefore, must be exercised in a reasonable and fair manner. The moment the effect of the exercise of such power is found to be unfair and unjust, the government servant will be entitled to challenge it and courts of law if satisfied that such orders are based on arbitrary exercise of power will not hesitate to set them aside as they will be in clear violation and breach of statutory rules."
10. Adverting to the validity and legality of suspension, it would be advantageous to first have a recourse to the relevant provisions. Rule 5 of The Pakistan Wapda Employees (Efficiency & Discipline) Rules, 1978 deals with the inquiry procedure and caters the matter of suspension, which reads as under:-
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.
(v) (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 be shall provisionally determine penalty to be imposed, and shall be inform the accused, supply him a copy of the report, and call upon him to show cause with 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 by 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 case where the accused was issued Explanation Letter under rule 5(iv) and the explanation submitted by him was found unsatisfactory.
(Underlining is for emphasis)
It is though provided in clause (i) ibid that in case of continuous suspension an approval from the next higher authority is necessary after every three months but in view of serial No. 157 at page 909 of Estacode Edition, 2010, no such approval is required when the suspension of an employee is on the basis of a criminal charge. The same is reproduced below:- Sr. No. 157. Suspension of a Government servant accused of criminal offences.- In cases where Government servants are accused of criminal offences, frequent references are made to the Establishment Division on issues such as:
(i) whether, on their committal to prison, they are to be suspended by a specific order or their suspension is automatic; (ii) whether or not on their release on bail after arrest, they can be reinstated in service;
(iii) whether their continued suspension requires approval of the authority after every three months.
2. The matter has been considered in the Establishment Division in consultation with the Law Division. It has been held that cases of the above nature are to be dealt with under Article 194 and 194-A of the Civil Service Regulations which are existing rules and which cannot be over-ridden by administrative instructions contained in section IV of Appendix-3 of Fundamental Rules and Supplementary Rules Vol. II.
3. In the context of the points mentioned in paragraph 1, the position that emerges from Article 194 and 194-A of CSR is explained below:-
(a) a government servant committed to prison either for debt or on a criminal charge should be considered as under suspension from the date of his arrest and until the termination of the proceedings against him, i.e., his suspension is automatic from the date of arrest till termination of proceedings against him;
(b) a government servant against whom a criminal charge or proceeding for arrest for debt is pending should also be placed under suspension by the issue of specific orders to this effect during the periods when he is not actually detained in custody or imprisoned (e.g. whilst released on bail) if the charge made or proceedings taken against him is connected with his position as a Government servant or is likely to embarrass him in discharge of his duties as such or involves moral turpitude; and
(c) the requirement of obtaining approval of authority for extension of suspension period after every 3 months laid down in Government Servants (Efficiency and Discipline) Rules, 1973 (Sr.No.85) applies to suspensions ordered under these rules. Article 194 or 194-A do not mention any such requirement.
4. In view of the position stated above, the answers to the queries mentioned in para 1 are as follows in seriatim:-
(i) suspension under Article 194 is automatic. Suspension under Article 194-A requires specific approval of the competent authority;
(ii) in the light of what is stated in the preceding paragraph, the competent authority can, in case the accused official is no longer detained in custody, reinstate him in service unless it like him to continue to be under suspension on the consideration that the charges against him are connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties as such or involve moral turpitude. From the date of reinstatement onwards, the Government servant will no doubt be paid full pay. However adjustment of allowances for the period he remained under suspension will be made as Article 194 and 194-A envisage after the termination of the proceedings;
(iii) Approval of competent authority for suspension under Article 194 or 194-A is not required every 3 months.
5. With reference to (i) and (ii) in the preceding paragraph, the following administrative instructions may also be followed:-
(a) a report may be immediately submitted to the "competent authority" whenever a person is committed to prison and is considered to be under suspension under Article 194 CSR in order to ensure that the competent authority remains in touch with the position of the official and his case; the fact of suspension may also be notified under advice to all concerned including the audit authorities in terms of Article 194 CSR; and
(b) a report on the progress of the criminal case leading to the suspension of a Government servant under Article 194 or 194-A, CSR, as the case may be, be submitted to the authorized officer every three months for his information to ensure that he remains in touch with the position of the official and his case.
6. The O.M. issues with the concurrence of the Ministry of Finance.
The instructions contained in Estacode have undoubtedly the force and effect of rules, by virtue of section 25 of The Civil Servants Act, 1973, if any reference to this effect is needed, guidance can be sought from Fazali Rehmani vs. Chief Minister, N.W.F.P. Peshawar and others (PLD 2008 SC 769).
11. The petitioner is admittedly involved in criminal cases and three F.I.Rs. have been registered against him on the allegation of corruption and misappropriation, thus, no illegality is committed by the respondents while placing the petitioner under suspension. Even otherwise, suspension is not a punishment and the petitioner even under suspension is entitled to full emoluments. Reliance can be placed on Ghaffar Ali's case (supra) (2014 PLC (C.S.) 558) and Muhammad Haroon's case (supra) (PLD 1978 Lahore 1108).
12. The petitioner is at the verge of his retirement and he has already applied for leave preparatory to retirement. Even otherwise, as it has been apprised by learned counsel for the respondents that departmental proceedings are underway, so it is expected that same shall be completed expeditiously and strictly in accordance with law.
13. Thus, in view of discussion made hereinabove, the instant petition has no force, consequently same is dismissed, with no order as to costs.