' MUHAMMAD IQBAL. KHAN, MEMBER.---The appellant Mr. Muneer Ullah Khan, Ex. Senior Engineer, WAPDA, Kohat City was aggrieved by an order dated 2-10-2000 whereby his earlier exoneration/reinstatement dated 13-11-1999 passed by the authority, was revised and modified into major penalty of compulsory retirement, on the charge of allegedly getting free electric connection in the name of his brother for his residence involving theft of power energy, causing financial losses to WAPDA and thus being guilty of misconduct.
2. The main thrust of the arguments of the counsel for the appellant is on the following:
(i) That the respondent No,2 Managing Director (Power), WAPDA House, Lahore after having applied his mind to the case and having closely examined the relevant documents exonerated the appellant from the charges and set aside the order of removal dated 7-8-1999 imposed by the Chief Executive PESCO vide order, dated 13-11-1999.
(ii) That after a hiatus of about 7 months the case was re-opened under section 12 of WAPDA Employees E&D Rules, 1978 by first serving him with a show-cause notice dated 16-5-2000 and thereafter, revising the earlier order of exoneration dated 13-11-1999 by converting it into a major penalty of compulsory retirement from WAPDA service.
(iii) No formal inquiry was held to determine whether the direct electricity connection detected at the house of the appellant's brother was provided in the connivance with the appellant who was the XEN Incharge of the area concerned.
(iv) Show-cause notice dated 16-5-2000 was not a speaking one as it did not contain solid reasons and basis for the revision of the exoneration order dated 13-11-1999. He has quoted two Supreme Court judgments in support thereof.
(v) That the appellant replied to the show-cause notice containing detailed replies against each charge was not given due consideration although the same were duly considered and found acceptable by the appellate authority exonerating him from the charges and reinstating him into service.
3. The learned counsel for the respondent mainly relied on the following.
(i) That under the rule 12 of WAPDA Employees (E&D) Rules, 1978 the Authority has the power to revise the order of the appellate order and that after fulfilling the prescribed procedure final order dated 2-10-2002 was passed as per law.
(ii) That the appellant beings an employee of the WAPDA applied service connection in his own name and signed an undertaking/affidavit about his ownership of the premises where the direct connection was provided.
4. We have carefully heard the arguments advanced by the counsel of both the parties and also perused the relevant record. Rule 12 of WAPDA Employees (E&D) Rules, 1978 is reproduced below:-- "The following Authorities may, either on receipt of specific reference or of their own motion, at any time, call for any case in which proceedings may have been instituted under these rules, and pass such orders including orders reversing acquittal or enhancing the penalty imposed as they may deem fit, and orders so passed shall be final:-- {{TABLE}} (a). Authority Disciplinary cases relating to General Managers, Chief Engineers, Superintending Engineers, Senior Engineers and Officers of equivalent status.
(b).Respective Disciplinary cases concerning Junior Engineers Members/ and Officers of equivalent status and all employees Managing in BPS-1-16 Directors Note: In case where the above Authorities decide to enhance the penalty imposed by the competent Authority, a show-cause notice will be issued and the accused given an opportunity of being heard in person." {{TABLE}}
5. There is no denying the fact that the Rule empowers the Authority to revise orders as passed by the appellate authority. However, such order should be self-explanatory and contain solid reasons and basis before order are revised and major penalty of compulsory retirement is imposed. No such reasons or basis thereof have been in the show-cause notice dated 16-5-2000. We feel that requirement of the law is not met when reasons/basis for the proposed action are not indicated in the show-cause notice.
6. The learned counsel for the appellant has quoted two Supreme Court judgments reported as 1996 SCMR page 248 and 1993 SCMR page 1134. The relevant portions.Of the two judgments are reproduced below:-- 1996 SCMR 248.
"Powers conferred by R.6-A, Government Servants (Efficiency and Discipline) Rules, 1973--Mode to exercise of such powers---Authority had been empowered to send for record of any case pending before or disposed of by Authorized Officer... No preconditions for exercise of such powers have been provided in R.6-A, Government Servants (Efficiency and Discipline) Rules, 1973---Authority, however, could not act arbitrarily or in capricious manner while exercising powers contained in the Rule---Authority was supposed to act fairly, justly and in such manner which would not violate principles of natural justice---Authority had not recorded any reason as to why it was not inclined to agree with findings of fact recorded by two competent officers to the effect that charges against civil servant were not proved---Least which was expected from Authority was to mention grounds in show-cause notice on basis of which it was inclined to take contrary view so that civil servant could have reasonable opportunity to explain his point of view."
1993 SCMR 1134: "R: 12,--Constitution of Pakistan (1973), Art.212...Removal from Service---'Authority; in exercise of suo motu powers had reversed the order of Authorized Officer exonerating the employee, but no reasons were recorded by Authority for imposing the penalty of removal from service---'Authority' although was vested with power to revise or reverse an order passed by the subordinate Authority but no arbitrary powers were conferred on the Authority to revise or reverse order of subordinate Authority without mentioning reasons...Enough material had not been placed on record from which nature of the charge against employees and material in support thereof, could be discovered..."
7. It is clear from the above that powers conferred on the Authority under rule 12 of the WAPDA Rules cannot be exercised in an arbitrary and capricious manner. Moreover, the ownership of the premises, was in dispute inasmuch as the ownership documents established that the property in question belonged to appellant's brother but the affidavit/undertaking allegedly given by the appellant and on which the respondent-Department has placed main reliance, showed the appellants as its owner. (The appellant says that the affidavit is a counterfeit document). Since there were doubts as to the real ownership of the property, as such it was imperative to hold a proper inquiry after issue of show-cause notice dated 16-5-2000 to find the truth. The inquiry was dispensed with and the ownership of the property remained disputed. Besides, the portion of the house in which the direct connection was detected was in the name of appellant's brother and nothing objectionable was detected in the meter in the name of the appellant installed in other portion of the premises and that an F.I.R. For stealing electricity was also lodged against appellant's brother. A proper inquiry would have sorted out intricacies involved and established the true position. Above all, it does not seem justified to impose a major penalty of compulsory retirement without clearing doubts and confusions shrouding the case.
8. Finally it would be pertinent to reproduce the concluding portion of the inquiry: "CONCLUSIONS.
' Although ownership of the house is in the name of Mr. Matiullah, Mst. Nighat (brother and sister in law of Mr. Munirullah Khan XEN Kohat respectively) yet Mr. Munirullah Khan, XEN Kohat is also the co-owner/resident of the same premises, as is evident from his affidavit. Further, .He was Executive Engineer Operation Division PESCO, Kohat and the same premises was in his jurisdiction: For all practical purposes, it is impossible that the direct connection was installed without the connivance of the XEN PESCO Kohat. Therefore, the charge of extending illegal connection for theft of energy is established against him."
9. The position indicated below is established without any shadow of doubt.
(i) Both portions of the house belong to Mr. Matiullah Khan.
(ii) No illegal connection was detected in the Meter No,242986 installed in the name Mr. Munirullah Khan.
(iii)' An affidavit allegedly attributed to Munirullah Khan, XEN, PESCO showing ownership of the house is available on record. Munirullah Khan says that it is a doctored document and that he has not submitted it.
(iv) The Enquiry Committee has drawn the inference that since Munirullah Khan is XEN Incharge of the Area, Matiullah obtained direct illegal electricity connection and misused it with the connivance of his brother Munirullah Khan.
10. Based on the above position we feel that it is a conjecture and erroneous impression of the Inquiry Committee that the appellant's brother would have obtained the illegal connection with his help and connivance which is not enough to impose penalty of compulsory retirement from service. If he could help his brother in obtaining an illegal connection, he could also do the same for the connection obtained in his name being XEN Incharge of the Area. We do not subscribe to the assumption of the Inquiry Committee that his brother exploited his position as XEN of the Area to obtain unauthorized direct electricity connection. We, therefore, set aside the compulsory retirement of the appellant with consequential back benefits. We will have no objection if after doing the needful, the department conducts the inquiry de novo in accordance with the prescribed procedure and then decide the case strictly as per law to meet the ends of justice.
11. No order as to costs.
12. Parties be informed accordingly,