' BARKAT ALI BALOCH (MEMBER)---All the above appeals are proposed to be decided through this consolidated judgment, as common facts, circumstances and identical questions of law, Rules and Regulations are involved.
2. All the above-named appellants, who were employees/officers of the respondent K.E.S.C., have been aggrieved by an identical order dated 10-8-1999, issued by the Chief Administrative Officer of the respondent's Corporation, whereby the retirement of the appellants from service has been ordered under Ordinance X of 1999. This order reads as under:-- SUBJECT:-RETIREMENT FROM SERVICE UNDER ORDINANCE X OF 1999.
' I am directed to inform you that the Competent Authority in exercise of the powers conferred under section 2(a) of the K.E.S.C. (Removal from Service) Ordinance No,X of 1999 promulgated on 27th May, 1999, has ordered your retirement from the service of the Corporation with immediate effect.
' You shall, in addition to the retiring benefits admissible under the terms and conditions of service be entitled to payment of additional three months' pay.
' You are therefore, directed to deposit all the belongings of the Corporation, including Corporation Vehicle allocated to you and contact our Chief Accountant, after obtaining Clearance Certificate on the prescribed proforma, for settlement of your dues as admissible under the rules. Yours faithfully THE KARACHI ELECTRIC SUPPLY CORPORATION LTD.
(Sd)
(A. MOIN QURESHI)
CHIEF ADMINISTRATIVE OFFICER."
' In the first instance, all the appellants addressed their departmental appeals to the Chairman, WAPDA and K.E.S.C. Getting no response to their- departmental appeals, all the appellants have preferred the above appeals before this Tribunal on 20-12-1999 based " upon almost identical facts and grounds. Except appellant Mr. Mukhtar Hussain Abro (Appeal No,1289(K)(CE)/1999), who was initially, appointed as Assistant Administrative Officer by the respondent's Corporation, all the remaining appellants were, initially, appointed as Assistant Executive Engineer (Probationary) on various dates, shown against each appeal in the table, given above. This initial appointment of all the above twelve (12) appellants was made through an identical appointment order, mentioning therein various terms and conditions including twelve month's period of probation after expiry of which all the appellants were confirmed in their respective appointments and subsequently all the appellants were promoted from time to time, ultimately reaching the present stage at which all of them, with one stroke of pen have been retired under section 2 of Ordinance X of 1999. The contents of section 2 of the Ordinance are reproduced as under:-- "2. Removal of certain persons from service, etc.---(1) Notwithstanding anything contained in any law, contract, settlement or award for the time being in force, or in the terms and conditions of service of any person employed by or serving under, the Karachi Electric Supply Corporation, the Corporation may, at any time.
(a) retire from its services any person without assigning any reason; or
(b) remove from its service any person after informing him in writing of the grounds on which such action is proposed to be taken and giving him an opportunity of showing cause against the action within fourteen days.
(2) Where a person is retired from service under subsection (1), he shall, in addition to the retiring benefits admissible to him under the terms and conditions of his service, if any, be paid additional pay for three months."
4. The appellants, in their appeals before this Tribunal as well as in their departmental appeals, have made a common prayer to set-aside this order of retirement and reinstate the appellants with all back-benefits. However, in their appeal before this Tribunal, the appellants have also prayed that the said Ordinance X of 1999 being (K.E.S.C. Specific) be declared as ultra vires to the Constitution and having been passed without any lawful authority, being arbitrary mala fide and ab initio void.
5. After service of notice, the respondents Nos.1 3, & 4 filed their comments to the appeals. Initially, we heard the learned counsel for the parties in all the appeals on 26-9-2001. On that date, the learned counsel for the respondents was not available despite specific order by this Tribunal that in case the learned counsel for the respondents failed to appear, the appeals will be heard. On this date, the learned counsel for the appellants was present and heard in support of the appeals while the junior of respondent's counsel appeared and requested for adjournment. On account of specific order of this Tribunal for hearing the appeals, despite several adjournments in the past, the respondents were directed to file their written arguments, if desired by them. Subsequently, the learned counsel for the respondents was heard on 7-11-2001 and it was specifically asked from the learned counsel whether the Ordinance X of 1999 was still in operation or otherwise. Finally, both the parties were again given a chance to come up with all the remaining documents, if they desired to produce. The final arguments were heard on 26-2-2002 when the counsel for both the parties were present and only the advocate for the appellants produced number of documents and the case- law, in support of the appeal. On it's part, this Tribunal has given full opportunity to both parties to put up their respective case before this Tribunal.
6. It has been contended on behalf of the learned counsel for the appellants that the appellants, in fact, have been compulsorily retired ahead of their tenure and in violation of the terms and conditions of their service, settled at the initial stage of their appointments. The next argument on behalf of the appellants is that they have been retired by incompetent authority, without assigning any reason and without providing any opportunity of prior hearing before passing of this arbitrary order of retirement, which, according to the learned counsel for the appellants, has been passed with mala fide intentions and under colourable exercise of powers. Advancing his arguments, the learned counsel for the appellants has argued that the impugned order having been passed, without issuing any show-cause notice, is not only in violation of natural justice, but the same also violates the provisions of the Constitution viz: Articles 2A, 3, 4 and at the same tine, the impugned order, passed under section 2 of the Ordinance X of 1999, is against the provisions of General Clauses Act. It is lastly argued that the respondents have acted in discriminatory manner, in as much as number of employees/officers having been removed, dismissed or retired compulsorily, have been again reinstated and given the same jobs by the respondent's corporation and such list has been produced to substantiate this contention. The learned counsel, in support of his arguments, has relied upon large number of authorities of the Hon'ble Supreme Court as well as other superior Courts and also Judgments of this Tribunal. The learned counsel for the respondents has argued that the appeals are not maintainable and that the departmental appeals have been forwarded to the Chairman, WAPDA instead of Managing Director, K.E.S.C. The learned counsel for the respondents has also stressed that in view of the categorical provisions of Ordinance X of 1999, it is not necessary to serve any prior notice while exercising powers under section 2 of the Ordinance under which the respondent's Corporation is empowered to remove certain persons, from service. The respondents, in their written comments, have contended that the appeals of the appellants are time barred and that the appellants have been retired with full retiring benefits, like many other employees of the respondent's Corporation.
7. We have considered the arguments, advanced on behalf of the respective parties and we have also perused the appeals files alongwith the documents, made available by the parties. The initial order of appointments, issued by the respondent's Corporation in favor of the appellants, does not contain any condition of service as envisaged under section 2 of the Ordinance. The original appointment order in respect of all the appellants having been initially recruited as Assistant Executive Engineer (Probation), provides a probationary period of 12 months after completion of which the incumbent will have to be absorbed and subsequently confirmed in the scale. The next condition is in respect of confirmation which is stipulated to take place after expiry of 12 months of the probation period which will follow with one increment in the pay scale on the condition that a satisfactory Special Confidential Report from the Head of Department is received. It is also specifically provided in the appointment order that in case of failure in earning a satisfactory report in respect of probationary period, the management may terminate the appointment.
Condition No,11 of the appointment order speaks about the issuing of notice of termination of service. All the conditions of the original appointment order nowhere contain any clause that the service of the appellant will be terminated or the appellant will be retired from service, without giving any reason, as has been provided under section 2 of the Ordinance X of 1999. Whether this Ordinance is in existence or not, does not make any difference so far arbitrary character end discriminatory nature of the contents of section 2 of the Ordinance are concerned. In fact, this provision under which the appellants have been removed from service under the pretext of retirement, is totally in contravention of the original terms and conditions of service of the appellants, settled at the initial stage of their respective appointments. Thus any subsequent change in the terms and conditions of the service, being adverse and at the total peril of the incumbent, must confirm to the contents of Principle of Rules and Regulations, governing initially the terms and conditions of service and also to meet the requirements of not only the fundamental rights, as envisaged in the Constitution, but also it must be in accordance with the settled principles of natural justice. The respondent's Corporation, being statutory body, has got its own Rules and Regulations in respect of terms and conditions of it's employees. The perusal of record of the appeal files further suggests that all the appellants stood confirmed in their respective posts and then subsequently, after earning satisfactory reports, A.C.R. And unblemished performance during the service, have been promoted in their respective scales, having reached the stage, when without giving any show-cause notice, they have been, abruptly ordered to be retired from service in complete disregard to the initial terms and conditions of their service. Which were settled by the respondent's Corporation at the time of their appointment. Thus by passing the impugned order, the respondents have not only violated the settled terms and conditions of service of the appellants, but at the same time, the impugned order violates the basic principles of audi alteram partem, as no prior show-cause notice or any opportunity of hearing has been given to any of the appellants. On this point, the learned counsel for the appellants has invited our attention that this arbitrary provision in the shape of section 2, inserted in Ordinance X of 1999 is similar to the contents of section 17(I-A) of the Pakistan Water and Power Development Authority Act 1958. For this the learned counsel has specifically relied upon a recent authority of the Hon'ble Supreme Court of Pakistan, as reported in 2002 PLC (C.S.) 128, WAPDA through Chairman v. Zulfiqar Ali. It has been specifically held in this Judgment by the august Supreme Court that no pre-mature retirement can be ordered, to deprive an employee from a vested right, without hearing. The head note reads as under:- "----S.17(I-A)---Pakistan Water and Power Development Authority Employees (Retirement) Rules, 1979-Premature retirement-Maxim-Principles of natural justice---ApplicabilityRight of hearing has not been conferred on an employee who is retired prematurely under the provisions of S.17(I-A) of Pakistan Water and Power Development Authority Act, 1958Effect-Such retirement always carries with it repercussions of detrimental, nature namely that either the retired persons was inefficient or there were allegations of misconduct etc., which persuaded his employer to retire him from service even before completing the minimum period of qualifying service prescribed under the rules for retirement of a person-Employee who is being retired prematurely is being deprived to serve the Department till the completion of qualifying service for retirement, therefore, having attained a vested right to serve in the Department either till the completion of qualifying service for retirement or reaching the age of superannuation he was eligible to remain in service-Right of hearing though has not been incorporated in S.17 (1-A) of Pakistan Water and Power Development Authority Act, 1958, but same being a principle of natural justice enshrined in Maxim: "Audi alteram partem" is to be read in every statutes as one of its integral part notwithstanding the fact that whether such right has expressly been conferred upon an individual or not."
' The Hon'ble Supreme Court has based the above decision upon other monumental Judgment of their Lordships delivered and reported in Civil Petition, Pakistan International Airlines (PIAC) through its Chairman v. Nasir Jamal Malik and others 2001 SCMR 934= 2001 PLC (C.S.) 890. Through these two land-mark decisions alongwith many other decisions of similar nature; the Hon'ble Supreme Court has repeatedly held that the principles of natural justice enshrined in the Maxim: "Audi alterm partem" must not be violated and should be adhered in all respects. We find that the action of the respondent' Corporation in ordering the retirement of above appellants ahead of time and without hearing them is totally against the spirit and purpose enunciated through the above-quoted Judgments of Hon'ble Supreme Court.
8. The next grievance, stressed on behalf of the appellants is in respect of the violation of the terms and conditions of their service which were settled, initially, at the time of their initial appointment and reflected in the original appointment order. The first objection in this respect having been raised is that no such condition existed or it was included in the original appointment order. All the appellants having been appointed through proper method of interview and then having completed successfully period of probation, have been confirmed and subsequently promoted from time to time and some of the appellants are reported to have been rewarded for their excellent performance. It has also been stressed that the performance of the appellants has remained excellent and without any stigma throughout their period of service. Besides, the action of their premature/compulsory retirement under section 2 of the Ordinance, ibid, does, not contain any sort of allegation, lack of performance, obliging the respondents for taking this extreme action which amounts to punishment. On this very issue, we are further fortified in our view by the Judgment of this Tribunal in Appeal No, 374(L)(C.S.) of 2000, Sardar Masood Iqbal Khan v.
Chairman, WAPDA on the same issue of compulsory retirement having been ordered under section 17(I-A)(a) of the WAPDA Act. This decision of this Tribunal has also been based on the decision reported and quoted above viz: 2002 PLC (C.S.)
128. A similar action, taken by the respondent's Corporation against few other employee under the same provisions of Ordinance X of 1999 has been discussed, by this Tribunal (Karachi Bench) in Appeals Nos.1179 to 1182(K) of 1999, Jamil Ahmed and another v. Managing Director, K.E.S.C., Karachi. Vide para. No,6 of the Judgment wherein it is held as under:- "6. It is an admitted fact that the appellants had served the respondents right from 1988 and onwards and during this period no document whatsoever has been produced/adduced which could speak of their conduct. Even otherwise, the appellants after putting in service of 11/12 years, in our view, have become overage and it will not be possible for them to hunt for a fresh job and earn their livelihood. The respondents have, no doubt, taken the support of Ordinance X of 1999, which was promulgated in the year 1999, but no document whatsoever has been produced, which could show that it was extended or the same was placed before the Parliament for approval. Since the action taken by the respondents was without any notice or personal hearing, Mr. Samdani has rightly argued that the appellants have been condemned unheard and the penalty has been imposed in violation of Articles 4 and 25 of the Constitution and so also against the injunctions of Islam. Even otherwise, we are of the view that Ordinance X of 1999 was promulgated in case of K.E.S.C. On the same analogy of section 17(1-A)(a) of WAPDA Act, 1958, which speaks of premature retirement for which it was observed by their Lordships in the Supreme Court in a case reported in 2002 PLC (C.S.) 128, in the following terms: "(c) Pakistan Water and Powers Development Authority Act (XXXI of 1958) ----S.17(1-A)-Premature retirement-Providing opportunity of hearing-Scope-Authority enjoys right to retire any person employed from its service without' assigning any reason-Where the record spelled out that such action was being taken against the employee in exercise of jurisdiction in a colourful manner with mala fide intention, it became necessary to extend right of hearing to an affected employee".
' Any adverse action, taken against the appellants, without observing the above established norms of natural justice and in violation of the original terms and conditions of their service cannot be accorded any value and sanctity.
9. The learned counsel has next stressed the point of discrimination, having been adopted by the respondent's Corporation. In this respect, the learned counsel has produced number of documents to substantiate his contention. According to him, the respondent's Corporation has retired the appellants ahead of time, without any reason through the impugned order dated 10-8-1999. On the other hand, the same Corporation has through advertisement dated 24-3-2000 published, in Daily Jang Karachi in respect of appointment of Engineers under the signature Mr. Abdul Moin Qureshi, who, most probably is the same gentleman who has signed the letter in respect of the appellants, while ending their service ranging from 30 years to 12 years. The respondent's Corporation has failed to explain this anomalous situation whereby the employment of as many as twelve confirmed and regular Engineers, comprising the top hierarchy of Engineering service of the respondent's Corporation, have been abruptly thrown out from their jobs, without any reason or rhyme and on the other hand, after ousting confirmed and experienced Engineers, the respondent's Corporation has embarked upon the activity of recruiting fresh Engineers on contract and other basis. If there was anything adverse, unwanted or any charges of corruption against the appellants, the same could be inquired into through proper. Method of departmental proceedings, entailing any punishment in case the charges were proved against' the appellants, but there is no such indication nor any such allegation contained in the impugned order. Besides this, the learned counsel has fortified his allegation in this respect through documents, showing the appointment of
(1) Haider Mehdi s/o Zulfiqar Mehdi, (2) Irfan Air Khan s/o Wahid Ali Khan and (3) Asim Mulchtar having been appointed as Assistant Executive Engineers by the respondent's Corporation on contract basis vide separate order dated 15-3-2001.. The learned counsel has also produced certain orders where number of employees, terminated/dismissed by the respondent's Corporation, have been reinstated and taken back in service which include (1) Umerzada, (2)
Muhammad Idrees, (3) Hussain Akhtar (A.E.E.) and (4) Faizullah. Likewise, M/s. Mr. Ghulam Akbar Jatoi and Mian Tufail Ahmed, having been dismissed from service, have been reinstated by the respondent's Corporation.
10. These facts clearly indicate towards discriminatory policy, being pursued by the respondent's Corporation viz-a-viz it's employees. On one hand the respndent's Corporation having compulsorily retired the appellants, has ignored their departmental appeals for their reinstatement and on the other, fresh Engineering Graduates have not only been inducted in the cadre, but number of dismissed employees have been retaken and reinstated by the respondent's Corporation. This clear discriminatory policy, adopted by the respondent's Corporation is against the norms of natural justice, fair play and propriety and we cannot subscribe to this arbitrary policy of the respondent's Corporation, particularly when such policy has targeted a large number of officers with regular and confirmed service, ranging from 30 to 12 years as is the case in these above appeals.
11. The issues, raised by the learned counsel for the respondents regarding limitation, has also been considered by us alongwith the contention of the learned counsel for the appellants that section 2 of the Ordinance X of 1999 is against Articles 2A, 3,4, & 27 of the Constitution of 1973 having been promulgated in contravention of the provisions of these Articles and alternatively the orders, retiring the appellants from service ahead of time and in contravention of the terms and conditions of their service, are void-ab initio and illegal. When confronted with this situation, the learned counsel for the respondent stated that Ordinance X of 1999 is no more in the filed, but no such repealing Act has been produced. Whatever the case may be, we have no hesitation to hold that this particular section 2 of Ordinance X of 1999 is in contravention of the above stated provisions of the Constitution as well as norms of natural justice, fair play and propriety and at the same time, this particular section, being only K.E.S.C. Specific, is discriminatory in nature and the same has been used with mala fide intention in the case of the appellants by terminating their regular and confirmed career of service. Under such situation and for the reasons, given above, we have no hesitation to hold that the impugned order, passed against the appellants, is discriminatory in nature and being ac verse to the legitimate interest of the appellants and having been issued with mala fide intention, is a void order. Thus no limitation can run against a void order, even if the appeals were time-barred, which is not the position in these appeals and the objection on behalf of respondents in respect of limitation is baseless.
12. The learned counsel for the appellants has, specifically relied upon a large number of authorities, which are quoted below; (1) 1992 SCMR 1789; (2) 1993 SCMR 1609; (3) 1998 SCMR 137; (4)
1991 SCMR 1041; (5) 1992 SCMR 563; (6) 1996 SCMR 1165; (7) 1994 SCMR 2232; (8) PLD 1977 Lah. 549;
(9) 1999 PLC 1360; (10) 1999 PLC (C.S.) 1539; (11) NLR 1997 Kar. (Service) 140; (12) 1998 PLC (C.S.) 1236;
(13) PLD 1979 Kar. 610; (14) 1999 SCMR 988; (15) 1994 SCMR 1033; (16) PLD 1987 SC 304; (17) 1997 SCMR 1.804 and (18) PLD 1964 SC 673.
' At the same time, the learned counsel for the respondents has relied upon 1998 SCMR page 137.
13. The learned counsel for the respondents raised an objection in respect of departmental appeal, having not been preferred, as according to him, the same was addressed to the Chairman, WAPDA.
The record, in this respect, shows that all the appellants have made a departmental appeal addressed to the Chairman, WAPDA/KESC, WAPDA House, Lahore. A registered postal receipt dated 28-8-1999 is attached on the back page of the departmental appeal of the appeal file of appellant Abdul Jabbar Channa (Appeal No,1278(K) of 1999 as well as in the rest of the Appeals. At the foot note of the last page of this appeal, the copies of the same are shown to have been addressed to
(1) The Secretary, Water and Power, Government of Pakistan, Islamabad, (2) The Managing Director, K.E.S.C. Limited, 7th Floor, State Life Building No ll, Abdullah Haroon Road, Karachi. In the first instance, the address at the top includes the respondent's Corporation alongwith the Chairman, WAPDA. Besides, the endorsement at the foot of this appeal memo clearly shows that a copy of this appeal has simultaneously been addressed to the Managing Director. K.E.S.C., Karachi within one month of the passing of the impugned order. Thus all the departmental appeals have been made within the stipulated period of thirty days, but the same have also been forwarded to the competent authority viz; Managing Director, K.E.S.C. However, even if the appeal was addressed to the Chairman, WAPDA instead of K.E.S.C., yet both the respondents are sister concerns and interconnected. At the same time, it has been held in (1) 1988 SCMR 1458, (2) 1993 SCMR 715 and (3)
1994 PLC (C.S.) 1018 that even if the appeal was forwarded to a different or wrong destination, ,it was incumbent upon that authority to re-direct the same to the proper appellate authority in the subject-matter. Thus the objection, so raised, is not tenable.
14. In view of the above facts and circumstances of the case, respectfully agreeing with the quoted law of the Hon'ble Suprene Court and other superior Courts as well as this Tribunal and for the reasons and the discussion, made above, we are of the view that the appellants have been treated discriminately with mala fide intention. No reason or any charge has been levelled against them for their abrupt and ahead of time retirement, ordered by the respondents through the impugned order, which cannot be sustained on facts as well as on law. We declare this impugned order as a void order, having been passed illegally and in violation of all the principles of natural justice and fair play. Consequently, we allow all the above appeals of the appellants and set-aside the impugned order of their retirement dated 10-8-1999. It is further ordered that the appellants may be taken back on their respective jobs as they were holding on 10-8-1999, having been reinstated hereby with all back-benefits.
15. However, if there are any adverse charges of lack of performance, ineffiency negligence and corruption against all or any of the appellants, the same can be inquired into by the respondents in proper method and through proper inquiry in accordance with Rules and Regulations, applicable to the appellants.
16. The cost of this appeal be borne by the respective parties. The copies of this Judgment be forwarded to all the concerned parties forthwith.