PLJ 2009 SC
1055
[Appellate
Jurisdiction]
Present:
Javed Iqbal, Syed Zahid Hussain & Muhammad Sair Ali, JJ.
EXECUTIVE
ENGINEER GEPCO LIMITED and another--Petitioners
versus
LIAQAT
ALI--Respondent
Civil
Petition No. 579 of 2009, decided on 8.5.2009.
(On appeal
from the judgment dated 29.1.2009 passed by the Federal Service Tribunal in
Appeal No. 146 (R)/CE/2006).
Removal from
Service (Special Powers) Ordinance, 2000 (XVI of 2000)--
----Ss. 5, 6
& 7--Constitution of Pakistan,
1973--Art. 212(3)--Civil servant--Major penalty could be imposed but that too
after an opportunity of personal hearing to civil servant--Allegation of
misconduct allegedly for facilitating theft of electricity and tampering with
metters--Without holding an inquiry and without opportunity of hearing, civil
servant was compulsorily retired from service--Service Tribunal reinstated in
service from the date of compulsory retirement with all back benefits--Validity--Sections
5, 6 & 7 of Removal from Service Ordinance, provide for appointment of
inquiry or inquiry committee to hold inquiry to scrutinize the conduct of a
person and submission of findings and recommendations to competent authority on
receiving the findings and recommendations of inquiry office or inquiry
committee, the competent authority u/S. 8 thereof is empowered to pass orders
in accordance with provisions of the Ordinance--Held: Competent authority, for
even handed administration of justice, was obligated to follow the prescribed
procedure before passing the order of imposition of major penalty i.e.
compulsory retirement from service--Leave refused. [P. 1057] A
Mr.
Aurangzeb Mirza, ASC for Petitioners.
Respondent
in person.
Date of
hearing: 8.5.2009.
Order
Muhammad
Sair Ali, J.--Leave is sought by Executive Engineer GEPCO Limited and another
against judgment dated 29.01.2009 of the Federal Service Tribunal, reinstating
the respondent Liaqat Ali in service from the date of his compulsory retirement
with all the back benefits.
2. The respondent, a Meter Reader, was served
with show-cause notice dated 08.11.2005 and statement of allegations charging
him of misconduct allegedly for facilitating theft of electricity and tampering
with Meters etc. Through his defence reply dated 15.11.2005, he strongly denied
the charges and also specifically alleged mala fide of the authorities against
him. Without holding an inquiry and without the opportunity of hearing, the
respondent was compulsorily retired from service under the Removal from Service
(Special Powers) Ordinance, 2000 by order dated 24.11.2005 of Petitioner No. 1.
i.e. Executive Engineer GEPCO Limited. Respondent's departmental representation
dated 05.12.2005 remained un-responded whereupon he filed Appeal No.
146(R)CE/2006 before the Federal Service Tribunal, Islamabad.
3. The Tribunal accepted the appeal through the
impugned order dated 29.01.2009 observing that holding of inquiry became
essential on denial of charges by the respondent and that only on an
implicating inquiry report by the Inquiry Officer that a major penalty could be
imposed by the petitioner-authority, but that too after an opportunity of
personal hearing to the respondent. The tribunal thus reinstated the respondent
with all the back benefits. Hence the present petition.
4. The learned counsel for the petitioners
argued that the respondent in his reply had admitted the allegations wherefor
no inquiry or hearing was needed for imposition of even the major penalty of
compulsory retirement.
5. Having examined the arguments of the learned
counsel and the record, we are afraid we cannot approve the lopsided contention
of the learned counsel. He reads admissions of the respondent in reply to the
show-cause notice while no such admissions exist therein. Instead, respondent
in a detailed reply set up his defence pleas alongwith support documents in
total denial of the charges and also alleged mala fide of the relevant
authorities against him. What was alleged against the respondent was denied by
him. The allegations thus became disputed and required inquiry as envisaged in
Sections 3 and 5 of the Removal from Service (Special Powers) Ordinance No.
XVII of 2000.
6. The respondent no doubt is "a person in
corporation service" in terms of Section 2(c) of Removal from Service
(Special Powers) Ordinance No. XVII OF 2000. The petitioners claim to have
invoked the provisions of the Ordinance to impose major penalty of compulsorily
retirement on the respondent. The survey of the Ordinance belies the claim of
the petitioners. Sub-section (1) of Section 3 prescribes that where, in the
opinion of the competent authority, a person in corporation service, is guilty
of mis-conduct, the competent authority, after inquiry by the Inquiry Officer
or the Inquiry Committee appointed under Section 5 may......by an order in
writing dismiss or remove or compulsorily retire such person from service etc
etc. Sub-section (2) of Section 3 imperatively provides that;--
"Before
passing an order under sub-section (1), the competent authority 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 a reasonable opportunity of showing
cause against that action within seven days or within such extended period as
the competent authority may determine."
7. Sections 5, 6 and 7 ibid provide for
appointment of inquiry or inquiry committee to hold inquiry "to scrutinize
the conduct of a person" and the submission of findings and
recommendations to the competent authority. On receiving the findings and
recommendations of the Inquiry Officer or the Inquiry Committee, the competent
authority under Section 8 thereof is empowered to pass orders in accordance
with the provisions of the Ordinance.
8. The competent authority, for even handed
administration of justice, was obligated to follow the prescribed procedures
before passing the order of imposition of major penalty i.e. compulsory
retirement from service.
9. It was not a case falling within the
statutory ambit of proviso to Section 3 or Sections 3-A, 5(4) and 5(5) of the
Ordinance, where holding of inquiry or opportunity of hearing could be
dispensed with. The petitioners have not pleaded or made out a case under these
provisions of law.
10. In view thereof, we do not find any substance
in the present petition which is accordingly dismissed. Leave declined.
(R.A.) Leave refused.
