Ch. MUHAMMAD IQBAL ARSHAD Versus WAPDA through Chairman, WAPDA House, Lahore
JEHAN ZAIB BURKI, (MEMER).--- Ch. Muhammad Iqbal Arshad, Ex-DO (E) Khurrianwala Sub-Division, FESCO was removed from service vide order dated 18-12-1999 by the Chief Executive (FESCO) Faisalabad. He filed a departmental appeal dated 12-2-2000 against the above order. Not receiving a reply within the statutory period, the appellant filed the present appeal dated 10-6-2000 before this Tribunal.
2. We have heard the learned counsel for the parties and have also perused the relevant record.
3. Briefly speaking, the appellant was accused of running a private school in Gulistan Colony, Faisalabad and was allegedly spending most of his duty time in the monitoring of affairs of the said school. He was found actually present at 10.45 hours on 8-3-1999 in the aforementioned school by Captain Muhammad Asif Sultan, although the appellant had left the office on the pretext of going to the Headquarters. Allegation of misuse of official transport allotted to the Sub Division, Khurrianwala was also levelled against the appellant. It was further stated that he was not cooperating with the army staff earmarked for monitoring the work of the Sub-division concerned.
4. The appellant denied the allegations and stated that he was not running any private school. However, he did admit that the land/building where the said school was located was owned by him. The appellant also admitted that he occasionally visited the premises of the school but it was always done after the office hours.
5. As regards the allegation of having been found present in the said school at 10-45 hours on 8-3-1999, the appellant clarified that he had gone to the Headquarters office for official commitment, after obtaining permission from Captain Asif and had visited the said school after the official commitment was over. He denied using official transport for private purposes. Similarly, he denied that the was not offering cooperation to the army staff attached for official duty with the sub-division. Not finding the defence reply adduced by the appellant as satisfactory, the competent authority imposed on him the penalty of removal from service, impugned before this forum.
6. In his appeal under consideration, the appellant has stated that he had been compulsorily retired from service under section 17(1-A) of the WAPDA Act on 15-7-1999. Hence, he was no more in service as SDO when the impugned order dated 18-12-1999 was passed against him. Hence, the impugned order in question was void ab initio. He has further stated that the allegation of running a private school was false. He has attached some documents to prove that the said school was being run by New Foundation Anjuman Bara-i-Ferogh-e-Taleem, Faisalabad and he had nothing to do with the school affairs except the building/land on which it was set up were owned by him.
7. The appellant has stated that no regular enquiry had been conducted to verify the truth of the allegations levelled against him.
8. The respondents have vehemently resisted the appeal. It has been admitted that the appellant had been compulsorily retired from service under section 17(1-A) of the WAPDA Act by the competent authority, However, according to the respondents, any officer/official can be proceeded against for any act of omission and commission committed by him during service within one year of his date of retirement, under WAPDA Employees Pension Rules. Hence, the action taken by the department was according to the rules and no illegality had been committed.
9. The respondents have further asserted that the appellant had been proceeded against under rule 5 (iv) of Pakistan WAPDA Employees, E&D Rules, 1978. Under the said rules, the competent authority could dispense with enquiry in the presence of sufficient evidence. Since sufficient evidence was available on record, the competent authority had dispensed with regular enquiry.
10. With regard to allegation of running a private school by the appellant, the respondents have attached a certificate from the Principal of the said school which declares Ch. Muhammad Iqbal Arshad (Appellant) as owner of the institution managed by an individual". According to the respondents, the above statement showed that the appellant was the owner of the school in question. It has further been stated that the appellant himself had admitted ownership of the institution as well as his involvement in the school affairs in para-II of his departmental appeal dated 12-2-2000.
11. According to the respondents, the appellant had filed his departmental appeal dated 12-2-2000 against impugned order dated 18-12-1999 and as such it was approximately late by two months and was therefore time-barred.
12. We have carefully considered the arguments advanced by both the parties. The objection of the respondents that the departmental appeal filed by the appellant was time-barred is not correct. Under the WAPDA Employees E&D Rules, a period of 60 days is prescribed for filing a depar tmental appeal against a punishment order. The appellant had been removed from service vide order dated 18-12-1999 whereas he had filed his departmental appeal on 12-2-2000. It was, thus, filed within the prescribed period of limitation. The objection of the respondents in this regard is, therefore, overruled.
13. It has been contended by the appellant that he had been compulsorily retired from service under section 17(1-A) of the WAPDA Act on 15-7-1999. As such, he was no more in service as SDO when the impugned order dated 18-12-1999 of removal from service was passed against him. Rebutting this argument, the respondents had drawn attention to Note-1, Serial No.7, Chapter-1, of WAPDA Employees Pension Rules and had stated as under:
"Any officer/official can be proceeded under relevant rules within one year of the date of retirement for any act of omission and commission committed by him during service, so the action taken by the department is according to rules and hence the impugned order of 18-12-1999 is lawful."
14. We have perused the above mentioned rule and find that it has not been quoted correctly. As per WAPDA Pension Rules, 1977, the rule in question reads as under:---
"All enquiries are to be initiated/finalized within one year of the retirement of WAPDA employees failing which full pension/gratuity has to be sanctioned in favour of the retired WAPDA employee."
The respondents have, on the basis of the above rule, asserted that the impugned order dated 18-12-1999 passed against the Appellant was lawful as the punishment of removal from service had been awarded to him within one year of his compulsory retirement dated 15-7-1999. This assertion of the respondents is, however, rebutted by Note-2, Serial No.7, Chapter-1 of the same WAPDA Employees Pension Rules which lays down as under:---
"If an officer, who has been suspended pending enquiry into his conduct, attains the age of superannuation or dies during service before the completion of the enquiry, the disciplinary proceedings against him shall abate and such officer shall retire with full pensionery benefits and the period of suspension shall be treated as period spent on duty."
15. In other words, all pending enquiries against an employee shall stand abated as soon as he attains the age of superannuation. In the instant case, the appellant had been compulsorily retired from service under Section 17(1-A) of the WAPDA Act on 15-7-1999. Thus, the enquiry pending against him at that time on the basis of which he was subsequently removed from service vide impugned order dated 18-12-1999 stood abated w.e.f. the date of compulsory retirement i.e. 15-7-1999. In the absence of any other express provision laid down to deal with the situation i.e. compulsory retirement of an employee, Note-2, Serial No.7, Chapter 1 of WAPDA Employees Pension Rules quoted above shall be applicable to deal with the cases of all such employees, retired for whatever reason i.e. superannuation or as a result of some punishment awarded. Note-1, Serial No.7, Chapter 1 of WAPDA Employees Pension Rules relied upon by the respondents to justify the infliction of the punishment of removal form service on the appellant who already stood compulsorily retired is not applicable to the present case. The said rule is provided to withhold payment of pension/gratuity for a period of one year to enable the department to recover departmental dues, if any, recoverable from a retired employee. If this was not so, Notes 1 and 2 discussed above would be mutually contradictory.
16. In view of the above discussion, without going into merits or demerits of the charges levelled against the appellant, we find that the punishment awarded to him vide impugned order dated 18-12-1999 was illegal and cannot be sustained. The same is, therefore, set aside from the date of its imposition.
17. There shall be no order as to costs. Parties be informed.
H.B.T./40/FST Appeal allowed.