ZAHOOR AHMED vs WAPDA and others

' IFTIKHAR MUHAMMAD CHAUDHRY, J.---By this judgment we intend to dispose of Civil Appeals Nos.1538, 1539 of 2000 and No,252 of 2001 as question of law involved in these matters is common.

2. For sake of convenience relevant para. From the leave granting order dated 20th October, 2001 is reproduced hereinbelow:-- "4. Leave to appeal is granted in these matters to consider that:

(i) Whether under the circumstances, without conducting regular enquiry, the petitioners could be dismissed from service and whether fact finding enquiry could be a substitute of regular enquiry at all and be used against the petitioners, while imposing major penalty of dismissal from service."

3. Learned counsel for the appellants contended that WAPDA has alleged serious allegations pertaining to misconduct against the appellants, therefore, in view of the judgment of this Court reported as Aleem Jaffar v. WAPDA 1998 SCM R 1445 instead of adopting summary procedure of enquiry department should have followed the procedure of regular enquiry under Rule 5 of Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978. However, learned counsel appearing for WAPDA stated that charges of misconduct alleged against the appellants were fully proved through an administrative enquiry and on basis of the same letter of explanation was issued to all of them and thereafter competent authority decided not to follow the procedure of regular enquiry as such show-cause notices were issued to all of them and after receiving their replies they were removed from service. We have gone through the available record particularly documents referred to by the learned counsel for WAPDA and have also considered the ratio decidendi of the judgment in the case of Aleem Jaffar (ibid). The relevant para. Therefrom is reproduced hereinbelow:-- ' "However, it may further be observed that this Court has also held that even in the case of temporary employee whose service is liable to be terminated on thirty days notice or pay in lieu thereof on either side, his services cannot be terminated on the basis of misconduct without holding proper inquiry. In this regard reference may be made to the case of the Secretary, Government of the Punjab through Secretary, Health Department, Lahore and others v. Riazul Haq 1997 SCM R 1552; Muhammad Amjad v. The Chief Engineer, WAPDA and another 1998 PSC 337. In the above first case the following observations were made on the controversy in issue:-- ' 'Without going into the controversy, as to whether the respondent's claim that he was a permanent employee, we may observe that there is a marked distinction between simpliciter termination of services in accordance with the terms of appointment and the termination of the services on the ground of misconduct. There is no doubt that if a person is employed on contract basis and if the terms of employment provide the manner of termination of his services, the same can be terminated in terms thereof. However, if a person is to be condemned for misconduct, in that event, even if he is a temporary employee or a person employed on contract basis or a probationer, he is entitled to a fair opportunity to clear his position, which means that there should be a regular inquiry in terms of the Efficiency and Discipline Rules before condemning him for the alleged misconduct. In this regard, reliance has been placed by the learned counsel for the respondent on the case of Muhammad Sadiq Javed Chaudhry v. The Government of West Pakistan PLD 1974 SC 393, in which Waheeduddin Ahmed, J. Has succinctly brought out a distinction between termination of services of a probationer on the ground of unsatisfactory performance and the ground of misconduct...'

' "The above view was reiterated in the latter case recently."

' "We are, therefore, of the view that since the impugned removal order is not simpliciter a removal order in terms of section 17(1-A) of the Act but it is founded on the above show-cause notice and the appellant's reply to the same, it is tainted with stigma. We, therefore, allow this appeal, set aside the judgment under appeal and the order of removal. The appellant shall stand reinstated with back benefits. There will be no order as to costs."

4. In view of the law laid down by this Court in the above judgment we are not inclined to comment on the merits of the case as we are of the opinion that in terms of allegations pertaining to misconduct of appellants it was, incumbent upon WAPDA to have conducted regular enquiry against appellant after adopting procedure laid down in Rule 5 of Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 because we have already held in the judgment cited hereinabove that when an employee has to be removed on the basis of misconduct allegedly committed by him he deserved fair opportunity to defend himself because if for such reasons he is dismissed from service then for all the times to come he carries a stigma of misconduct with him.

However, the department is always at liberty to initiate fresh disciplinary action against appellants to establish as to whether they are guilty for misconduct. Thus for the foregoing reasons appeals are allowed and impugned orders are set aside. The cases are remanded to WAPDA respondent for proceeding afresh against them keeping in view the observations made hereinabove. It is hoped that the departmental proceedings, if initiated, shall be disposed of against them expeditiously instead of keeping them pending unnecessarily for a long period.

5. Parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.