Syed YAQOOB SHAH vs XEN PESCO (WAPDA), PESHAWAR and another
This petition for leave to appeal challenged a judgment of the Federal Service Tribunal, which had upheld the termination of the petitioner's services by WAPDA (PESCO). The core legal question concerned whether the termination of the petitioner's employment, based on an external, unauthorized directive from a military officer rather than following established disciplinary procedures, was legally sustainable. The Supreme Court found that the XEN and S.D.O. had acted on bogus proceedings and an unlawful order from an unauthorized source, failing to adhere to the prescribed disciplinary rules. The Court set aside the termination order and the Tribunal's judgment, ordering the petitioner's reinstatement with full back benefits. Crucially, the Court held that the responsible officers (XEN and S.D.O.) were personally liable to pay the back benefits in a 60/40 ratio, as their negligence and failure to follow the WAPDA Employees (Efficiency and Discipline) Rules, 1978, caused the wrongful termination. The Court further directed WAPDA to initiate disciplinary proceedings against these officers for their misconduct and failure to perform their duties according to the law.
- Can a WAPDA official terminate an employee based on an external directive without following the WAPDA Employees (Efficiency and Discipline) Rules 1978?
- Is a competent authority required to record reasons when dispensing with a formal inquiry under the WAPDA Employees (Efficiency and Discipline) Rules 1978?
- Can the Supreme Court order public officials to personally pay back benefits to a wrongfully terminated employee due to their negligence?
- Section 39-A, Electricity Act 1910
- Rule 5, WAPDA Employees (Efficiency and Discipline) Rules 1978
ORDER
' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition for leave to appeal has been filed against the judgment dated 29th January, 2001 passed by Federal Service Tribunal, Islamabad whereby Service appeal filed by petitioner has been dismissed.
2. Precisely stating the facts of the case are that on 14th April, 1999 a case was registered under section 39-A of Electricity Act, 1910 on the allegation that the owner, of a brick-kiln namely Hameedullah son of Muhammad Ayub, and his Munshi Bakhatzaman son of Fazal Zaman have removed the Electricity Meter No,6114-077874894-R for the purpose of reversing its reading and they have also obtained unauthorized connection for supplying electricity in the office of Brick-Kiln and residential areas of "Khangi Godhi" where "Kacchha Bricks" are prepared. In pursuance of this F.I.R. Owner and his Munshi were arrested.
3. It appears that on the same day S.D.O. Of Rahmanbaba Sub-Division submitted his report to the effect that petitioner has removed the Electricity Meter, as such on the basis of his such report explanation of the petitioner was called on 8th May, 1999.
4. It may be noted that during pendency of proceedings against the petitioner, on 26th May, 1999, S.D.O. (PESCO) received an application from one Inayatullah Khan, Advocate Peshawar who is stated to be brother of Hameedullah son of Muhammad Ayub, owner of the brick-kiln. Surprisingly, contents of this application as well as the letter dated 14th April, 1999. Written by S.D.O. To the XEN are same. However, XEN without conducting any inquiry and probing into the matter, on receipt of reply of explanation, issued show-cause notice to the petitioner to explain as to why his services should not be dispensed with.
5. It is noteworthy that the competent authority under Rule 5 of the WAPDA Employees (Efficiency and Discipline) Rules, 1978 enjoys jurisdiction to dispense with the inquiry but subject to, passing the order, mentioning therein reasons for not doing so. However, ultimately, services of the petitioner were terminated, who preferred appeal before the Federal Service Tribunal, which has been dismissed by means of impugned order.
6. We have heard the learned counsel appearing for petitioner as well as XEN (PESCO) and S.D.O.
(PESCO) in person. During the hearing of this petition, we have examined the record of the case so produced for our perusal, which indicates that the XEN as well as S.D.O., in pursuance of bogus proceedings terminated the services of the petitioner because the record reveals that there is a note written in the handwriting of one Capt. Riaz Hussain, Incharge Army Tasks, to the effect that "terminate him from service". This document does not reveal that on the basis of which material this order was passed and what was the authority of the said Captain to direct the termination of the petitioner. Therefore, the XEN and the S.D.O., instead of complying the unlawful order, should have followed the prescribed procedure to punish the petitioner, if he was guilty for the offence of removing Electricity Meter.
7. Therefore, for the reasons to be recorded later on, we convert this petition into appeal and allow the same in the following terms:--
(i) The impugned order dated 29th January, 2001 passed by Federal Service Tribunal as well as order of the removal of petitioner from service dated 19th June, 1999 passed by Mr. Umar Farooq Bungash, XEN (PESCO) on the report of Mr. Gohar Ali, S.D.O. (PESCO) dated 14th April, 1999 is set aside.
(ii) In consequence of setting aside impugned order, petitioner is reinstated into service with all back benefits which shall be paid to him by Mr. Umar Farooq Bungash, XEN (PESCO) and Mr. Gohar Ali, S.D.O. (PESCO) personally at the ratio of 60% and 40% respectively, because we feel that on account of their conduct and non-following the procedure laid down under WAPDA Employees (Efficiency and Discipline) Rules, 1978, petitioner has suffered. As such for their negligence in performing duties public exchequer cannot be burdened by making payment of back benefits to the extent of remuneration of the petitioner for the period during which he remained out of job.
(iii) WAPDA is also directed to conduct disciplinary proceedings against XEN (PESCO) & S.D.O.
(PESCO) for not performing their duties accordingly.
(iv) Mr. Muhammad Ayub Khan, former Member Federal Service Tribunal, Islamabad appeared in person and made a statement on oath that he or any other Member had no knowledge about the involvement of his son Inayatullah Khan in the case which was heard by him as Member Federal Service Tribunal, therefore, accepting his statement, we are inclined to take no action' against him.
However, he is directed to be careful in future while performing judicial proceedings, if he had any occasion to do so.
(v) WAPDA, however, shall be at liberty to initiate fresh departmental disciplinary proceedings against the appellant, if it desired so.
(vi) There shall be no order as to costs.