Syed YAQOOB SHAH vs XEN, PESCO (WAPDA), PESHAWAR and another

ORDER

IFTIKHAR MUHAMMAD CHARUDHRY, J.---Instant petition has been disposed on 4th April, 2002 for the reasons to be recorded later on, by means of short order which reads thus: 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 Muhammad Ayub and his Munshi Bakhatzaman son of Fazal Zaman have removed the Electricity Meter No,6114-077874894-R for the purposes 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 "Kachha 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 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 the 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 Task, 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 SDO, 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) Consequent upon 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. WAPDA is also directed to conduct disciplinary proceedings against XEN (PESCO) and 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 petitioner, if it desired so.

(vi) There shall be no order as to costs.

2. A perusal of facts of the case noted hereinabove indicates that in pursuance of F.I.R., dated 15th April, 1999 the owner and Munshi of brick- kiln were booked for violation of section 39-A of Electricity Act, 1910. The F.I.R. And other documents available in the inquiry record placed before us for perusal do not indicate that the Electricity Meter No,6114-077874894-R was allegedly removed by the petitioner for the purpose of reversing its reading with a view to extend illegal benefit to the owner of the brick-kiln. But surprisingly on the same day the then S.D.O. Of PESCO Rehman Baba, Peshawar vide his letter of even date i,e, 14th April, 1999 lodged a complaint with the XEN that petitioner had removed the Meter. Contents of this letter are available in the letter of explanation issued by Mr. Umar Farooq Bangash, XEN, PESCO dated 11th May, 1999 to petitioner from where it is reproduced hereunder:-- "As per report of S.D.O., PESCO Rehman Baba, Peshawar Letter No,02 Camp Site dated 14-4-1999.

You have removed the meter. Batta Khesht Suhbat Khan for reversing/shunting, it has also noted that the same meter always tampered/interrupted by you. Thus you gave the chance to the consumer for misusing the electric energy, due to which the authority sustained a great financial loss."

3. The petitioner denied allegation put to him in the letter of explanation. Subsequently the letter of explanation was followed by a show-cause notice, which was also contested by him and allegations so imputed against him were denied. After receipt of the reply of final show-cause notice on 19-6-1999 petitioner was removed from service by issuing a latter under the signatures of XEN Umar Farooq Bangash. The official file pertaining to inquiry also indicates that before passing final order the file was put up before Capt. Riaz Hussain, Incharge Army Task who ordered as under:-- "Terminate him from service".

4. It may be noted that under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 (hereinafter referred to as the "Rules") admittedly the Captain of Pak Army is neither a appointing authority nor a competent Authority for the purpose of issuing orders of termination of services of the employees, therefore, S.D.O. And XEN were not legally bound to obey such order being without lawful authority because this Court in the case of Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 SC 530) has held that only lawful orders are to be implemented. Relevant para. From the judgment is reproduced hereinbelow for convenience:-- ... ...We need not stress here that a tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an uptight, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that the Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action."

Therefore, in view of the above dictum, we are of the opinion that if the Government servant had no courage to refuse the implementation of unlawful order then he should also face ultimate adverse consequences as well. Application of this principle in the case of like minded officers in future will extend enormous help in establishing the rule of law which is essential component of the good governance.

5. It appears that after the registration of criminal case against owner of the Bhatta (brick-kiln) and his Munshi vide F.I.R. Dated 14th April, 1599 the then S.D.O. And XEN managed to involve the petitioner falsely because if he was responsible for removing the meter for the purpose of reversing the reading or for providing unauthorized connection on the brick-kiln his name must have appeared in the F.I.R. Or in the subsequent investigation by the prosecution, he should have also been involved in that case. Inasmuch as even later on the electricity meter was not recovered by the Investigating Agency from petitioner's possession, therefore, for this reason as well, -his involvement in the case subsequently with a view to remove him from service cannot be overruled.

The official file further reveals that the then S.D.O. And XEN were somehow interested to involve the petitioner in this case because on realizing that there is no basis to implicate him in the commission of alleged misconduct, they managed to obtain a written complaint, dated 26th May, 1999 from one Inayatullah Khan, Advocate who is the brother of Bhatta owner namely Hameedullah son of Muhammad Ayub and in that complaint it was alleged that petitioner has removed the meter from the Bhatta for the purpose of reversing its reading. Copy of this letter is available on record.

6. At the time of hearing of petition, attendance of Mr.Gohar Ali, S.D.O. And 'Mr.Umar Farooq Bangash, XEN was procured and they were called upon to explain their position in this behalf. Both of them could not answer satisfactorily, except stating that they were directed by the authorities (without explaining the name of the Authority) to submit a report against the petitioner. It is also important to note that the father of accused Hameedullah in criminal case is a former Sessions Judge and subsequently on his retirement he was posted as Member, Federal Service Tribunal, therefore, possibility cannot be overruled that on account of influence of accused party against whom a criminal case was registered during raid conducted by WAPDA officials in presence of Army Personnel attached with the WAPDA Department on their brick-kiln, they might have managed to involve the petitioner in the case in order to save their skin from the criminal liability. A perusal of documents also leaves an impression that probably the petitioner passed on an information about the theft of electricity on the brick-kiln of Hameedullah son of Muhammad Ayub to WAPDA officer and in pursuance of such information raid was conducted on their brick kiln and a bill of higher amount was also sent to them which gave rise to a civil litigation as well between the owner of the Bhatta wherein Muhammad Ayub Khan former Sessions Judge was shown as plaintiff against WAPDA Department and in the said proceedings he claimed a decree against WAPDA regarding over-billing.

7. Be that as it may, the above factual aspects of the case just indicate that involvement of the petitioner was the result of mala fides on the part of S.D.O. And XEN. But main question involved in this case is that if the petitioner was involved in the commission of the offence of misconduct then under rule 5 of the Rules while adhering to summary procedure whether it was not incumbent upon the authority to pass an order informing the petitioner regarding non-conducting detailed inquiry and its decision to proceed against him summarily as required under rule 5(iv) of the Rules.

Essentially, answer to this question would be that it was the duty of the competent Authority to have passed such an order. Admittedly no such order was passed and petitioner was proceeded against summarily without adopting proper course and major penalty was awarded to him, illegally. In this behalf in the case of Zahoor Ahmad v. WAPDA and others (2001 SCM R 1566) it has been observed as under:-- "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."

8. Learned counsel for WAPDA stated that petitioner has confessed the guilt by filing an affidavit on 5th June, 1999 wherein he has requested for pardon as he is guilty of reversing the meter. In our opinion this affidavit was required to be proved during departmental proceedings. Reference in this behalf can be made to the order of removal from service of petitioner dated 19th June, 1999. Its contents indicate that said affidavit was not taken into consideration at all meaning thereby that its credibility was not accepted on its face value. It may also be noted that in this behalf the explanation of the petitioner is available on record, according to which he was coerced to make such a statement. As such, stand taken by the petitioner seems to be correct in view of the circumstances of the case, narrated above.

9. Learned counsel for the petitioner contended that Ayub Khan a former Sessions Judge who was later on appointed as Member Federal Service Tribunal, Islamabad heard the appeal of petitioner as it was enlisted before him but in principle, he should have not heard it because he had full knowledge that WAPDA had taken action against petitioner on the alleged charge of removing/tampering with the electricity meter from the Bhatta owned by him alongwith his son Hameedullah. Therefore, he being biased against the petitioner should have not heard his case.

10. In view of his above argument notice was issued to Muhammad Ayub Khan to explain his position. He filed a written explanation denying the fact about having knowledge regarding removal of petitioner from service on account of reversing/removing the meter from the brick-kiln owned by him or his son.

11. We were not inclined to accept such stance because he himself filed a civil suit against WAPDA" questioning recovery of unjustified charges of electricity by attributing that petitioner is responsible for over-billing. However, during hearing of petitioner, he appeared on the Rostrum and made a statement on oath that he had no other knowledge about the involvement of petitioner in the case relating to removal of meter from the Bhatta. Therefore, notwithstanding the facts available on record we accepted his statement as it was made by him on oath in the open Court.

12. Now the next question is that when no inquiry has been conducted against the petitioner according to Rules then what relief can be granted to him. In this behalf there could be no opinion except 'that he shall be reinstated in service with all back benefits, because his termination was not in accordance with the rules but for some other reasons. In this behalf, reference can be made to the case of Usman Ghani v. Federal Service Tribunal and another (1986 SCM R 1875), wherein it has been held that if while passing an order of removal, the authority is found to have exercised its power not bona fide but for some extraneous consideration, such order would stand vacated.

However, WAPDA, if desire, can proceed afresh against the petitioner according to Rules, without being influenced in any manner from instant order because it is our considered opinion that wrong doer cannot be let loose.

13. While granting him relief of full back benefits particularly his past emoluments, the XEN and S.D.O. Are to be burdened because they instead of acting independently by applying their mind had involved him in a false case and they passed order of his removal from service following the direction of Capt. Riaz Hussain, Incharge of Army Task. Therefore, due to such wrong not only petitioner suffered but WAPDA also remained involved in litigation at the cost of public" exchequer.

As such they should be responsible directly to compensate the petitioner instead of burdening the public exchequer without any justification because it, is the duty of all Government functionaries to discharge their functions rightly unless it is shown that mistake is bona fide and when such functionaries transgress their jurisdiction and violate the provisions of law then subject to statutory exceptions in criminal cases, they cannot claim indemnity for doing civil wrong, intentionally, and if they do so, then they have to bear burden on their shoulders, severally and individually, including sharing of financial burden. If fixing of such liability upon Government officials is adhered strictly, it would not only set trend to do things and discharge duty in accordance with law, without malice and mala fides but would also serve a deterrent for like-minded officers. There is no cavil with the proposition that the Government servants do not face proceeding in the nature of tort because they enjoy sovereign immunity. But here is a case where such immunity cannot be extended to the concerned officers because their action is entirely based on mala fides and extraneous considerations. Extension of sovereign immunity in such-like case would mean to grant licence to them to do whatever they like, without caring for the principles of justice as well as the rules and regulations applied in the department.

' Therefore, keeping in view this aspect of the case we have held that Umar Farooq Bangash, EXN (PESCO) and Gohar Ali S.D.O. (PESCO) Rehman Baba, Peshawar are responsible for making payments of back benefits concerning the payment of past salaries of the petitioner from the date of his termination till the date of reinstatement at the ratio of 60% + 40% respectively within 30 days, after receipt hereof. If said amount is not paid by both the officers i,e, Umar Farooq Baghash, XEN and Gohar Ali, S.D.O., voluntarily, then compulsory deduction should be made from their pensionary benefits and balance, if need be, shall be recovered from their current salaries, accordingly. Such order against them is being passed by way of imposing costs upon them in the interest of justice in terms of Order XXV, rule 10 of the Supreme Court Rules, 1980. In addition to-it WAPDA will also proceed against them separately for not discharging their duties according to rules.

14. Hereinabove are the reasons of our short order, dated 4th April, 2002. Copy of this judgment be also sent to the Chairman, PESCO for information and necessary action if need be against Capt. Riaz Hussain, Incharge Army Task, Peshawar who is also equally responsible for illegal termination of petitioner from service.