1993 PLP (C (PLC(CS))

Consequent upon consideration of defence reply to the explanation letter, examination of above documents/relevant record and after giving him personal hearing in this case on 8‑6‑1989 and 28‑6‑1989, the undersigned not finds him guilty of the charges levelled against him, in the above show‑cause notice. I, Muhammad Iqbal Jan, Executive Engineer (E), Wapda Division, Pasrur as a competent under Rule 2(3) of Pakistan WAPDA Employees (E&D) Rules, 1978, therefore, hereby "Exonerate/impose upon him the following penalty/penalties in the above case Dismissed from service. (Sd.) Executive Engineer (E), WAPDA, Pasrur Division, Pasrur"

5. After a departmental appeal under rule 11 of the Rules failed to produce any result, the appellant came to the Tribunal with the present appeal under section 4 of the Service Tribunals Act, 1973, praying that the impugned order of 11‑7‑1989 may be set aside and the appellant be reinstated in service with consequential benefits.

6. As we have noticed in the statement of facts the charge against the appellant was that he fraudulently obtained employment with the Authority as an Assistant Lineman by misrepresentation that he had passed the 8th Class examination. There is, however, absolutely nothing whatsoever on the record to show that he produced any certificate regarding his academic qualifications before the competent authority at the time of his recruitment, or that he otherwise contrived his appointment by misrepresentation or fraud. He has placed on record a photostat copy of his application for appointment as ALM. In this application he clearly stated that his academic qualification was almost nothing. It spells out a clear indication of frank admission on his part that he was not literate. In the application, reliance was on the fact that he was out of job; that he was enjoying a good health and that he was quite suitable for field work. Any way, what is important and relevant is that he did not conceal the fact that his education was as good as nothing and that he never claimed that he had passed Middle Examination. We feel that this application is a valuable piece of the evidence to show that he did not produce any certificate of education at the time of his recruitment. '

7. The pleadings of the respondents as also the contentions made by their learned counsel at the Bar, tended to cause an impression as if he was appointed as ALM on account of misrepresentation that he had passed the Middle examination. This in fact is not the truth. Photostat copy of the application shows that an order with regard to his appointment as ALM was passed by the concerned Federal Minister Mir Zafarullah Khan Jamali. He not only ordered his appointment but also said that the fact of appointment should be confirmed by the concerned Authority. So there is no substance in the contention that his appointment was the result of production of any certificate of education or misrepresentation with regard to his qualifications. It was rather in direct consequence of the Federal Minister's direction.

8. This aspect of the matter apart, if any certificate had in fact been produced by the appellant before the competent authority at the time of his recruitment, it should have been produced by the respondents in support of their case. This has not, however, been done and we are justified in presuming that no such certificate was produced. The explanation given in the written statement by the respondents for their failure to produce the certificate is that if was on his personal file which has been misplaced. It has been pleaded that disciplinary proceedings were initiated against the concerned official who was responsible for misplacement of the personal file. Regardless of whether the file was misplaced, all what is important is that the certificate has not been produced. If at all any person is to be benefited by this circumstance, it is only the appellant. There is no justification whatsoever for a presumption that such a certificate had been produced by him and that it had been placed on his personal file.

9. We might take notice of the respondents' pleadings where it is said that on the title page of appellant's service book there is an indication of the fact that he passed the Middle School Examination, which is because his qualification had been recorded on the title page of the service book w. "Middle". About the entries of this page, it was contended by the appellant's learned counsel, not without substance either, that the qualification recorded as "Middle", is the result of overwriting. It was further contended that in the first instance, the relevant entry was "Nil", which seems to have been subsequently changed into "Middle" by somebody. However, it was submitted by the respondents' counsel that the respondents were not responsible for this overwriting and that this seems have been done by the appellant himself. But we do not find it possible to agree with the learned counsel, and that simply for the reason that it is not their case in the written statement that the appellant was in any manner responsible for or connected with this overwriting. Had there been any substance in this contention, the respondents would have so pleaded in their written statement.

10. Notwithstanding the fact that there is no evidence in support of the respondents' charge against the appellant, the impugned order passed by the competent authority makes an interesting reading. In the first paragraph, the competent authority found the appellant not guilty of the charge levelled against him, but in the second it was said that he is dismissed from service: The impugned order is clearly a paradox. It seems to us that the order has been recorded by filing in the blanks of a stereotyped form. Any person who typed the material part of the order, appears to have forgotten to score out the expression, "the undersigned not finds him guilty of the charges levelled against him in the above show‑cause notice." Whatever be the case, the order is self contradictory and has been passed without application of mind.

11. In their pleadings, the respondents have made an attempt to give an impression that minimum qualification for recruitment as ALM was passage of 8th Class examination. It was pleaded that during preliminary inquiry it came to light that "the appellant was not appointed only on the basis of his application endorsed by the then Federal Minister, but on the basis of a certificate produce by the appellant showing his qualification as Middle Pass". It was further pleaded that he was selected for appointment on the belief that he possesses the required qualification.

12. Reliance is placed on the relevant provisions of the West Pakistan WAPDA (Power Wing) Technical Subordinates (Line Staff) Service/Recruitment Rules, 1971. Under these rules, qualification for recruitment as ALM is that he should preferably be a matriculate from a recognized University or Board. Relying upon these provisions, it was argued by the respondents' counsel that the expression "preferably matriculation" is indicative of the fact that a person should at least be a "Middle Pass" for eligibility to the post of ALM. We ‑are not inclined to agree. The expression "preferably matriculation" shows that matriculates were to be preferred at the time of recruitment to those who did not passed that qualification. This does not mean that a person should at least have been a "Middle Pass" for eligibility. No minimum qualification seems to have been laid down in this rule for eligibility and even an illiterate person was eligible for recruitment as ALM. We are supported in this opinion by photostat copies of the service record of various other persons who were recruited as ALM in spite of the fact that they had not passed the Middle School Examination.

13. In support of the respondents' case, reliance has been placed on the statement of the Executive Engineer who is said to have recruited the appellant. But this statement has not been placed on the record, although it finds mention in the report of preliminary investigation. Even if it had been produced, it could not be relied upon, for the reason that it was recorded in the appellant's absence during preliminary inquiry, to which he was not a party.

14. For these reasons, the appeal is accepted and the impugned order of 11‑7‑1989 is set aside. The appellant shall be reinstated in service with all consequential benefits. No order as to costs. A.A./752/Sr.F Appeal accepted.