1993 PLP (C (PLC(CS))

Managing Director (Distribution) Wapda House, Lahore No.6254, dated 15‑11‑1990 (Copy enclosed) has clarified that S.E. is a competent authority in the case of U.D.Cs. Since Mr. Abdul Ghaffar Khan, U.D.C. has been sentenced one year rigorous imprisonment as per orders of the Court dated 16‑7‑1990 you may dismiss him from service under relevant (E & D) Rules. (Sd.) Deputy Director (Admn.) for Chairman, Area Electy. Board Faisalabad."

4. Apparently in compliance with the Chairman's directive, the Superintending Engineer passed the following office order on the 26th of February, 1991: "O/o No. 46 Conf Dated:26‑2‑1991 In pursuance of the Court Order dated 16‑7‑1990 passed by the Honourable Court of Mr. Muhammad Mehmood Chaudhry Additional Sessions Judge, Khushab (Jauharabad) dismissing the "Criminal Appeal No.69/90 against the Judgment of dated 5‑4‑1990" of conviction for one year rigorous imprisonment, imposed by Mr. Khalid Mehmood Mela, Magistrate, Ist Class, Jauharabad to Mr. Abdul Ghaffar s/o Abdul Karim, etc. etc. and directives imparted by the Chairman AEB Wapda, Faisalabad as contained in his Confidential Memo. No.2 92/C‑2165, dated 2‑2‑1991, I, M.S. Naeem, Superintending Engineer, Electricity WAPDA Sargodha Circle, Sargodha, being "competent authority" under Pakistan WAPDA Employees (E & D) Rules, 1978, has decided to impose upon Mr. Abdul Ghaffar s/o Abdul Karim U.D.C. Divisional Office, Jauharabad, the major penalty of dismissal from service w.e.f. 16‑7‑1990, the date he has been sentenced for one year rigorous imprisonment by the Court of Law. (Sd.) Eng. M.S. Naeem, Superintending Engineer, Sargodha Circle (E) WAPDA, Sargodha."

5. The appellant has challenged the validity of this order in the present appeal under section‑4 of the Service Tribunals Act, 1973, after his departmental appeal dated 20‑4‑1991 purporting to have been made under rule 11 of the Pakistan Wapda Employees (E & D) Rules, 1978 failed to produce any result.

6. Three main points have been raised by the appellant's learned counsel during the course of arguments: First, the Superintending Engineer who passed the impugned order was not the appellant's appointing authority and, therefore, incompetent to dismiss him from service. Second, the order of dismissal from service was made to operate with retrospective effect and that it could not be l6gally sustained. The third was, that even the appellant's conviction could not justify the passage of impugned order under rule 8 of the rules without issuance of a show‑cause notice to fulfil the requirement of natural justice.

7. As for the first point, reliance has been placed, by the appellant's learned counsel on rules notified by the Authority on the 11th of August, 1986 regarding recruitment to WAPDA's (Power Wing) ministerial service. Rule 1 of Part‑II regarding recruitment provides that appointments by initial recruitment or by promotion to the service shall be made by the officers specified in column 6 of Appendix I of the rules. Reference to the relevant provisions of the Schedule bears out that Chief Engineer/Chairman, Area Electricity Board concerned is the appointing authority of the Senior Clerks (BPS‑7) of subordinate cadre of the ministerial staff service of the Power Wing. The provisions are very clear and there is no doubt about the fact that the Chairman, Area Electricity Board or the Chief Engineer was the appointing authority in the appellant's case. This being so, he was also the competent authority under rule 2(3) of Pakistan Wapda Employees (E & D) Rules, 10.78 which defines "Competent Authority" as the "Authority". "Competent authority" means the Authority or the appointing authority, or an officer to whom the appointing authority, is subordinate, or an officer designated by the Authority to exercise powers of the competent authority."

8. We feel no hesitation in holding that the Chairman Area Electricity Board being the competent authority in this case, the order of dismissal from service passed by the Superintending Engineer is evidently without lawful authority; more so when the disciplinary proceedings had been initiated by the Chairman himself through office order dated 23‑9‑1990 suspending the appellant from service with effect from 16‑3‑1990; which we hold on the authority of Wapda's office order dated 21‑11‑1990 laying down that the competent authority who had once initiated disciplinary action under the rules should continue the proceedings till their final disposal. Although, the instructions appear to have been issued in different context, the principle nevertheless hold good even in the present case where the disciplinary proceedings were initiated by the Chairman Area Electricity Board, if at all the Superintending Engineer be taken to have been the competent authority.

9. The second point is with regard to retrospective operation of the impugned order. No reference need be made to any authority on this point, because it is settled law that no executive order, particularly one which is punitive in nature can be made to apply with retrospective effect.

10. The third point is in respect of show‑cause notice. The impugned order purports to have been passed under rule 8 of the rules which provides that nothing in rule 5 shall apply to a case: (a) where the accused is dismissed or removed from service or reduced in rank, on the ground of conduct which has led to a sentence of fine or of imprisonment; or (b) where the authority competent to dismiss or remove a person from service or to reduce a person in rank, is satisfied that for reasons to be recorded in writing by the authority it is not reasonably practicable to give the accused an opportunity of show cause.

11. Reliance on behalf of the respondent department has been placed on office memorandum dated 23‑12‑1981 on the subject where the following instructions were passed: "

3. If it is decided to award the penalty of dismissal, removal or reduction in rank, it is not necessary to give a show‑cause notice to the employee concerned. The orders of removal/dismissal or reduction in rank can be passed by the competent authority after taking into consideration the grounds or conduct which lead to the conviction of the Wapda Employee concerned in Court of law, without observing the procedure for a detailed enquiry as laid down in (E&D) Rules, applicable to the employee. The removal, dismissal or reduction in rank in such cases shall take effect from the date of orders passed by the competent authority and not from the date of verdict passed by the Court of law."

12. There is no doubt about the fact that in accordance with the Authority's no show‑cause notice to the employee concerned is necessary if it is decided to award penalty of dismissal or removal from service on the ground of conviction. Regardless of these instructions, however, the law on the point is that despite the provisions of rule 8 allowing a summary procedure on the basis of conviction, we are of the view that a show‑cause notice must be given to the employee concerned to fulfil the requirements of natural justice. Reliance in support can be placed on the case of Hafiz Fazal Elahi v. Superintendent of Police, Rahim Yar Khan (1984 PLC (CS) 1314) where it was held by the High Court that show‑cause notice must be served to fulfil the requirements of natural justice, even in the case of conviction before an employee is awarded any punishment. The principle is so deep rooted that this right cannot be taken away by executive instructions passed to the contrary by any authority. The case of Mr. Muhammad Abdullah Dar v. Municipal Corporation and others (PLD 1985 Lahore 337) is also in point where the same principle was enunciated by the High Court.

13. For these reasons, the impugned order of dismissal from service is set aside with all consequential benefits in acceptance of the appeal. The competent authority shall, however, be within liberty to start proceedings afresh from the point whence the error can be rectified. In the event of fresh disciplinary proceedings in the light of this Judgment, the respondents will of course be within their authority to pass any order in accordance with law. There will be no order as to costs. Parties to be informed. H.B.T./803/Sr.F Appeal accepted.