2007 PLP 1643 (SCMR)

JAVED IQBAL, ACTG. C.J.

This appeal with leave of the Court is directed against the judgment dated 12-10-2006, passed by learned Federal Service Tribunal (Lahore Bench) whereby the appeal preferred on behalf of appellant, has been partly accepted with the direction that de novo proceedings may be initiated against the appellant.

2. Briefly stated, the facts of the case are that "the appellant was posted as Caretaker of WAPDA Hospital Complex, Lahore. On 13-11-2002, afire broke out on the 3rd Floor of the said Hospital and caused considerable damage besides resulting in the death of two patients. An inquiry Committee was set up to in the responsibility upon the officers/officials responsible for' the tragic accident. The Inquiry Committee reached the conclusion that the appellant along with others were responsible for the faulty functioning of the fire alarm system" installed in the Hospital. On the basis of this Preliminary Inquiry Report, the appellant was served with a show-cause notice on 17-1-2003, under Removal from Service (Special Powers) Ordinance, 2000 on the following allegations:

"A fire broke out on 3rd Floor of WAPDA Hospital Complex, Lahore on 13-11-^002, due to some electric short circuit in the fresh air blower system of AC circuit, due to which WAPDA sustained a tentative loss of Rs.16,00,

000. The fire alarm system installed in WAPDA Hospital Complex, Lahore was not functioning properly-for which, he Syed Sajjad Haider Kazmi Sub-Engineer/Caretaker is responsible, as he failed to operate fire alarm system at the time of incident. " The show-cause notice further stated that a formal inquiry had been dispensed with under section 5(4) of the Ordinance ibid. In his defence reply the appellant denied the allegations levelled against him and pleaded that the fire alarm system had been out of order since April, 2001 and that he had made several attempts to get it rectified through the authorities concerned, and further pointed out that there were fundamental faults in the design and installation of the said system. However, the Competent Authority did not accept the defence version and vide order dated 4-2-2003, imposed upon the appellant the major penalty of compulsory retirement from service. The appellant filed a departmental appeal dated 18-2-2003, before the General Manager (Admn.), WAPDA House, Lahore which was rejected vide order date 29-3-2003." The appellant approached the learned Federal Service Tribunal by way of appeal which has been partly accepted, hence this appeal.

3. Leave to appeal was granted by means of order dated 20-12-2006, which is reproduced hereinbelow for ready reference:

"The learned counsel argued that the petitioner had already retired from service w.e.f. 9-10-2006, on attaining the age of superannuation and the .office order dated 17-11-2006, was also issued by WAPDA (Establishment Directorate) accordingly. Therefore, the disciplinary proceedings could not be taken against him as laid down by this court in the case of Abdul Wali v. WAPDA 2004 SCMR

678. The Service Tribunal was not justified in directing the holding of a de novo inquiry against hits. (2) Leave to appeal is granted to consider the above and the other submissions. Since short points are involved, office is directed to fix the main appeal for final hearing, on its present record, within a period of one year. However, parties may file additional documents with the leave of the court. C M A No.4379-L/2006 (STAY MATTER) Subject to notice, meanwhile further de novo proceedings shall remain stayed. "

4. It is, inter alia, contended by the learned Advocate Supreme Court on behalf' of appellant that disciplinary proceedings under the Punjab Removal from Service (Special Powers) Ordinance, 2000 cannot be initiated against a retired government employed and, therefore, the learned Federal Service Tribunal has erred while granting permission for de novo proceedings to the competent authority. It is next contended that the legal and factual aspects of the controversy have not been dilated upon and decided by the learned Federal Service Tribunal which resulted in serious miscarriage of justice. It is also contended that in view of various controversial questions the regular inquiry could not have been dispensed with as it was essential to make a thorough probe which was not possible without having recorded the evidence. It is next contended that the appellant cannot be held responsible to keep the Fire Alarm System functional as it was neither his duty nor he was qualified to do so.

5. Ch. Muhammad Sharif, learned Advocate Supreme Court entered appearance for respondents and supported the judgment impugned for the reasons enumerated therein with the further submission that the appellant was responsible to keep Fire Alarm System functional and his negligence resulted in a heavy loss and the appellant has rightly been held responsible after having a full-fledged inquiry. It is also argued that de novo proceedings could have been initiated against the appellant.

6. We have carefully examined the respective contentions as agitated on behalf of appellant and respondent in the light of relevant provisions of law and record of the case. We have minutely perused the judgment impugned. After having gone through the entire record we are of the view that various glaring illegalities have been committed and the mandatory requirements as contemplated in the Punjab Removal from Service (Special Powers) Ordinance, 2000 have not been adhered to which resulted in serious miscarriage of justice. For instance in view of the contentions and controversial issues the regular inquiry should have not been dispensed with. Even otherwise the copy of report of preliminary inquiry was never made available to the appellant and, therefore, he was not aware regarding the exact nature of accusation and the incriminating material relied upon in the inquiry report. Besides that personal opportunity of hearing was never afforded to the appellant. It is worth-mentioning that the learned Advocate Supreme Court on behalf of respondent had admitted before the Federal Service Tribunal that copy of preliminary inquiry was not made available to the appellant. It was also conceded that personal opportunity of hearing was not afforded which is 'not only in the violation of well-entrenched principles of natural justice but the law laid down by this Court in various judgments i.e. Ghulam Muhammad Khan v. Prime Minster of Pakistan and others 1996 PLC (C.S.) 868, Nawaz Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 222 concerning the principle of audi alteram partem and reasonable opportunity of hearing. As mentioned herein above a preliminary inquiry cannot be equated to that of a regular inquiry which was quite inevitable C in view of the nature of accusation. In this regard we are fortified by the dictum laid down in case Basharat Ali v. Director Excise and Taxation, Lahore, 1997 SCMR 1543=1997 PLC (C.S) 817, Zahoor Ahmed v. WAPDA 2001 SCMR 1566, Syed Yaqoob Shah v. Xen PESCO (WAPDA) Peshawar PLD 2002 SC 667, Abdul Qayyum v. D.G. Project Manager Organization 2003 SCMR 1110.

7. In the same wake of events it has been observed that .reply to show-cause notice has not been examined with diligent application of mind by the competent authority. The following points ought to have been considered as mentioned in reply of show-cause notice submitted by the respondent:

(2) Since we have no expertise for the repair/maintenance of this fault, therefore, we have been repeatedly requesting the Director (Security), WAPDA House, who were handling/ maintaining the similar Fire Alarm System at WAPDA House: to render the services of his office in order to check and repair the Fire Alarm System of WAPDA Hospital Complex, Lahore. (Copies attached at Annexures 2 and 3). In which M.S. WAPDA Hospital Complex had also requested the Director Security to make necessary arrangements to depute the concerned/skilled staff to visit the WAPDA Hospital at regular intervals for the reliable and safe operation/maintenance of this vital system, but nothing was done practically in this regard from their end. (3) Sir, it is also regretted to mention that we have shown our concern regarding non operation of this alarm system which could lead to any accident or loss to authority vide letter p No.Hosp/30600/59/2298-2300 dated 22-8-2001, (Copy attached at Annexure "4"). (4) Sir, later on, as per advice of Director Security, WAPDA, we have contacted the Chief Engineer (TSG) WAPDA, Faisal Town, Lahore for help or to arrange the repair of this Fire Alarm System, vide letter No.Hosp/30600/59/8668-70 dated 3-9-2001, (Copy attached at annex:-5, but they did not bather at all. (5) As no wiring diagram/maintenance manual was handed over to WAPLZA Hospital Complex, Lahore by the Building Circle/Contractor. We also requested the concerned office vide letter No.Hosp/30600(59)875 dated 7-2-2002, (Copy attached at Anuexure "6"), so that we could arrange the repair of this system from any other firm, but nothing has been provided up till now. (11) It is worth-mentioning here that all the power cables/wiring is running openly in the false ceiling, whereas all the cables/wires should have been properly fixed running in the metallic conduits, as per standard Electrical Wiring Design. Similarly, Oxygen Gas. Supply line (of copper) is also running openly with the electrical wires, which is a live fire hazard to ignite the fire/flame and, moreover the false ceiling made of wood anal chipboard, which added fuel to the fire. (12) It is very surprising to mention here that the Electrical Staff working under the Sub-Engineer (Electrical) who were operating/maintaining all the electrical system at WAPDA Hospital Complex, Lahore have bee" outrightly put aside in by the Inquiry Committee. Whereas the sub-standard wiring/cables system and their poor installation/maintenance was root cause of this said incident. (13) Sir, it is also important to mention here that Fire Alarm System of WAPDA Hospital has its sensors installed in the corridor (in the same false ceiling) linked with the open Wires to the main signal processing panel installed in the telephone exchange at basement. (15) Since, all these sensors are linked with the main processing panel at basement, so to give the signal through the electrical wires running in the same false ceiling haphazardly, this signal is processed in by the main processing panel, which, in return gives the signal to the concerned bell installed at the particular floor/area."

8. We are of the considered view that case of appellant has been mishandled and various glaring illegalities have been committed. The prescribed procedure has not been followed but on the contrary action has been taken in a whimsical and arbitrary manner which cannot be appreciated. It is worth-mentioning that appellant has since been retired and, therefore, it would be of no use to initiate de novo proceedings E without any lawful justification which is lacking in this case. In sequel to above mentioned discussion, we are inclined to accept this appeal and resultantly the judgment of learned Federal Service Tribunal, up to the extent of holding de novo proceedings, is set aside. S.A.K./S-36/SC Appeal accepted.