2017 PLP (C (PLC(CS)N)

ANWAR HUSSAIN, J.

By way of this Petition, the Petitioner has prayed for Declaration that the Impugned Letter of his Compulsory Retirement dated 22.05.2012, is without lawful authority, mala fide and arbitrary and be set aside with directions to Respondents to reinstate the Petitioner in service with full back benefits.

2. The case of the Petitioner is that on 13.6.1989, he was appointed as Assistant Divisional Engineer (BPS-17), on ad hoc basis, in the Telephone and Telegraph Department; after qualifying the examination of FPSC in the year 1989, he become regular employee/Civil Servant of the T&T Department and was promoted through Departmental Promotion Committee to the post of Divisional Engineer (BPS-18). The T&T Department, was replaced by Pakistan Telecommunication Company Limited (PTCL) under the Pakistan Telecommunication Corporation Act, 1991, as such the Petitioner along with other employees stood transferred to PTCL, in pursuance of Section 9 of the Pakistan Telecommunication Corporation Act, 1991, whereby it is provided that their terms and conditions of service would be the same as earlier to such transfer. In the year 1996, reorganization of PTCL, was undertaken by way of promulgation of PTCL (Re-organization Act) 1996, whereby as per Section 35 the terms and conditions of the service of the Petitioner and other employees were not to be changed to their disadvantage and as per Section 36 the Federal Government stood guarantee to the pension and the pensionary benefits of the Petitioner/Transferee and other employees, but subsequently 26% shares were purchased by UAE Company (Etisalat), which is holding administration of PTCL, as remaining shares have not been privatized and belongs to the Federal Government and in order to shed off final liability, which is guaranteed by the Re-organization Act, 1996, the Company started victimizing senior officers, who were near to the superannuation, in order to avoid the pensionary benefits. As such the Petitioner being Regional General Manager, Sukkur (BS-20), was served Charge Sheet on 23.11.2011, for the guilty of negligence and misconduct under the PTCL Service Rules, 1996, with further allegation of embezzlement and misappropriation in laying of underground cable from Arija Village to Bakrani Exchange and the Petitioner submitted his detailed Reply with documents denying the allegations and Inquiry conducted and ultimately vide Letter dated 22.5.2012, the Petitioner was compulsorily retired from service, which has been impugned in this Petition.

3. Learned Counsel for the Petitioner submitted that the Petitioner was Regional General Manager Sukkur (BS-20), who was transferred from T&T Department to PTCL, in view of the PTCL (Re-organization Act) 1996, wherein as per Section 35 the terms and conditions of the service of the Petitioner and other such employees were not to be changed to their disadvantage and even as per Section 36 the Federal Government stood guarantee to the pension and pensionary benefit of the Petitioner/transferee, as such the Petitioner is a Civil Servant and disciplinary action should have been taken under Government Servant's (Efficiency and Disciplinary) Rules, 1973, whereas the Respondent No.1/PTCL, has taken action against the Petitioner under PTCL Service Regulations 1996, which is not applicable to the Petitioner. Reliance is placed on the case of Divisional Engineer Phones v. Muhammad Shahid (1999 SCMR 1526), Masood Ahmed Bhatti v. Federation of Pakistan (2012 SCMR 152) and unreported Judgment of Apex Court in the case of The President, PTCL v. Faizur Rehman, (Civil Petitions Nos.717 and 718/2013). Per learned Counsel, disciplinary action against the Petitioner/civil servant was taken under the wrong law/rules, which vitiates the whole disciplinary action. Reliance is placed on the case of Azizullah Memon v. Province of Sindh (2007 SCMR 229). Learned Counsel submits that one Abdul Hakeem Ghunio, co-accused with the Petitioner, was also imposed a penalty of removal from service by the Respondent/PTCL, which was impugned in W.P. No.3946/2012, before the Islamabad High Court, which was allowed vide Judgment dated 13.1.2015 on the point that disciplinary proceedings were taken under wrong law, which proceedings were vitiated. Learned Counsel submitted that the Impugned Letter/Order of Compulsory Retirement, wherein Regulations of 1996, have been followed. Even otherwise, the competent authority was the Chairman of the PTCL for taking action, but there is no signature of the Chairman nor the Chairman was competent to delegate such powers to his subordinates for taking disciplinary action, as such the disciplinary proceedings were also illegal. Reliance is placed on the case of HBFC v. Inayatullah Sheikh (1999 SCMR 311), Nasir Saeed v. WAPDA (PLD 1987 SC 421), M/s. Pak Synthetic Limited v. Waqar Ahmed (2001 SCMR 11) and ADBP v. Muhammad Anwar Bajwa (1994 SCMR 852). Learned Counsel further contended that the members of the Inquiry Committee belonged to HR Department, Lahore and Audit Department, Islamabad and one member was below the rank of Petitioner and both being non technical were incompetent to resolve controversy of technical nature. The Inquiry Committee had not recorded Examination-in-chief of Gulzar Soomro and for Examination-in-chief of Muddasir Aijaz, the allegation from the charge sheet were re-typed, but were allowed to be cross-examined by the Petitioner as such the same evidence is not legal and proper and against the principle of natural justice. Per learned Counsel the Petitioner denied the allegations against him and submitted that the allegations of missing of 810 meters cable were actually led by shifting the store from Arija-Bakrani to C-22 and C-30 Larkana, where the cable was damaged by the NHA and the same was done on emergency requisition of Gulzar Soomro, Business Manager-I, Larkana, for which documents were produced and even the Petitioner was himself competent authority for such transfer of store and has not committed any embezzlement or misappropriation, which aspect has not been considered, while taking action against the Petitioner. Lastly, the learned Counsel prayed that the Impugned Letter/Order be quashed/set-aside and Petitioner be re-instated in service with full back benefits.

4. Whereas the learned Counsel for PTCL, submitted that Petitioner was regular employee of T&T Department, which was replaced by PTC as per PTC Act, 1991, resultantly Petitioner stood transferred to PTCL, and as per Section 35 of PTCL (Re-organization Act) 1996, the terms and conditions of Petitioner's service were not changed to his dis-advantage. Per Counsel after such change and transfer, the Petitioner and other employees of PTCL, are contractual employee of a Private Company and there is no permanent employee; as such the members of Inquiry were also contractual employees; having non-statutory rules and Judgments of Apex Courts in Masood Ahmed Bhatti's case (supra) and President, PTCL v. Faiz-ur-Rehman's (Civil Petition Nos.717-718/ 2013) are not of any help to Petitioner, rather learned Counsel relied upon the case of Iqbal Nasir (PLD 2011 SC 132) and on the basis of the same PTCL Services Regulations, 1996, would be applicable and not Government Servants (E&D) Rules, 1973; the Judgment of Islamabad High Court in case of Abdul Hakeem Ghunio, has been impugned by way of Intra Court Appeal, which is still pending in Islamabad High Court; one of the Member of Inquiry was Officer of Grade 21, and the other one was of Grade 20; the provisions of PTCL Regulations, 1996, and Government Servant (E&D) Rules, 1973 are almost same, so no prejudice has been caused to the Petitioner; the Inquiry has been conducted properly and legally and there is no violations of principles of natural justice; there were allegations of number of irregularities committed by Petitioner, as such Inquiry initiated, proceeded and conducted against the Petitioner and penalty was imposed; the Petition is not sustainable and be dismissed.

5. The learned Standing Counsel supported the arguments of learned Counsel for PTCL.

6. Heard the arguments and gone through the law and available record.

7. Since the PTCL/Respondent admitted that the Petitioner was Regional General Manager (BS-20) in PTCL; Petitioner's transfer from the PTCL's predecessors PTC and T&T Department, and Section 9 of PTC Act, 1991, whereby terms and conditions of service of Petitioners were saved even after his statutory transfer with re-organization of PTC and formation of PTCL through Pakistan Telecommunication (Re-organization) Act, 1996, wherein Sections 35 and 36 saved the terms and conditions of Petitioner's service and guaranteed his pension and benefits thereof, respectively.

8. But there is dispute in this Petition, as to the issue that whether the disciplinary proceedings against the Petitioner were to be held under PTCL Service Regulations, 1996 or under Government Servant (E&D) Rules, 1973. This question has been dealt with and resolved by the Apex Court in the case of Masood Ahmed Bhatti (supra), against which Civil Review Petitions Nos. 247-249/2011, have also been dismissed by the Apex Court vide unreported Judgment dated 19.02.2016, and as such it is settled issue that the Petitioner being employee of PTCL, is to be dealt under Government Servant (E&D) Rules, 1973, and the case of Masood Ahmed Bhatti (supra) has been referred to by the Apex Court in their un-reported Judgment dated 23.8.2013, in Civil Petitions Nos.717 and 718 of 2013 (The President, PTCL v. Faiz-ur-Rehman), in which the Civil Review Petitions Nos.253-254/2013, have also been dismissed by the Apex Court vide unreported Order dated 06.12.2013. As such in view of the said announcements of the Apex Court the disciplinary proceedings against the petitioner was to be initiated and proceeded under Government Servant (E&D) Rules, 1973, and not under PTCL Service Regulations, 1996. Per learned Counsel for Respondent the provisions of said two Rules are one and the same, so no prejudice has been caused, this contention of learned Counsel has no legal force as in view of the said pronouncements of the Apex Court in the cases of PTCL employees and reliance of learned Counsel for Respondent in support of his contention on the case of Iqbal Nasir (supra), decided on 23.12.2010, is not applicable to the case of Respondent, as when the Impugned Letter dated 22.5.2012, was passed, the case of Masood Ahmed Bhatti (supra), decided on 07.10.2011, was in field.

9. Since the Government of Pakistan has still got the Shares of the PTCL/Respondent No.1, and terms and conditions of the transfer employees including Petitioner, having been protected statutorily, as stated above, for which the Government Servants (Efficiency and Disciplinary) Rules, 1973, having been made applicable by the Apex Court and not the PTCL Service Rules, 1996, so the contention regarding the provisions of said two Rules being pari materia the same, would have no legal effects particularly in view of the settle principle of Administration of Justice that thing as required to be done can be done in that very manner, otherwise the same would have no legal effect and for which reliance is placed on the case of Muhammad Anwar v. Ilyas Begum (PLD 2013 SC 255) wherein the Apex Court has held that: "....It is a well-known principle of law that where the law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be termed as a technicality." In the case of Muhammad Mustafa v. Azfar Ali, PLD 2014 Sindh 224 (D.B), it has been observed: "..... that where things have not been done in the manner, as required by the law and procedure, the same cannot be given legal sanctity particularly when the same are resulting in penal consequences or causing rights of an individual,..."

10. Moreover, Abdul Hakeem Ghunio, one of the delinquent official, who was removed from service after inquiry under PTCL Service Regulations, 1996, had filed Writ Petition No.3946/2012, in the Islamabad High Court, which was allowed vide Judgment dated 13.01.2015, whereby the removal from service was set aside, on the basis that PTCL was required to adhere to the protected terms and conditions of service and the Disciplinary Proceedings under PTCL Service Regulations 1996, was without proper authority, which clearly violate the legislative intent and that the Official was re-instated.

11. As such in view of above, we are of the firm view that terms and conditions of service of the Petitioner have been statutorily protected, coupled with the pronouncements in the cases of Masood Ahmed Bhatti and Faiz-ur-Rehman (supra), the Respondent/PTCL was to adhere to the same, so the disciplinary proceedings were to be initiated under Government Servants (E&D) Rules, 1973, whereas the Respondent/PTCL, carried disciplinary proceedings against Petitioner under PTCL Service Regulations, 1996, which is of no legal effect and violates the legislative intent and in such situation Petition in High Court is entertainable and relief can be granted.

12. In view of the above, the impugned compulsory retirement of the Petitioner by the PTCL/ Respondent through impugned Letter dated 22.5.2012, is set aside and the Petitioner is reinstated in the service. However, the Respondents Nos.1 to 4, may conduct inquiry afresh in accordance with Government Servants (E&D) Rules, 1973, within three months. The payment of back benefits shall be subject to the final outcome of inquiry proceedings and report. This petition along with listed Application is disposed off accordingly. ZC/S-80/Sindh Petition allowed.