2001 PLP (C (PLC(CS))

MUHAMMAD RAZA KHAN (MEMBER).--The appellant was working as Grade-I Lineman under WAPDA for almost 23 years. He was subjected to disciplinary proceedings relating to theft of electricity, misuse of his position and causing loss to the Authority for providing free electricity to some others. During the enquiry the appellant allegedly confessed his guilt, however, this confession was retracted while replying to the show-cause notice. The penalty of removal from service was imposed on 15-12-1996. The departmental appeal dated 9-1-1997 was rejected on 11-4-1997 conveyed to the appellant on 25-4-1997. Hence this appeal filed on 23-5-1997 mainly on the ground that the confession was based on undue influence coercion and illiteracy of the appellant. It was also claimed that the charge-sheet was served to the appellant more than four months of the knowledge of financial loss to the Authority and under the Standing Orders Ordinance, the charge -sheet was to be issued within thirty days from the date of misconduct. Hence, it was contended that the enquiry proceedings were bad and irregular and had to be quashed.

2. The respondent-department contested the case. Written objections were filed. We have listened to the arguments on behalf of the parties.

3. The record produced by both the parties sufficiently demonstrated that the appellant had confessed the guilt in writing before the Enquiry Officer. The confession was retracted while replying to the show-cause notice and in the memorandum of present appeal it was also claimed that since the appellant was illiterate, therefore, his confessional statements were got signed either in blank or without translating the contents thereof. These are mere allegations. Verbal allegations cannot exclude the documentary pieces of evidence in the form of confession bearing the true signatures of the appellant. The oral evidence can never exclude the documentary one. Even otherwise there is no evidence nor any affidavit to hint at the undue influence or pressure exerted over the appellant to sign a particular document.

4. We are also told at the Bar that the appellant had already deposited the amount that was found due from him which was directly a proof to substantiate the charge as well as the confession. Even otherwise there is no allegation of mala fide or personal grudge against any of the respondents so as to justify the contention of coercion or misuse of process of confession without the consent of the appellant.

5. The learned counsel for the appellant argued in detail that section 18 of WAPDA Act provided for the power of Authority to determine the terms and conditions of service of officers and employees working therein and also to proceed in cases of conduct and discipline. However, vide section 29 of the Act the regulation issued by the Authority was required to have the approval of the Government. Thus, the learned counsel argued that the WAPDA Employees (Efficiency and Discipline) Rules framed in exercise of the powers of the Authority under section 18 were not the statutory rules and, therefore, the appellant was to be regulated by the Standing Orders Ordinance and the Labour Laws whereby the charge-sheet was to be served within thirty days of misconduct or the date of knowledge whereas in the instant case the charge-sheet was allegedly served four months after the date of knowledge. We cannot agree to the proposition though brilliantly conceived by the learned counsel for the appellant for the reasons that; firstly the WAPDA Employees (E & D) Rules were framed in accordance with the powers vested in the Authority under section 18 of the WAPDA Act. Rules are always of the nature of subordinate legislation. Any rules framed in accordance with the provisions of the statute will, therefore, be a piece of subordinate legislation and shall have the due force. The approval of the certain rules and regulations by the Government does not convert or upgrade the status of a particular rule or regulation as the case may be. If a regulation or rules has to be approved by the Government, the same shall have no validity unless it is so approved. Therefore, the regulation framed under section 29 of WAPDA Act shall be valid and operative only if such regulations are approved by the Federal Government. However, there is no requirement that the rules framed under section 18 of the WAPDA Act have also to be approved by the Government. Therefore, if the Authority makes rules in accordance with its powers vested by the said statutory provisions, it will not (sic) it efficacy or the ground that it was not approved by the Government. The approval of the Government is not at all required for such rules. Hence we hold that the WAPDA Employees (E&D) Rules were valid and operative piece of subordinate legislation under section 18 of WAPDA Act and any proceedings conducted under the said rules do not suffer from any legal infirmity. Secondly, if the appellant considered that the Standing Orders Ordinance or the Industrial Relations Ordinance or other Labour Laws should have been applied to his case, he should have approached the appropriate legal forum. Under the said statute proper mechanism was available for the implementation and enforcement of such statutes. Thirdly, even in the cases cited by the learned counsel for the appellant it has been held that the relationship of master and servant existed between WAPDA and its employees and in such a situation the jurisdiction of this Tribunal shall stand ousted and the appeal would be incompetent.

6. Although the technical objections may have any force and the confession of guilt may defeat the case of the appellant yet there is no denial of the fact that the appellant had almost 23 years of service at his credit. There seems to be no blot in the entire service career. No disciplinary proceedings were ever initiated and no penalty appears to have been imposed in such a long service against the appellant. The solitary incident of using the electricity unauthorisedly and providing electricity to neighbours resulting in financial loss to Authority may be based on any reason but the honest and clean breast confession of guilt by the appellant requires to be compensated at least in the quantum of punishment. The amount found due against the appellant is admittedly deposited and the Authority suffers no loss on this account. Under these circumstances we are of the opinion that the terms penalty of removal from service, forfeiting the entire benefits of service, stretching over a period of almost a quarter of a century will be a bit too harsh. Consequently we partially accept this appeal and covert the penalty of removal from service into that of compulsory retirement.

7. No order as to costs. Parties be informed. H.B.T./209/St/F Order accordingly.