2004 PLP (C (PLC(CS))

HAMID ALI MIRZA, J.‑‑‑This civil petition for leave to appeal is directed against the judgment, dated 6‑3‑2003 in Appeal No. 1355(R) of 1999 titled "Fida Hussain, Ex‑Executive Engineer v. Water and rower Development Authority through its Chairman and 2 others passed by learned Federal Service Tribunal, Islamabad whereby the appeal filed by the respondent Fida Hussain was allowed thereby the impugned order, dated 23‑4‑1999 of compulsory retirement under section 17(1‑A)(a) of WAPDA Act, 1958 was set aside, so also order, dated 2‑5‑00 of removal from service.

2. Brief facts of the case are that the respondent Fida Hussain joined the petitioner‑service in May, 1977 and was compulsory retired as per order, dated 23‑4‑1999 when he was serving as Executive Engineer Swabi Division‑I, WAPDA Circle without serving him any show cause notice stating the grounds on which the said action had been taken and without affording him any opportunity of hearing. The respondent approached the Federal Service Tribunal by way of appeal which appeal was accepted as per impugned judgment; hence this petition.

3. We have heard learned counsel for the petitioner and the respondent in person and perused the record.

4. Contention of learned counsel for the petitioner is that the respondent having been retired from service under section 17(1‑A)(a) of WAPDA Act, 1958, therefore, the latter in view of the said provision of law was not entitled to any show cause showing reasons thereof or right of hearing before passing of order of retirement, hence, the impugned judgment passed by the learned Federal Service Tribunal was erroneous in law, hence liable to be set aside. He further submitted that the respondent has not exhausted his departmental remedies available under the law to him, consequently, his appeal before the Federal Service Tribunal was incompetent in view of the provisions of section 4 of the Service Tribunals Act, 1973.

5. The respondent present in person submitted that he has inalienable right of hearing and thereby could not be condemned unheard. He has, placed reliance upon Pakistan and others v. Public at Large and others PLD 1987 SC 304 at page

353. He further submitted that he has filed appeal before the authority and was replied that the decision taken was final as per letter No.C&I/DD (C) 05001/898/2344, dated 26‑7‑2000, therefore, his appeal before the Service Tribunal was competent. He further has placed reliance upon an unreported decision of this Court, dated 30‑5‑2001s in the case of Muhammad Mushtaq Akbar (Civil Appeal No. 947 of 1999).

6. We do not find any .merit in the submissions of the learned counsel for the petitioner. The respondent has inalienable right of hearing and he cannot be condemned unheard on the principle of natural justice audi alterm partem without assigning any reason for his retirement from service. Reliance is placed upon an unreported decision,' dated 8‑12‑2003 of this Court in the case of WAPDA etc. v. Shahen Yasrab etc. (Civil Petition No. 1118‑L/2003, etc.) wherein this Court observed that inalienable right of an employee of 'natural justice audi alterm partem cannot be denied solely contending that statutory provision does not postulate assigning of any reason for retirement of an employee from service. So far the filing of appeal is concerned, the respondent has pointed out that he did file appeal and he was informed that the order so passed was final. Besides it would be seen that on one hand the petitioner has contended that the respondent was not entitled to any show cause notice of hearing in view of section 17(1‑A)(a) of WAPDA Act, 1958 and on the other hand he has contended that as the respondent had not filed appeal representation, therefore, his appeal before the Service Tribunal was not competent. Section 4(a) of the Service Tribunals Act, 1973 provides that "where an appeal, review or representation to a departmental authority is provided under the Civil servants Act, 1973 (LXXI of 1973), or any rules against any such order, no appeal shall lid to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred". In the instant case, the action has been taken under section 17(1‑A)(a) of WAPDA Act, 1958 whereunder no provision for filing appeal, review or representation has been provided under the Act and the action of, retirement was not initiated or taken under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, therefore in the circumstances, non‑filing of appeal would be no bar from filing an appeal before the Federal Service Tribunal. Besides it may be observed that this Court in its decision, dated 30‑5‑2001 in the case of Muhammad Mushtaq Akbar Abbasi v. House Building Finance Corporation and others (Civil appeal No. 947 of 1999) held that he employee in case has preferred a constitutional petition before the High Court, (as in the instant case contended by the respondents), the same could be treated. to be a departmental appeal against the order of compulsory retirement when the respondent in the Constitutional petition has opposed the petition that compulsory retirement order was legally passed, the said objections/comments could legitimately be deemed to be an order of competent authority on the appeal of dismissal, therefore, there was no legal impediment in filing the appeal before the Service Tribunal on account of non‑availing of departmental remedy. Reference may be made to the decision of this Court in the case of Syed Aftab Ahmad and others v. K. E. S. E. and others 1999 SCMR

197. This Court in the case of Pakistan and others v. Public at Large and others PLD 1987 SC 304 at page 353 while dealing with analogous provisions of section 12 of Civil Servants Act with regard to civil servants' retirement from service, it was observed "Since removal of civil servant can only be ordered for a cause, for this reason also it would be necessary to give the person affected an opportunity of being heard, because `cause' cannot be decided by a competent authority in the secrecy of his office because the object is to minimize rather to eliminate mischief or possibility of corruption and arbitrariness" and it was held that section 120) and (ii) of the Punjab Act and corresponding sections of the Provincial laws are, therefore, repugnant to the Qur'an and the Sunnah. These sections are violative of the principle of Musawat (equality before law) also as there appears to be no reasonable classification of Additional Secretaries or persons of equal or higher ranks on the one hand and other employees of lower ranks on the other the interest of legislation cannot be served without making it necessary, to issue notice to the employee to show cause against retirement.

7. In view of the aforesaid reasons, we find no merit in this petition, therefore, leave to appeal is declined and petition is dismissed. M.H./W‑4/S Petition dismissed.