2009 PLP (C (PLC(CS))

MUHAMMAD SAIR ALI, J.

Leave is sought by Executive Engineer GEPCO Limited and another against judgment dated 29-1-2009 of the Federal Service Tribunal, reinstating the respondent Liaqat Ali in service from the date of his compulsory retirement with all the back benefits.

2. The respondent, a Meter Reader, was served with show-cause notice dated 8-11-2005 and statement of allegations charging him of misconduct allegedly for facilitating theft of electricity and tampering with Meters etc. Through his, defence reply dated 15-11-2005, he strongly denied the charges and also specifically alleged mala fide of the authorities against him. Without holding an inquiry and without the opportunity of hearing, the respondent was compulsorily retired from service under the Removal from Service (Special Powers) Ordinance, 2000 by order dated 24-11-2005 of petitioner No.1 i.e. Executive Engineer GEPCO Limited. Respondent's departmental representation dated 5-12-2005 remained un-responded whereupon he filed Appeal No.146(R)CE/2006 before the Federal Service Tribunal, Islamabad.

3. The Tribunal accepted the appeal through the impugned order dated 29-1-2009 observing that holding of inquiry became essential on denial of charges by the respondent and that only on an implicating inquiry report by the Inquiry Officer that a major penalty could be imposed by the petitioner authority but that too after an opportunity of personal hearing to the respondent. The Tribunal thus reinstated the respondent with all the back benefits. Hence the present petition.

4. The learned counsel for the petitioners argued that the respondent in his reply had admitted the allegations wherefor no inquiry or hearing was needed for imposition of even the major penalty of compulsory retirement.

5. Having examined the arguments of the learned counsel and the record, we are afraid we cannot approve the lopsided contention of 'the learned counsel. He reads admissions of the respondent in reply to the show-cause notice while no such admissions exist therein. Instead, respondent in a detailed reply set up his defence pleas along with supportive documents in total denial of the charges and also alleged mala fide of the relevant authorities against him. What was alleged against the respondent was denied by him. The allegations thus became disputed and required inquiry as envisaged in sections 3 and 5 of the Removal from Service (Special Powers) Ordinance, No.XVII of 2000.

6. The respondent no doubt is "a person in corporation service" in terms of section 2(c) of Removal from Service (Special Powers) Ordinance No.XVII of 2000. The petitioners claim to have invoked the provisions of the Ordinance to impose major penalty of compulsory retirement on the respondent. The survey of the Ordinance belies the claim of the petitioners. Subsection (1) of section 3 prescribes that where, in the opinion of the competent authority, a person in corporation service, is guilty of misconduct, the competent authority, after inquiry by the Inquiry Officer or the Inquiry Committee appointed under section 5 may ..by an order in writing dismiss or remove or compulsorily retire such person from service etc. etc. subsection (2) of section 3 imperatively provides that:

"Before passing an order under subsection (1), the competent authority shall,-- (a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and (b) give him a reasonable opportunity of showing cause agaifist that action within seven days or within such extended period as the competent authority may determine."

7. Sections 5, 6 and 7 ibid provide for appointment of inquiry officer or inquiry committee to hold inquiry "to scrutinize the conduct of a person" and the submission of findings and recommendations to the competent authority. On receiving the findings and recommendations of the Inquiry Officer or the Inquiry Committee, the competent authority under section 8 thereof is empowered to pass orders in accordance with the provisions of the Ordinance.

8. The competent authority, for even handed administration of justice, was obligated to follow the prescribed procedures before passing the order of imposition of major penalty i.e. compulsory retirement from 'service.

9. It was not a case falling within the statutory ambit of proviso to section 3 or sections 3A, 5(4) and 5(5) of the Ordinance, where holding of inquiry or opportunity of hearing could be dispensed with. The petitioners have not pleaded or made out a case under these provisions of law.

10. In view thereof, we do not find any substance in the present petition which is accordingly dismissed. Leave declined. M.H./E-5/SC Petition dismissed.