P L D 2003 Supreme Court 286 (PLP)

SYED DEEDAR HUSSAIN SHAH, J.

By this common judgment we propose to dispose of the above mentioned petitions, which are directed against the consolidated judgment of the Federal Service Tribunal (hereinafter referred to as the Tribunal) dated 20-8-2002, passed in Appeals Nos. 1278(K) to 1290(x) of 1999.

2. The contesting respondents, who were employees of the Karachi Electric Supply Corporation (KESC),: were retired from service with immediate effect by the Corporation, while exercising the powers conferred under section 2(a) of the KESC (Removal from Service) Ordinance No.X of 1999 promulgated on 27th May, 1999. The respondent filed departmental appeals to the Chairman, WAPDA on 20-12-1999, but getting no reply to their appeals, they filed service appeals before the Tribunal. The Tribunal vide impugned judgment dated 20-8-2002 allowed their appeals, and reinstated them into service with all back-benefits. Hence, these petitions.

3. Mr. A. R. Akhtar, learned Advocate Supreme Court for the petitioner, inter alia, contended that the service appeals of the contesting respondents were not maintainable; that in view of the provisions of Ordinance X of 1999, it is not necessary to serve prior notice while exercising powers under section 2 of the Ordinance, under which the Corporation is empowered to remove certain persons from service; and that the allegation of discrimination is without any specific averments and contrary to facts on record.

4. On the other hand, learned counsel for the contesting respondents, inter alia, submitted that the respondents have been compulsorily retired ahead of their tenure and in violation of the terms and conditions of their service settled at the initial stage of their appointments; that they have been retired by incompetent authority, without assigning any reason that the retirement order has been passed without issuing any show-cause notice, which is in violation of natural justice; and. that the Corporation has acted in discriminatory manner, inasmuch as number of employees having been removed from service or retired compulsorily, have been again reinstated and given the same jobs.

5. We have considered the arguments advanced by the learned counsel for the parties and minutely scanned the material available on record. We have also perused the initial order of appointments issued by the Corporation in favour of the respondents, wherein it is not mentioned that the service of the respondents will be terminated or they will be retired from service without giving any reason. The perusal of the record shows that all the contesting respondents stood confirmed in their respective posts and then subsequently, after earning satisfactory reports and unblemished performance during the service, have been promoted in their respective scales, having reached the stage, without giving any show-cause notice, they have been abruptly ordered to be retired from service. Thus by passing the order of retirement, the Corporation has not only violated the settled terms and conditions of service of the respondents, but at the same time, the aforesaid order violates the basic principles of audi alteram partem, because no show cause notice or any opportunity of hearing has been given to any of the respondents. This Court had time and again held that the principles of natural justice enshrined in the maxim 'Audi alteram partem' may not be violated and should be adhered in all respects. We find that the action of the Corporation in ordering the retirement of the above mentioned respondents ahead of time and without hearing them is totally against the law. So far as the point of discrimination is concerned, in our considered view, the Corporation has faded to give plausible explanation regarding this situation whereby the employment of as many as twelve confirmed and regular employees, comprising the top hierarchy of Engineering Service have been abruptly thrown out from their jobs, without .any reasons and on the other hand, after ousting confirmed and experienced Engineers, the Corporation has embarked upon the activity of recruiting fresh Engineers on contract and other basis. If there was anything adverse against the respondents, the same could be inquired into through proper method of departmental inquiry. It also reveals from the record that a number of employees, who were terminated/dismissed, have been reinstated' and taken back by the corporation. In our considered opinion, the impugned judgment is self explanatory and the Tribunal has discussed each and every aspect of the case. It would be advantageous to refer her- its relevant paragraphs, which read as under:-- "

14. In view of the above facts and circumstances of the case, respectfully agreeing with the quoted law of the Hon'ble Supreme Court and other superior Courts as well as this Tribunal and for the reasons and the discussion, made above, we are of the view that the appellants have been treated discriminately with mala fide intention. No reason or any charge has been leveled against them for their abrupt and ahead of time retirement, ordered by the respondents A through the impugned order, which cannot be sustained on facts as well as on law. We declare this impugned order as void order, having been passed illegally and in violation of al: the principles of natural justice and fairplay. Consequently, we allow all the above appeals of the appellants and set aside the impugned order of their retirement dated 10-8-1999. It is further ordered that the appellants may be taken back on their respective jobs as they were holding on 10-8-1999, having been reinstated hereby with all back benefits.

15. However, if there are any adverse charges of lack of performance, inefficiency, negligence and corruption against all or any of the appellants, the same can be inquired into by the respondents in proper method and. through proper inquiry in accordance with Rules and, Regulations, applicable to the appellants. "

6. In our considered opinion, the impugned judgment is well-reasoned, which is not open to exception. Neither there is misreading of material, nor misconstruction of law. Moreover question of general public importance is also not involved in this matter.

7. For the facts and reasons stated hereinabove all the petitions are dismissed and leave to appeal declined. M.B.A./K-82/S Petition dismissed.