2004 PLP (C (PLC(CS))

HAMID ALI MIRZA, J.

This civil petition for leave to appeal is directed against the judgment dated 27-1-2003 in Appeal No.366 (R)(CS)/2001 passed by learned Federal Service Tribunal, Islamabad whereby the appeal filed by respondent was allowed.

2. Brief facts of the case are that the respondent was appointed as Sub-Divisional Officer in WAPDA on 18-10-1968 and thereafter was promoted in due course. He was made Chief Engineer on 8-2-1994 on acting charge basis and thereafter he was promoted on regular basis on 2-8-1994 which fact was denied by .the petitioners. However, the respondent was demoted from the post of Chief Engineer on 15-10-1998 against which he preferred appeal before the Federal Service Tribunal, which was allowed as per judgment-dated 20-11-2000. In the meanwhile an explanation was called from the respondent on 5-11-1999, which was replied by him and after hearing him, the respondent was exonerated as per letter dated 26-11-1999 of the charges stated in the explanation letter, dated 5-10-1999 by the Managing Director. The petitioners however re-opted the case on 2-5-2000 and imposed major penalty of removal from service vide order dated 27-1-2001 upon the respondent in exercise of revisional authority under Rule 12 of Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 (hereinafter referred to as the "Rules"). The respondent thereafter preferred departmental appeal, which was not responded, and after expiry of 90 days he preferred appeal before the Federal Service Tribunal, which was allowed by means of impugned judgment, hence this petition for leave to appeal.

3. We have heard the learned counsel for the parties and perused the record minutely. The contention of the learned counsel for the petitioners is that the impugned judgment passed by learned Federal Service Tribunal is based on misreading of the material on record considering that in fact the respondent was given due opportunity of hearing before imposition of major penalty. He submitted that it was no, requirement of law that the respondent should have been heard again when he was heard earlier on 11-10-2000.

4. Learned counsel for the respondent has submitted that the impugned judgment is legal and there has been no misreading or non reading of the material on record. He submitted that personal hearing, was not given before imposition of major penalty which action was initiated under rule 12 of the Rules. He placed reliance on the cases of Muhammad Younus v. Secretary, Ministry of Communication and others (1993 SCMR 122) and Chief Director, Central Directorate of National Savings, Islamabad and another v. Rahat Ali Sherwani (1996 SCMR 248) in support of his contention.

5. We find no merits and substance in the contentions of the learned counsel for the petitioners. The learned counsel for, the petitioners conceded that before imposition of major penalty of removal the respondent was not heard but he was only heard on 11-10-2000 when it was directed GM (M&S) DG (C&I) to re-examine the case and re submit the same on 25-10-2000. Thereafter as per letter dated 11-1-2001 the respondent was issued a letter that he should appear before the 19-1-2001 but he was not heard on the said date and instead he was removed from service vide order dated 27-1-2001. Learned Federal Service Tribunal after scrutiny of evidence on record in para 8 has observed as under:-- "

8. The minutes clearly, show that the appellant was given personal hearing only on 11-10-2000 and not on 19-1-2001 although during this meeting report on re-examination of the case was considered by the Authority i.e. Respondent No.

1. The learned counsel for the respondent in the written arguments as well as the respondents written comments suggests that in Authority's view personal hearing given to the appellant and appellant's appearance before the Authority on 11-10-2000 was sufficient. We are not persuaded by this line of argument. On 11-10-2001 the appellant did appear before the Authority but on that date the appellant was not informed, nor the Authority was in a position to do so, of the grounds on which the Authority had decided to reverse the order of exoneration and impose major penalty. The case was in fact considered on 19-1-2001, after receiving the report of GM (M&S). Though the appellant was called for personal hearing on 19-1-2001 yet he was not heard on that date. The personal hearing at this stage was most essential to enable the appellant to produce his defence against the grounds of action proposed to be taken against him. Therefore it is established that the appellant did not get the opportunity to be heard in personal. We also notice that Show Cause Notice issued in pursuance of rule 12 ibid did not disclose the grounds for imposing major penalty on him."

6. We have ourselves gone through the record. We do no find any ground for taking action of removal after reversing the order dated 26-11-1999 of exoneration and imposition of major penalty on 27-1-2001 after the show-cause notice dated 17-5-2000. We have also found from the record so also as conceded by the learned counsel for the petitioners that the respondent was not given any hearing nor was communicated any grounds in the show-cause notice for taking action for his removal after his exoneration.

7. In view of the above reasoning, facts and case-law cited we fins no substance in this petition, therefore, leave to appeal is declined and petition is dismissed considering also that no substantial question of law of public importance is involved. H.B.T./W-52/SC Petition dismissed.