2018 PLP (C (PLC(CS))

IJAZ ANWAR, J.

Through the instant Writ Petition, the petitioner Yar Mohammad Khan Ex Technical Officer . Engineering department PTCL has questioned his order of compulsory retirement from service. The petitioner has prayed the following relief in his Writ Petition:- "It is, Therefore, humbly prayed that on acceptance of instant petition this Hon'ble Court may very graciously to declare the impugned orders dated 18.11.2015 and 27.01.2016, vide which the petitioner was removed from service and then compulsory retired from service respectively as illegal, against the law, rules and available record and the petitioner may be reinstated in service with all back benefit. Any other relief deemed appropriate may also be granted in the circumstances."

2. The facts as gleaned from the record are that the petitioner initially joined the Telephone Department on 15.10.1990, on the completion of 18 months court at Staff College Harripur, the petitioner was posted as Engineering Supervisor BPS-11. He gained different promotions and lastly upgraded to BPS-17 on 19.10.2005 and was posted in Engineering Transmission PTCL Bannu on acting charge basis. He was then regularly promoted as Technical Officer on 29.11.2010.

3. It is alleged that while serving in the said capacity he was served with a charge-sheet dated 10.4.2015 for the following allegations:- (i) You have been found involved in unauthorized transportation of scrap material outside PTCL premises/building Bannu through company vehicle No-DNB-1492, as evident from the written statement of Security Guards of the compound/building (PTCL) who verified that iron/iron base scrap transported outside PTCL premises in afore mentioned vehicle. (ii) You did not maintain stock records from 2005 onwards. Also you are involved in hiding store items causing pecuniary loss to the company. Furthermore, auctioned items were found outside stores and lying scattered. (iii) High value items i.e., Iron materials, DG sets, dry batteries, stabilizers etc: in store lying in mix without any classification/record and was not included in the auctioned item list. (iv) You unauthorized utilized the service of Mr. Anwar Security Guard of Sarhad Company as Driver beyond his scope of work. (v) You are responsible for unauthorized utilization of private labour in PTCL premises.

4. He submitted reply refuting the allegations, however, an inquiry was conducted and the inquiry officer submitted his report concluding that only one allegation was partially proved. The authority has not agreed to the same and a fresh inquiry committee was constituted the enquiry committee conducted enquiry and allegedly proved the allegations against him. The petitioner was issued show-cause notice dated 05.10.2015 and ultimately was removed from service vide order dated 18.11.2015. He submitted his departmental appeal. His appeal was partially accepted and the order of removal from service was converted into compulsory retirement from service on 27.01.2016, hence, this petition was filed.

5. The respondents were put to notice, they submitted their comments mainly objected on the jurisdiction of this court and submitted that since he was an employee appointed prior to 1996, and as his services are guaranteed by Government of Pakistan in accordance with Sections 35 and 36 of Pakistan Telecommunication Act, 1996 therefrom he was required to seek his grievances from the Federal Service Tribunal by filing service appeal and not through Writ Petition. On factual side it was replied that the petitioner was found guilty of mis-appropriation of scrap and charges have been proved in the inquiry conducted duly participated by the petitioner, his defence was duly considered and he was leniently dealt with when his order of removal from service dated 18.11.2015 was converted into compulsory retirement from service dated 27.1.2016 and there was no mala fide on the part of the respondents.

6. The learned counsel for the respondents at the very out-set argued that Writ Petition is incompetent since the petitioner is a transferred employee from Telephone and Telegraph Department. Therefore, the Writ Petition is incompetent and the petitioner has his remedy before Federal Service Tribunal for redressal of his grievances. He referred to Provisions of PTC Act, 1991, PTC Re-organization Act, 1996 and referred to Sections 35 and 36 of the PTCL Re-organization Act, 1996 and contended that status of the employees as Civil Servant has been changed, therefore, their only remedy lay before the Federal Service Tribunal. He also referred to an unreported judgment of Hon'ble Apex Court dated 10.11.2016 in Civil Appeal No.1777/2016 whereby the appeal of the PTCL was allowed and it was held that the High Court has no jurisdiction.

7. On the other hand, the learned counsel for the petitioner contended that this question has since been settled initially when the Apex Court in its reported judgment 2012 SCMR 152 held that the transferred employees of PTCL still enjoys statutory and secured service employment structure and their grievances can validly be taken up by the High Court in constitutional jurisdiction. Recently a larger bench of the Apex Court in 2015 SCMR 1362 again taken up this matter and the earlier view expressed regarding jurisdiction of the High Court was held to be correct view and dismissed the review petition filed against the judgment of the Apex Court, i.e., 2012 SCMR 152.

8. Since this question is settled by apex Court, therefore, it need not require any further elaboration and adjudication, where the respondent themselves accept the status of the petitioner on the employee of erstwhile Telephone and Telegraph Department, therefore, in view of the judgment reported in 2006 SCMR 602 the petitioner cannot approach the Federal Service Tribunal, because by now the status of Telephone and Telegraph Department has changed to that of Pakistan Telecommunication Corporation Limited (PTCL).

9. Coming to the metit of the case, we found that the petitioner was served with a charge-sheet by General Manager, (HRO). The suspension order was communicated by the same officer. The de novo inquiry was again authorised by the same officer. The final show-cause notice was also served by General Manager, HRO. Similarly, the order of removal from service issued was also served by the same officer. Interestingly, when the order of acceptance of the departmental appeal was conveyed it was again served through the same officer.

10. We inquired from the learned counsel of respondent that who is the authority and authorized officer in respect of the employees of the category of the petitioner. The learned counsel has placed on record different documents including an inter office memo. No-S259/2009 dated 15.6.2009 that referred to a decision of the PTCL Board of Directors 143rd meeting held on 30.4.2009 whereby EVP (HR) was designated as authority and SEVP (HR) was designated as appellate authority. However, despite our demand the requisite approval from the EVP (HR) was never placed on record whereby the departmental proceedings/ penalty was approved by the authority.

11. The annexed documents, however, suggests that the whole proceedings were initiated and authorized by Manager Discipline Management IBA/PTCL and never authorised the authority. Learned counsel for the respondents stated that these powers have been further delegated by the authority to the Manager Discipline Management IBA. In the first instance no such authorization is placed on file. Similarly, even if there is any delegation, the EVP (HR) being himself as delegatee cannot further delegate his powers to the Manager Discipline Management IBA.

12. Where through a 1aw or notification contains power are delegated to an authority and that law or notification has not given any power to the authority for further delegation of these powers any such further delegation would not vest the delegatee such powers. Reference can be made to 2007 CLC 657, 2005 PLC (C.S.) 551, 2004 SCMR 1034 and 1995 CLC 369.

13. There is yet another very important aspect of the case that where the charges initially leveled against the petitioner were not proved in the first inquiry, added charges were enquired in the de novo inquiry, what would be its legal status. We, however, would not enter upon the factual controversy that whether the charges that were leveled against the petitioner were proved in the inquiry or not or added charges were inquired without amending the charge-sheet but in view of the legal position that the respondents have violated the concept of authority and authorized officer as envisaged in the law. Similarly, where they themselves constituted and notified the authority, therefore, all the departmental action should have been initiated under the orders of authority. Similarly, the order of penalty also requires the approval of the authority. In the instant case the proceedings initiated against the petitioner and concluded were not authorised by the authority, therefore, it has no legal status and are declared as illegal and without lawful authority.

14. Since we have held the proceedings is illegal therefore, the order dated 27.01.2016 of compulsory retirement is set aside and at the same time would allow the respondents to initiate fresh departmental inquiry if they are so advised, strictly in accordance with law. The petitioner shall be re-instated and his back benefit if any shall be decided after the out-come of such inquiry. It is further directed that the respondents are allowed sixty (60) days to initiated and conclude the departmental inquiry.

15. This Writ Petition is allowed in the above terms ZC/273/P Petition allowed.