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Cases Nos. 7 (43) to 7 (45) of 1980, heard on 9th December, 1980.

‑‑ R. 12‑Alleged offence committed much prior to enforcement of rules‑Accused punished with penalty of stoppage of increment and warning -Review of case after 2 years and imposition of penalty of dismissal, held, not sustainable‑‑Offence committed earlier than enforcement of Rules, held, cannot be covered by these Rules.

Malik Muhammad Afzal for Petitioners.

Date of hearing : 9th December, 1980.

This petition has been submitted by Mohammad Ashraf son of Ch. Ali Mohammad, Meter Reader WAPDA under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 against the Chairman, WAPDA Lahore. The petitioner was appointed as Meter Reader in WAPDA in the year 1968. On 31st August 1977 while working at Vehari he was charge -sheeted by the respondent. The petitioner clarified his position. The Executive Engineer Burewala did not hold any enquiry and placed him under suspension on 22nd June, 1977. He was served with a charge‑sheet on 31st August, 1977. He was however re‑instated on 23rd April, 1978 and awarded punishment of withholding two increments permanently. He was not allowed full pay for the period he remained under suspension.

2. The petitioner has submitted that after a lapse of about 2 years another show‑cause notice was issued by the respondent on 30th April, 1980 and a closed matter for which the petitioner had already been punished reopened. The petitioner replied to the show‑cause notice and explained his position that the matter stood closed and as such any action at a belated stage was quite uncalled for. He has submitted that the respon dent with mala fide intention invoked rule 12 of the Efficiency and Dis cipline Rules of WAPDA, 1978 in order to revise the punishment when the case already stood closed. He has also submitted that under Article 13 of the Constitution of the Islamic Republic of Pakistan no person shall be prosecuted or punished for the same offence more than once.

3. After recording preliminary statement of the petitioner I had ordered the respondents to maintain status quo till the disposal of the petition. He was asked to submit his comments on the petition. The respondent submitted that the petitioner had been validly dismissed from service by the authority in exercise of the powers conferred on it under rule 12 of the West Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1977 under which the authority was competent to call for any case in which proceedings might have been instituted under the E & D Rules and pass such orders including enhancement of the penalty imposed as it may deem fit. The respondent submitted that the penalty of witholding of two annual increments imposed on the petitioner by the Executive Engineer (E) WAPDA, Burewala Division Burewala was, therefore enhanc ed to dismissal from service by the competent authority in exercise of the powers validly conferred on it under rule 12 of the WAPDA (E & D) Rules, 1978. It was further submitted that the NIRC had no jurisdiction to hear this case as in view of a number of rulings it has been held that the WAPDA employees were civil servants for the purposes of the Services Tribunal Act, 1973 irrespective of their duties and functions. It was also submitted that WAPDA was a statutory corporation saddled with enormous national responsibility in terms of building up‑ badly needed economic resources and orders in service matters of this nature tend to create enormous administrative difficulties. It was further submitted that the peti tioner has not been punished twice as penalty of stoppage of two annual increments has simply been converted into dismissal from service.

4. The learned counsel for the petitioner has further argued that the Essential Services (Maintenance) Act, 1952 was applicable to the WAPDA employees in view of a number of decisions on this point and he pointedly referred to Article 13 of the Constitution which provided protection to every citizen of Pakistan regarding double punishment. He submitted that the petitioner was placed under suspension vide order dated 24th June, 1977. He was served with a show‑cause notice on 29th August, 1977 and he was re‑instated and awarded punishment of with holding two annual increments vide orders dated 24th April. 1978. He has submitted that the West Pakistan WAPDA Employees (Efficiency and Discipline) Rules came into force on 11th of February, 1978 while the offence for which the petitioner was punished was allegedly committed much before enforcement of this rule and as such he could not be punished under rule 12 of the said Rules. He cited case law reported in P 'L J 1978 S C 201 ( ) and P L D 1978 S C 61 in which it was held that it was preferable to interpret the law which is more favourable to the employees. He further submitted that the E & D rules were not statutory rules and he quoted case‑law reported in P L J 1978 Tr. C. (Labour) 57.

5. I find that the petitioner was placed under suspension vide order dated 24th June, 1977. He was served a charge‑sheet on 29th August, 1977. The petitioner submitted his reply to the charge‑sheet on 18th September, 1977 and the Executive Engineer, Burewala Division vide his order dated 26th April, 1978 referred to the explanation submitted by the petitioner and found him guilty of misconduct. He was reinstated with immediate effect and his two annual increments were stopped. He was warned to be more careful in future and this warning was to be incorpora ted in his service record. He was not allowed anything over and above to what he had already been paid. Almost two years after this order the Section Officer (Revenue) WAPDA issued a show‑cause notice to the petitioner informing him that the authority in exercise of the powers conferred on it under rule 12 of the WAPDA (Efficiency and Discipline) Rules was considering his case on a reference received from Director complaints and investigation. WAPDA and that the petitioner should show cause as to why one of the penalties enumerated in rule 4 (b) of the said Rules should not be imposed upon him for the charges already conveyed to him by XEN, Burewala. The petitioner was served with charge‑sheet and was found guilty of misconduct and punished vide order dated 26th April, 1978. In this order he was also warned to be more careful in future and was also not allowed anything in payment over and above to what he had already been paid.

6. This order itself was issued by the Executive Engineer after receiving the reply from the petitioner and taking into consideration the comments of the SDO. This order itself was open to legal objections. The punishment awarded to the petitioner made it a final order without any reservations for further action under rule 12 of the E & D Rules, 1978. The authority took two years to keep this case pending on its file although the petitioner had been informed of the punishment awarded to him. There was no indication whatsoever in the order dated 29th April, 1978 that this decision was subject to review under rule 12 of the E & D Rules, 1978. I would not go into the controversy as to how far rule 12 of the WAPDA (B do D) Rules, 1978 runs counter to Article 13 of the Constitu tion but I feel that the petitioner's case which was decided on the basis of an offence committed much earlier than the enforcement of these Rules cannot be covered under these rules and I, therefore, set aside the order of the dismissal of the petitioner passed on the charge‑sheet dated 30th May, 1980 served on the petitioner and re‑instate the petitioner with full back benefits.

Since the facts' in the case are similar to the other two cases viz. Abdul Hamid v. WAPDA and Ghulam Rasool Shah v. WAPDA these directions shall also apply in Cases No. 7 (44)/80 and 7 (45)/80 as well.

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