ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P. No. D- 498 of 2008

DATE ORDER WITH SIGNATURE OF JUDGE

For Katcha Peshi.

04.03.2010.

Syed Muhammad Solat Rizvi Advocate for Petitioner.

Mr. Muhammad Arshad Pathan Advocate for Respondents.

Through this petition the Petitioner, who was Assistant Manager and was serving as SDO in BPS-17, in Hesco, has challenged the orders dated 26.04.2006 and 21.08.2006 passed by the Respondent No.1 imposing the penalty of “reduction of two stages below in time scale for a period of two years”.

The main contention of the learned Counsel for the petitioner before us has been that such penalty has been imposed on the petitioner without affording any opportunity of hearing. The above objection was responded by the Counsel for the respondents by submitting that since line losses and revenue losses suffered by the respondents within the jurisdiction of the petitioner were evident from the record, there was no need to hold an inquiry and, therefore, competent authority, on the basis of such record dispensed with the inquiry and imposed the above said penalty.

In his reply to the showcause notice, the petitioner has put forward certain explanations for the losses such as faulty lines, disconnection and discontinuation of supply to certain major consumers. It was contended on behalf of the petitioner that in view of the above reasons, it could not be said that the record justified dispensing with the inquiry and in the fact and circumstances of the case, the petitioner should have been afforded an opportunity of hearing through regular hearing.

Since neither was any inquiry conducted nor did the order contained any reason or reference to any evidence, we vide order dated 2.2.2010, provided an opportunity to Mr. Muhammad Arshad Pathan to submit before us, such record which could form basis for the impugned order, however, till date no such record has been submitted. In Addition to the above, Mr. Rizvi has challenged the competence of the Chief Engineer Hesco, who has passed the impugned order and submits that since the appointing authority of the petitioner was/is the Chief Executive of the organization, in terms of section 2(aa) of the Removal from Service (Special Powers) Ordinance, 2000, where under the impugned order passed, only could have been made by the Chief Executive. Mr. Solat, learned Counsel for the petitioner in support of his contention has relied on the order passed by a Division Bench of this Court in C.P.D No.420/2007 and on the Judgment dated 12.04.2006, passed by the Honourable Supreme Court in Civil Petition No.219/2006, to the above effect. To meet the above objection, Mr. Pathan referred to a circular dated 13.04.2002 which says that “In pursuance of the Director Finance (Power’s) Office order No.DDF(D)/1/901/1335-99 dated 11.02.2002, it is clarified that the Chief Engineers posted in this DISCO’s will act as competent authority upto Grade 17”. However, as noted above, the said circular, being contrary to and violative of, not only the provisions the Ordinance, 2000, but also of the Judgment and orders of Honourable Supreme Court and a Division Bench of this Court, is illegal and is of no consequence. Since despite of the opportunity, no material has been placed before this Court to justify imposition of impugned penalty and since the orders have been passed/penalty has been imposed by an officer, who was not competent to do so, we declare the same to be void, illegal and of legal effect.

Apart from this, there is another aspect of the matter as subsequent to filing of the petition, Respondent No.2, the Chief Executive Officer Hesco has vide office order dated 14.03.2002 modified the impugned order by converting the same into minor penalty of censure. The above also cannot be sustained for the reason that the original order/penalty as imposed was without authority and illegal as declared by us, we, therefore, set-aside the order dated 26.04.2006 also.

The petition stands disposed of.

JUDGE

A.K