HYDERABAD: A division bench of the Sindh High Court on Tuesday restored promotion of 28 officers of Hesco on the ground that petitioners had been demoted without giving them their right of defence.

Authored by Justice Syed Saeeduddin Nasir, the 23-page judgement has given serious observations on the working of Hesco.

The bench, comprising Justices Nisar Mohammad Shaikh and Syed Saeeduddin Nasir, had reserved the judgement after hearing the parties and announced it on Tuesday.

Zamir Ghumro and Shahab Usto represented 10 demoted assistant executive engineers (AENs) and 18 executive engineers (XENs) of Hesco respectively while Mohammad Arshad S. Pathan appeared on behalf of Hesco.

Deputy Attorney General (DAG) Zahoro Ahmed Baloch represented the federation and Jawaid Bukhari appeared on behalf of Pepco.

Petitioner AENs said they were engineers (electrical) and served for more than 12 years in BS-16. Later they were promoted to BS-17 and BS-18 pursuant to recommendations of promotion by the Board of Directors (BoD) on June 29, 2013, and subsequent approval of the chief executive officer (CEO) of Hesco.

They were performing their duties in BS-17 and BS-18 and receiving salaries and benefits. Their promotions were cancelled, demoting them to their former position. Orders of demotion were issued in view of recommendations of an inquiry committee, though they were not informed about allegations and they were not heard.

Advocate Ghumro argued that the May 27 order was in violation of Section 21 of General Clauses Act, 1897 and was illegal. He said that under doctrine of locus paenitentiae as enshrined in the section, a decision could be withdrawn, but only as long as decisive steps were not taken and vested rights were not created. In the present case, such steps were taken and petitioners drew salaries for eight months and under the departmental authority, this could not be withdrawn.

Advocate Usto contended that no action was taken against those BoD who had approved promotion and added that one of them himself was promoted as CEO. He questioned the order of May 30, 2014, under which his clients, who were promoted as senior engineers from junior ones, had been recalled. He said Pepco was involved in the inquiry, although neither Pepco nor the ministry of water and power had anything to do with it.

Arshad Pathan, counsel for Hesco, argued that Hesco being a separate entity and having no statutory rules and was under notification of Pepco, it has borrowed rules from Wapda, thus petitions merited no consideration and were liable to be dismissed on that score alone. Maintainability in the present case before travelling towards merit was the sole consideration and should be taken up first by the court.

Besides, he said, petitioners did not question it anywhere. Promotion orders were got issued through fraud and misrepresentation, he argued.

The court noted that Hecso’s counsel candidly admitted that neither petitioners had been made party to inquiry proceedings before the inquiry committee nor given an opportunity to defend themselves.

When the counsel was asked about the powers and functions of the competent authority to initiate proceedings, he miserably failed to justify the veracity of such an order made by some government official to hold an inquiry on the basis of so-called complaints the origin of which is obscure to date.

It said it showed that the inquiry had not been ordered by any competent authority under valid rule or regulation. “Therefore, we hold that inquiry proceedings were without jurisdiction, malafide, tainted with malice and of no legal effect. Affected persons were not made a party to proceedings which took place surreptitiously in a clandestine manner and without giving them show-cause notices,” read the order.

The court did not agree with contentions of Hesco’s counsel that since Hesco does not have its own statutory rules and removal from Service (Special powers) Ordinance 2000 stood repealed, petitioners could not file a petition under Article 199 and he referred to an office order dated Jan 8, 2008. It says it is time that status of this order is determined to provide some legal course to employees of corporate bodies.

It says it is a strange situation so to speak that whenever a question is raised regarding adoption of Wapda Rules, Hesco takes a somersault and says that since the same are non statutory rules and not framed by Hesco, but merely adopted by it, thus its employees could not take benefit thereof and could not be dealt with under the said rules.

“This is quite an unfair exercise being undertaken by Hesco whereby it wants to keep all its employees in a continued servitude. Hesco can’t approbate and reprobate at the same time. Even otherwise we see no reason for such a dereliction of said Wapda Rules by Hesco,” it said.

It added that petitioners were entitled to invoke jurisdiction of this court under Article 199 despite the fact that they were not governed by any statutory rules.

“Inquiry proceedings were initiated at the behest of some obscure and illegal source which was bereft of any legal or moral authority, arbitrary, tainted with malice and liable to be set aside,” the court ruled.

Published in Dawn, September 10th , 2014