Suspension of Public Servant for an Indefinite Period

Suspension of Public Servant for an Indefinite Period Case Laws Constitutional Law Employment & Incentives Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Public & Admin Law Solutions - Constitutional Law Suspension Mr. Justice Mirza Viqas Rauf in his judgment has decided the issue regarding suspension of public servant for an indefinite period in Writ Petition No. 26319 of 2015.

1. The petitioner, Muhammad Arshad Rafique, by way of instant petition assails the vires of Notification dated 2nd of June, 2014 whereby he was placed under suspension with immediate effect and until further orders.

2. Precisely the facts relevant and necessary for the adjudication of instant petition are that the petitioner initially joined Water and Power Development Authority (i.e. WAPDA) as a civil servant in the year, 1979 as SDO. Later on he was promoted as XEN in 1993. In the meanwhile, Cabinet Committee on Privatization approved a strategic plan for restructuring the Power Wing of WAPDA which was subsequently acknowledged by the Economic Coordination Committee and Council of Common Interests as the “Restructuring Policy”. By virtue of said policy, functions of WAPDA were bifurcated in two entities and in this way, WAPDA was made responsible for Water and Hydropower Development and an incorporated entity, PEPCO was vested with the responsibility of Thermal Power Generation, Transmission, Distribution and Billing which functions were to be performed through corporatized nine distribution companies termed as “DISCOs”, four generation companies “GENCOs” and a National Transmission Dispatch Company “NTDC”. In furtherance of the Restructuring Policy, “LESCO” was duly incorporated as a Public Limited Company under the Companies Ordinance, 1984 on 18.02.1998 as one of nine Distribution Companies. Upon incorporation of “LESCO” on 16.01.2003, the petitioner was absorbed in the same against the post of XEN. The petitioner with the efflux of time earned gradual promotions. Initially, he was promoted in BSP-19 by the Competent Authority and resultantly, he became Chief Engineer in the year 2012. The petitioner was ultimately appointed as Acting Chief Executive office of ‘LESCO” on 12.07.2013. Finally, the petitioner was placed under suspension vide Notification dated 2nd of June, 2014, hence this petition.

3. Mr. Muhammad Raza Qureshi, Advocate representing the petitioner submitted that impugned notification is not sustainable because such powers can only be exercised by the Board of Directors. He added that neither any reasons have been assigned for placing the petitioner under suspension nor he was afforded any opportunity of hearing in this regard. Learned counsel maintained that impugned notification is without jurisdiction. Learned counsel contended that as per terms and conditions of the employment, the services of the petitioner are to be regulated by the rules in vogue in WAPDA and as per Rule 5 of the Efficiency & Discipline Rules, 1978, the petitioner cannot be placed under suspension for an indefinite period. In support of his contentions, learned counsel placed reliance on Suo Motu Case No. 18 of 2010; in the matter of Violation of Public Procurement Rules, 2004 (PLD 2011 SC 927), Engineer Ghazanfar Ali Khan and others vs. F.O.P. and others (2014 CLD 664), Pakistan Telecommunication Company Limited through General Manager and another vs. Muhammad Zahid and 29 others (2010 SCMR 253) and Muhammad Arshad Kaleem vs. Chairman Town Committee etc. (NLR 1990 Service 96).

4. Conversely, Hafiz Tariq Naseem, Advocate for respondent No.1, while resisting the instant petition submitted that till date no service rules or regulations have been framed by ‘LESCO’ and though WAPDA Service Rules and Regulations are adopted but the instant petition is not maintainable in absence of statutory Rules. Learned counsel contended that Federal Government is the appointing authority of the petitioner and it has every power to place the petitioner under suspension. Learned counsel emphasized that the petitioner is involved in various criminal cases on the allegation of corruption and under the rules he can be placed under suspension. Learned counsel maintained that suspension is not a penalty and the instant petition is not maintainable. Relied on Abdul Wahab and others vs. HBL and others (2013 SCMR 1383), Government of N.W.F.P. vs. I.A. Sherwani and another (PLD 1994 SC 72), Ghaffar Ali and others vs. Provincial Police Officer, Khyber Pakhtunkhwa and others (2014 PLC(C.S.) 558) and Muhammad Haroon vs. Water and Power Development Authority (PLD 1978 Lahore 1108).

5. On the other hand, leaned counsel for rest of the respondents, while adopting the arguments of Hafiz Tariq Naseem, Advocate added that the petitioner has already applied for Leave Preparatory to retirement, which is under process. It is also argued that disciplinary proceedings are shortly to start.

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