IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Before:

Mr. Justice Muhammad Saleem Jessar

Mr. Justice Nisar Ahmed Bhanbhro

C.P.No.D-1039 of 2014

Afghan Ali alias Oghan Ali

V/S

Chief Executive Officer SEPCO and others

Petitioner: Afghan Ali son of Oghan Ali Markhiani

Through Mr. Safdar Ali Ghouri, Advocate.

Respondents No.1 to 4: Through Mr. Asif Hussain Chandio,

Advocate

Respondent No.5: Through Mr. Oshaq Ali Sangi, Assistant

Attorney General for Pakistan.

Date of Hearing: 17.04.2025

Date of Order: 17.04.2025

O R D E R

Nisar Ahmed Bhanbhro J.- The case of the petitioner is that he was appointed as Assistant Lineman in WAPDA on 08.08.1991 and was posted in Operation Sub-Division-II, Jacobabad. He performed his duties diligently, honestly to the entire satisfaction of his superiors until December, 2001.

2. Per the assertions of petitioner that tribal feuds erupted in between various communities, which resulted into registration of F.I.Rs No.50/1997, 24/2008 and 82/2011 against him and many other F.I.Rs against his community members by rival tribal groups. Due to tribal feuds life became stagnant and his movement was restricted to his village and he could not attend his office, but such information was given to the department. In 2013 the tribal feuds were settled and life was restored to normality in the area. The petitioner filed a departmental appeal through Executive Engineer, Operation Division, SEPCO, Jacobabad in the year 2013, which was forwarded to the department for consideration, but the same was not decided, therefore, he filed this petition in the year 2014.

3. On notices, the respondents filed their respective comments, wherein they have contended that the petitioner remained absconder from the duties, therefore, he was terminated from the service and his appeal was declined being time barred. The petition was not maintainable as relationship between the petitioner and the respondents was that of master and servant, prayed for dismissal of the petition.

4. Learned counsel for the petitioner contended that petitioner has been discriminated by department as under the similar circumstances, department considered the appeal of one Muzafar Ali Jakhrani, who was Assistant Lineman in SEPCO (Operation) Sub-Division, Jacobabad, who too remained absconder from duty for a period from 2000 until 2013 on account of tribal feuds, but department reinstated him in service. He next contended that absence of the petitioner was not intentional or deliberate, but due to the circumstances beyond his control prevailing in the District Shikarpur and Jacobabad, where law and order situation has remained very critical since 2000 and hundreds of the people have lost their lives in tribal feuds. He further contended that action of SEPCO authorities was in violation of Articles 4, 9 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973 as the petitioner was also entitled for the same treatment.

5. Learned counsel for respondents SEPCO contended that petitioner preferred appeal after 13 years, which was declined vide order dated 04.09.2018 on the ground that petitioner remained absent from duty for a period of about 13 years and did not furnish any reason for his absence. He prayed for dismissal of petition as relationship between petitioner and respondents was that of master and servant and he being Assistant Lineman fell under category of labour, therefore, jurisdiction of this Court was barred under Article 212 of the Constitution. Learned Assistant Attorney General for Pakistan has supported the arguments advanced by the learned counsel for respondents SEPCO and contended that petition is not maintainable and liable to be dismissed.

6. Heard counsel for parties and perused material available on record. The petitioner has assigned reason for his absence from duty on account of tribal feud, the law and order situation in the Districts Shikarpur, Kashmore-Kandhkot and Jacobabad has not remained upto the mark and hundreds of the people have lost their lives due to the tribal feuds. The petitioner in support of his claim has placed on record F.I.Rs. and other material, which establish that the situation in the area was not liveable and assertion raised by petitioner shows that his absence from duty was not intentional. Under the similar circumstances, Superintending Engineer, Operation, SEPCO, Circle, Larkana has reinstated services of one Muzafar Ali Jakhrani vide order dated 26.08.2013, who also remained absconder from duties for similar reason for a period of about 13 years. When confronted with this position, counsel for SEPCO could not dispel this legal as well as factual position. Counsel for the SEPCO when further confronted that whether the SEPCO authorities had passed any order regarding termination of petitioner; he failed to place on record such an order; even in the comments filed by respondents, it has not been mentioned that services of petitioner were ever terminated, only ground, which has been raised is that service record of petitioner has been burnt in riots erupted on unfortunate incident of martyrdom of Shaheed Mohtarma Benazir Bhutto. It appears from record that services of petitioner were never terminated and in absence of such an order, the petitioner cannot be kept out of service.

7. We are mindful of legal position that this Court cannot exercise jurisdiction vested in it under Article 199 of the Constitution against the SEPCO as its service rules are non statutory in nature and relationship between employees and company is that of master and servant. but this is a different case wherein petitioner has assailed the action of authorities on touchstone of Article 25 of the Constitution, which grants a fundamental right to an individual that he has to be dealt in accordance with law and cannot be discriminated in service for any of the reasons and where question of enforcement of fundamental right of a citizen arises, the High Court would not hesitate to step in and rescue the citizens from illegal action on the part of any body discharging its function in connection with affairs of the federation or province. Admittedly, the case of the petitioner is identical to the case of Muzaffar Ali Jakhrani, who too remained absent from duty and was taken back into service. The case of petitioner is that he was never terminated and was not taken back into service. Under the circumstances, we are left with no option but to set aside the order dated 04.09.2018 and direct respondents SEPCO to give petitioner equal treatment and take him into service. It is further observed that since petitioner has failed to join his service, therefore, he will not be entitled for any back benefits for the period he did not remain present on duty, which period shall be treated as leave. The authority would however be at liberty to refer this case to any enquiry committee to probe into service profile of petitioner as has been done in case of Muzafar Ali Jakhrani and if case of petitioner found on different footings, then appropriate action may be taken in accordance with rules and law.

8. The petition stands disposed of in the above terms.

Judge

Manzoor