1991 PLP 1998 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑By two separate petitions the petitioner who stands retired from WAPDA under section 17(1‑A) of the WAPDA Act seeks review of our judgment, dated 6‑6‑1989 whereby the Service Tribunal's judgment setting aside the removal order was itself set aside.

2. The three grounds taken up by Mr. Basharatullah, Advocate, for maintaining the review petitions are‑‑‑ (i) the action taken against the petitioner was mala fide as it related to a Division different than the one to which the petitio4er remained posted during the relevant period; (ii) the Tribunal has held that the allegations were of such a minor nature that they could not result in his removal; and (iii) the discriminatory action has been taken against the petitioner.

3. The law with regard to the scope of enquiry and the action taken under section 17(1‑A) of the WAPDA Act has been examined by this Court in WAPDA and another v. Muhammad Arshad Qureshi 1986 SCMR 18, WAPDA v. Saeed Ahmad 1986 SCMR 725 and Sheikh Abdul Hameed and 2 others v. WAPDA PLD 1988 SC

35. The judgment of the Tribunal which has been set aside did not conform to the standards laid down therein. All the three grounds given by the Tribunal were wrong and not available for deciding on the validity of an action under section 17(1‑A) of the WAPDA Act. The first reason given in the Tribunal's judgment is in our opinion, failure to observe the directions strictly is not an act which would call for an order of removal from service'. The order under section 17(1‑A) is not a penal order but an order terminating‑the service simpliciter. Therefore, the order has not to be preceded by a fault attributable to the employee and to remain commensurate with it. The second reason given is that `no part has been attributed to the appellant in the embezzlement of the amount in connection with the works at Qila Saifullah'. This was not ever the charge against the petitioner nor the subject‑matter of the enquiry. As Divisional Accountant, while posted in Civil Division Quetta, he had failed to keep the correct copy of the contract document by reference to which the payments had to be made. Such a failure was likely to encourage and also facilitate overpayments, incorrect payments and embezzlements. The third reason given by the Tribunal is that had the matter been' examined under the Efficiency and Discipline Rules, the appellant would have been perhaps, let off with a warning. Again the test applied by the Tribunal is that of a penal order which is not correct test as laid down by this Court.

4. We find from the record that neither there was a specific mala fides alleged nor has it been established before the Tribunal. We do not find any made out on the record. In the absence of an allegation and particularization of such an allegation, such a ground cannot prevail.

5. We find at pages 42 to 44 of the Paper Book material to show that the working of the petitioner, while posted in Civil Division Quetta was found to be not upto the mark. That could be a sufficient and good ground for terminating a service without attaching any stigma as such as was done by recourse to section 17(1‑A) of the WAPDA Act.

6. In the qualitative assessment of the performance of the two officials, the standard of evaluation cannot be identical. There would arise no case of discrimination as such and none is fully brought out in this case.

7. We find no merit in the Review Petitions both of which are hereby dismissed. AA./N‑290/S Review dismissed.