1988 (PLP)

SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Chaudhry Abdul Shakoor was an Assistant Accountant with the Water and Power Development Authority (hereinafter abreviately referred to as the WAPDA). He was removed from service under the provisions of Section 17 (1-A) of the Water and Power Development Authority Act, 1958 (hereinafter mentioned as the WAPDA Act), by order dated 4-12-1977. After approaching the National Industrial Relations Commission (NIRC) and filing a constitutional petition before the High Court, the appellant ultimately challenged the order before this Tribunal in Appeal 105 (R)/82. A Bench of this Tribunal, by its order dated 21-2-1983, accepted the appeal only to the extent that the order of his removal was converted into that of retirement from service with consequential benefits. The WAPDA preferred an appeal to the Supreme Court. The Supreme Court dismissed the appeal, alongwith other appeals of like nature, by judgment dated 16-12-1985. Thereafter, the appellant made an application to the Authority on 29-12-1985 that, in view of the decisions by the Federal Service Tribunal and the Supreme Court, that he was deemed to have continued in the WAPDA service as the Assistant Accountant eversince 4-12-1977 till a formal notification of his retirement from service was issued and he was entitled to all the monetary benefits of service including salaries and allowances, etc. and the admissible fringe benefits. He also claimed benefits of his earlier service, such as reinstatement on the post of Junior Accountant with effect from 4-9-1968, promotion to BPS-19 and payment of arrears of salaries and allowances for the period from 8-7-1969 to 1-5-1972. He mentioned that the application may be treated as his joining duty report. The Authority passed the following order on 27-3-1986: No. AD(Rev) 05001/431/511 ???????????????????????????????????? 731-WAPDA House, Lahore Dated: 27-3-1986. Pursuant to decision dated 21st February, 1983 of Federal Service Tribunal in Appeal No. 105 (R) of 1982, Office Order No. SO (1) (1)(435)WAA/1061, dated 4th December, 1977 for removal of Mr. CA. Shakoor, formerly Assistant Accountant in the office of Chief Accountant, Wapda, Lahore, from service of Authority is with effect from the date of aforesaid order (i.e. 4th December, 1977) modified to that of retirement with all pensionary benefits as admissible under the rules. 2. ?Pension for the period during which Mr. Shakoor was allowed to resume duty under orders of Court shall not be admissible?. Sd/Muhammad Anwar Deputy Director (Confidential) The appellant filed "Appeal for Review" dated 14-4-1986. He preferred this appeal on 23-4-1986. It was admitted on 25-3-1987.

2. The appellant made several applications to the functionaries of the Authority before as well as after the filing of the appeal. He received following reply on his applications under letter dated 22-1-1987, reproduced below for convenience sake: No. Accts-P(49)/49/697.???????????????????????????????????????????????????????????????????? Lahore, ??????????? Dated: 22-1-1987. Mr. CA. Shakoor, Ex-Assistant Accountant, J-66, Gulberg-III, LAHORE. Subject: INTERVIEW WITH CHAIRMAN-WAPDA ON 7-5-1986. REFERENCE: Your application dated 6-1-1987. The three applications handed over by you to Chairman WAPDA on 7?-5-1986 were duly considered under the rules and decision accorded -hereon were conveyed to you vide-? (i) No. Accts-P(49)51/4960 dated 21-5-1986. (ii) No. Accts-P(49)50/4961 dated 21-5-1986. (iii) No. Assts-P(49)35/4962 dated 21-5-1986. Your further demands viz: (i)payment for the period from 1969 to 1972 when you remained out of Wapda?s service, (ii) payment of salary for the post of Jr. Accountant from 17-12-1964 to 3-9-1968 when posted on payment of 12 1/2% of the higher post as Jr. Accountant, (iii) grant of proforma promotion retrospectively, were also considered under the rules and orders of the Authority and decisions arrived at on each demand were conveyed to you vide letters- (i) No. Assts/P(49)48/9519 dated 23-9-1986. (ii) No. Accts-P(49)49/11755 dated 25-11-1986. (iii) No. Accts-P(49)49/10829 dated 27-10-1986. As such, whatever was due from the Authority has been duly paid to you. It is regretted that no further representation on the above demands would now be entertained. This bears approval of Chairman, WAPDA. Sd/- MANAGER FINANCE (COORD.) WAPDA." He supplemented the original memo of appeal by producing a copy of that order and copes of some other documents under application dated 28-1-1987.

3. The prayers of the appellant are manifold. The prayer clauses in the memo of appeal are reproduced hereinbelow for better appreciation of the submissions made by the appellant:- "....it is respectfully prayed that this learned Tribunal may graciously be pleased to declare the impugned order dated 27-3-1986 (Annex/A) as amended for giving retrospective effect to the amendment carried out therein to be void, illegal, incompetent, erroneous, legally ineffective and without lawful authority, also directing the Respondent to act in accordance with law and to rescind or withdraw the same as well as the removal order dated 4-12-1977 (Annex. H) for issuance, by substitution. of a fresh order of Appellant's retirement from service necessarily to be given effect from a prospective (future) date after passing a formal order of his retirement from service of the Respondent without resorting to any amendment therein and to count the entire period of removal from service as on duty till Appellant's retirement from service is notified through the Respondent's fresh notification, also covering the periods of 30 years' service qualifying for pension or 60 years' of age fixed for retirement on superannuation falling due of the Appellant on 11-4-1988 whichever is earlier under WAPDA Retirement Rules to be read with Civil Servants Act, 1973 otherwise payment in advance of all salaries and allowances in full inclusive of promotions, increments, new scales and grades etc. Etc. in lieu of such periods falling short on the date of actual retirement of the Appellant from service. It is further prayed with respect that the Respondent be also directed to discharge the following liabilities before passing & issuance of the formal order of the Appellant's retirement from service as his legal right within the scope of consequential benefits:- (a) payment of arrears of regular pay of the higher post of Junior Accountant in the scale of Rs. 400-50-1000 for the period from 17-2-1964 to 3-9-1968 to the Appellant during which he held officiating charge of the post of Junior Accountant on promotion LESS payments already made on 12 1/2% of the initial pay of the post of Junior Accountant as officiating pay. (b) By implementation of Respondent Authority's order dated 10/11/-4?1972 (Annex/D) on the basis of Inquiry Report dated 16-2-1972 (Annex/C) of Agha Ahmad Raza Khan, Director General (Inquiries), Wapda, thereby allowing total appeal of the Appellant in the following directions:- (i) Payment of arrears of full salaries and all allowances for the period from 8-7-1969 to 1-5-1972 (inclusive of duty pay from 28-4-1972 to 1-5-1972) during which the Appellant was forcibly kept removed from service LESS payments already made in terms of leave of the kind due vide office order dated 24-3-1973 (Annex/F). (ii) Reinstatement on the post of Junior Accountant (Officiating) w.e.f. 4-9-1968. (iii) Early promotion to the regular post of Junior Accountant in the order of seniority in Assistant Accountant's Cadre (in preference to Mr. Sarwar Yar Khan now Director in BPS-19) and further promotion in BPS-18 and 19 (in preference to Mr. Munir Ahmed now Director in BPS-19). (c) Payment of arrears of salaries and allowances for the period from 5-12-1977 to 28-3-1980 as a result of suspension of the removal order by the Hon'ble Lahore High Court in its order dated 25-3-1980 (Annex/O), which in an indentical case were paid by the Respondent on the advice of his Legal Adviser vide letter dated 20-4-1980 (Annex/I) (d) Costs may also be awarded:'

4. The appellant has argued the appeal himself mainly reading from the written arguments filed by him. The submissions made by him may be summarised as under: (1) The impugned order dated 27-3-1986 is in conflict with the judgment of the Tribunal dated 21-2-1983 in Appeal No. 105(R)/82 and the judgment of the Supreme Court dated 16-12-1985 in Civil Appeal No. 170 of 1983, and it is also violative of law and principles of justice. (2) There is no direction in the judgment of the Tribunal and the Supreme Court for modifying the order dated 4-12-1977. (3) No order could be made to have retrospective operation as to modify the order dated 4-12-1977. Reliance has been placed on several reported cases-viz. P L D 1963 SC 633; P L D 1964 S C 451 & 494; 1987 S C M R 359; P L D 1974 S C 180; P L D 1976 SC 390; P L D 1963 SC 251 and PLD 1974SC291. (4) Modification of earlier order carried out in subsequent order is illegal and inoperative. Reference has been made to P L D 1956 Lahore 556 and PLD1970SC453. (5) Only legislature can confer retrospectivity on an order in special circumstances. The cases cited on this proposition by him are--P L D 1967 SC 289; P L D 1969 SC 187 and P L D 1953 Lahore

293. Reference has also been made to Article 8 of the Constitution and P LD 1970 SC 80 has been cited as the supporting authority. (6) In view of the judgment of the Tribunal and the Supreme Court, the order of removal of the appellant from service was without lawful authority. Reference has been made to paras. 260, 268 to 270 of Halsbury's Law of England, 3rd Ed, Vol-I1, and reliance has been placed on the cases reported in P L D 1968 Pesh 30 and P L D 1967 Dacca 6. (7) If one order is set aside by subsequent order, the whole action is against law. Reference has been made to certain observations in the book of "Administrative Law" by Reginald Parker, at pages 148 and 149; and the case reported in P L D 1968 Karachi 22; and another case reported in P L D 1960 Dacca 1025; and the third case in AIR 1.956 Patna 449 have been cited as the supporting authorities. (8) When the appellant Tribunal passed an order, the original order does not exist m the light of the cases reported in P L D 1964 S C 520 and P L D 1957 S C (Ind.)

448. The original order was void and, therefore, subsequent order also was void. Reliance has been placed on the cases reported in P L D 1958 SC (Pak.) 104; P L D 1973 Lahore 450; 1970 Law Notes 28 and P L D 1964 SC 673. (9) The impugned order was passed without lawful authority and reliance has been placed on the judgment of the Supreme Court in the case of Irtiqa Rasool Hashmi V. WAPDA, reported in 1987 SCMR

359. Reference has also been made to the cases reported in 1985 P L C (CS) . 09; P L D 1958 SC 44 and P L D 1958 Pesh. 162. (10) Consequent to the setting aside of the original order by the Service Tribunal, the appellant became entitled to arrears of salaries for the period of his unlawful removal from service and all other consequential benefits. Reliance has been placed on the cases reported in P L D 1966 SC 735; P L D 1958 SC 41; P L D 1965 Peshawar 62 and P L D 1964 SC 451. (11) The Service Tribunal did not vary or modify the order of his removal from service but it converted the order of his removal from service to that of his retirement from service and the expressions "convert", "vary" and "modify" have different connotations in legal terminology as well as in dictionary meanings. Reference has been made to a case reported in 1988 P L C (CS) 115. (12) The order for removal from service or that of retirement from service did not make any difference for the appellant as he was entitled to pensionary benefits in either case and reliance has been placed on the cases reported in 1987 S C M R 359 and 1985 P L C (CS) 9. (13) Para 2 of the impugned order for removal of the appellant from service was uncalled for in view of Rule 1, Chapter II of WAPDA- Pension Rules, 1977. (14) The appellant was not awarded compensation for late payment of his dues and the orders passed by the Authority allowing him certain benefits were not implemented and he was not paid full emoluments for the period he had held the charge of the post of junior Accountant. Reliance has been placed on the cases reported in P L J 1987 (Tr.C) 286; P L D 1968 Dacca 254; P L D 1970 SC 247; 1978 SCMR 289 and P L D 1978 SC 1.

5. On the other hand, the learned counsel for respondent Wapda has resisted the appeal. He has contended that the impugned order dated 4-12-1977 for removal of the appellant from service was passed under the provisions of Section 17(1-A) of the WAPDA Act and it was modified by the Service Tribunal by converting the penalty of removal from service to that of the appellant's retirement from service and that order was upheld by the Supreme Court. According to him, the original order was not set aside and the impugned order dated 27-3-1986 was passed to modify the original order as to give effect to the order of the Tribunal which was upheld by the Supreme Court. He has also contended that the appellant's claim for financial benefits is for the period earlier than 1-7-1969, and the appellant could not avail of any relief in view of the provisions of Section 4 (1) (c) of the Service Tribunals Act, 1973. He has also contended that the appeal is not only time-barred but is also not maintainable.

6. It would appear from the appellant's prayer in the memo of appeal, reproduced at paragraph 3 ante, that the appeal is essentially directed against the order dated 27-3-1986, which has been reproduced in the opening paragraph at page 2 of this judgment. The order was issued as to give effect to the Judgment of this Tribunal dated 21-2-1983 in Appeal No. 405 (R)/82, whereby the order of the Authority dated 4-12-1977 was modified from removal of the appellant from service to that of his retirement with all benefits as admissible under the rules. Of course, paragraph 2 of the order to the effect that pension for the period during which the appellant was allowed to resume duty under orders of the Court, would not be admissible, was not consequential to the judgment of the Tribunal but it was incidental thereto in the circumstances of the case, as the order of retirement passed by the Tribunal was deemed to have been effective from the day of the order so modified dated 4-12-1977. The contention of the appellant that the order dated 27-3-1986 was bad in law on account of its operation in retrospectivity seems misconceived. It was passed in pursuance of judgment of this Tribunal m Appeal No. 105 (R)/82 in order to modify the order of removal of the appellant from service dated 4-12-1977. It 'was just modification of the order dated` 4-12-1977 and it was not a fresh order to operate with retrospective effect. Of course, the terms "modify", "very" or "convert" do have somewhat different connotation in legal terminology as well as in dictionary meanings but the order, of the Tribunal that "the order of removal is converted into retirement from service with consequential benefits" did not amount to setting aside the order altogether but it only altered its nature from "removal from service" to that of " retirement from service". Even if no such order were passed, the order dated 4-12-1977 stood modified to the extent that the order of the appellant's removal from service was modified to that of retirement from service by virtue of judgment of the Tribunal, referred to above. The case relied upon by the appellant on the question of retrospective operation of orders, creditably made research of by him, are not attracted to the facts of this case and it would not be worthwhile to discuss each of them in detail. It is obviously wishful thinking of the appellant that, by virtue of the judgment of the Tribunal and its upholding by the Supreme Court, extended the duration of his service till the passing of the fresh order of his retirement by the Authority or until his attaining the age of superannuation, whichever event was earlier. For all practical purposes, the appellant's service career stood closed on 4-12-1977 when the original order of his removal from service, subsequently modified by the Tribunal to that of his retirement from service, was passed. Therefore, the first part of the impugned order dated Y7-3-1986 is not assailable, 7 The appellant's grievance against the second part of the impugned order dated 27-3-1986 is that, by virtue of the judgment of the Tribunal dated 21-2-1983 in Appeal 105(R)/82, he stood restored to the original position until an order for his retirement from service was passed taking effect prospectively and: therefore, he would be entitled to the pensionary benefits for the entire period till the passing of such order, particularly for the period he rendered service after his removal from service under order dated 4-12-1977, by orders of the NIRC and the High Court. This contention too appears to be misconceived. As discussed above, the appellant stood retired for all purposes with effect from 4-12-1977, when the original order of his removal from service was passed by the Authority and later modified to that of his retirement from service by the Tribunal in its judgment dated 21-2-1983. Obviously, even the second part of the impugned: order dated 27-3-1986 was not violative of the judgments of the Tribunal and the, Supreme Court, and there is no merit in the appeal on this score as well.

8. The other prayers in the memo of appeal relate to his service in remote past and do not have any close proximity with the order dated 4-12-1977, modified by the Tribunal and given effect to under the impugned order dated 27-3-1986. Those causes of action, if any, are based on different set of facts in each case and relate to different periods and do not constitute joint cause action as to have been jumbled together and urged in this appeal which is directed essentially against the order dated 27-3-1986. Of course, the appellant has filed a letter dated 22-1-1987 addressed to him by the Manager Finance (COORD), Wapda, reproduced at paragraph 2, informing him that all his claims were considered earlier and decisions thereon were conveyed to him and made it a base for introducing them as additional grounds for consideration. Those orders were subsequent to the filing of this appeal and pertain to the matters not directly linked with the order dated 27-3-1986 and the appellant could have exercised his better wisdom and dealt with them by way of a separate proceeding as could be permitted by law but they are not entertainable in this appeal.

9. Consequent to the reasons recorded above, the appeal is dismissed with costs. AA/407/Sr. F?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.