1984 PLP (C (PLC(CS))

A. O. RAZIUR RAHMAN (MEMBER).‑In this case. the appellant who was appointed as Junior Engineer in WAPDA, on 25th July, 1977 and regularised as such in March, 1978, was removed from service under section 17 (1‑A) of the WAPDA Act, 1958, by an order, dated 27th/31st July, 1982. The appellant preferred a departmental appeal on 9th August, 1982 and, after waiting for the statutory period of 90 days, and failing to get a decision on the appeal during this period, he came before the Tribunal on 4th December, 1982. The appeal, having been admitted, came up for hear ing on 30th April, 1984 and is being disposed of by this order.

2. The relevant facts are that, by a charge‑sheet, dated 9th March, 1981 the appellant was alleged to have committed serious irregularities amounting to misconduct. He denied the allegations contained in the charge‑sheet and an Enquiry Officer was appointed to conduct proceedings on the basis of the charge‑sheet. The Enquiry Officer submitted his report on 18th November, 1981. In the report he held that three out of four charges had been proved and these were submissions of false report, non- completion of work and misappropriation of cement. However, no action seems to have been taken on the report of the Enquiry Officer but the appellant's case was placed before the Authority for action under section 17 (1‑AI of the WAPDA Act, 1958. Reference, in this behalf, was made by the Chairman, Area Electricity Board, Hyderabad, to the Managing Director (Power), WAPDA, Lahore, on 12th January, 1982. On the basis of this recommendation, the Authority passed the impugned order.

3. The action taken by the Authority has been impugned before us on the ground that section 17 (1‑A) is not intended to be a substitute for action under the E & D Rules and, in cases where proceedings have already been instituted, action ought to be completed under the E & D Rules. It was pointed out that, as held by the Tribunal in the case of Mumtaz Hussain v. WAPDA in Appeal No. 433 (L)/1982, resort to section 17 (1‑A) merely to facilitate action of a disciplinary nature, cannot be treated as genuine and bona fide action under section 17 (1‑A). 4 After hearing the parties at length and perusing the documents, we have come to the conclusion that, although there was a great deal of matter on the basis of which action could be taken against the appellant, resort to section 17 (1‑A), in lieu of completion of disciplinary action under E & D Rules, could not be treated as removal simpliciter. The fact that definite charges had been preferred against the Appellant, and these had been looked into by the Enquiry Officer and report submitted by him in this behalf, called for a positive decision on the part of the Authority. They should have confronted the Appellant with the Enquiry Report, called upon him to show cause and then decided the matter according to law. They could not abandon the proceedings under the E & D Rules and change over to section 17(1‑A), which amounted to changing of horses in mid‑stream, because, whereas proceedings under the E & D Rules, involving specific charges, if they resulted in removal or dismissal from service carried a stigma against the appellant, in case he were exonerated and not punished, there would be no stigma attached to him. But, by removing him under section 17 (1‑A), after the advice given against him by the Enquiry Officer, the Authority, under the cloak of section 17 (1‑A), punished him by removing him with a stigma, which could be attached only if he had been found guilty and punished on that account.

5. It appears necessary to clarify what in our view is the correct appli cation of section 17 (1‑A). As already stated by us on other occasions, although no reason need be given for action taken under section 17 (1‑A), it is necessary that action should be taken for good and sufficient reason. It could be good and sufficient reason that an employee, is corrupt or report ed to be corrupt or is inefficient or has been punished more than once an is not reforming himself. In such cases, action may be taken under section 17 (1‑A) and such action would not carry the same stigma which would attach to action taken on specific charges of misconduct having been proved. However, if, after action has been initiated on specific charges, if such action is not completed and the employee removed under section 17 (1‑A), on the basis of the same charges, the inference would be that the Authority, having failed to convict the employee on those charges, preferred to adopt the easier method of punishing the appellant without giving him a full oppor tunity of defending himself, thus removing him from service with a stigma, while pretending to remove him without one, such action would amount to mala fide in law and cannot be sustained. However, it is quite possible that there might be cases where charges have been preferred against an em ployee but proceedings have not been taken to their logical end and yet, on the basis of the overall conduct and performance of an employee and an assess ment of his merits termination of his service or his removal is considered by the Authority to be justified, action under section 17 (1‑A) would be justi fied, even in the face of the uncompleted action under the E & D Rules. In other words, the existence of incomplete proceedings under the E & D Rules can be no bar to action under section 17(1‑A), provided there and charges which are the sufficient material, including the allegations subject‑matter of the E & D proceedings to justify such action. But, wherever it appears that the Authority decided to change over from dis ciplinary proceedings under the E & D Rules to action under section 171 (1‑A), on the basis of the same material which is the subject‑matter of pro ‑1 under the E & D Rules, such action will be treated as suspect and, therefore, not sustainable.

6. In the instant case, although we can concede that, in the face of the Enquiry officer's report, it is not only likely but most probable that the appellant could be punished under the E & D Rules, we have to give the appellant the benefit of doubt and hold that, by removing him under section 17(1‑A), the Authority has prevented him from defending himself and getting the benefit of the rules for escaping the punishment contemplated against him. 1n these circumstances, we hold that the resort to section 17 (I‑A) was not justified and has to be treated as invalid. The impugned order is set aside and the appellant is re‑instated in service with effect from the date of his removal. This, however, will not stand in the way of the Authority completing action against him under the E & D Rules and decid ing the case on merits.

7. With the above orders and directions, the appeal is disposed of.

8. No orders as to costs. A. B. Order accordingly,