1984 PLP (C (PLC(CS))

A. O. RAZIUR REHMAN (MEMBER).-This appeal has been filed against the order of removal from service passed against the appellant on 31st July, 1982 when he was working as Superintending Engineer (E), WAPDA Operation Circle, Hyderabad, under section 17(1-A) of the WAPDA Act, 1958.

2. Since the order was passed under section 17(1-A), no reason for the action taken against him was assigned and only 30 days' pay in lieu of notice was allowed.

3. According to the appellant, this was not a case of simple removal under section 17(1-A) of the WAPDA Act, 1958 but a case of disciplinary action which had its origin in an enquiry initiated by the Authority after the publication of certain allegations in the Daily Jasarat, Karachi of 8th February, 1982 against the officers and engineers of the Power Wing, WAPDA, followed the next day by an editorial in the same newspaper demanding stern action against officers and engineers of the WAPDA Wing, who were accused of having enhanced their rates of commission and of demanding as much as 40% from the Contractors. Since, as stated by the Appellant, an officer of the rank of Director (Enquiries), Civil Works, bad been deputed to make enquiries in this behalf at Hyderabad, it could be inferred that the action taken against him was the result of this enquiry. This was confirmed by a statement made to the Press by the Member (Power), which was published in the Nawa-i-Waqt, Lahore of 2nd September, 1982 in which the Member had categorically stated that the appellant bad been removed because the allegation of taking bribe from a Contractor bad been proved againse him. It was argued that, from these circumstances, it was obvious that the Authority had taken action against him on a specific charge, which clearly indicated that, although the Authority held him guilty of a specific offence, it was not sure that the guilt could be proved in an open enquiry or departmental proceedings and, therefore, it resorted to action under section 17(1-A). Thus, the action was not a bona fide act on under that section, but one taken merely to cover the punishment proposed to be given for a specific act of misconduct, by circumventing the normal procedure.

4. After bearing the parties and perusing the relevant documents, we have come to the conclusion that there is not much force in the argu ments put forward on behalf of the appellant. Although action under section 17(1-A) can be taken without assigning any reason, this does not imply that no reasons need exist, nor that, in the event of action taken on account of any charge or deficiency, which, in the opinion of the Authority, is found to have been established, this action would be null and void if taken under section 17(1-A). It would be absurd to suggest that, while action can be taken without any charges being established or even preferred, action would be ultra vires if prima facie charges are made out or proved beyond doubt. In the instant case, although action was taken under this section, according to the appellant himself, this was done on the basis of certain allegations made, which, according to the Member of the Authority, had also been proved. That being so, the action cannot be impugned merely because of a specific allegation stated to have been proved.

5. From the documents on record, it is seen that, on 18th July, 1:982 the Chairman wrote a note to the following effect :- "Mr. Saeed-ur-Rehman charged Rs. 55,000 for signing a contract with Mr. Raja Haneef at Karachi. Raja Haneef reported the matter to the Chairman, who informed the C. L. Hyderabad who in turn informed Mr. Saeed-ur-Rehman. Mr. Saeed-ur -Rehman then called Mr. Raja Haneef and returned the money. (Sd.) G. S. BUTT, Chairman 18-7-1982."

6. This was put up before the Authority for 0tconsideration by the General Manager (Admn.), who recommended removal of the officer under section 17(1-A):- "In view of the offence committed by the S. E. as well as recom mendation of Chairman WAPDA it is proposed that Mr. Saeed-ur -Rehman, S. E. may be removed from service under section 17(1-A) of the WAPDA Act, 1958, with immediate effect, without assigning any reason. by giving him 30 days' pay in lieu of notice."

7. From the above, it is clear that action under section 17(1-A) was not taken arbitrarily and that it was taken after the Members of the Authority had considered the matter and given it proper thought. It would, therefore, be held to have been taken by the competent authority in a regular manner in accordance with the relevant law.

8. In this connection, we consider it necessary to emphasize that, while section 17(1-A) empower the Authority to remove employees from service without assigning any reason, it does not debar the Authority from resorting to this section in the event of a case of disciplinary action being made out against an employee. Although disciplinary action under the Efficiency and Discipline Rules may be fully justified by the facts of a case, the Authority may not like to spend time and energy on conducting proceedings under the Efficiency and Discipline Rules or it may not want to award the maximum punishment to the concerned employee which would be justified in the proceedings under the Efficiency and Discipline Rules. We, therefore, hold that the mere existence of a specific charge against an employee does not render action under 17(1-A) mala fide in law, if this section is resorted to, instead of pro ceedings under the Efficiency and Discipline Rules. To render proceed ings under 17(1-A), in the presence of a specific charge against and employee mala fide, it must be proved that 17(1-A) was resorted to only to circumvent the normal procedure. In the instant case, no such case has been made out and we hold that action under 17(1-A) was not only justified by law but also bona fide and without any suspicion of circumvention.

9. In the result, we are satisfied that the impugned order need not be interfered with. The appeal is, therefore, dismissed.

10. No order as to costs. ABDUR RASHID (MEMBER).--To begin with, I shall deal with the legal import of section 17(1-A) which is reproduced :- "Notwithstanding anything contained in subsection (1) of any rules made or orders instructions issued, by the - Authority, or in the terms and conditions of service of any person employment by or serving under the Authority, the Authority may at any time retire or remove from its service any person without assigning any reason after giving him not less than 30 days' notice or pay for the period by which such notice falls short of 30 days." A plain reading of the above quotation would indicate that the Legislature has allowed the Water and Power Development Authority, either to retire or to remove any person without assigning any reason after giving him notice or pay in lieu. Section 17(1-A) which was added to the WAPDA Act, 1958 with effect from 30th September, 1975 confers naked power on the Authority. However, I, personally, have serious doubts as to the vires of the section. My reasons for such a view-point are simple. It is well known that both retirement and removal can be imposed only as punishments and not otherwise. (Retirement under section 17(1-A) is being distinguished from retirement under section 13(i) or (ii) of the Civil Servants Act, 1973 as well as the one reached after the age of superannuation). It is also well-known that a person who is removed, forfeits his pension by virtue of his removal. To impose any of these two punishments without assigning any reason is, therefore, to negate the accepted principle of natural justice, which lays down that no one shall be condemned unheard. It follows, therefore, that the person concerned will have to be given a chance to defend himself when action under section 17(1-A) is contemplated and this would call for reasons to be assigned when someone is to be removed or retired. Logically therefore, the Authority would be prevented from retiring or removing a person under section 17(1-A) without assigning any reasons. If, as a result of proper disciplinary proceedings, the charge or charges stand established, then it would be patently uncalled for to apply section 17(1-A) because if the crime is such as to warrant dismissal then the punishment of retire ment or removal under section 17(1-A) may not be commensurate with the misconduct and hence inequitable and unjust for reasons of leniency, If, however, as a result of proper enquiry, it is felt that the charge of misconduct is not established, beyond a reasonable doubt, then it would be inappropriate to inflict the punishment of removal in any case. In such cases, perhaps, the punishment of retirement would be justified but, again, each case will have to be judged on its own merits.

12. Like anything else, section 17(1-A), too, has two sides. If, on the one hand, it arms the Authority with unlimited power of retirement/ removal in the hope that such of the corrupt elements, who it would be difficult to deal with in the normal disciplinary proceedings, could b weeded out under section 17(1-A), there is no guarantee that the ruthless power of this section would not be abused to silence some of the non conformists who may be otherwise upright and are not towing the line of the corrupt elements. If we were to analyse the period of over eight years since section 17(1-A) has been operative, we can say without fear of contradiction, that the degree and volume of corruption, now rampant in WAPDA, is truly alarming. Why has section 17(1-A) failed to contain the cancer of corruption? We might get the answer that since WAPDA is the largest single employer of manpower and its shares of water and power are all pervading, the presence of corruption is not an unusual phenomenon particularly when too much money is, also, available for developmental activity. On the face of it the answer may appear to be plausible but for us, who have been dealing with WAPDA's discipline, this answer may not be the whole answer. In fact, among other things, the real answer may be that everyone, in WAPDA, is feeling so insecure that he wants to make as much money as possible before the sledge hammer of section 17(1-A) falls on him. Coupled with this forewarning, is the happy tiding that one can keep one's spoils at the cost of mere removal or retirement. In this psychological environment, the respect, for the law, if any, disappears. The feeling of insecurity so endemic in' the WAPDA, whetted with desire for quick spoils and, virtually, safe exit has caused the corruption to spread by geometrical progression.

13. However, so long as section 17(1-A) is available for applica tion, it is bound to be misused together with its use. It would be used as we have observed, generally to circumvent the tedious disciplinary pro ceedings and while there is possibility of this misuse, it would create and continue to create insecurity or fear, thus, adding to the hydra-headed corruption. I have no hesitation in saying that section 17(1-A) has denuded the WAPDA Service of the dignity and self-respect which ought to attach to public service. Viewed to the larger context, if a person is provided security of appointment, he behaves with greater sense of responsibility and dignity, the factors which change his entire outlook on life for the better and this also includes his job. It is upto us, by and large, whether we want frightened administrators/technocrats who are not guaranteed the security of their jobs with attendant consequences, or those who would be treated with respect but punished for lapses only after a right of defence has been allowed. The issue that should agitate our minds is; Has section 17(1-A) improved things or has it turned out to be counterproductive? If it has brought about deterioration which I think, it has, then it is worthwhile? I feel, section 17(1-A) has ceased to be useful, if ever it was useful.

14. Another lamentable aspect of this chaotic section is that sub section (1-C), which was added to the WAPDA Act in 1979 with retrospective effect from 30th September, 1975, bars the right of appeal. It is repeatedly asserted before us that the jurisdiction of the Tribunal is barred due to section 17(1-C). We are at a loss to understand that if Art. 212 of the Constitution of 1973 (also saved by the PCO 1981) confers on us the exclusive jurisdiction in service matters, where 17(1-B) declares the WAPDA employees to be civil servants for the purpose of Service Tribunals Act, 1973, then surely, section 17(1-C) cannot oust our jurisdiction, especially, when the ouster applies to a Tribunal and not specifically to the (Federal) Service Tribunal. In certain cases, the learned Supreme Court have allowed special leave to appeal to the WAPDA, where reinstatements have been ordered by the Federal Service Tribunal by setting aside action under section 17(1-A). It is time the WAPDA appreciated the gravity of the situation and moved the honourable Supreme Court for early hearing of cases of 17(1-A), so that the service law is cleansed of the confusion it is suffering from and we are rescued from the present stationary state which is doing no good except; perhaps, adding more corruption.

15. Now, to advert to the present case. A technical objection which the WAPDA have taken in this case is that the appeal is time-barred According to the Authority, the appellant should have filed his appeal before the Federal Service Tribunal within 30 days of the receipt of order of removal under section 17(1-A) because, being the final order of the Authority, it would not be subject to any review by the same Autho rity. Actually, there is a good deal of merit in this argument. This merit notwithstanding, it is also a fact that the law on this subject has, to this day, not been laid down with any clarity. As a consequence, therefore, the Tribunal has been entertaining appeals, which have been filed within 30 days of the receipt of orders under section 17(1-A) by treating the order as final. The Tribunal has, also, been admitting appeals from orders of section 17(1-A) which have been filed within 30 days of the waiting period of 90 days after a departmental appeal stood exhausted. In order to lay down a uniform law in respect of sec tion 17(1-A), we would henceforth, treat an appeal as time-barred, if it is filed beyond the period of 30 days of the receipt of order passed by the F WAPDA under section 17(1-A), which order would be treated as final. The present appeal would, however, be considered in time.

16. The charge against the appellant, causing his removal under section 17(1-A) is, that he was held responsible for extortion of Rs. 55,000 for signing a contract with Raja Haneef of Karachi. The con tractor brought this fact to the notice of the Chairman WAPDA who, in turn, asked the Chief Engineer to look into the matter. The Chief Engineer according to the note of the Deputy Director (Admn.), dated 19th July, 1982 caused the return of money to the contractor. The Chairman, WAPDA recommended removal and after "circulation" of the proposal, the Members (W), (F) and (P) okayed the removal and the appellant stood removed. A formal order to this effect was issued on 31st July, 1982. It is also on record that the Authority accorded the appellant a personal hearing on 19th September, 1982 but his removal was upheld.

17. This case has certain instructive features as to the application of section 17(1-A). It was as a result of a complaint made to the Chairman, WAPDA, by the contractor that this case originated. The Chairman directed the Chief Engineer to look into the matter. The Chief Engineer made the appellant return the amount to the contractor. All this is in a narrative form like a story but there is no statement of the Chief Engineer concerned or any one else for the matter and no enquiry or incriminating evidence, even inconclusive. Just the allegation, its "proof" in someone's note and the Authority's order. Will the Authority be justified in causing removals in this highly summary manner thus adding to corruption while honestly intending to do just the reverse? If the appellant was really guilty, then he deserved a severer punishment then he has been administered. If on the other band, there was nothing against the appellant, then be has been wrongly punished under section 17(1-A). Either way, therefore, there has been G miscarriage of justice. In this case we have no doubt that an enquiry could have been held to ascertain the facts or truth but not a word has been recorded. Why ?

18. I find substance in appellant's assertion that his removal has been influenced by allegations in daily Jessarat, Karachi of 8th February, 1982 followed the next day by an editorial, to which my learned colleague has alluded to in para. 3 of the judgment. I also feel that it was not appropriate for Member (Power) to have made a statement to the Nawa-i-Waqat Lahore published on 2nd September, 1982 saying categorically that the charge of accepting bribe against the appellant had been proved. I have found no such proof. If a responsible Member of the Authority makes such a public statement, which I would call baseless, in the circumstances of the case, then the fate of the appellant was already sealed on 2nd September, 1982 and the personal hearing of the Authority afforded to the appellant on 19th September, 1982 could have been very well dispensed with because its outcome had already been announced to the Press on 2nd September, 1982 by a Member of the Authority and well before it was due to take place on 19th September, 1982. This could hardly be termed as administration of justice.

19. In view of the forgoing analysis, I have no doubt that the appel lant has not been dealt with in accordance with the law, a right which has been conferred upon him under Article 4 of the Constitution of 1973. I, therefore, respectfully disagree with my learned colleague and reinstate the appellant into service with effect from the date of his removal with consequential benefits flowing from this order. JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-This appeal has come up before me on difference of opinion between the two learned Members, Mr. A. O. Raziur Rahman and Brig. Abdur Rashid.

2. The appellant was removed from service under section 17 (1-A) of the WAPDA Act. He had first filed a departmental appeal and having received no redress from that quarter, he has now approached the Tribunal under section 4 of the Service Tribunals Act read with section 17 (1-B) of the WAPDA Act. My brother, Mr. A. O. Raziur Rahman has dismissed the appeal on the ground that there was material on record to show that the appellant accepted Rs. 55,000 for signing a contract with one Raja Muhammad Hanif of Karachi, and that when this fact came to the notice of Chairman, WAPDA, he informed the Chief Engineer, Hyderabad and on his intervention, the appellant returned money to Raja Hanif. My brother, Brig. Abdur Rashid, on the other hand, is of the opinion that this case was not fit for taking action under section 17 (1-A) in view of the specific charge against the appellant, and that the action of the Authority in invoking the provisions of section 17 (1-A) amounted to depriving the appellant of his legal right for being dealt with according to law under Article 4 of the Constitution. My learned brother has very ably performed the autopsy of section 17 (1-A) and has rightly come to the conclusion that this subsection which was intended to weed our corruption from the WAPDA has made the service under the WAPDA insecure, resulting in more corruption. However, I am not in agreement with my learned brother that for this reason the appeal should be accepted because the legislature has every right to take away the right of hearing, as has been done by enacting section 17 (1-A).

3. On merits of the case, however, the appellant has to succeed Besides the reasons recorded by my learned brother Brig. Abdur Rashid I am agreeing in conclusion with him because there is no contract which the appellant signed with Raja Hanif. The copy of that contract was nor produced by the Authority. The appellant has produced the copy of the contract executed with Raja Hanif by the Executive Engineer. It ha rightly been argued on behalf of the appellant that if the appellant was not a party to the contract, then the question of his receiving money from the contractor does not arise. Besides that, Raja Muhammad Hanif has filed an affidavit, refuting the allegation against the appellant. I have also gone through the Annual Confidential Reports of the appellant and I find that throughout his long service he had been a good officer from every point of view including `integrity'. The Authority appears to have been influenced firstly by the report in the newspaper and secondly by the direct intervention of the Chairman himself. If these two incidents were not there, then I think the Authority would not have approved action under section 17 (1-A).

4. Agreeing with my learned brother, Brig. Abdur Rashid I accept this appeal and set aside the impugned order, and reinstate the appellant into service with all consequential benefits. A. E. Appeal accepted.