P L D 2003 Supreme Court 336 (PLP)

Respondent No.1 in person (in C.P. No. 1607 of 2002). F.K. Butt, Addl. A.‑G. for Respondent No.2 (in all Cases). Date of hearing: 14th January, 2003. IFTIKHAR MUHAMMAD CHAUDHRY, ACTG. C.J.‑‑-By means of this common judgment, we propose to dispose of the above Cavil Petitions for Leave to Appeal as in all these petitions a common judgment passed by the Federal Service Tribunal. Islamabad on 30‑5‑2002 has been challenged.

2. Precisely stating the facts of the cases necessary for disposal of instant petitions are that the respondents being employees of WAPDA in different categories were proceeded against departmentally under different charges but ultimately nothing contrary was proved against them. As such having left with no option, the department directed their compulsory retirement under section 17(1‑A)(a) of WAPDA Act, 1958. The respondents feeling aggrieved from the compulsory retirement orders filed departmental proceedings and ultimately approached the Federal Service Tribunal for the redressal of their grievances. The service appeals tiled by them have been allowed by the impugned judgment concluding para. therefrom is reproduced herein below: "In view of the judgment of the Honourable Supreme Court reproduced above, the issue in this appeal stands decided. Under Article 189 of the Constitution, the judgment of Honourable Supreme Court is binding on all lower Courts. The principle mentioned above is applicable to these appeals. We cannot take a different view. Our opinion remains the same as is mentioned above. Resultantly the appeals are allowed and the impugned orders under section 17(1‑A)(a) in all the appeals are set aside. The appellants are reinstated in service. The appellants are entitled to back benefits. They will be paid back benefits but authority can withhold these benefits only, if there are serious allegations against the appellants or any of the appellants and in that case regular inquiry will be held within three months. In case no regular hearing is held within three months then the back benefits will be paid to the appellants. "

3. Learned counsel for the petitioners stated that under section 17(1‑A)(a) of WAPDA Act, 1958, there was no necessity to provide opportunity of hearing to the respondents, therefore, the Service Tribunal was not justified to grant relief to the respondent for violating the principle of audi alteram partem.

4. It is to be noted that this Court in an earlier judgment which has been relied upon by the Service Tribunal in the case of WAPDA through Chairman v. Zulfiqar Ali (2002 PLC (C.S.) 128) while examining the question of premature retirement under the provisions of section 17(1‑A)(a) of the WAPDA Act, 1958, has declared that where the record spells out that the action of premature retirement is being taken against the employee in exercise of jurisdiction in a colourable manner with mala fide intention then it is necessary to extend right of hearing to such affected employee. Relevant para. from the judgment is reproduced hereunder:‑‑ "It is further to be observed that under section 17(1‑A)(a) of the Act the Authority enjoys a right to retire any person employed from his service without assigning any reason but if from the perusal of record it can be spelled out that such action is being taken against him in exercise of jurisdiction in a colourable manner with mala fide intention then it becomes all the more necessary to extend right of hearing to an affectee employee as in the cases of Shah Imroze (1986 SCMR 840), Sheikh Abdul Waheed and 2 others v. WAPDA (PLD 1988 SC 35) and WAPDA v. Sheikh Zulfqar Ali (PLD 1988 SC 693) it has been held that the Tribunal after examining all the relevant factors can set aside order passed by the Authority when the order under section 17(1‑A) of the Act is mala fide and tainted with mala fide bias and. not passed with bona fide. Subsequently in the case of Aijaz Nabi Abbasi v. Water and Power Development Authority and another (1992 SCMR 774) it was held that summary powers conferred upon the authority to remove or retire an employed person does not mean that the authority enjoys such powers unfettered or unbridled or arbitrary. The object of conferring such powers seems to be to make easier for the Authority to remove from service surplus and/or inefficient and/or corrupt employees without holding long drawn departmental enquiry in order to make the establishment more viable and efficient and, therefore, exercise of above power to achieve the above objective. It is to be exercised in good faith by the repository of the power, untainted with bias or mala fides or considerations other than the above objective and, therefore, any action in violation of the above basic norms will warrant interference by the Tribunal and Supreme Court."

5. In another case Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others (2001 SCMR 934) this Court has held that where adverse action is being contemplated to be taken against the person/persons, he/they would have at least right to defend such action. Likewise, in a recent unreported judgment delivered by this Court in Civil Petitions Nos. 1254, 1255, 1272 and 1259 of 2002 (Water and Power Development Authority through Chairman and others v. Muhammad Naveed Iqbal, Line Superintendent and others), the principle laid down in the judgments referred to above was reiterated. Therefore, we are of the considered opinion that the Federal Service Tribunal had lawfully interfered with the orders passed by the WAPDA Chairman directing compulsory /premature retirement of the respondents for the reason that they were condemned unheard. A careful perusal of the proceedings as well as the record so made available before us, abundantly makes it clear that initially respondents were proceeded against departmentally under the Efficiency and Discipline Rules on different charges, said to have been committed by them during the course of service by each of them but nothing was proved against them, therefore, with mala tide intention to oust them from service, the order of their compulsory retirement was passed under section 17(1‑A)(a) of the WAPDA Act, 1958. Thus, the respondents were entitled for the right of hearing before passing order of their compulsory retirement from service. As such impugned judgment passed by the Service Tribunal under the circumstances being unexceptionable needs no interference by this Court.

6. Office has objected on the maintainability of the petitions being barred by time but as we have decided the case on merits, therefore, we are not inclined to dilate upon this aspect of the case. Thus, for the forgoing reasons, we find no force in the instant petitions, as such, the same are dismissed and leave to appeal is refused. S.A.K./W‑42/S Petitions dismissed.