1993 PLP (C (PLC(CS))

3. It was contended by the learned counsel for the appellant that whereas his work throughout his service had not only been adjudged satisfactory but he was also given letters of appreciations on more than one occasion for rendering good service. One such letter of appreciation is dated 4th of July, 1978, which was granted to him on the express instructions of the Superintending Engineer, Gujranwala Circle, Gujranwala. In addition to this, an enquiry was conducted by Wapda Authority when the appellant addressed an application to the President of Pakistan. This enquiry was headed by Executive Engineer, (C) Division, Gujranwala which was submitted on 1‑3‑1984 with the following conclusion: ‑ xxxxx xxxxx xxxxx "During the enquiry from the record nothing could be found against the accused Meter Inspector which could convince the undersigned that his recommendation for 17(IA) was justified in any way. As the then SDO Mr. Javaid Abbas could not attend the Enquiry who could explain the circumstances or could show some other documents may be in his personal custody under which he recommended the accused Meter Inspector for Major Punishment (Removal from Service) I am sure that recommending Officer must be convinced at that time that the existence of the accused Meter Inspector in the Department was against the interest of authority and he recommended him that he should be removed from service. But so far as the Divisional/Sub Divisional Office record is concerned the undersigned have not been convinced that the conduct/work of accused official vas so dangerous to the authority that his removal from service was essential. The report is submitted as desired please."

4. It was further submitted that another enquiry was conducted by no less a person than the Secretary, Area Electricity Board, Gujranwala, which is dated 27th of August, 1984. As a result of this enquiry, it was also recommended that the matter may be placed before the Authority for review of this case because he found no fault in respect of these officials to prove the charges brought about on various grounds against them. In view of these circumstances, it was strongly pleaded that the action taken against the appellant by the Wapda Authority was as a result of mala fides in law if not mala fides in fact. It was argued that since two independent enquiries by the Authority could not produce any evidence against the appellant, the Authority acted beyond the powers conferred under section 17(1A) of Wapda Act, 1958. The facts brought about in the enquiries prove that there was nothing on record to show that the appellant was a Member of a Gang which was stealing electricity and so causing financial loss to the Authority. The appellant had over 23 years of unblemished service at the time of his removal from service and no consideration was ever given to his performance of duties which was appreciated by his, superior officers. It was, therefore, prayed that the impugned order of his removal under section 17 (1A) may be recalled and the appellant be reinstated in service with full back benefits:

5. The learned counsel for the respondent Wapda alongwith the representative strongly contended that the powers conferred by section 17(1A) of Wapda Act, 1958 were now a part of the service conditions for the Wapda employees. It did not require any solid proof for the Authority to take action against the individuals nor does it envisage the issue of show‑cause notice. It was submitted that in this case we are supported by the Honourable Supreme Court in its judgment at 1986 SCMR

571. The extracts from the judgment are reproduced below: "We find that the submissions of the learned counsel for the appellant have weight. The language of the statute conferring power Authority under section 17(1A) makes it a term and condition of the employment itself. It is not in the nature of punishment and it is not to be by a show cause notice or by the conclusive proof of material taken against the employee. It is also not correct in view of the law laid down by this Court in Abdul Karim v. The West Pakistan PLD 1956 SC (Pak.) 298 that where two powers are concurrently available any one of them can be used notwithstanding that initially it was intended or action had been initiated under the other power. There is no question of the evidence being conclusive or beyond reasonable doubt before authorising the Authority to take action under section 17(1A). The language of the statute, is clear. It admits of no ambiguity. Like all statutory powers the limitation of its being bona fide and for the purpose of the Act has to be read in the power itself. In that view of the matter none of the grounds on which the judgment of Tribunal is based is tenable."

6. It was further submitted that it was also not incumbent upon the respondent Authority to always conduct the enquiry departmentally under the Efficiency and Discipline. Rules to initiate action under section 17(1A). This point was also clarified by the Honourable Supreme Court at 1986 SCMR 725 which is reproduced below: - "Similarly, it cannot be said that every case of irregularity committed by an employee must be followed by a departmental inquiry under the Efficiency and Discipline Rules and action under section 17(1A) is not permissible. Actually it has been held that such an action is permissible even where departmental inquiry has been started."

7. In view of the above it was urged that the conclusions of the two enquiries, which were conducted by the respondent Authority on 1‑3‑1984 and 27‑8‑1984 had no bearing .on the subject. Firstly, because these enquiries were conducted after the impugned order of the removal of the appellant under section 17(1A) of Wapda Act, 1958 and secondly, the conclusions drawn by the Enquiry officer in both ‑the cases were based on the office record. These conclusions are at best theoretical because practically the gang which comprised of the appellant and others which also included Mr. Ahad Hussain Shah who is the appellant 'in Appeal No. 385(L)/83, 401(R)/85 were responsible for the stealing of the electricity in many dubious ways. Such enquiries cannot bring out these facts because it is not in. the interest of the officers concerned to bring out these undesirable methods of stealing the electricity for obvious reasons. Regarding the question of mala fides in law, it is undisputed that the respondent Authority was vested with the powers under section 17(1A). Therefore, it cannot be termed as `mala fide in law' simply because there was no conclusive proof to take action against the appellant on the charges: levelled against him. In fact, this is a classic case where exercise of powers by the Authority under section 17(1A) of Wapda Act, 1958 had become obviously necessary. In view of these circumstances, it was prayed that the appeals be rejected and the impugned order of removal of the appellant under section 17(1A) dated 20‑9‑1983 be upheld as competent.

8. We have gone through the record presented to us carefully and also heard the arguments from both the sides. We have found no fault in the exercise of powers vested under section 17(1A) of Wapda Act, 1958 by the respondent Authority. In fact, we have also found that the appellant was given' special interview by the Board comprising of three General Managers, at Wapda Headquarters who rejected his plea for reinstatement. As a result, we are of the firm view that the action taken by the respondent Authority under section 17(1A) is competent in law.

9. In view of the foregoing arguments, 'the appeals before us fail. The impugned order of removal of the appellants dated 20‑9‑1983 is upheld and the appeal are dismissed accordingly.

10. Parties be informed. A.A/664/Sr.F Appeals dismissed.