1999 PLP (C (PLC(CS))

AJMAL MIAN, C.J.‑‑‑This is an appeal with the leave of this Court against the judgment dated 13‑10‑1993 of the learned Federal Service Tribunal (hereinafter referred to as the Tribunal) passed in Appeal No.261(L) of 1993, filed by the appellant who at the relevant time was working as Assistant Accountant in the respondent Authority, against the order of removal dated 10‑12‑197?. refusal to grant pension and other pecuniary benefits on account of his removal from service under subsection (I‑A) of section 17 of the Pakistan Water and Power Development Authority Act. 1958 (hereinafter referred to as the Act) Leave was granted on the points noticed in the leave granting order. The brief facts are that the appellant was removed from the service under subsection (1‑A) of section 17 of the Act by order dated 10‑12‑1977. It will not be out of context to reproduce the above subsection (1‑A) in its original form as it was prior to the amendment by Amending Act No.XIII of 1994, dated 6‑7‑1994, which reads as follows:‑‑ "17(1‑A): Notwithstanding anything contained in subsection (1) or any rules made, or orders or instructions issued, by the Authority, or in the terms and conditions of service of any person employed 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 thirty day's notice or pay for the period by which such notice falls short of thirty days." After the passing of the above order a protracted litigation ensued, inasmuch as during the above litigation the respondent Authority purported to retire the appellant on 3‑3‑1985 from service, which action also became the subject of litigation. However, eventually it was held that the order dated 10‑12‑1977 removing the appellant from service would hold the ground. On account of stay orders obtained by the appellant, he continued to remain in service up to .3‑3‑1985 and drew his salary and other allowances. After the final `adjudication that the above order of removal dated 10‑12‑1977 would hold the ground, the appellant started a fresh round of litigation claiming pension and other pecuniary benefits. Finally, the matter came up for hearing before this Court in the form of Civil Petition No. 1052 of 1992, which was disposed of with the following observations:‑‑ "After hearing the petitioner himself and his learned counsel (Mr. Asghar Khadim), we find that he wants the pecuniary benefits following from his removal/retirement order upheld by the Service Tribunal to be protected and relief provided to him in respect of it. For this purpose he should not have approached the Tribunal directly seeking their interpretation, application and calculation or his pecuniary benefits but should have gone to the Department to claim them under the orders, if any, in his favour. It is only on the grant or refusal to grant such benefits and final order in that respect that he was entitled to come to the Tribunal. In the absence of having approached the department and got a final order from it, the petitioner could not approach the Tribunal in the matter either for implementation of its order or for seeking redress in the form in which he had sought. " Thereupon, the appellant approached the department without success and then he filed the above service appeal before the Tribunal, which was dismissed as stated above. After that he filed the petition for leave to appeal which was granted. We have heard the petitioner in person and Sh. Zamir Hussain, learned counsel for the respondent Authority. The question at issue is as to whether the appellant is entitled to any pension after his removal from service by the above order dated 10‑12‑1977 passed under subsection (1‑A) of section 17 of the Act. The submission of the appellant is that he is entitled to the same as his case is not covered by para. (iv) of Rule 7 of the Pakistan Water and Power Development Authority Pension Rules, 1977 (hereinafter referred to as the Rules). On the other hand Sh. Zamir Hussain has contended that since the appellant was removed under subsection (1‑A) of section 17 of the Act on account of misconduct and corruption, the above para. (iv) of Rule 7 of the Rules is applicable to the appellant. His alternative submission was that in any case the above para. (iv) of Rule 7 of the Rules was amended in 1982, whereby a removal under subsection (I‑A) of section 17 of the Act was also included. In support of his above first submission the learned counsel for the respondent Authority has relied upon the judgment of this Court in the case of Aijaz Nabi Abbasi v. Water and Power Development Authority and another 1992 SCMR 774 relevant at p.774 para. 11). It would be proper to first take up the above second submission of Sh. Zamir Hussain, namely, whether the amended rule can be applied to the appellant. Admittedly the order of removal of the appellant from service dated 10‑12‑1977 has been eventually upheld. The question as to whether he is entitled to any pension is to be determined with reference to the rules obtaining on 10‑12‑1977. The above view, which we are inclined to take, is supported by a Full Bench judgment of this Court in the case of Water and Power Development Authority v. Irtiqa Rasool Hashmi and another (1987 SCMR 359), wherein this Court has held as follows:‑‑ "Learned counsel for the appellant only repeated his argument that the language of the amending notification, dated 28th June, 1982, is sufficient to give retrospective operation to the amendment excluding the benefit of pension in the case of respondent No.l. However, for reasons already given this is an untenable argument and is accordingly repelled. We are clearly of the opinion that by virtue ' of all existing rules respondent No. I on his removal from service under section 17(1‑A) of the WAPDA Act in 1977, acquired a vested right to the pensionary benefits of which he could not be deprived by a subsequent notification issued by the WAPDA." At this juncture it will be advantageous to reproduce the unamended and amended para. (iv) of Rule 7 of the Rules, which reads as follows:‑‑ Amended Para. (iv) of Rule 7 of the Rules. "7. (iv) No pension may be granted to WAPDA employees dismissed or removed for misconduct, corruption, subversive activities or inefficiency, but if he deserves special consideration, he may be granted a compassionate allowance not exceeding 2/3rd of the pension which would have been admissible to him if he had retired on invalid pension." Unamended Para. (iv) of Rule 7 of the Rules. "7. (iv) No pension may be granted to WAPDA employees dismissed or removed for misconduct, corruption, subversive activities or inefficiency, or removed by order under section 17(1‑A) of WAPDA, but if he deserves special consideration, he may be granted a compassionate allowance not exceeding 2/3rd of the pension which would have been admissible to him if he had retired on invalid pension. " A perusal of the above unamended para. (iv) of Rule 7 of the Rules indicates that no pension is payable to WAPDA employees dismissed or removed for misconduct, corruption, subversive activities or inefficiency. However, the WAPDA has discretion in a deserving case to grant a compassionate allowance not exceeding 2/3rd of the pension which would have been admissible to the employee concerned if he had retired on invalid pension. Whereas under the above amended para. (iv) removal by order under section 17(1‑A) of the Act has also been included, which is not relevant for the present controversy as held by us above. We may now reproduce para. 11 from the judgment in the case Aijaz Nabi Abbasi v. WAPDA (supra) relied upon by Sh. Zamir Hussain, which reads as follows:‑‑ "

11. Though section 17(1‑A) of the Act seemingly confers on the Authority plenary power to remove or to retire an employee of WAPDA at any time without assigning any reason after giving him not less than thirty days' notice or pay for the period by which such notice falls short of thirty days, however, it does not mean that the Authority enjoys above power unfettered or unbridled or arbitrary. The object of conferring such power 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 the above power should be directed to achieve the above objective. It is to be exercised in good faith by the repository of the power, untainted with bias or mala fide or consideration other than the above objective and, therefore, any action in violation of the above basic norms will warrant interference by the Tribunal and this Court. However, in the present case as observed hereinabove, it was not even alleged before the Tribunal that the impugned action was mala fide or suffers from any of the above infirmities. The Tribunal has taken into consideration all aspects of the case and has substituted retirement in place of removal as under above subsection (1‑A) of section 17, an employee of WAPDA can either be removed or be retired. " Sh. Zamir Hussain, learned counsel has particularly relied upon that portion of the above quoted para. wherein it has been observed that the object of conferring such power (i.e. the power under section 17(1‑A) of the Act) seems to be to make it easier for the Authority to remove from service surplus and/or inefficient and/or corrupt employees without holding long drawn departmental inquiries in order to make the establishment more viable and efficient and, therefore, exercise of the above power should be directed to achieve the above objective. According to him, that since this Court has held that the object of the above provision of the Act is inter alia to remove corrupt and inefficient employees, para. (iv) of Rules 7 of the Rules will be attracted to the present case. The above contention is not tenable. In the present case the above removal order dated 10‑12‑1977 reads as follows:‑‑ "In exercise of the powers conferred by subsection (1‑A) of section 17 of the West Pakistan Water and Power Development Authority Act of 1958, the Authority has decided to remove Mr. Amanat Ullah Khan, Junior Accountant, Office of the Chief Accountant (W) from service, without assigning any reason, with immediate effect, on payment of 30 days' pay in lieu of notice." A perusal of the above order shows that the appellant was removed from service without assigning any reason with immediate effect on payment of 30 days pay in lieu of the notice. In other words, this was simpliciter removal from service without referring to any misconduct, corruption, subversive activities or inefficiency on the part of the appellant. In our view, if under section 17(1‑A) of the Act an employee of the WAPDA is to be removed on any of the above grounds, he will be entitled to have a show‑cause notice issued before he can be condemned as having committed an act of misconduct or corruption or subversion or being inefficient. We are, therefore, inclined to hold that unamended para. (iv) of Rule 7 of the Rules is not applicable to the appellant. The upshot of the above discussion is that the respondent Authority is directed to compute and grant the pension to the appellant on the basis that the appellant was removed from service with effect from 10‑12‑1977. However, the appellant will not be entitled to the pension up to the period expiring on 3‑3‑1985 i.e. till the time he drew salary from the respondent Authority on the basis of stay orders obtained in the legal proceedings initiated by him. The respondent Authority is also directed to finalise the appellant's case within a period of two months from today. There will be no order as to costs. H. B. T./A‑119/S Order accordingly.