1992 PLP 774 (SCMR)

WAPDA House, Lahore.

4. Against the above order, the appellant filed the above Service Appeal before the Tribunal, which was partly allowed inasmuch as the order of removal was converted into order of retirement. After that, the appellant filed a petition for leave to appeal, which was granted to consider the above question.

5. In support of the above appeal, Mr. Khalid M. Ishaque, learned counsel for the appellant, has urged that there are about six judgments rendered by this Court on above section 17(1‑A) of the Act upholding the order of removal but according to him, in the above judgments, the following two points have not been taken into consideration: (i) That under Article 212 of the Constitution, the Tribunal is competent to examine the case from all angles and to ascertain, whether there was sufficient material to warrant the taking of the above extreme action; and (ii) That the impugned action was founded on certain alleged report submitted by the Enquiry Committee, to which the appellant was not a party and no opportunity was given to him to defend and, therefore, the impugned action cannot be sustained. On the other hand, Mr. Zia Pervez, learned counsel appearing for the respondents, has urged that the action was taken under subsection (1‑A) of section 17 of the Act without condemning the appellant for any charge and, therefore, the question of allowing the appellant to participate in the enquiry was not involved in the present case.

6. In support of his above first submission, Mr. Khalid M. Ishaque has invited our attention to Article 212 of the Constitution and has pointed out that under clause (1) thereof, the Tribunal has exclusive jurisdiction in service matters relating to terms and conditions of the persons in the service of Pakistan and, therefore, it has jurisdiction to examine the question of adequacy of material and/or any allied question arising therefrom. To re‑inforce the above submission he has referred to the following cases:‑‑ (i) M. Yamin Qureshi v. Islamic Republic of Pakistan and another P L D 1980 SC 22; (ii) Karamat Hussain v. WAPDA through its Chairman 1987 S C M R 242; (iii) Mian Shafiuddin, Deputy Director and 4 others v. Surat Khan Marri, Director, Regional Information Office, Islamabad and 41 others 1991 S C M R 2216; (iv) Pakistan and others v. Public at Large and others P L D 1987 SC 304‑‑‑Shariat Appellate Bench. In the above first case, this Court, while remanding the case to the Service Tribunal, has dilated upon the question of its jurisdiction and observed as follows:‑‑ "It goes without saying that it lies within the jurisdiction of the Tribunal and, indeed, its obligation, to decide all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal, including his contention that no evidence was heard in his presence, nor was he given any opportunity to show cause against the proposed punishment. The appellant would be entitled not only to a full opportunity to present his case before the Tribunal, but also to inspect all relevant records which might have been taken into consideration by the competent authority for the purpose of passing the impugned order:" Whereas, in the above second case, this Court, while construing the provision of section 17(1‑A) of the Act, held that the assumption of the Tribunal that it had no jurisdiction to go behind the order of removal from service of the appellant under the above provision was unjustified and that it was a fit case where all grounds must receive attention of the Tribunal. The case was remanded to the Tribunal. The action was taken against the appellant and another employee on the basis of some police report. In the above third case, this Court, while allowing an appeal in a service matter, held that the Tribunal has to decide all questions of law and fact and has wide power to confirm, set aside, vary or modify the order appealed against. In the above last case, the Shariat Appellate Bench of this Court, while construing section 12 of the Civil Servants Act, 1973, which empowers the Government to retire a civil servant in the public interest upon completion of 25 years' service, held that the affected civil servant was entitled to hearing before an adverse action was taken against him under the above provision. This case has no application to the present case.

7. There cannot be any cavil with the proposition that the Tribunal has jurisdiction on fact and law and while deciding a service appeal, is entitled to examine the entire record and to go behind the order which' has been impugned. However, it will depend on the facts of each case, to what extent the Tribunal should interfere with the impugned order. In the present case, the Tribunal found that there was no case of mala fide and that the action was taken under section 17(1‑A) of the Act, which does not suffer from any legal infirmity, but at the same time, the Tribunal modified the impugned order and substituted retirement in place of removal. It is, therefore, not true to say that the Tribunal has not addressed itself to the full facts of the case or has not examined the impugned order from all angles. We may observe that in the memo. of appeal before the Tribunal, no plea of mala fide was raised by the appellant.

8. It may be pertinent at this stage to reproduce above subsection (1‑A)of section 17 of the Act, which reads as follows:‑‑-- "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 days' notice or pay for the period by which such notice falls short of thirty days." A plain reading of the above subsection indicates that notwithstanding anything contained in subsection (1) of above section 17 or any rules made or orders or instructions issued by the Authority in the terms and conditions of service of any person employed by or serving under the Authority, it 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.

9. The above provision has been subject‑matter of examination by this Court in the following cases:‑‑ (i) WAPDA and another v. Muhammad Arshad Qureshi 1986 S C M R 18; in which, the above: provision of subsection (1‑A) of section 17 of the Act, was analysed as follows:‑‑ "The matters required to be examined in scrutinising the exercise of power under subsection (1‑A) are‑‑‑ (a) the competency of the individual or body taking action under it (b) the amenability of the individual in respect of whom such a power has been exercised. (c) the presence of taint of mala fide or bias in exercise of that power, the postulate of legislative authorization to the exercise of public power being that it will be exercised bona fide. It is only after satisfying such tests or requirements that power can be said to have been exercised in a manner to achieve irrevocability or immunity from further scrutiny or substitution." (ii) WAPDA v. Saced Ahmed 1.986 S C M R 725; in which, the following observations were made which have direct bearing on the present case:‑‑ "After hearing the learned counsel we are satisfied that no question of law of public importance arises in these petitions to merit further consideration in this Court. We have in Civil Appeals 170‑‑173 of 1983, decided on 16‑12‑1985 (reported as 1986 S C M R 18) upheld on the, basis of decision in M. Yamin Qureshi v. Islamic Republic of Pakistan P L D 1980 SC 22 the Tribunal's powers to confirm, set aside, vary or modify the orders impugned before it and have conceded to it the powers of varying the order of removal and converting it into one of retirement. 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(1‑A) is not possible. Actually, it has been held that such an action is permissible even where departmental inquiry has been started Abdul Karim v. The West Pakistan Province P L D 1956 SC (Pak.)

298. The only ground on which such an order could be challenged was of mala fide and coram non judice. The ground of mala fide was in fact raised in the appeal before the Tribunal but certainly not in the manner provided in Rule 6(2) of Service Tribunals '(Procedure) Rules, 1974 which required full disclosure of facts with supporting material summarised and on affidavit. Besides, the Service Tribunal had proceeded to justify the action taken against him on the basis of his own admissions in reply to the charge‑sheet earlier served upon him." (iii) Sheikh Abdul Hameed and 2 others v. WAPDA P L D 1988 SC 35; in the above case, this Court, while declining a petition for leave to appeal, inter alia observed that while examining an action taken under above provision of section 17(1‑A) of the Act, the Tribunal is to examine, whether the impugned order suffered from mala fide and/or it was coram non judice. (iv) Water and Power Development Authority v. Sh. Zulfiqar Ali and, others P L D 1988 SC 693; in which, the above earlier view was reiterated and it was held that the Service Tribunal would be competent to set aside an order passed under section 17(1‑A) of the Act when it has been passed by the Authority mala fidely and is tainted with bias and thus not passed bona fidely. (v) Naseer Ahmed Uppal v. Pakistan WAPDA 1991 S C M R 1998; in the above case, it was held by this Court while construing section 17(1‑A) of the Act, that the material on record indicated that the petitioner's work was not up to the mark and, therefore, the action under the above provision was justified without attaching any stigma.

10. In this regard, it may also be pertinent to refer to an earlier judgment of this Court in the case of Abdul Karim v. The West Pakistan Province P L D 1956 SC (Pak.) 298, which has been referred to in some of the above judgments. In the above case, the facts were that the petitioner was a temporary employee in Pakistan P.W.D. He was charge‑sheeted but instead of concluding the enquiry, his services were terminated by serving one month's notice. The above action was impugned through legal proceedings. The matter came up before this Court by way of a petition for leave to appeal against the judgment of the erstwhile High Court of West Pakistan, Lahore. It was urged that the above termination was male fide. The above contention was repelled as follows:‑‑ "The only other point urged on behalf of the petitioner viz. that the termination of petitioner's service with one month's notice is mala fide, is equally devoid of force. It is easy to conceive of cases where the authority competent to dismiss a public servant employed on the same conditions as the petitioner comes after an enquiry to the conclusion that the drastic step of dismissal which would affect his employability is not called for though his further continuance in service is not desirable in the public interest. There is nothing on record before us to show that this was not one of such cases. From the mere fact that no action was taken on the enquiry held against the petitioner, it cannot be reasonably concluded that the action of the Superintending Engineer Thal area was mala fide."

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.

12. The first charge‑sheet in respect of which the appellant was exonerated was independent from the enquiry conducted by the Committee as to the working of various Divisions of WAPDA and, therefore, no double jeopardy is involved in the present case.

13. As regards the second submission of Mr. Khalid M. Ishaque, it maybe mentioned that since the appellant has not been dismissed on the ground of misconduct on the basis of the findings of the Enquiry Committee, but his removal was simpliciter under subsection (1‑A) of section 17 of the Act without attaching any stigma to the appellant's career, it was not necessary to have associated the appellant in the finalisation of the above committee's. G report.

14. The upshot of the above discussion is that the above appeal has no merits as the impugned order does not suffer from any infirmity which may warrant interference by the Tribunal or by this Court. The appeal is, therefore, dismissed, but there will be no order as to costs. M.BA./A‑922/S Appeal dismissed.