1973 PLP 270 (PLC)

1. 1-1-1969 Mr. Ghulam Ahmad ordered that the peti tioner should be put on a charge-sheet. 2. 7-1-1969 Mr. M. Rashid, Member Water did not agree and directed that the services of the petitioner should be terminated. 3. 25-1-1969 Mr. Ghulam Ahmad then said that in keeping with the order of Mr. Rashid, terminate the petitioner's services. 4. 11-2-1969 On a representation by petitioner, Mr. Ghulam Ahmad ordered that till the decision of that representation, the peti tioner should continue in Service. 5. 12/14-2-1969 Services of the petitioner were terminated by a communication issued under the signatures of Muhammad Hanif, Director, Establishment 11 for Mr. S. M. Saeed Chief Engineer (Administration), Water and Soil Investigation Division (C. E. A. & W) or (C. E. A. WASID). This will show that so far as Mr. Ghulam Ahmad is concerned, left to his own, he himself was not prepared to terminate the appellant's services, inasmuch as, at one stn p i.e., 1-1-1969, he said that a charge-sheet should be issued o the petitioner and at another sage, I.e., 11-2-1969, he said that till the decision of his representation, the services of the appellant should not be terminated, but in spite of all this the others hastened and put an end to the appellant's services. This was all illegal. In the order of the learned Single Judge, the assumption that "appointing authority" (or in other words competent authority for terminating services of the petitioner) was the Chief Engineer, Administration and WASID (Mr. S. M. Saeed) is not correct. This factual inaccuracy was conceded to by the learned counsel- for the respondents. It appears that the mistake probably cropped up from a suggestion in a letter dated 25-1-1969, written by Mr. Ghulam Ahmad, in which he appointed by wrote that "Mr. M. Sadiq was probably appointed by C. E. (Admn.). Previously, he was working on deputation to land and Water Management Board. On return, he was posted in Reclamation Division and was transferred to M. P. O., vide Chief Engineer's (Development) Letter No. MPO./C. E. P. F/467, dated 3:-5-1967'. According to section 15 of the West Pakistan General Clauses Act V1 of 1956, the competency of authority concerned is to be seen not with reference to the date of initial appointment but with reference to the date of any impugned order of termination of service. Section 15 reads follows:--

15. Power to appoint to include power to suspend or dismiss.- Where, by any West Pakistan Act, a power to make any appointment is conferred, then unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by Itself or any other authority in exercise of that power." Acting on the above principle, we have no hesitation in holding that since at the time of the passing of the termination order the appointing authority for a Junior Engineer in M. P. O. was Chief Engineer M. P. O., therefore, he and not any other Chief Engineer could pass the relevant order. Similarly, there was no authority vesting in Member Water (Mr. M. Rashid) to direct termination of the petitioner's services. This also disposes of the objection alluded to in paragraph 8 of this judgment. (b) Law is well-settled that it is the competent authority who himself should apply his own independent mind to the facts and circumstances of each case and the operative decision should be his own. Reference may be made to Mian Gul Muhammad v. West Pakistan Government and another (1966 Law Notes 22), Muhammad Alam v. Pakistan (P L D 1965 Kar. 100), Azamuddin v. The Federation of Pakistan (P L D 1955 Sind 357), Mirza Afzal Baig v. Government of West Pakistan and others (P L D 1957 Lab. 467) and Nazir Ahmad v. The Province of West Pakistan (1969 Law Notes 16) Examining, the case in the light of the above la v, since as per rules 8 and 12, the Authority competent to make appointment of a Junior Engineer in M. P. O. on the date of action was the Chief Engineer M. P. O., therefore, he alone and not the Chief Engineer Administration and WASID (Mr. S. M. Saeed) was competent to issue termination notice. No doubt these are cases of civil servants and even though WAPDA Employees are not civil servants, but these cases are being cited for the general proposition that in the matter of termination of service regulated by Statute or rules, it should be the independent opinion of the competent authority himself. Reference may also be made to a recent judgment of a Division Bench of this Court (Sardar Muhammad Tqbal and Zaki-ud-Din Pal. JJ.), S Fayyas Hussain Kadri v. Administrator, Lahore Municipal Corporation etc., W. P. No. 722-S-70, decided on 14-2-1972 where Administrator, Lahore Municipal Corporation terminated the services of certain Legal Advisor not of his own but on directions from the Government. It was held that the termination order was illegal. Certain other cases can also be quoted on the general proposition that where an officer simply writes on the noting of others as, "seen" or "approved", and there .is nothing to show that he applied his own independent mind to the facts of the case concerned, then his orders are not maintainable in law. See Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and others (P L D 1964 S C 829), Abdul Hamid v. Malik Karam Dad and others (P L D 1959 Lah. 753) and Mirza Afzal Baig v. Government of West Pakistan and others. Some what similar is the position of the facts and circumstances involved herein. Here too, Mr. Ghulam Ahmad's own view was to put the petitioner on a charge-sheet but his superior Mr. M. Rashid (Member Water) issued directions to the contrary which actually were carried out just in obedience thereto. (c) The services of the petitioner, it is amply demonstrated from the record, were terminated not in the form of a simple innocent termination but for default and misconduct on his part, for, which an Enquiry Committee and later on another Agency "Director C 8t I" secret enquiries and made adverse reports against him The appointing authority (i.e., the competent authority) had directed to charge-sheet the petitioner but then the order of that authority was set aside by an incompetent authority, namely, Member, Water and it was that order which was ultimately given effect to. The basic for termination of services was the reported misconduct. Even in his Annual Confidential Report for the period 1-1-1968 to 31-12-1968, it was written . "This Officer has been involved in a case of misappropriation of store purchased locally. He has been issued a termination notice by the Authority." All the correspondence which exchanged between the various officers made a bold mention of the petitioner's misconduct and now when the matter has been brought to Court, it is not fair on the part of the WAPDA to contend that it wash a case of simple termination of service. The notice clause, in the Instant case, it is thus obvious was passed into the field just as a cloak to shield the real nature of the order passed or action taken. From that point of view, it was a mala fide design and could not be called a simple innocent act of termination of service. It is pertinent to point out that after issuance of termination notice to him, the petitioner called upon the Chairman of WAPDA. What happened then and how the case was routed through and dealt with, is clear from the following noting :- C. P. 3 (PUC) Mr. Muhammad Sadiq J. E. who has been served with a notice to termination of his services by the C. h. (A& W) In compliance to M. (W)'s orders on M. R. 2 para. 6 ante had represented to Chairman, WAPDA, for his re-instate ment and the Chairman has ordered to put up his case. As per verbal orders of the C. E. M. P. O. case has been obtained from Director's Office (through Director) and is placed below. (Sd.)-20/2. Assistant. (Sd.)-20/2 As desired by Chairman, complete case, regarding the termination of Mr. Muhammad Sadiq Junior Engineer, is placed below for perusal. (1) Enquiry report against the J. E. is flaged at A. (2) Report of XEN Shalamar Mr. Raus at (B). (3) Report of D. (M. P. O.) and orders of M (W) are Raged (C). (4) Appeal of Mr. Sadiq is at fiaged (D). Chairman. (Sd.)

9. Through M. W. (Sd.) 1-3-1969. From, overleaf. Mr. Muhammad Sadiq has seen me and has vehemently urged that he is innocent. In the circumstance I feel that it would be fair if the case is entrusted to the Director C&I for enquiry and report within a fortnight. (Sd.) Member (W) 19-3-69 (Sd.) 20-3-69. (Sd.) Z5-3-69. CW (Sd.) 31/3. My report is attached. (Sd.) D C & I M. Water. 6-5-69 Chairman is aware of the previous history of the case. On a report by Departmental Enquiry Committee forwarded through C. E. (M. P. O.), I had ordered (vide para. 6) summary action that Mr. Saeed Malik, XEN be sent back to his parent department and toe services of Mr. Muhammad Sadiq S. D. O. be terminated under the terms of the agreement. However, both the officers have been agitating that the allegations against them are not correct. It was, therefore decided that the case should be gone into by an outside agency, namely Director C&I. He has enquired into the matter and his report may kindly be seen at flag `W'. As a result of the aforesaid investigations it has been established conclusively that cash memos. Nos. 541 and 542 for the purchase of spares worth Rs. 190 and Rs. 74 respectively are b and in face the firm, in whose name the vouchers have been issued, does not exist. The question for consideration is whether the XEN incharge Mr. Saeed Malik, the S. D. O. Mr. Muhammad Sadiq and the Overseer Mr. Gulzar are individually or collectively responsible for the misappropriation involved. I have obtained the original documents from the officer who investigated the case and would like to bring to the Chairman's notice the following facts:- (i) In the register the movement into and out of the Work, shop an entry about spare parts has been made at serial No. 32 at flag 'X'. This entry purports to have been signed by the S. D. O. Mr. Muhammad Sadiq. The Investigating Officer has informed that the signature has been admitted by the officer. If no purchases were made, it would be a fair conclusion to draw that Mr. Muhammad Sadiq was prima facie a party to the whole affair when he signed the bogus entry in the register, whatever be the date of making the entry. (ii) Mr. Gulzar Ahmad, Overseer, signed on the back of the purchase vouchers but later on him signature was scored. Here again a fair conclusion would be that he is a party to the transaction. (iii) The money for the purchase was drawn by the XEN Mr. Saeed Malik and his evasive reply as to whether he gave the money for purchase to the S. D. O. or the overseer is in my view a prima facie indication of his complicity. There is also other evidence implicating these officers but in view of the documentary evidence referred to above, the need not be gone into detail. Besides the case mentioned above, the Directorate of C & I have also investigated allegation of unauthorised and free repairs of the engine on the private car of Mr. Saeed Malik. Here again the finding is against him and according to the Directorate of C&I the car was got repaired unauthorisedly and gratis from the Workshop and for this a WAPDA vehicle was also misused for bringing Into the Workshop and taking out from there the repaired engine. The S. D. O. and the Overseer are WAPDA Employees and the XEN is a deputationist. Chairman may kindly decide whether we should be content with the summary action proposed by - me, i.e. the terminations of the services of direct employees and reversion of the deputationists to the parent department, or some further action e.g. registration of a case with the police in the case of the bogus purchase be alto taken. For the unauthorized repair to the private car and departmental enquiry after reversion of Mr. Malik may be taken against him and others involved. I&P Department has already issued orders of his reversion. It is also for consideration whether we should not have a probe into the other sundry purchases made during the tenure of theme 0100m, particularly whether One are many other purchases in the name of the bogus firm, Messrs Delux Automobile, Neela Gumbad Lahore, involved in the first case mentioned above. (Sd.) Member (W) (By name) 7-5-69 Discussed with M. W. The services of S. D. O. & Overseer be terminated. The XEN may be reverted to Irrigation Deptt. and a charge-sheet forwarded to that department for inquiry. The case may also be reported to A.-C. E.-D. C. & I may also be required to check other purchases of this type for the year 1968 and see if any of the vouchers pertain to this bogus firm. (Sd.) 7-5-1969 In the face of the above record of the Department to contend that the services of the petitioner were not terminative for default or that it was a case of simple termination is not correct. In these circumstances, there has thus taken place e p clear violation of the West Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1966, which renders the entire action as without lawful authority and of no legal consequences against the petitioner.

12. Another point argued by the learned counsel eras that the appointing authority which was competent to make appoint ments under rule 8 was "Chief Engineer concerned on the advice of the Selection Board in column 4". In column 4, the Selection Board is indicated, to consist of:- (i) Chief Engineer (Admn.). (Senior-most Chief Engi neer (ii) Other Chief Engineers of will be the Chairman of the Board. Divisions in Water Wing: Learned counsel submitted that the Chief Engineer concerned (i.e., Chief Engineer M. P. O.), was to function, for example at the time of initial appointment on the advice of the Selection Board which consisted of the Chief Engineer (Administration) and about eight other Chief Engineers (the total number of Chief Engineers of various Divisions in the Water Wing was given as ten by the learned counsel for the respondents in Court. Learned counsel further submitted that the same should be the process in which the Chief Engineer concerned should have functioned at the time of the termination of the petitioner's services. Learned counsel further clarified that he should not be under stood to contend that the Selection Board, due to the fact that its advice was to be taken at the time of the appointment became a part of the appointing authority as such, (a) proposition which stands amply negatived by Abdul Rashid Abbasi v. The Superintendent of Police, Muzaffargarh and others (P L D 1967 Lah. 1093) and S. Qamar Ali Shah v. The State (P L D 19656 C 50). All he meant to state, he submitted was that the taking of its advice, however, remained a necessary part of the manner in which the appointing authority was to function and, therefore, if that advice was not taken then the order of termination of service would be illegal. Support for this pro position was sought from Capt. Muhammad Azhar v. Commis sioner of Karachi and another (PLD 1966 SC 253) where failure to consult Public Service Commission in the case of the Civil Servant concerned was held to have vitiated the order impugned therein. Though that was a case of a civil servant and the present is a case of a servant of a corporate body, but on principle, the result, he argued, will be the same whenever there is a provision in the Statute or in the rules to act on the advice of a separate Board of Commission, etc. When confronted with this situation, learned counsel for the respondents argued that the words 'on the advice of the Selection Board in Column 4", were meant for and restricted only to the matter of filling up of the posts or making initial appointment, and were not attracted to the stage of termination of services fn the form of dismissal, removal or otherwise. Since what has been written by us in para. 11 above, is sufficient to grant relief to the petitioner, we do not deal with the point hereinbefore mentioned and leave it for answer in some other more appropriate case later.

13. The upshot of the above discussion is that the order of the learned Single Judge, dismissing the writ petition, is set aside and the appeal and the writ petition are accepted. The orders impugned in the writ petition are consequently quashed. The petitioner shall get his costs throughout. Appeal accepted.