2002 PLP (C (PLC(CS))

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑Petitioner/Water and Power Development Authority (hereinafter referred to as the "WAPDA") seeks leave to appeal against judgment, dated 30th January, 2001 passed by Federal Service Tribunal, Islamabad whereby Appeal No. 1062(R) of 1999 instituted by respondent Zulfiqar Ali against the order in pursuance whereof he was retired from service under the provisions of section 17(1‑A) of Water and Power Development Authority Act, 1958 (hereinafter referred to as the "Act").

2. Precisely stating facts of the case are that respondent joined WAPDA as Line Man‑1 on July 13, 1990. Later on he was promoted as Line Superintendent with effect from April 16, 1994. Although impugned order is silent to disclose the reasons about the developments which took place when all of sudden on 2?rd April, 1999 vide office order reproduced herein a below the respondent was retired from service:‑‑ The authority in its meeting held on 20‑4‑1999 exercise its powers conferred upon it vide section 17(1‑A)(a) of WAPDA Act 1958 has decided to retire Mr. Zulfiqar Ali, LS‑II Phullerwan Sub‑Division under Chief Executive, FPESCO, Faisalabad from service. The retiring officer in addition to the retiring benefits admissible to him under the terms and conditions of his service if any will be entitled for pay of 3 months under the provisions of section 17(1‑A)(B) of WAPDA Act, 1958. BY THE ORDER OF THE AUTHORITY (Sd.) Hashmat Ali Khan, Director Confidential."

3. Feeling dissatisfied from premature retirement respondent after availing departmental remedies approached the Federal Service Tribunal for redressal of his grievance. The appeal so filed by him was accepted vide, impugned order and he was reinstated in service with all back benefits.

4. Sh. Zamir Hussain, learned counsel for petitioner contended that Federal Service Tribunal had granted relief to the respondent by relying upon a judgment of this Court in the case of WAPDA v. Sikandar Ali Abro (1998 SCMR 137) whereas this judgment was not applicable on the facts of the case because the respondent has been retired from service under the law prevailing at the relevant time i.e. section 17(1‑A)(a) of the Act which envisages retirement of an employee with full benefits admissible to him under the terms and conditions of his service whereas in the reported judgment of this Court which has been relied upon by the FST different law was interpreted and the respondent in said case was charged with allegations of serious nature, therefore, for this reason this Court had held that as the respondent carries stigma against him, therefore, without conducting inquiry his retirement was not proper. He further stated that in the cases such‑like in hand even there was no necessity to provide right of hearing to respondent because without any allegations he was retired from service with all benefits.

5. We have heard learned counsel and have also perused the provisions of section 17(1‑A) of the Act as amended vide Pakistan Water and Power Development (Amendment) Ordinance, 1969. For sake .of convenience it is reproduced as under:‑‑ "(17)(1‑A). Notwithstanding anything contained in subsection (1‑A) or any law, settlement or award for the time being in force, or any rules or regulations framed under this Act, or any rules, regulations, orders or instructions issued by the Authority, or in the terms and conditions issued by the Authority, or in the terms and conditions of service of any person employed by, or serving under the Authority, he may, at any time‑‑ (a) retire from its service any person without assigning any reason; or (b) remove from its service any person after informing him in writing of the grounds on which such action is proposed to be taken and giving him an opportunity of showing cause against the action within fourteen days. (1‑AB) ." A perusal of above provision indicates that any person employed by or serving under the Authority can be retired from his service without any reason. Admittedly Authority has power to retire a person from service but in view of such provision it becomes essential to examine that when an employee of the Authority is being retired before completing minimum qualified service prescribed for retirement is not entitled to know reasons of taking such action against him because a premature retirement may cause number of future complications for him including that after leaving department he would not be in a position to get another job because during the period when he was in the service of WAPDA he has become overage i.e. not fit to join any other department and he will also suffer monetary set back because his pensionary benefits will be calculated on the basis of emoluments etc., which he was drawing at the time of his retirement. In addition to it, premature retirement of an employee can also be result of mala fides or personal liking and disliking by the superiors of the employee who for one or the other reasons intend to dispense with his service in either way, therefore, by exercising jurisdiction in a colourful manner under the garb of provisions of section 17(1‑A)(a) of the Act, after serving for about 9/8 as it had happened in the instant case he can be retired from service with the benefits which were admissible to.him till that time. This aspect of the case can also be seen from another angle i.e. the premature retirement of an employee always carry with it repercussions of detrimental nature namely that either the retired person was inefficient or there were allegations of misconduct etc., which persuaded his employer to retire him from service even before completing the minimum, period of qualifying service prescribed under the rules for retirement of a person.

6. Admittedly under section 17(1‑A) of the Act reproduced hereinabove provision of providing a right of hearing has not been incorporated but it being a principle of Natural Justice enshrined in maxim "audi alteram partem" is to be read in every statute being one of its integral part notwithstanding the fact whether expressly such right has been conferred upon an individual or not. Moreover an employee who is being retired prematurely is being deprived to serve the department till the completion of qualifying service for retirement, therefore, having attained a vested right to serve in the department either till the completion of qualified service for retirement, or reaching the age of superannuation he was eligible to remain in service. Under section 18 of the Act, Authority has framed Rules known as The Pakistan WAPDA Employee (Retirement) Rules, 1979. Its Rule 3 is reproduced hereinbelow in support of the argument noted hereinabove:‑‑ "

3. Retirement from Service.‑‑‑Notwithstanding anything to the contrary .contained in the order or the letter of appointment of .an employee or in the terms of his service or in any other rule applicable to him, the WAPDA employee shall retire from service‑‑ (a) in the case of an employee holding the post in Grade‑20 or equivalent post, on such date as the 'competent authority' may in the public interest direct; (b) in any other case on such date after he has completed 25 years of service qualifying for pension, gratuity, or other retirement benefits or on completion of the 55th year of his age, as the competent authority may in the public interest direct, or (c) where no such direction is given under clause (a) or (b), as the case may be, on completion of 60th year of his age." A careful perusal of above Rules suggests to hold that a right of the respondent to continue in the service in terms of rule 3(b) and (c) has been curtailed, therefore, when the respondent was being deprived from vested right he was entitled for a right of hearing before passing the impugned order. In this behalf reference to the case of Pakistan and others v. Public -at‑Large and others (PLD 1987 SC 304) is necessary. Learned Shariat Appellate Bench of this Court while examining the provisions of section 13(1) and (2) of Civil Servants Act, has observed that the legislation has empowered the competent authority to retire a civil servant on such date as the competent authority may, in the public interest, direct in case of a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher post and in other case on such date after he has completed twenty‑five years of service qualifying for pension or other retirement benefits as the competent authority may direct; or where no direction is given then on completion of 60 years of age. Therefore, while examining such provisions at the touchstone of Islamic principles of justice inter alia it was held that "Thus, looked at from whatever angle, the retirement under the impugned laws is a punishment, in a way denial of right to work as also right to earn and right to reputation. If that is so, it has to be seen when so construed, whether they are repugnant to the Injunctions of Qur'an and Sunnah. As has been already observed, there are some injunctions which are directly violated by these laws when they are applied without the safeguards of notice and opportunity of hearing". In this conext after detailed discussion learned Shariat Appellate Bench observed that "It is common principle which governs the administration of justice in Islam that in case of liability with penal or quasi‑penal consequences and or deprivation of basic rights a notice as well as an opportunity of hearing, are of absolute necessity. This by itself has to be recognised as a basic right". ' The principle of providing right of hearing with reference to those proceedings where adverse action is being contemplated to be taken against an employee has been reiterated by this Court in the case of Pakistan, International Airlines (PIAC) through its Chairman v. Nasir Jamal Malik and others 2001 SCMR 934 = 2001 PLC (C.S.)

890. Relevant para. therefrom is reproduced hereunder:‑‑ "We have considered the arguments so advanced by both the sides in this behalf. It may be noted that in the judicial history of our country as well as in those countries where identical/corresponding system of administration of justice is in vogue the principle enshrined in the maxim 'audi alteram partem' has 'been made applicable expressly or implied in every instrument governing the proceedings which may be statutory or otherwise and if its absence is conspicuous by not making it a part of the instrument governing the proceedings. Though the principle of 'audi alteram partem' is not universally accepted principle but emphasis on its application has always been made oil those proceedings where adverse action is being contemplated to be taken against the person/persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely affecting their interest is being taken. To strengthen the arguments reference may be made to Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45); (ii) Messrs Faridsons Limited, Karachi and another v. Government of Pakistan and another (PLD 1961 SC 537), (iii) Abdur Rehman v. Collector and Deputy Commissioner, Bahawalnagar and others (PLD 1964 SC 461), (iv) Abul A'la Maudoodi v. Government of West Pakistan (PLD 1964 SC 673), (v) University of Dacca v. Zakir Ahmad (PLD 1965 SC 90), (vi) Muhammad Hayat v. Province of West Pakistan (PLD 1964 SC 321), (vii) Messrs East‑End Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another (PLD 1965 SC 605), (viii) Pakistan and others v. Public‑at‑Large and others (PLD 1987 SC 304), (ix) Khalil‑uz‑Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885) (x) Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Ferzose and others (1994 SCMR 1299) and (xi) Faqir Ullah v. Kalil‑uz‑Zaman and others (1999 SCMR 2203)." 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 colourful 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 Zulfiqar 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. In the instant case respondent pleaded mala fides against Authority due to which he has been compulsorily retired. When we confronted learned counsel for the petitioner with such allegation he could not answer satisfactorily except maintaining that notwithstanding the fact that whatever the charges may be against the respondent but as the Authority is competent to retire him without assigning reasons under section 17(1‑A)(a) of the Act, therefore, such action taken against him cannot be questioned. We are not inclined to agree with learned counsel because when there is allegations of mala fide and bias etc. as has been discussed in the authorities noted hereinabove and such allegations have not been rebutted accordingly the Service Tribunal in exercise of its jurisdiction under section 4 of the Service Tribunals Act, 1973 is competent to look into the actual controversy between the parties and in view of such allegations interference vide impugned order by the Tribunal was quite justified in view of judgment of this Court repotted in 1998 SCMR

137. Thus for the foregoing reasons we are of the opinion that as the respondent was condemned unheard in violation of principles of Natural Justice enshrined in maxim: 'audi alteram partem' and there was mala fide on behalf of authority to retire him from service compulsorily, therefore, the impugned order is not open to any exception. Resultantly petition is dismissed and leave to appeal declined. Q.M.H./M.A.K./W‑20/S Petition dismissed.