1987 PLP 298 (SCMR)

(e) Civil service ‑‑ ‑‑‑Character roll/periodical report/certificate‑‑Assessment of character/ work of employee‑‑Periodical report and certificate privately given, not forming part of official record‑‑Certificate privately given as parting gift and retained by individual, not forming part of official record cannot by itself negate all other reports, documents and assessments made which are required under rules to be kept as part of official record‑‑Presumption attaches to things done in ordinary course of business and if business requires maintenance of periodical report or assessment of character then those documents will ordinarily outweigh a personal certificate given as a gesture of goodwill to a person on parting. Muhammad Sadiq Abbasi, Advocate Supreme Court assisted by Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant. Mian Nazir Akhtar, Advocate Supreme Court and Manzoor Elahi, Advocate‑on‑Record for Respondent. Date of hearing: 25th November, 1986. SHAFIUR RAHMAN, J.‑‑ Leave to appeal was granted to WAPDA Article 212(3? of the Constitution to examine the question of law section 17(1‑C) of the WAPDA Act ousted completely the jurisdiction of the Service Tribunal in the matter of an order passed under section 17(1‑A) of the WAPDA Act. The respondent Saeed Ahmad Butt joined the service of the appellant as an Overseer on 1964. In 1974 he was sent on deputation to the Mechanized Construction of Pakistan Ltd. a private limited company, floated in the Public Sector by the Government of Pakistan. In 1977 he was promoted to the post of Junior Engineer and served on a project in Iraq from 1980 Lo 1982. He was repatriated to Pakistan in November 1982. He had not yet reverted to WAPDA and was till on deputation when an order was passed on 23‑6‑1983 retiring him from service with immediate effect without assigning any reason by giving him 30 days' pay in lieu of notice. He challenged this order before the Service Tribunal. Two legal objections were taken by the appellant to the competence of the Service Appeal‑before the Tribunal. One was, that the appeal was time‑barred and the other that in view if section 17(1‑C) of the WAPDA Act the Tribunal had no jurisdiction in the matter. The objection of limitation prevailed but the delay was condoned by the Tribunal. The ouster of jurisdiction was not accepted and on two grounds in particular the order of the appellant was set aside. The first ground appears in para. 4 of the judgment of the Tribunal in the following words:‑ "Another important aspect of the matter, in our view, is that the provision of section 17(1‑A) of the Act are applicable to persons employed by or serving in the WAPDA for the time being only. We mean to say that a person though an employee of WAPDA yet is serving elsewhere on deputation, cannot be Subjected to the provision of the said section . If the appellant had demonstrated inefficiency or indulged in corruption in the M . C . P . L . , the proper course of action was to repatriate him to his parent organization, the WAPDA, and it was thereafter that the Respondent‑Authority could take any action against him which it considered just and expedient. In other words provisions of section 17(1‑A) could not be availed to retire the appellant who was, at that time, serving in the M.C.P.L. on deputation. On this account also the impugned order is held to be incompetent and without lawful authority." The other ground was that when the respondent completed his tenure in Iraq, the Project Manager issued him a certificate addressed "To whom it may concern" giving a good account of the work done by him. This certificate and the contents thereof were held to prevail over all other record as would appear from the following conclusions drawn from it by the Tribunal:‑ "The above certificate speaks itself that the allegations of inefficiency and corruption against the appellant are devoid of truth and appear to have been fabricated to make a base for the appellant's retirement." The specific of law which accounted for Leave to appeal in this case and several others stands answered by the decision of this Court in the case of WAPDA v. Muhammad Arshad Qureshi 1986 S C M R

18. Thereafter, each case was to come up for consideration individually for further examination of the other questions raised in the appeal. The first conclusion of the Tribunal with regard to the competency of the appellant to deal with the respondent under section 17(1‑A) while he was on deputation, is not sustainable on the language of the statutory provision. Section 17(1‑A) reads as hereunder:‑ "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 days' notice or pay for the period by which such notice falls short of thirty days." Action is contemplated against persons employed by WAPDA or serving under the Authority. The expression "time being" which has been used by the Tribunal in interpreting the statutory provision is not there. Besides, on the plain language, the word or between the phrase employed by and 'serving under the Authority' is disjunctive and implies two categories of persons. The contention of the learned counsel for the respondents is that the word "or" should be read as "and" and only those persons should be held amenable who are not only employed but are actually serving the WAPDA. The Tribunal has not treated 'or' as 'and'. There does not appear to be any compelling reason to read or as and. In fact, the respondent received promotion when he was on deputation and, therefore, it can not be said that the Authority was competent to promote him and yet he was outside the pale of their authority for the purposes of section 17(1‑A) while on deputation. The general principle of employment is that an employee remains an employee of his employer notwithstanding his deputation i.e. borrowing and lending to any other authority. The view taken by the Tribunal with regard to the deputationist as a class and keeping them outside the jurisdiction of the Authority for taking action under section 17(1‑A) is unsustainable. The other reason given is also not sustainable. A certificate privately given as a parting gift and retained by the individual, not forming part of the official record cannot by itself negate all the other reports, documents and assessments made which are required under the rules to be kept as part of the official record. Presumption attaches to things done in the ordinary course of business and if the business requires maintenance of periodical reports, assessment of character then those documents will ordinarily outweigh a personal certificate given as a gesture of goodwill to a person on parting. In the circumstances and for the reasons given above, we set aside the order of the Tribunal and remand the proceedings to examine the case afresh in the light of the decisions of this Court in such cases. M.I. Order accordingly.