1991 PLP (C (PLC(CS))

Date of hearing: 30th January, 1990. SYED ALLY MADAD SHAH (CHAIRMAN): --Both the appeals are of identical nature. They have been heard together and are disposed of by this one judgment.

2. The appellant Muhammad Sharif (Appeal No. 264(L)/86 (Old)/312(R)/89 (new) was a Line Superintendent, Grade-1I, WAPDA; while the appellant Rana Afzal Hayat (Appeal No. 265(L)/86 (old/313(R)/89 (new) was a Line Superintendent, Grade I, WAPDA. Both the appellants were removed from service under separate orders passed on 26-8-1986 under the provisions of section 17(1-A) of the WAPDA Act, 1958. They have preferred these appeals against the respective orders of their removal from service. They were presented on 27-9-1986. 2-A. Both the appellants were posted in their respective capacities mentioned above at Multan under the Chairman. Area Electricity Board, Multan during the year 1981-82. A probe was made into the allegations that there had been large scale misappropriation of funds by the functionaries of the Board in making local purchases and executing works under the Board. The names of the appellants were amongst those functionaries. Consequent No the report of the inquiry committee that the appellants and some other functionaries were actually involved in the scandal, orders of their removal from service under the provisions of section 17(1-A) of the WAPDA Act were issued on 21-7-1982. Both the appellants challenged those orders before this Tribunal by way of Appeals Nos.297(L) of 1983 and 22(L) of 1984 respectively. Their appeals were allowed by judgment dated 5-7-1986 and the orders of their removal from service were set aside leaving it to the discretion of the Authority to proceed against the appellants afresh under section 17(1-A) of the WAPDA Act or under the WAPDA Employees (E&D) Rules, 1978. The Authority considered the case afresh and passed fresh orders of removal of the appellants from service under section 17(1-A) of the WAPDA Act, 1958 on 26-8-1986. The appellants, therefore, filed these appeals, as aforesaid.

3. The appellants have assailed the impugned orders on the grounds that their involvement in the misappropriation of funds was not proved and yet they were removed from service without application of mind to the inquiry reports and in any case, they were not liable to have been removed from service in a summary manner by making resort to the provisions of Section 17(1-A) of the WAPDA Act and that action was taken in contravention of the instructions issued by the Authority. They have also contended that a criminal case also was registered against them but they were exonerated by the Police and they were not involved in the scandal. They have alleged that they were subjected to discriminatory treatment as one of their colleagues by name Hanif Lodhi, LS-II, who was likewise involved, was exonerated by the Police and was not proceeded against. Their further contention is that the orders of their removal from service passed earlier were set aside by this Tribunal and they were not liable to have been punished again on the basis of same material. Thu learned Advocate representing them urged the same grounds at the hearing of the appeals and placed reliance on the cases reported in 1987 P L C 613 and 1989 S C M R 895.

4. The respondents have resisted the appals contending that the involvement of the appellants in fraudulent squandering of the funds was established before a High Powered Inquiry Committee and the orders of their removal from service impugned in these appeals were passed by the Authority in exercise of the powers conferred under law viz. section 17(1-A) of the WAPDA Act, 1958. The same grounds were urged in opposition by the learned counsel for the respondents at the hearing of appeals.

5. The impugned orders of removal of the appellants from service were passed under the provisions of subsection (1-A) of section 17 of the WAPDA Act, 1958, which reads as under:

"(1-A) Notwithstanding anything contained in subsection (1) of 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 30 days notice or pay for the period by which such notice falls short of 30 days. Explanation-I: xx xx xx xx Explanation-II: xx xx xx xx". It would appear that the Authority has been conferred unrestricted power under law to remove from its service any person without assigning any reason. However, the Tribunal has been examining the material considered by the Authority in taking action against any of the employees of the Authority. But, the scope of the scrutiny by the Tribunal of the action taken by the Authority under section 17(1-A) of the WAPDA Act is limited to that of its examination whether the order has been passed by competent authority and there is no element of mala fides behind the action as held by the Supreme Court in the case of M. Arshad Qureshi 1986 S C M R

18. In the instant cases, the appellants' earlier orders of removal from service were set aside by the Tribunal on the grounds stated in paragraph 12 of the judgment reproduced below:- "An order of removal under section 17(1-A) is a substantial and a material order affecting the career of employees of the WAPDA. When such an order is proposed and passed, it should be a speaking order and nothing should be left vague. As far as the Member (Water) and the Chairman are concerned, their notes, in so many words, do not say that they are removing the appellants from service. The order of Member (Power) too is not speaking one, because there is no mention whether he was ordering the removal of the appellants under section 17(1-A) or not. In fact, the note of Member (Power) dated 16-7-1982 was in the nature of direction to G.M. (Ad) to prepare 4 case for removal of the appellants under section 17 (1-A), but the G.M. (Ad) introduced other recommendations also. In our opinion, the orders under section 17(1-A) were signed and issued without placing the matter before the Authority for specific purpose as originally proposed by Member (Power). There is no specific order of the Authority for removing the appellants under section 17(1-A) of the WAPDA Act, 1958. In these circumstances, the impugned orders cannot sustain and we set aside the orders passed on 21-7-1982 signed by the Deputy Director (Confidential)." It would appear that those orders were set aside as they were not passed by the Full Authority with, the proper application of mind. As mentioned above, the Authority was given discretion to proceed afresh against the appellants under section 17(1-A) of the WAPDA Act or under the WAPDA Employees (E-&D) Rules, 197& The Authority chose to take the action again under section 17(1-A) of the WAPDA Act. The respondents have placed on record the photostat copies of the full notes concerning the case. It appears from the noting that the matter was reconsidered by the Full Authority and the decision was unanimously taken that the appellants should be proceeded against and removed from service under the provisions of section 17(1-A) of the WAPDA Act.. 1958 and the decision was implemented by issuing the impugned orders.

6. We have examined the relevant record to the extent of its necessity for deciding the appeals and perused the office noting made thereon. The office noting in the matter was initiates/ by Mr. Manzoor A. Shaikh, GMF(P) on 20-5-1982. It appears from the record that preliminary inquiry into the matter was initiated under the orders of the Chairman, Area Electricity Board, Multan and was held by Mr. A.H. Siddiqui, Director (Accounts), Mr. Muhammad Saleem, Senior Budget and Accounts Officer and Manager Finance (Distribution). The matter was further probed into by an inquiry committee which consisted of Ch. Muhammad Aslam Parvaiz, Director Technical, Mr. Javed Aziz Hashmi. Deputy Director Stores, Ch Fida Hussain Audit Officer and Mr. Muhammad Hussain, Assistant Director (Ad) constituted by the Chairman, Area Electricity Board, Multan. The inquiry committee seems to have looked into the matter deeded and submitted 4 detailed report spread over 332 pages. The committee expressed their observations on the main items of expenditure and made pointation of the items where the funds were squandered. It also appears from the report, particularly the office nothings that the inquiry report was examined thread-bare and each Member of the Authority had applied his mind and recorded his observations thereon. Ultimately, all the Members including the Chairman concurred that the officers mentioned in the inquiry report, which included the names of the appellants, deserved to be punished and the action against the appellants and some other officers under the provisions of section 17(1-A) of the WAPDA Act was unanimously approved. The grievance of the appellants that the action against them was taken by the Authority without application of mind is, therefore, imaginary and illusory. The cases relied upon by the learned counsel for the appellant arc, therefore, not attracted on the facts of this case.

7. The contention of the appellants that since the allegations of misappropriation of funds were inquired into by an inquiry committee, they could have been proceeded against under the WAPDA Employees (E&D) Rules, 1978 as per instructions of the WAPDA and not under section 17(1-A) of the WAPDA Act, is not tenable. This aspect of the case was actually examined by the Members of the Authority and a decision was taken, as is evident from the nothings, that action may be taken against the appellants under section 17(1-A) of the WAPDA Act.

8. The ground that the case was reported to the Police also does not dislodge the impact of the impugned orders. Reporting of the case to the Police did not deter the Authority from taking departmental action as criminal action under law could simultaneously be taken if case could be made out that a criminal offence also was committed. .

9. The allegations of discrimination also have no foundation. The Authority had the power to examine the case of each official individually and it appears from the nothings that the case of each individual was examined on its own merits. We may observe that the whole matter was thoroughly probed into by a High-powered Committee and the Committee's report was scrutinised minutely and the decision was taken with due care and caution and we must say that the decisions were taken with utmost impartiality.

10. The appellants introduced the allegation of mala fides at later stage. We do not find any element of mala fides as what is alleged by the appellants is only their criticism of the proceedings taken against them. The allegations of mala fides appear to be malicious insinuation against the Members of the Authority.

11. For the foregoing reasons, there is no merit in appeals and they are dismissed as such. M.Y.H./578/Sr.F Appeal dismissed.