1998 PLP 81 (SCMR)

ZIA MAHMOOD MIRZA, J.

This order will dispose of both the captioned petitions which seek leave to appeal against a common judgment of the Federal Service Tribunal accepting the service appeals of Muhammad Nawaz respondent in C.P. No. 1504-L of 1996 and Anwar-ul-Haq. respondent in C:P. No. 1507-L of 1996.

2. Both the respondents were removed from service on the allegation that they manhandled and gave shoe-beating to their S.D.O. Muhammad Munir. It appears that in the first instance, proceedings under the Efficiency and Discipline Rules were initiated against the respondents and they were served with the charge-sheets accompanied by statements of allegations. Subsequently, however, they were given show-cause notices purporting to have been issued under section 17(1-A) of WAPDA Act requiring them to show-cause as to why they should not be retired or removed from service under the said provision. It appears that the Authority after considering the defence-replies submitted by the respondents to the show-cause notices and after giving them personal hearing decided to remove them from service with immediate effect and vide Office orders dated 6-4-1995, respondents were removed from service. Respondents challenged these orders before the Service Tribunal contending, inter alia, that their summary removal from service was mala fide.

3. The learned Tribunal took the view that although the Authority was not required to give any reason for retiring or removing any employee under section 17 (1-A) but in the instant case since a definite allegation was made against the respondents in the show-cause notices served upon them, it will have to be seen whether the allegation made against the employee was correct that is to say "whether the material on record justifies the finding that the charge of assaulting the S.D.O. has been substantiated against the appellants". The learned Tribunal then proceeded to hold that "there is nothing reliable on the record to show that the appellants assaulted the S.D.O. and gave him a shoe-beating. The Tribunal also relied upon the judgment of Criminal Court acquitting the respondents of the charge of assaulting/beating the S.D.O. to hold that the charge was not proved. The learned Tribunal ruled out of consideration the report of Director, Inquiries forming the basis of action against the respondents holding that the inquiry was conducted at the back of the respondents and they were not supplied copies of the inquiry report and the statements of the witnesses. The Tribunal also took exception to the relinquishment of the proceedings. under Efficiency and Discipline Rules and instead starting proceedings under section 17 (1-A) and held that the course so adopted "certainly cast aspersions on the bona fides of the Authority." On these findings, the appeals of the respondents were accepted, orders of their removal were set aside with the observation "that the Authority shall be within its powers either to proceed against them afresh under the Efficiency and Disciplinary Rules or even under section 17 (1-A) of the Act in accordance with law."

4. Learned counsel appearing for the petitioner (WAPDA and its three officers) has, 'inter alia, contended that the charge- levelled against the respondents/employees was fully substantiated by the report of the preliminary inquiry which was placed on record of the service appeal but the same has been illegally ruled out of the consideration by the Service Tribunal. It is further contended that the Service Tribunal on the one hand took the view that the summary proceedings under section 17 (1-A) of the WAPDA Act adversely reflected on the bona fides of the Authority but when remanding the case left it open to the Authority to proceed against the respondents under the same provision. This, according to the learned counsel, has rendered the decision of the Tribunal self-contradictory. Learned counsel also sought to rely upon a leave granting order dated 25-1-1997 passed in C.Ps. Nos.517 of 1996 and 93 of 1997 to contend that the respondents having been removed under section 17 (1-A) of the Wapda Act, after considering their defence replies and hearing them in person, the learned Tribunal was not justified in interfering with the orders passed by the authority moreso when there was no mala fide whatever on the part of the petitioners in removing the respondents from service.

5. Contentions raised by the learned counsel for the petitioners need examination. Leave to appeal is, therefore, granted to the petitioners. Stay order granted in the Chambers shall continue in force pending the final hearing of the 1, appeal which may be fixed at an early date. A.A./W-3/SC ???????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.