1989 PLP 14 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted under Article 212(3) of the Constitution to examine whether in view of the decisions of this Court in Miss Naseem Jahan Naim v. The General Manager (now Vice Chairman), P.W.R., Lahore and 3 others (P L D 1968 S C 112) and Captain Muhammad Azhar v. Commissioner of Karachi and another (PLD 1906 SC 253), the order of the Service Tribunal dated 7th January, 1979 dismissing the appeal filed by the appellant challenging his removal from the Service of WAPDA under Section 17(1‑A) of the Water and Power Development Authority Act was in accord with law. The appellant joined the Service of WAPDA on 14th September, 1964 as a Junior Engineer and secured promotion as Executive Engineer. He was once charge‑sheeted in June, 1972 but no further proceedings were held after he had replied to the charges. Yet another charge‑sheet containing different charges was served on him in July, 1974 which was enquired into and ultimately the minor penalty of censure was imposed upon him. He filed a Departmental Appeal which remained undisposed of. In the meantime, on the 30th September, 1975 came to be enacted section 17(1‑A) by Central Act LXXXIV of 19'75 which conferred on the WAPDA the Authority "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." This power was invoked by the Authority and by an order dated 9th of October, 1976, he was removed from service with immediate effect on payment of thirty days pay in lieu of thirty days' notice. The Petitioner filed a representation against this order and simultaneously approached the Service Tribunal in the matter. His contention was that the grounds or the charges which were either not enquired into or were the subject‑matter of enquiry still inconclusive, could not be made the basis for such an action against him. He relied on the decisions in Miss Naseem Jahan Maim v. The General Manager and others P L D 1968 S C 112, Captain Muhammad Azhar v. Commissioner of Karachi and another (PLD 1966 S C 253), Abdul Rauf and others v. Abdul Hamid Khan and others (P L D 1965 S C 671), Raja Muhammad Afzal Khan v. The Federation of Pakistan (P L D 1957 Lahore 17) and Federation. of Pakistan v. Mrs. A.V. Isaacs (P L D 1956 S C 431). All these and such cases were distinguished by the Tribunal on the ground that "this is not a case of removal based on service of notice in accordance with terms of employment' but the Authority has acted under section 17(1‑A) of the West Pakistan WAPDA Act, 1958 under which it had power to pass the impugned order." Mr. Khalid Ishaque, Advocate, the learned counsel for the Appellant has taken us to the series of decisions already referred to and the one given in the case of Osman Ci'iaar v. Federal Service Tribunal and another (1986 SCMR 1875) to contend that there were charges in the background of a pending enquiry, and for that reason this power could not be invoked as a cloak or a cover to get rid of the employee. The only proper course. in such a background was to proceed against him under the Efficiency & Discipline Rules and not otherwise. The learned counsel has been fair enough to concede that this argument for attacking an order passed under section 17(1‑A) has been examined in numerous decisions of this Court and no such abridgement or curtailment as is suggested has been found to exist. He has in the context referred to the case of Abdul Karim v. West Pakistan Province (P L D 1956 S C 298) and to a number of other decisions in the interregnum coming right up to Sheikh Abdul Hameed and 2 others v. WAPDA (P L D 1988 S C 35), WAPDA through its Chairman v. Shujaat Ali Baghdadi (P L D 1988 S C 622) and Ehsan Elahi v. WAPDA (1988 S C M R 1247). It is also admitted that the two grounds open for review before the Tribunal namely, a taint of mala Fides and the order being quorum non judice were neither specifically pleaded nor are borne out from the record except for the legal argument advanced. In view of this background of decisions the argument of the learned counsel for the appellant is that all public power conferred on the Authorities is to be exercised for the purposes for which that power is conferred and not on extraneous considerations. Though a plenary power of removal was conferred by section 17(1‑A) it cannot be invoked or pressed into service in a situation where the effect is to create a stigma against the employee so as to adversely affect his future employability and to contain a taint of punishment instead of termination of service simpliciter. The cases noted in the order granting leave and the others relied upon by the learned counsel for the Appellant excepting that of Osman Ghani (1986 S C M R 1875) all relate to Constitutional Guarantees available to the civil servants against whom the actions challenged had been taken or to contain stigma ex facie. It was in that background of Constitutional protection or stigma that the action and its validity was examined. In the case before us and a number of others coming up under section 17(1‑A) there is not only an absence of such a guarantee, there is on the contrary an over‑riding clause empowering the employer to terminate the employment without stigma even where enquiries are pending and are not taken to their logical conclusions. In this background where the Constitutional and statutory guarantees are altogether absent and there is a statutory provision empowering the Authority it would be difficult to challenge the action on the ground taken namely, that because some enquiries were pending or were under challenge the same should have been ignored, left inconclusive or bypassed for taking action under section 17(1‑A). The narration of facts makes it clear that those disciplinary enquiries were made and undertaken when there was no such plenary power of removal available with the Authority. When subsequently, the statutory power became available to the Authority, the entire service record was examined, for taking a decision whether the continuance in employment of the appellant or others was in public interest or not. We find that the Authors y had taken a decision on the 8th of October, 1976 to invoke this power for removing 5 other persons as well. It was a decision in respect of six employees and the decision was not entirely based on two charge- sheets which were the subject‑matter of enquiry or decision. In this background it cannot be said that the order suffered from any such taint as could have justified the Tribunal to interfere with it. We find that the view taken by the Tribunal is in accord with the law laid down by this Court in respect of powers enjoyed by the Authority under section 17(1‑A). This appeal is, therefore, dismissed with no order as to costs. M.BA./G‑144/S Appeal dismissed.