1991 PLP (C (PLC(CS))

The Authority has decided that WAPDA employees as well as Government Servants of Electricity Department who have been retired or are removed from service under section 17(1-A) of WAPDA Act, 1958, should for the purpose of grant of pension, gratuity, payment of authority's own share of contribution towards, B.P.Fund etc. be governed by the normal terms and conditions applicable to them under the relevant rules and the fact of their having been retired or removed from service under section 17(1-A) would not by itself, be taken as a bar to their post-retirement entitlements. Sd/- (Muhammad Siddiq), Director Finance (R&I), WAPDA."

14. This decision seems to have been based on the provisions of rule 7(iv) of WAPDA Pension Rules, 1977 which make the following reading: "Rule 7(iv)-- No pension may be granted to WAPDA employees dismissed or removed for misconduct, corruption, subversive activities or inefficiency but if he deserves special consideration, he may be granted a compassionate allowance not exceeding 2/3rd of the pension which would have been admissible to him if he had retired on invalid pension."

15. However, the Authority amended rule 7(iv) of the Rules by means of Notification dated 28-6-1982 which reads as under: "No.F.B&F/37-9/Vol.XV/7877-8077, dated 28-6-1982. Subject: Pakistan WAPDA Pension Rules. 1977. In exercise of the powers conferred on it by section 18 of the Pakistan WAPDA Act, 1958 (Pakistan Act NO.XXXI of 1958), the Authority has been pleased to add, ab initio, the words "or removed by order under section 17(1-A) of WAPDA Act", after the word "inefficiency", appearing in line 3 of sub-rule (iv) of Rule

7. Chapter-I of the Pakistan WAPDA Pension Rules, 1977. The amended provision will now read as under:- No pension may be granted to a WAPDA employee dismissed or removed for misconduct, corruption, subversive activities or inefficiency, or removed by order under section 17(1-A) of WAPDA Act, but if he deserves special consideration, he may be granted a compassionate allowance not exceeding 2/3rd of the pension which would have been admissible to him if he had retired on invalid pension." Sd/- Tajammul Hussain, Manager, Finance (Coordination), WAPDA."

16. As already seen before, Mr.Hashmi had been removed from service on 2-6-1977, long before the aforementioned amendment brought about by Notification dated 28-6-1982. The Supreme Court took notice of the fact that before this amendment, employees who were retired or removed under section 17(1-A) of the Act were entitled to all the pensionary benefits normally available to WAPDA employees; that these benefits were denied only in the case of employees who were dismissed or removed for misconduct, corruption, subversive activities or inefficiency and that by insertion of the words "or removed by order under section 17(1-A) of the WAPDA Act", even employees against whom no disciplinary action by way of punishment was taken, were sought to be placed in the same category of persons not entitled to pensionary benefits. Before the Tribunal, it was a contended on behalf of the Authority in Mr. Hashmi's case, who had been removed on 2-6-1977 before the amendment of 28-6-1982, that the amendment affected his case because it was intended by the use of words "ab initio" to operate with retrospective effect. The Supreme Court held that the learned Service Tribunal rightly rejected this contention on the ground that executive orders cannot be given retrospective operation, which power can only be enjoyed by the Legislature; that even rule making power which is by-way of statutory grant does not possess this quality unless conferred by the Statute and that section 18 of the WAPDA Act does not grant such authority to WAPDA to alter or change the service rules touching the terms and conditions of employees, with retrospective operation, so as to rob them of vested rights already accrued in their favour.

17. The facts of the present case are, however, distinguishable from those of Mr. Hashmi's case. As already mentioned before, the appellant has claimed in para. 6 of his appeal, that he "continued to remain in the service of the respondents up to 7-7-1982 without any break", on the basis of stay orders issued by the National Industrial Relations Commission the High Court and the Service Tribunal on various occasions. I feel that the reasons for stay are immaterial and what is important is the fact that even according to his own case, the appellant remained in service without break till 7-7-1982, when amendment in rule 7(iv) of the Pension Rules had already been brought about by the Notification dated 28-6-1982. Under the circumstances, the appellant of this case will be deemed to have been removed from service on 7-7-1982, although the order for his removal from service under section 17(1-A) of the Act was passed by the respondent Authority in actual fact on 30-4-1978. He will, according to his own case, be deemed to have been so removed only on 7-7-1982 after the Pension Rules had already been amended through Notification dated 28-6-1982 laying down that employees removed from service under section 17(1-A) of the Act were not entitled to pensionary benefits. This being so, there is no question in this case, as it was there in that of Mr. Hashmi, of retrospective application of the Authority's subsequent decision of 28-6-1982 amending the relevant Rules. The appellant continuously availed of the privileges of his service till 7-7-1982 and we are of the view that there would be no justification for grant of pensionary benefits to him for the period from 30-4-1978 to 7-7-1982. This is evidently because of the consideration that he cannot claim pensionary benefits as also other emolument which he has been receiving during this period. We are conscious of the fact that his removal came about on 30-4-1978 before the amendment of Pensionary Rules on 28-6-1982. However, under the circumstances, we treat the order of removal as having been passed on 7-7-1982 rat than 30-4-1978; obviously on the ground that he remained in enjoyment of his usual emoluments during all that period. For these reasons, we hold that on the basis of different facts he is not entitled to pensionary benefits in view of amendment in the Pension Rules by Notification dated 28-6-1982.

18. The facts provide us with another distinction. In Mr.Hashmi's case, an application was made to the Respondent-Authority in May, 1980 for grant of pension, after the order of removal under section 17(1-A) of the Act had become final in consequence of the dismissal of his appeal to the Supreme Court. After due process, the Senior Budget and Accounts Officer of the Authority submitted the pension case to the General-Manager Finance through letter dated 10-11-193:. However, Mr.Hashmi was informed by letter dated 4-8-1982, by the Director Administration that the WAPDA employees removed under section 17(1-A) of the Act were not entitled to pension. Mr.Hashmi challenged the validity of this order in departmental representation dated 31-8-1982 which was rejected by the competent Authority. After having been informed of the rejection of his representation through letter dated 2-11-1982 he filed an appeal on 29-11-1982 before the Tribunal under section 4 of the Service Tribunals Act, 1973. In the present case, however, after his appeal was dismissed by the Supreme Court on 16-12-1982, the appellant made application dated 15-1-1986 (Annexure 1) to the respondents praying "that necessary Notification regarding post retirement entitlement" may be issued on the basis of office order dated 25-7-1979, so that his pension papers may be prepared. He came to the Tribunal with the present appeal on 8-6-1986, without any order having been passed by the respondents on his application. The result is that there has neither been any impugned order in this case nor any departmental representation to fulfil the jurisdictional requirement wider section 4(1)(a) of the Service Tribunals Act, 1973.

19. This was in respect of first consideration leading the learned Tribunal to a favourable decision in Mr.Hashmi's case. The second consideration, as already noticed, became available from the provisions of section 17(1-A) of the Act which were reproduced by the Tribunal in the judgment of Mr.Hashmi's case in the following manner: "(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".

20. Learned Tribunal expressed itself on the point in the following manner: "Though it is not very clear from the language employed in the provision, the only correct interpretation thereof would be that the words "retire" and "remove from its service" relate respectively to expression "any person employed by" and "serving under the Authority". In other words the Legislature, intended to empower the Authority to retire only a WAPDA servant and to revert only a person serving on deputation with WAPDA to his parent department or organization. Indeed, by no stretch of law or imagination an employee of other organization/department serving on deputation with the WAPDA could be retired by WAPDA, rather, could only be sent back to his parent department or organization if his services are no longer required by the WAPDA for one reason or the other. The only possible construction of expression "remove from its service" can be removal from the service of the WAPDA and not the termination of incumbent's own service".

21. It may here be mentioned that in appeal before the Supreme Court the WAPDA's learned counsel does not appear to have questioned the learned Tribunal's interpretation of the provisions of section 17(1-A) of the Act. This aspect of the matter not having been examined, we venture to record our respectful disagreement with the learned Tribunal's interpretation. We do not think it is correct to say that the words `retire' and `remove from its service' relate respectively to the expressions `any person employed by' and `serving under the Authority'. Careful application to the provisions of subsection would show that the expression "any person employed by" or "serving under the Authority" are connected with what proceeds them rather than what follows. There is no doubt, as has been pointed out by the learned- Tribunal in Mr., case, that the phrase "any person employed by" or "serving under the Authority" speaks of two categories of persons. The first is of those who are in the employment of the Authority. The second is of those who are its employees but serving under it on deputation or otherwise. But the fact of this phrase visualizing two distinct categories of officials of the Authority is immaterial in so far as the present discussion is concerned. What is of real importance in the context of the point raised by the learned Tribunal is that the phrase, in respect of either of the categories, has nexus with what precedes it and it has got nothing to do with what succeeds. This phrase is wedded with the preceding phrase "in the terms and conditions of service". We will make our point of view more clear by saying that the phrase "or in the terms and conditions of service of any person employed by or serving under the Authority" has to be read as a whole as one expression in conjunction with the phrase "Notwithstanding anything contained" occurring in the earlier part of the subsection.

22. This discussion brings us to the conclusion that the power given to the Authority, whatever that power is, can be exercised regardless of (a) anything contained in subsection (1) of section 17 of the Act or (b) any rule, orders or instructions, made or issued by the Authority, or (c) in the terms and conditions of service of `any person employed by' or `serving under the Authority'. Those in respect of whom this power can be exercised by the Authority have been mentioned in the expression "any person" occurring after expression `retire' or `remove from its service'. The words `any person' occurring before this phrase have connection with what precedes those words, whereas the expression "retire" or "remove from its service", refers to the words `any person' occurring after it, although these words in both the cases speak of two distinct categories of officials, that is to say, those who are employees of the Authority and those who are serving under it on deputation. If the interpretation put by learned Tribunal on the provisions of this subsection in Mr. Hashmi's case be assumed as correct, the use of words `any person' after the expression `may retire' or `remove from its service' would become redundant and absolutely meaningless. They, in that case, would not be serving any purpose. It is an accepted principle of interpretation, that no word used by the legislature is in vain and some meaning has to be assigned to the words or phrases used by it in an enactment. If this be so, as it is, the only logical conclusion would be that object of, the powers to `retire' or `remove from its service', is without an iota of doubt `any person' mentioned after the expression and not before it; more so when the words `any person' used before those expressions, have something else for reference in the phrase `terms and conditions of service'.

23. There is another aspect of the matter. Even if the learned Tribunal's reasoning in Mr. Hashmi's case be taken as sound, we are with respect unable to agree that the conclusion arrived at by them is correct. We take it as a fact, only for argument's sake, that the expressions "retire" or "remove from its service", are relateable to what has preceded. The provisions of subsection (1-A) give an option to the Authority either to retire or remove from its service. The appellant of this case was admittedly an employee of the Authority. Therefore, the discussion regarding whether the power of retirement 'or removal from its service, is available to the Authority in respect of those who are under its service or deputation is irrelevant. We are concerned in this case only with those who are employed by the Authority. Even if the expression 'may retire or remove from its service' may be assumed to have referred to the words `any person' preceding it, both the powers of retirement as also removal from its service will be available to it in respect of those employed by it. The application of the expressions 'retire' or `remove from its service' is not respective as held by the Tribunal in Mr. Hashmi's case, and either of the powers can be exercised by the Authority. In other words `any person' even if it is the one which precedes, is the attribute of both the powers namely `may retire' and `remove from its service'. The expressions `may retire' and `remove from its service' apply independently of each other to the words `any person' wherever they are used in the subsection; which means, as already held, that both the powers of retirement and removal from its service are available for exercise to the Authority.

24. The following observations made by the learned Tribunal in the previous judgment are also worth notice: "It is to be further seen that the word "removal" has not been defined anywhere in the relevant statutes. Of course, in the Wapda Employees (Efficiency and Discipline) Rules "removal" has been prescribed as one of the major penalties which undeniably can be imposed only after following the procedure prescribed in the said Rules. Thus removal from WAPDA service under section 17(1-A) and removal as a penal measure is quite different and distinct and can, in no way, be equated with each other. It would be too much to suggest that a Wapda servant can be removed from his service as a penal measure in an arbitrary and brute manner under section 17(1-A) of the Wapda Act. Under the Constitution and law a punishment cannot be imposed upon a person unless he is provided a reasonable opportunity at least to explain his conduct. There can again be no doubt that the legislature never intended to confer by section 17(1-A) or the power of removal from service of a Wapda servant as a penal measure. The opposite view, in our opinion, would clearly be contrary to the Constitution, the law and the injunctions of Islam, which we are duty bound to follow".

25. We are obliged to say that this discussion regarding removal from service as a punitive measure is not of any consequence, which is for the simple reason that it has been held in a large number of cases by the Supreme Court that the Authority has got the power of removal of its employees from service. It has been noticed by the Tribunal as also the Supreme Court in number of cases that power of compulsory retirement or removal from service given by section 17(1-A) was to enable the Authority to purge its ranks from corrupt and undesirable employees. Nowhere has the Supreme Court ruled that the Authority does not have the power of removing its employees from service. It is now a settled law that this power is available to the Authority. Even in the present case, the appellant's appeal to the Supreme Court against the order of his removal has been dismissed and the Authority's order has been upheld as legal. Therefore, the distinction made by the Tribunal in the significance of the word "removal" used in section 17(1-A) and the WAPDA Employees (Efficiency and Discipline) Rules, is immaterial. Then, it may be pointed out that compulsory retirement has also been prescribed as one of the major penalties in the Disciplinary Rules like removal from service. Now if the power of compulsory retirement given by section 17(1-A) is justified, there is no reason why the same should not be said regarding removal from service.

26. For these reasons, we hold that the Authority had every justification to disregard the appellant's application dated 15-1-1986 for pensionary benefits. The appeal is accordingly dismissed as being without any substance. There will, however, be no order as to costs. Parties to be informed. M.Y.H./592/Sr.F Appeal dismissed.