2003 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

The above titled four civil petitions, involving a common question of law and. facts, filed by Water and Power Development Authority under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the judgments rendered by. Federal Service Tribunal in appeals separately filed by the respondents under section 4 of the Service Tribunals Act, 1973, are disposed of through this single judgment.

2. The respondents in the above petitions while in the employment of WAPDA were compulsorily retired from service through separate orders passed on different dates under section 17 (1-A) (a) of Pakistan WAPDA Act, 1958 which is to the following effect:-- "(1-A) Notwithstanding anything contained in subsection (1) or any law, settlement or award for the time being in force, or any rules or regulations 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,

(a) retire from its service any person without assigning any reason; or (b) ...................................................

3. The respondents, after exhausting the departmental remedies, preferred appeals before the Federal Service Tribunal and the learned Tribunal, vide judgments dated 7-5-2002 and 10-5-2002 allowed the appeals Tribunal, setting aside the orders of the retirement of all the petitioners and directed for their reinstatement in service from the date of their retirement.

3. The main reason found favour to the Tribunal for setting aside the orders impugned in the service appeals before the Tribunal was that same having been passed without notice to the respondents and hearing them, were in violation of the principle of natural justice.

4. Learned counsel for the petitioners has contended that the competent authority can retire an employee under section 17 (1-A) (a) of Pakistan WAPDA Act, 1958 in his discretion without assigning any reason and that there was sufficient material against the respondents for initiation of departmental proceedings under Pakistan, WAPDA (E&D) Rules, 1978, but the competent authority while taking a lenient view preferred to retire the petitioner from service in exercise of the powers under section 17 (1-A) (a) of Pakistan WAPDA Act, 1958. The learned counsel argued that the retirement from service with full benefits was not a punishment and consequently the appeal before the Tribunal was not maintainable and Tribunal was also not justified to interfere in the administrative affairs of the department. The learned counsel while placing reliance on WAPDA v. Sikandar Ali Abro (1998 SCMR 137) contended that the retirement from service under section 17 (1-A) (a) of Pakistan WAPDA Act, 1958, was neither a penalty nor a stigma and the mere fact that orders were passed without formal notice, would not be a valid ground to declare the said order is illegal.

5. The original section 17(1-A) (a) of Pakistan WAPDA Act, 1958 was emended through Act XIII of 1994. The un-amended and amended section 17(1-A) reads as under:-- UNAMENDED SECTION 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 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." AMENDED SECTION 17(1-A) "Notwithstanding anything contained in subsection (1) or any law, settlement or award for the time being in force, or any rules or regulations made under this Act, or any rules, regulations, 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, (a) retire from its service any person without assigning any reason; or (b) remove from its service any person after informing him in writing of the grounds on which such action is proposed to be taken and giving an opportunity of showing cause against the action within fourteen days."

6. This Court in the light of change in the language of the original section and the amended section while considering the scope of original section 17(1-A)(a) of Pakistan, WAPDA Act, 1958 in WAPDA v. Sikandar Ali Abro, supra, held that the provisions of section 17(1-A)(a) of Pakistan WAPDA Act, 1958 are merely enforcing a condition of appointment which cannot be treated as penalty and that the authority cannot be deprived of his powers to take action under this section against an employee, except on the ground of mala fide or coram non-judice. The Court also considered the scope of amended section and observed that" In oar view though it did not take away the discretion of the Authority completely to remove its employee, but it did have the effect of curtailing such discretion. Under section 17(1-A) of the Act as it originally stood, the Authority could remove an employee without disclosing the reasons for such removal by just giving the concerned employee either 30 days notice or pay in lieu thereof. However, under the amended section 17 (1-A), the Authority now cannot remove an employee without first informing him the grounds on which action for his removal from service is being taken and allowing him an opportunity of showing cause in writing against the proposed action. This change in the procedure for removal of an employee under section 17(1-A) of the Act, in our view, is intended to remove the taint of arbitrariness, if any, in such action. This, however, does not mean that the discretion available to Authority under section 17(1-A) to dispense with the services of an employee has been taken away by the amendment of .1994, The amendment introduced in section 17 (1-A) by Act XIII of 1994 has the effect of only circumscribing the discretion of the Authority by providing a different procedure for removal of employee from service. This Court in WAPDA through Chairman v. Zulfiqar Ali (2002 PLC (C.S.) 128 held that the authority enjoys the right to retire any person in the service of WAPDA without assigning any reason but if it' is spelled out that the retirement of employee in exercise of the powers under this section was not bona fide, it would become necessary to extend the right of hearing to the effected employee.

7. We having heard the learned counsel for the petitioner and perused the judgments of Federal Service Tribunal in the above petitions find that the discretion exercised by the authority under section 17(1-A) (a) of Pakistan WAPDA Act, 1958 without assigning any reasons and giving a formal notice to the concerned employees, was not free from arbitrariness. The Tribunal having dilated upon the matter in detail, formed the opinion that the orders of natural justice which might be the result of mala fide. In this, view of the matter, we, without taking any exception to the reasons given by the Tribunal for setting aside the orders of retirement of the respondents in these petitions, would not like to interfere in the impugned judgment. These petitions also do not involve any question of law of public importance. Consequently we dismiss all the above four petitions. M.H./W.41/S Petition dismissed.