P L D 1964 (W (PLP)

ANWARUL HAQ, J.‑This judgment will dispose of Writ Petitions No. 215 of 1962 and No. 6 of 1963, which are by the same person, namely, Wali Muhammad, at present serving as Stock Verifier in the stores Directorate, Electricity, of the Water and Power Development Authority, Lahore. He joined service on the 5th of July 1946 as Assistant Store‑Keeper in the Electricity Department of the Government of the former North‑West Frontier Province. In the year 1949 some allegations were made against him with regard to misappropriation of Government stores at Jabban and Peshawar. As a result of preliminary inquiries, a case was registered against him under section 409 of the Pakistan Penal Code, on the 15th of November 1949. Subse quently, the case was split up into 34 separate cases. The case with regard to the stores at Jabban was tried by Mr. A. R. Abbasi, Special Judge, Peshawar, who acquitted the petitioner on the 15th of July 1959. In respect of the stores at Peshawar, the case, however, continued pending and the proceedings were quashed by the High Court on the 15th of July 1959 under section 561‑A of the Code of Criminal Procedure. The learned Judge of the High Court, however, observed that the quashing of the proceedings did not constitute a bar against departmental proceedings in respect of the charges in question.

2. In August 1959 a departmental inquiry was ordered to be held into the charges against the petitioner, and for this purpose an Inquiry Committee was constituted. This Committee started the inquiry on the 23rd of January 1960 and by an order dated the 27th of January 1960 (Annexure "H" to W. P. No. 6 of 1913), came to the conclusion that "after going through the relevant record which has been received back from the Court, no charge has been proved against Wali Muhammad. This being above twelve years old case, it is not possible to call for all the witnesses to start the case afresh. In our opinion, there is nothing against Wali Muhammad. He should. therefore, be reinstated and paid his salary which is due. As regards the losses amounting to Rs. 1,161‑t2‑0 it is obvious that the responsibility of Store- Keeper ceased at the time the keys were taken away from him without giving him the proper opportunity to hand over the charge". Can the basis of this report the petitioner was reinstated on the 18th of October 1960 (vide Annexure "1" to W. P. No. 6 of 1963), and the arrears of his salary etc., were paid to him.

3. However, on the 20th of July 1962, a fresh inquiry was started against the petitioner vide Annexure "B" to W. P. No. 215 of 1962) with regard to the shortage of stores at Jabban. The petitioner filed W. P. No. 215 of 1962 on the 27th of September 1962, challenging the legality of this inquiry and praying that the respondents be directed not to hold the fresh departmental inquiry. This petition was admitted by a Divi,,ion Bench of this Court on the 4th of October 1962 and an interim stay order was granted.

4. On the 18th of December 1962, the respondents passed another order directing a further inquiry to be held against the petitioner with regard to the shortage of stores at Peshawar. Thereupon, the petitioner filed the second writ petition hearing No. 6 of 1963, making a similar prayer as in the earlier petition.

5. Mr. Pir Bakhsh Khan, the learned counsel for the petitioner, has raised the following contentions:‑ (a) That the alleged shortage of stores attributed to the petitioner having occurred before his transfer to WAPDA (hereinafter referred to as the Authority) on the 1st of April 1959, there is no power in the Authority to order disciplinary proceedings against the petitioner in respect of these charges, (b) that the petitioner having been acquitted by a Court of law and also exonerated by a departmental Inquiry Committee, further departmental proceedings against him in respect of the same charges are without jurisdiction, and (c) that the petitioner having once been reinstated and paid the arrears of salary etc., under order dated the 18th of October 1960, it must be deemed in law that he has been honourably acquitted with the result that no further proceedings are competent against him.

6. On behalf of the respondents two preliminary objections have been put forward by Mr. Habib Ullah (i) That the relief claimed by the petitioner is hit by the prohibition contained in clause (b) of sub‑Article (3) of article 98 of the Constitution, and (ii) that, in any case, the Authority is not a person performing functions in connection with the affairs of the Province and, therefore, no writ can issue to the Authority.

7. We shall first deal with the preliminary objection raised on behalf of the respondents. The first objection raised by the learned counsel is well‑founded, as both the writ petitions filed by the petitioner Wali Muhammad raise questions relevant to the terms and conditions of his service, but these terms and conditions are not such as are specified in the Constitution, Article 177 which only provides two guarantees, namely, that a Government servant shall not be removed or dismissed from service or reduced in rank by an authority subordinate to that by which he was appointed and, secondly, that he shall not be removed or dismissed from service or reduced in rank without being given an opportunity to show cause against the proposed action. In the present case, both these contingencies have not yet arisen and, therefore, this Court is not competent to grant him any relief. Both the petitions are liable to dismissal on this short ground alone.

8. As regards the second preliminary objection raised by Mr. Habib Ullah, the learned counsel for the respondents, we consider that it has no merit. The Authority was established in 1958 under Act XXXI of 1958. A perusal of this Act makes it clear that the Authority is to function under the control of Government, that its Chairman and members are to be appointed by the Provincial Government, and that it is to perform functions with regard to irrigation, water supply and drainage; the generation, transmission and distribution of power; flood control, the prevention of water-logging and reclamation of water‑logged and salted lands; inland navigation; and the prevention of any ill‑effects on public health resulting from the operation of the Authority. The funds of the Authority are to consist of grants made by the Government, loans obtained from the Government, grants made by local bodies as required by the Government, and other items. Under section 23 of the Act the Authority is to be deemed to be a Local Authority under the Local Authorities Loans Act of 1914 for the purpose of borrowing money under the said Act. It is thus clear to us that the Authority is a person performing functions in connection with the affairs of the Province of West Pakistan. It was contended by Mr. Habib Ullah that these functions are confined to the economic development of the Province and have nothing to do with the administration of the Province as such. This argument, however, has no relevance in the present day context, as the functions of Government are no longer confined to the mere maintenance of law and order, but extend and very appropriately, to the development of economic resources of the country. The Authority is one of the agencies established by the Government for achieving this purpose. As already stated, it is to function under the control of the Provincial Government. We also find that by an amendment introduced in the Act by means of Ordinance XIII of 1959 it was directed that all persons serving in connection with the affairs of the Province in the Electricity and Irrigation Department shall be liable to serve under the Authority, if required to do so by the Government. In pursuance of this power, a notification was issued on the 28th of March 1959, directing the transfer of all persons serving in the Electricity Department of West Pakistan to the Authority. It is thus clear that not only is the Authority performing functions in connection with the affairs of the Province, but it is also manned largely by persons who were previously serving directly under the C Provincial Government. We have, therefore, no hesitation in holding that the Authority is a person to which a writ can issue under the jurisdiction conferred on the High Court by Article 98 of the Constitution.

9. We have already stated that both the writ petitions are liable to be dismissed on the short ground that they are hit by the prohibition contained in clause (b) of sub‑Article (3) of Article 98 of the Constitution. Even otherwise, we find that there is no merit in the contentions put forward by the learned counsel for the petitioner, except perhaps with regard to the inquiry which is being conducted in respect of the shortage of stores at Jabban.

10. We have already referred to Ordinance XIII of 1959 which amended Act XXXI of 1958, under which the Authority was established. By this amendment certain provisions were added to section 17 of the principal Act providing that all persons serving in connection with the affairs of the Province in the Electricity and Irrigation Departments shall be liable to serve under the Authority, if required to do so by the Government, on such terms and conditions as the Government, may, in consulta tion with the Authority, determine, but shall not be entitled to any deputation allowance. It was further provided that the Government may, in relation to any such person as aforesaid, delegate such administrative, disciplinary and financial powers to the Authority as the Government may deem fit. By a second proviso added to section 17 of the Act, it was contemplated that the terms and conditions of service of any such person as aforesaid shall not be varied by the Authority to his disadvantage.

11. In pursuance of the power given to the Government under section 17 of the Act, as amended by Ordinance XIII of 1959, the Government issued a notification transferring all persons serving in whatever capacity in the Electricity Department of West Pakistan for service under the Authority with effect on and from the 1st of April 1959. Under paragraph 5 of this notifica tion, the Authority was empowered to exercise all administrative, disciplinary and financial powers in respect of persons transferred to it as were exercisable on the 31st of March 1959 by Govern ment or any lower authority, except that the Authority shall not be competent to dismiss, remove from service, or reduce in rank such persons in whose case the appointing authority was Govern ment. It is conceded before us that the petitioner was appointed by an Executive Engineer, and, therefore, it is clear that in his case all the administrative, disciplinary and financial powers stand delegated to the Authority. It was, however, contended by Mr. Pit Bakhsh that this delegation being prospective, the Authority could trot take any action against the petitioner with regard to his alleged past misdeeds. A further contention raised in this behalf was that there should have been a delegation in respect of the petitioner by name so as to enable the Authority to proceed with disciplinary action. We see no substance in these arguments, for the reason that it is clear to us that under the notification of the 28th of March 1459 all administrative and disciplinary powers with regard to the petitioner have been transferred to the Authority, and if any action is called for against him, whether in regard to past or future misdeeds, the competent authority will be the Authority. Further, the case of the petitioner is certainly covered by the general delegation made by Government.

12. The next contention raised by the learned counsel is that the petitioner having been acquitted by a Court of law, as well as by a Departmental Inquiry Committee, no further pro ceedings could be taken against him. It may be stated that the acquittal by the Special Judge was only with regard to the shortage of stores at Jabban. The findings of the Inquiry Committee dated the 27th of January 1960 also clearly relate to the stores at Jabban, although the Committee had been directed to inquire into the shortage of stores both at Jabban and at Peshawar, but for some reason or the other, the Committee did not give any findings with regard to the shortage of stores at Peshawar. The result, therefore, is that with regard to the shortage of stores at Peshawar there is no judicial or departmental finding in favour of the petitioner and the only order in these cases is the order of the High Court quashing the judicial pro ceedings. But in that very order the learned Judge observed that departmental proceedings could be taken against the petitioner in respect of those charges. It is thus clear to us that as far as the inquiry against the petitioner with regard to the shortage of stores at Peshawar is concerned, there is no legal or technical bar at all and the inquiry can certainly proceed. The reinstate ment of the petitioner and the payment of salary to him for the period he had remained under suspension has no reference to the charges levelled against him with regard to the shortage of stores at Peshawar, which have not so far been adjudicated upon at all.

13. With regard, however, to the inquiry in respect of shortage of stores at Jabban, we find that although there is no legal provision prohibiting further inquiry, yet the fact remains that the petitioner was acquitted by a Court of law and also by a Departmental Inquiry Committee in respect of this charge. The learned counsel for the respondents was not in a position to enlighten us about the reasons which have led to a further inquiry being ordered on the same charge. Whatever the legal position, it is clear that it is against the principles of natural justice to hold repeated inquiries into the same charges, unless it is held that the findings of the previous inquiries are not acceptable to the competent authority. In the present case, we find that, on the contrary, the findings of the Departmental Inquiry Committee embodied in its report of the 27th of January 1960 were accepted by the competent authority and the petitioner was reinstated an paid the arrears of his salary. In view of this position, the learned counsel for the respondents stated at the Bar that he would advise the respondents to drop the inquiry with regard to the shortage of stores at Jabban.

14. For the foregoing reasons, we would dismiss Writ Petition No. 6 of 1963 and hold that the inquiry with regard to the shortage of stores at Peshawar can proceed against the petitioner. We would, however, not make any order as to costs, for the reason that the petitioner has already suffered for the last so many years due to the prolongation of the proceedings against him.

15. As regards the inquiry with regard to the shortage of stores at Jabban, we have already stated that the learned counsel for the respondents has undertaken to advise the respondents to drop this inquiry. In view of this statement, and our finding that the writ petition is not competent under clause (b) of sub -Article (3) of Article 98 of the Constitution, we would dismiss Writ Petition No. 215 of 1962 as well, but express the hope that the respondents would drop the inquiry with regard to the shortage of stores at Jabban. In this case again, there will be no order as to costs. K. B. A. Petitions dismissed.