1990 PLP 1462 (SCMR)

SHAFIUR RAHMAN, J.‑‑The petitioner seeks leave to appeal under Article 212'(3) of the Constitution against the judgment of the Federal Service Tribunal dated 4‑4‑1989 whereby his service appeal against removal from service teas dismissed.

2. The petitioner was proceeded against departmentally under the Efficiency and Discipline Rules of WAPDA and was ultimately removed from service. His service appeal before the Tribunal also failed.

3. Ch. Khalil‑ur‑Rahman, Advocate, the learned counsel for the petitioner contended that rule 5 of the Efficiency and Discipline Rules of WAPDA which empowered the competent authority to dispense with the enquiry and to proceed with a show‑cause notice was arbitrary and violative of the Fundamental Right

25. In the context, he referred to two Civil Petitions for Leave to Appeal Nos.363 and 364 of 1988 titled Alamgir v. Divisional Forest Officer and another and Raja Zafar Iqbal v. Divisional Forest Officer, Multan and another, wherein similar provision of the Punjab Civil Servants (Efficiency and Discipline) Rules had been brought under challenge and leave to appeal had been granted to examine, whether they arc ultra wires of the Article 25 of the Constitution. It has also been contended by the learned counsel that the confirmation of such an arbitrary power on an individual is contrary to Injunctions of Islam and consequently not of avail to the department. In this connection he has referred to a decision of the Federal Shariat Court in S.A. Zuberi v. National Bank of Pakistan (PLD 1989 Federal Shariat Court 35). The learned counsel had not much to say on the merits of the case.

4. There arc three objections to the question of fundamental right being pleaded for avoiding the rules under which the action has been taken. In the first place, such a ground was not taken up before the Service Tribunal itself and we do not have the benefit of the views of the Tribunal from which this Petition is competent on a limited question of law of public importance.

5. In the second place the rules complained of in this case are non -statutory. Reliance is placed on the decisions given by this Court in the Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170, Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194 and by the High Court in Ch. Abdul Rashid v. Capital Development Authority, Islamabad and another PLD 1979 Lah.

803. The statutory provision under which the Efficiency and Discipline Rules of WAPDA have been framed provide that "the Authority may from time to time employ such officers and servants, or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit". The matters provided otherwise by the statute are not the subject matter of the grievance of the petitioner but the matters provided by the Authority over which they Government has no control, namely, the rule making power. The Efficiency and Discipline Rules do not fall in the category of law, under Article 8 of the Constitution.

6. In the third place the discrimination complained of relates to procedure, which provides for four options to the competent authority. The first is where the authority considers that disclosure of grounds for acting will compromise the interest of security of Pakistan or is inexpedient to give an opportunity of showing cause. The second category is that, where an Enquiry Officer is appointed. The third category is where an Enquiry Committee is appointed, The fourth category is where the competent authority takes a decision that charges and the grounds have to be communicated without holding an enquiry through an enquiry committee or enquiry officer. Even in those cases a charge and the grounds are given and show cause procedure is to be observed. The classification has a rational basis and the facts of each case will determine whether the action taken was discriminatory or not. The procedure prescribed itself cannot only because of such categorization beheld to be discriminatory.

7. The decision of the Federal Shariat Court has no application, because in the first place, we are not applying that test to the action taken and secondly, the disclosure of the grounds and the show cause procedure is amply provided.

8. As regards the merits of the case, and this will also explain the background of the disposal of the legal submissions just made, it appears that in one of the offices of the WAPDA, irregularities were detected, whereupon an Enquiry Committee comprising a General Manager, a Deputy General Manager and a Director of WAPDA was appointed to further enquire into the matter. It was on the basis of material so detected anal collected that the action was initiated against various functionaries of the WAPDA, including the petitioner. After examining the material submissions of the petitioner, the Tribunal recorded the following conclusion:‑‑ "

the appellant had admitted his guilt in a statement, dated 5‑3‑1987. The original of this statement has been produced before us while a copy of it also available on file. This plea of appellant therefore also fails."

9. The charge against him was of having afforded bogus credits of over Rs.38,00,000 to the consumers with ulterior motives and the particulars of such consumers were provided, and also of mishandling the record relating to accounts. His plea, that he was posted on some other duty and was not concerned with this work, was also not found worthy of credit. In a situation, where a preliminary enquiry into the accounts had been undertaken, it may not be k necessary to hold yet another formal enquiry into the allegations coming to light as a result of such an enquiry. Hence, no ground is made out for leave to appeal and the same is hereby refused. AA./A‑709/S Leave refused.