1987 PLP 242 (SCMR)

SHAFIUR RAHMAN, 3.‑‑Leave to appeal was granted to Karamat' Hussain, a former employee of WAPDA, under Article 212 (3) of Constitution to examine whether the Federal Service Tribunal has by its judgment, dated 15‑5‑1979 correctly held that "the Authority of WAPDA under section 17(1‑A) is absolute to remove any WAPDA employee from service after giving 30 days notice or pay in lieu thereof without assigning any reason". By an order dated, 15th June, 1977 the appellant was removed from the post of Assistant Accountant in exercise of powers conferred on the Authority by section 17 (1‑A) of WAPDA Act and allowed 30 days' pay in lieu of notice. He appealed to the Federal Service Tribunal taking up the following ground "That the impugned order is arbitrary, without any legal justification and mala fides. It has also not been issued by the competent authority. The impugned order also suffers from the non‑observance of the rule of natural justice." The Tribunal decided the matter by observing as follows:‑ "After hearing both the parties we are of the view that the wording of section 17 (1‑A) do not reveal any intention of the law‑makers that there should necessarily be no reason for taking action under this section. In fact, there might be cogent reasons for such an action, but the same have not to be assigned in the order passed, for removal under this action. No administration would part with its trained personnel without cogent reasons. The idea behind the non‑assignment of reasons in the above‑quoted section of the Act appears to be that no stigma should be attached to the action of removal from future employment should be implied. It is not possible to stretch the meaning of the words of the above‑quoted section to infer that there should necessarily be no reasons and that if there are any reasons indicated anywhere in the file during the proceedings of action taken under this section, it would vitiate the action in any way. It is, therefore, not possible for us to accept the appeal, which is dismissed without any costs." Mr.Zainul Abidin, Advocate, the learned counsel for the petitioner has taken before us three grounds for assailing this order of the Tribunal. Firstly, he contended that to the extent permitted by this Court in WAPDA v. Agha Nazim Ali 1986 S C M R 18 even an order under section 17(1‑A) of the WAPDA Act is review able and if that list had been applied, it would have been found to be arbitrary and mala fide, not exercised for the purposes for which the power was conferred Secondly, it is contended that apparently, the action against the appellant had in its background the report of the Inspector dated 1‑4‑1977 and the final report appended to it. Though the involvement of the appellant was shown to be least his removal was maintained by the Tribuna: but those directly involved in it and similarly proceeded against were reinstated, Mr.M. Farid Khan by the Service Tribunal itself in Appeal No.36/R/78 of 1979 New No.124 (Lahore) of 1981, and Mr. Salahuddin by Chief Martial Law Administrator. Consistency required that either the case of the appellant should have been distinguished or the same relief granted to him. Thirdly, the learned counsel for the appellant made a grievance of the fact that not even thirty days' pay in lieu of notice had been paid to him and according to WAPDA own legal stand (Memo dated 16th July, 1977) "If 30 days' pay is not given to the concerned employee at the time of his retirement/ removal from service, the order stands infructuous." Mr. Asif Hussain Siddiqui, Advocate, the learned counsel representing WAPDA has stated that he has no instructions with regard to cases of Farid Khan and Mr. Salahuddin. He has, however, supported the judgment of the Tribunal. We have attended to the submissions of the learned counsel and find that impugned judgment proceeds on the assumption that the Tribunal has no jurisdiction to go behind the order. This would appear to be inconsistent with the view taken by the Federal Service Tribunal in the case of Mohammad Farid Khan where such an order was set aside on the sole ground that "the learned counsel appearing for WAPDA was unable to place any material whatsoever against the appellant before us. The order under section 17(1‑A) cannot, therefore, be upheld". If it is true that the same police report formed the basis of action against all three, namely, Mr. Salahuddin, Mr. Farid Khan and the appellant such discriminatory treatment would appear unjustified unless some distinguishing feature is indicated. Hence it is a fit case where all these grounds must receive the attention of the Federal Service Tribunal. The appeal is allowed. The impugned judgment of the Federal Service Tribunal is set aside and the proceedings are remanded for decision afresh. No order as to costs. S. Q. Case remanded.