P L D 1988 Supreme Court 35 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑In these three petitions leave to appeal has been sought by three WAPDA employees from judgment dated 12‑1‑1986 of the Federal Service Tribunal; whereby their appeals against orders of removal from WAPDA service under Section 17(1‑A) of the WAPDA Act, 1958, were dismissed. The petitioners were employed as meter‑readers. There were serious allegations of misconduct against them. The factual allegations were of a nature which if true could not be other than for corrupt motives. Initially, as the learned counsel has explained action was initiated against the petitioners under the WAPDA Employees (Efficiency and Discipline) Rules, 1978. However, those proceedings were dropped and action was taken under Section 17(1‑A) of the WAPDA Act. After some proceedings before the Labour Forum, ultimately appeals were filed before the Service Tribunal. Although they were prima facie time‑barred but the delay was condoned on the ground that the petitioners had earlier moved the Labour Forum. Two contentions which were also raised before the Tribunal have been pressed by the learned counsel before us: One, that proceedings having been commenced against the petitioners under the Efficiency and Discipline Rules, it was not permissible for the WAPDA to drop the same and take action under Section 17(1‑A) of the WAPDA Act. Learned counsel has relied on Osman Ghani v. Federal Service Tribunal and another 1986 S C M R 1875; and Two, that the WAPDA had issued instructions containing guidelines for taking action under Section 17(1‑A). In the present cases those guidelines have not been followed. Reliance has been placed on an unreported judgment of this Court in the case of The Water and Power Development Authority v. Mumtaz Hussain (Civil Appeal No. 276 of 1983, decided on 10‑12‑1985). The first question raised by the learned counsel has not been set at rest in WAPDA v. Saeed Ahmad 1986 S C M R

725. It was observed as follows: "We have in Civil Appeals 170‑173 of 1983, decided on 16‑12‑1985 (reported as 1986 S C M R 18 upheld on the basis of decision in M. Yasmin Qureshi v. Islamic Republic of Pakistan P L D 1980 S C 22 the Tribunal's powers to confirm, set aside, vary or modify the orders impugned before it and have conceded to it the powers of varying the order of removal and converting it into one of retirement. Similarly, it cannot be said that every case of irregularity committed by an employee must be followed by a departmental inquiry under the Efficiency and Discipline Rules and action under section 17(1‑A) is not permissible. Actually, it had been held that such an action is, permissible even where depatmental inquiry has been started Abdul Karim v. The West Pakistan Province P L D 1956 S C (Pak)

298. The only ground on which such an order could be challenged was of mala fide and coram non judice. The ground of mala fide was in fact raised in the appeal before the Tribunal but certainly not in the manner provided in rule 6(2) of Service Tribunals (Procedure) Rules, 1974 which required full disclosure of facts with supporting material summarised and on affidavit." The judgment in the case of Osman Ghani relied upon by the learned counsel proceeded on its own facts because the ratio of the decision as it emerges at page 1877 of the report was that "if while passing the order of removal the Authority is found to have exercised its power not bona fide, but for some extraneous consideration, such an order would stand vitiated". In the present case the Tribunal examined the case of each petitioner on merits and we are satisfied that the petitioners' appeals could not have been allowed on the plea of mala fide action. As held by this Court in the case of WAPDA and another v. Muhammad Arshad Qureshi 1986 S C M R 18 and reiterated in the case of Saeed Ahmad 1986 S C M R 725 already noticed on the action taken under Section 17(1‑A) can be annulled only on the grounds of mala fide and coram non judice. On this touchstone none of these petitions can succeed. Thus, the mere fact that before taking action under Section 17(1‑A) proceedings had also been initiated under the Efficiency and Discipline Rules as held in the case of Saeed Ahmad would not be enough to set aside the order under section 17(1‑A). See also 1986 S C M R 571 and 582 and 1987 SCMR

261. The Instructions or Guidelines relied upon by the learned counsel, no doubt, were referred in the unreported decision relied upon by the learned counsel (Civil Appeal No.276 of 1983) but no definite opinion was expressed with regard to the two relevant questions regarding the said Instructions: One, whether the Guidelines mentioned therein are exhaustive; and two, whether they are to be observed as Guidelines by the subordinate functionaries for making recommendations to the Authority for action under Section 17(1‑A) and that the Authority had not limited its own power to proceed under Section 17(1‑A ); where either a case has not been recommended by the lower authorities or it had not properly been processed. It was observed in the case of Mumtaz Hussain relied upon by the learned counsel, in the context of what the Tribunal had held in that case that "the impugned action was not a rational and balanced exercise of the unspecified and unfetered powers conferred on the Authority, which have to be exercised properly and reasonably and the instructions, reproduced above, appear to have been issued to ensure reasonableness in the exercise o t ose vast powers. In the circumstances of this case, the Tribunal was, therefore, justified in setting aside the order of the Authority impugned before it. (Underlining is ours) In this case we find: First, that it would not be possible to say that the case of the petitioners does not fall under the Guidelines particularly that mentioned in para 3‑A thereof; and Secondly, in its para 2, one of the other considerations which the Authority considered would be relevant was that action under Section 17(1‑A) would be appropriated also in those cases where though concrete evidence was not forthcoming "yet" there was tangible material leading to moral certainty of truth of allegations against the employees desired to be dealt with, then also action could be taken under Section 17(1‑A). This paragraph itself provides intrinsic material to show that the Guidelines mentioned in same paragraph 'a, b and c'. are not exhaustive. And lastly, we agree with the Tribunal that by laying down guidelines for the subordinate functionaries, the Authority was not rendered denuded of its power to act under Section 17(1‑A) which was described by this Court in the case of Mumtaz Hussain as "unspecified" and "unfettered". However, it would remain under control of the Tribunal and this Court whenever it is found as held in the case of Muhammad Arshad Qureshi that the action under Section 17(1‑A) suffered from mala fide and/or it was coram non judice. In the light of the foregoing discussion none of the arguments advanced by the learned counsel has any force. These petitions are dismissed and leave to appeal is accordingly refused. M . B . A . / A‑118 / S Petitions dismissed.