1993 PLP (C (PLC(CS))

ABDUL RAZZAK A. THAHIM (CHAIRMAN).‑‑‑We propose to dispose of Appeals No.25(L)/84, 79(L)/84 and 82(L)/84 riled by M/s. Salah ad‑Din, Hamid lqbal and Muhammad Arshad Imran Butt v. Chairman Wapda respectively by this single judgment, as common questions of facts and law are involved in all these appeals.

2. Appellants M/s. Salah‑ud‑Din, Hamid lqbal and Muhammad Arshad Imran Butt, who were employees of the Wapda, were removed from service under section 17(lA) of the Wapda Act, 1958. They filed appeals before the Federal Service Tribunal. Their appeals were accepted and the Tribunal by separate judgments dated 29‑12‑1986, 30‑11‑1986 and 30‑11‑1986, respectively, set aside their removal. Consequently their reinstatement was ordered. The Wapda filed Civil Appeals Nos. 374, 375 and 376/87 in the Supreme Court. The Supreme Court by one judgment dated 30‑fi‑1991 remanded all the three appeals and observed that appeals be considered in the light of following Supreme Court judgments: (1) WAPDA and another v. Muhammad Arshad Qureshi (1986 SCMR 18). (2) WAPDA v. Saeed Ahmad (1986 SCMR 725). (3) Sheikh Abdul Waheed and 2 others v. WAPDA (PLD 1988 SC 35) (4) WAPDA through its Chairman v. Shujaat Ali Baghdadi (PLD 1988 SC 622) (5) WAPDA v. Sheikh Zulfiqar Ali (PLD 1988 SC 693). The facts are as under:‑

3. Appellant Mr. Salah‑ud‑Din, who was Divisional Accountant under the Wapda, he was removed under section 17(IA) of the WAPDA Act by order dated 12‑1‑1984. The High Power Committee was constituted and it was found some irregularities were committed during his posting as Divisional Accountant, Shahdara Division, Lahore. He was found guilty of the following irregularities:‑ (i) Being primary auditor, the appellant failed to point out the purchases of T&P items etc. from non‑manufacturing firms/stockists from higher rates resulting in loss of Rs.5,67,364.85 to the Authority. (ii) XEN Shahdara Division purchased substandard material costing Rs.1,52,512 the appellant as a primary auditor of the Division did not object to this purchase. The appellant was duty bound to point out this irregularity. (iii) Being primary auditor the appellant failed to object to the purchases of PVC/S/C copper cable from non‑manufacturing suppliers at higher rates resulting in loss of Rs.18,894.05 and Rs.5,650 to the department. (iv) The appellant failed to object to the splitting and exceeding the financial powers of XEN who grossly misused his powers for making maximum purchases at his own level to avoid the pre‑audit of higher authorities. (v) Being a primary auditor the appellant did not check the administrative approval and technical sanction on the purchases of T&P and furniture equipment made by the XEN at higher rates resulting a loss of Rs.5,12,570.50 and Rs.1,98,825 to the Authority.

4. Appellant Mr. Hamid Iqbal was Divisional Accountant, Street Light Division, Samanabad, Lahore. He was removed from service under section 17(1‑A) by order dated 12‑1‑1984. His removal took effect from 11‑2‑1984. The allegations for which he was found guilty are as follows: (i) He did not point out the purchase of T&P etc. from non -manufacturing suppliers at higher rates resulting in loss of Rs.49,827, Rs.16,000, Rs.18,340, Rs.10,178 and Rs.51,391.22 to the Authority. (ii) The appellant failed to object to unnecessary purchases of PVC S/C copper cable resulting in loss of Rs.49,206, Rs.2,09,233.63, Rs.24,969.00 and Rs.49,206.08 to the Department. (iii) Being Financial Advisor to the XEN, he was also responsible for loss of Rs.9,130 and Rs.17,035 on account of purchase of substandard materials. (iv) As a primary auditor, the appellant did not object to the purchase of earthing pipe costing Rs.4,940 which resulted in total loss to the Authority. He also failed to object to the purchase of head resistance wire at higher rate resulting in loss of Rs.49,912 to the Authority. (v) As Financial Advisor to the XEN, the appellant did not object to the issuance of 26 Nos. purchase orders exceeding Rs.7,000 which were beyond the competency of XEN. (vi) The appellant failed to object to the splitting and exceeding the Financial Powers of XEN who grossly misused his powers for making maximum purchases at his own level to avoid the sanction of High Authority. Also he did not check the Administrative approval and technical sanction of purchases made by the XEN. (vii) The appellant also failed to point out the unnecessary purchases of material without regard to their immediate need for utilization in works.

5. Appellant Mr. Muhammad Arshad Imran Butt was also working as Divisional Accountant, Chunian Division, Electricity, Wapda. He was also removed under section 17(1‑A) by order dated 12‑1‑1984. He was found guilty of the following charges:‑‑ (i) He failed to check the material and T&P purchased from few selected firms at higher rates resulting in a loss of Rs.1,75,961.50 and Rs.3,23,484.15 to the Authority. (ii) He failed to raise any objection to the purchase of fire extinguisher made at higher rates causing a loss of Rs.2,135 to the Authority. (iii) Being Financial Adviser to the XEN, he is equally responsible for loss of Rs.1,11,600 and Rs.1,62,973 on account of purchase of substandard material. (iv) He failed to object the splitting and exceeding the financial powers of XEN who grossly misused his powers for making maximum purchases at his own level to avoid the sanction of the higher authority. (v) He failed to object to the unnecessary and unjustified purchase of store and T&P. (vi) He did not care to check the administrative approval and technical sanction of the purchases made by the XEN. (vii) He did not point out the higher rates at which the furniture worth Rs.1,66,356 and Rs.2,23,389 was purchased without administrative approval and technical sanction resulting in loss of Rs.92,600 and Rs.33,185.

6. The Tribunal by separate judgments allowed all the three appeals holding that there may be some sort of negligence on the part of the appellants which has not been successfully explained before us, in spite of that it was not a fit case for taking the drastic action under section 17(1‑A) against an officer who has a good record of service and all officers under whom he served, had held high opinion of him. Consequently, and the appellants were reinstated in service. Being aggrieved with judgment of Tribunal. The WAPDA filed appeals in the Supreme Court and the Hon'ble Supreme Court has remanded all the three appeals on the point of scope of interference of the Tribunal in the cases where orders under section 17(1‑A) are passed. The jurisdiction of the Service Tribunal was objected by the Wapda and it is now finally settled in the case of WAPDA v. Muhammad Arshad Qureshi and others reported in 1986 SCMR 18 and Supreme Court has laid down guidelines for deciding the appeals against summary orders made by WAPDA under section 17(lA).

7. The appellants were serving as Divisional Accountants under the respondent Authority at different places. There were serious allegations of irregularities in the purchase and disposals of the stores in Wapda. Therefore, WAPDA constituted a Committee consisting of a Chief Engineer (PII), Director (Surveillance) and the Deputy Chief Auditor to inquire into the allegations. The report of the Committee was placed before the view Committee consisting of General Manager (Admn), General Manager, (Distribution) and General Manager, Finance (Power). The Committee bifurcated the cases of employees in five categories. In category No. (A) it was recommended that Sardar Noor Alam Khan, Chairman, Area Electricity Board, Lahore be given Chairman's severe displeasure (record able) and should also be posted out of this appointment. The following officers/officials of category (b) were recommended to be removed from service under section 17(1‑A) of the WAPDA Act, 1958, with immediate effect, without assigning any reason by giving them 30 days' pay in lieu of notice as required under the law: (1) Mr. Muhammad Makhdoom Tariq Mufti, XEN. (2) Mr. Shahid M. Akhtar, XEN (3) Mr. Khawaja Abdul Waheed, XEN, (4) Mr. Zamir Hussain Bhatti, XEN. (5) Mr. Amjad Hidayat Butt, XEN. (6) Mr. Saeed Malik, B&AO. (7) Mr. Muhammad Hanif, Divisional Accountant (with Mufti). (8) Mr. Hamid lqbal, Divisional Accountant (Street Light Division). (9) Mr. Arshad Imran Butt, Divisional Accountant (Chunian) (10) Mr. Jamil Bhatti, Divisional Accountant (with Zamir Bhatti), (11) Mr. Abdul Latif Qureshi, Divisional Accountant (12) Mr. Salah‑ud‑din, Divisional Accountant (Shahdara Division). In this category, there were five Executive Engineers (S.Nos.1 to 5) and one Budget and Accounts Officer, dealing with the accounts and six Divisional Accountants M/s. Shahid M. Akhlar, Khawaja Abdul Waheed, Zamir Hussain Bhatti, Muhammad Makhdoom Tariq and Amjad Hidayat Butt (Sr.No. 1 to 5) Executive Engineer. Filed appeals before the Tribunal. Their appeals were dismissed by Federal Service Tribunal by common judgment dated 22‑6‑1989. They filed Civil Appeals Nos. 163 of 1990 (Shahid M. Akhtar v. WAPDA); 365 of 1990 (Khawaja Abdul Waheeed v. Chairman, WAPDA); 366 of 1990 (Zamir Hussain Bhatti v. Chairman, WAPDA); 367 of 1990 (Muhammad Makhdoom Tariq v. Chairman, WAPDA) and 368 of 1990 (Amjad Hidayat Butt v. Chairman, WAPDA) in Supreme Court against the judgment of Service Tribunal. Their Civil Appeals Nos. 163/1990, 366/1990, 307/1990 and 368 of 1990 were dismissed by the Supreme Court by judgment dated 20‑4‑1992, while Civil Appeal No.365/1990 filed by Khawaja Abdul Waheed was accepted on some legal points as his abscondance from the post was not proved and was not served with the questionnaire issued by the Committee on the given address available with the Authority.

8. The appeals of the Divisional Accountants, of same category (b) who are the appellants before us, were accepted by the Tribunal and on appeal by WAPDA, the Supreme Court has remanded their cases to this Tribunal; as observed in the earlier paragraphs.

9. We have heard the learned Counsel for the parties. The contention of the learned Counsel for the appellants is that the cases of the appellants are distinguishable as in some of the, cases of the identical nature the persons whose cases were dealt with in same category (b) were taken into service on the basis of decision of Tribunal and Supreme Court. On the other hand, Mr. Syed Iftikhar Ahmed, Advocate appearing for the respondents has argued that the cases of the appellants are identical to those of the Executive Engineers whose appeals on the same facts and points of law are dismissed by the Tribunal as well as by the Supreme Court, and therefore, all these appeals are liable to be dismissed.

10. The Supreme Court, without making any observations, has remanded the cases to consider the case‑law laid down by the Supreme Court from time to time. The first case, on this point is 1986 SCMR

18. In that case, the view point of WAPDA was that the Tribunal has no jurisdiction to entertain appeals against the orders made under section 17(1‑A). This objection was repelled by the Supreme Court holding that appeals are competent before the Tribunal. In the same judgment, some guidelines have been given under which appeals against such summary procedure are to be scrutinised and entertained. The relevant portion is at page 29 and is reproduced below: "The matters required to be examined in scrutinising the exercise of power under subsection (1‑A) are (a) the competency of the individual or body taking action under it, (b) the amenability of the individual in respect of whom such a power has been exercised, (c) the presence of taint of mala fide or bias in exercise of that power, the postulate of legislative authorization to the exercise of public power being that it will be exercised bona fide. It is only after satisfying such tests or requirements that power can be said to have been exercised in a manner to achieve irrevocability or immunity from further scrutiny or substitution." In case of WAPDA v. Saeed Ahmad, reported in 1986 SCMR 725, the appellant was removed by WAPDA under section 17(1‑A). His removal was converted by the Tribunal to that of retirement from service. The order of the Tribunal was challenged by WAPDA and it was held that such an order passed under section 17(1‑A) could only be challenged on the grounds of mala fide and coram non judice. The action of the Tribunal of converting the punishment of removal to retirement was not interfered by the Supreme Court on the ground that no question of law of public importance was involved and leave to appeal was refused. In this judgment, the cases reported in 1986 SCMR 18; PLD 1980 SC 22 and PLD 1956 SC (Pakistan) 298 were considered to by their Lordships. In the case of Sheikh Abdul Waheed and 2 others v. WAPDA, reported in P L D 1988 SC 35, it has been held that action taken under section 17(1‑A) can be annulled only on the ground of mala fide and coram non judice and proceedings initiated under the WAPDA Employees (Efficiency and Discipline) Rules will not be enough to set aside the order. The facts of the case of WAPDA v. Shujaat Ali Baghdadi, reported in PLD 1988 SC 622, are that the appellant was removed by WAPDA. His removal order was converted by the Tribunal looking to his long service to retirement from service. WAPDA filed appeal which was allowed by the Supreme Court and the judgment of the Tribunal was set aside and the order of the Authority i.e. WAPDA was restored. In case of WAPDA v. Sh. Zulfiqar Ali and others reported in PLD 1988 SC 693, the validity of the orders of Tribunal altering penalty of removal from service to retirement was examined. 1n this judgment the view taken in Shah Imroze's case (1986 SCMR 840) was also discussed and it was held that the Tribunal after examining all the relevant factors can set aside the order passed by the Authority when the order under section 17(1‑A) passed by the Authority is mala fide and tainted with bias and not passed with bona fide. In the case of WAPDA v. Sh. Zulfiqar Ali and others, for conversion of penalty the case was remanded to the Tribunal and it was held that it was within the jurisdiction of the Tribunal to consider that the orders should not be arbitrary.

11. It has been stated in the foregoing paragraphs that cases of others, namely M/s. Saeed Malik, B&AO, Muhammad Hanif, Divisional Accountant and Muhammad Jamil Bhatti, Divisional Accountant, A. Latif Qureshi, Divisional Accountants were in the same category (b) for which the recommendation was for their removal from service. It is argued that in case of Muhammad Hanif at S.No.7 in spite of recommendation of removal, action was not taken against him when his XEN Muhammad Makhdoom Tariq Mufti was removed and his appeal has been dismissed by the Supreme Court. Mr, Muhammad Jamil Bhatti, Divisional Accountant who was working with Mr. Zamir Hussain Bhatti, Executive Engineer and his name was in the same category at S.No.10, was not removed and only one increment was stopped. Mr. A. Latif Qureshi at S.No.11 was removed. His name was also in category (b) and was found guilty of the following actions: (1) Splitting of bills in order to bring within the financial power of the Executive Engineer. (2) Purchase of items which were purchase-able only centrally and for the Executive Engineer. (3) Acceptance of higher rates. (4) Purchase of certain items without administrative approval and technical sanction. (5) Purchase of unnecessary and excessive stores by the Executive Engineer without regard to the vigilant increase in work for which he was not competent. (6) Failing to check and object properly. He filed appeal before the Federal Service Tribunal. The Tribunal examined his case and the powers of the Divisional Accountants and it was held that with regard to the financial powers‑ of the Executive Engineer, originally the Executive Engineers had the power of purchase upto the value of Rs.10,000, and administrative approval and technical sanction does not fall under the purview of Accounts Checking. The Tribunal in these circumstances was of the opinion that there may be some sort of negligence of the part of the appellant (who was Divisional Accountants) which was not successfully explained but it was not a fit case for taking the drastic action under Section 17(lA) against an officer who had a brilliant record and all officers under whom he served, had held high opinion of him. His appeal was allowed and Abdul Latif Qureshi was reinstated with consequential benefits. The WAPDA challenged the decision, in appeal, and the Supreme Court in a case reported in 1987 SCMR 1348, dismissed the appeal of WAPDA and observed that case of Abdul Latif Qureshi is almost same as that of Muhammad Rashid whose appeal was allowed by the Tribunal and the appeal of WAPDA in the Supreme Court was dismissed. The case is reported in 1986 SCMR 588 (WAPDA v. Muhammad Rashid). Mr. Muhammad Rashid was also Accountant and the powers of the Accountants were taken into consideration in that case. In the same manner and on the same charges, the respondents did not take any action against Mr. Muhammad Hanif, Divisional Accountant whose name is at S.No.7 in category (b). Furthermore, Muhammad Jamil Bhatti at S.No.10 on the same charges who was also Accountant, in his case only one increment was stopped. The action of the WAPDA in respect of M/s. Muhammad Hanif and Muhammad Jamil Bhatti, Divisional Accountants clearly indicate that the cases of the appellants have been singled out and dealt with mala fide and thus it was not a bona fide action. Comparing to the cases of M/s. A. Latif Qureshi, Muhammad Rashid, Muhammad Hanif and Jamil Bhatti, who were all Divisional Accountants, doing the same job and come in the same category. They are in service whereas the appellants have been thrown out of job. The case of one Rao Ziledar Khan was also before the Inquiry Committee and there were some observations of the Chairman, WAPDA and he was also recommended for removal under section 17(1‑A) and accordingly was removed. His appeal was accepted by the Tribunal on the ground that there was no order of Full Authority. He was reinstated into service, with the remarks that the WAPDA was at liberty to initiate fresh proceedings in accordance with law. The appeal of WAPDA in the Supreme Court did not succeed. But till today the WAPDA did not initiate fresh proceedings against him and he is still serving and got promotion along during this period. To demonstrate the indifferent treatment meted out to the appellants herein, there is also a case of Mr. Mushtaq Ahmed, Accountant. He was also removed by WAPDA under section 17(1‑A). The charges against him were that he had not controlled the activities of the Executive Engineer who committed certain irregularities. He filed Appeal No.19(L)/83 before this Tribunal. The Tribunal accepted his appeal and reinstated him into service, on the ground that the appellant being an Accountant was not supposed to have a supervisory role over to acts of the Executive Engineer. The WAPDA did not file any appeal before the Supreme Court and accepted verdict of the Tribunal.

12. In all these three appeals, the appellants have specifically alleged mala fide on the part of WAPDA, as was done in the above‑referred cases of M/s. A. Latif Qureshi, Muhammad Rashid and Rao Ziledar Khan. The Tribunal after due consideration allowed their appeals and the same are the reasons for extending benefits to the appellants in these appeals as there is nothing on the record that during the entire career of the appellants they ever indulged in corruption or bribe etc. and the same view was taken in A. Latif Qureshi's case.

13. The intention of legislature for making provisions of Section 17(lA) in the WAPDA Act for taking immediate action without giving notice or assigning any reason is that in the case of such an important matters like electricity, the Authority be empowered to take summary action to avoid lengthy proceedings due to which the entire country may not suffer. These summary powers are with that intention and should' not be allowed to be misused as to deprive the employees of WAPDA affording of opportunity of natural justice which is a fundamental right of every citizen. It is in that context that the Shariat Appellate Bench of the Supreme Court in the case reported in PLD 1987 SC 304 decided that civil servants under section 13(ii) of the Civil Servants Act, 1973 should not be retired without show‑cause notice. Similarly, in the WAPDA Act, amendment has been suggested (relevant page 358 of the reported case). Such plenary powers have been bestowed to the WAPDA to eliminate and weed out such employees who are corrupt or have the reputation of being corrupt so that such persons should not escape punishments for lack of evidence; but it cannot be the intention of the legislature that discretion should be exercised arbitrarily, and that every case has to be dealt with in its true perspective. As discussed above, there was no charge of corruption against the appellants, and at the most, negligence could be attributed to them. As such action under section 17(1‑A) of the WAPDA Act, 1958 was not justified on the charges when four persons are in service and the impugned orders of removal of the appellants are not free from mala fide and bias and not bona fide:

14. Upshot of above discussion is that on identical charge and same recommendation of Enquiry Committee for removal, the WAPDA had not taken action against Mr. Muhammad Hanif Sr. No. 7 of category (b). In case of Mr. Jamil Bhatti. (Sr.No.10) only one increment was stopped. The appeal of Mr. Abdul Latif Qureshi of same category was allowed by this Tribunal against removal under section 17(1‑A) of WAPDA Act, 1958. The appeal of WAPDA was dismissed by Supreme Court and case is reported in 1987 SCMR 1348. The facts of WAPDA v: Muhammad Rashid are identical. Similarly the case of Mr. Mushtaq Ahmed appeal was accepted, in the identical circumstances by the Tribunal but the WAPDA did not file appeal before the Supreme Court against that judgment, and remained extended with the decision. Therefore, for the reasons stated above, we allow the three appeals and reinstate the appellant into service with all back benefits. A.A./792/Sr.F Appeal accepted.