1993 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN).‑‑‑All the five appeals are of identical nature. They have been heard together. They are decided by this one judgment.

2. The appellants, namely M/s. Muhammad Aslam, Abdul Khaliq, Asif Shah, Saleh Muhammad and Shoaib Imran, were employed in different ranks with the WAPDA and were stationed at Quetta. They were removed from service under the provisions of subsection (1‑A) of section 17 of the WAPDA Act, 1958 under separate orders of identical nature made on 27‑1- 1990. Each of them filed appeal on 1‑3‑1990.

3. The broad facts in the background are concisely stated in the impugned orders. The order impugned in Appeal No. 70(Q)/90 is reproduced below, while the orders impugned in other appeals are literally the same except the name of the concerned employee: O/O G.M. (M&S) WAPDA, 320 WAPDA HOUSE, LAHORE. M & S/AD (REV)05001/857/419‑23 27‑1‑1990 Pursuant to judgment of Supreme Court (Shariat Appellate Bench) and in exercise of powers conferred on it, under section 17(1‑A) of WAPDA Act, 1958, the Authority served show‑cause notice upon Mr. Muhammad Aslam, Line Superintendent 1, Office of Executive Engineer, SS&T Division I, GSO WAPDA, Quetta, for resorting to rowdyism and demonstration against Director (Admn.), Quetta, pressuring and assaulting the Superintending Engineer (GSO) Circle WAPDA, Quetta for cancellation of his transfer order and holding illegal meeting in the premises of AEB Quetta. He did not submit his defence reply to the show‑cause notice. Consequently, his case was also investigated by Directorate of Investigation at the instance of Ministry of Water and Power and he was held guilty of the above charges. Later, the Authority heard him in person. Finding his explanation unsatisfactory, the Authority has decided to remove Mr. Muhammad Aslant LS‑I from service with immediate effect by giving him 30 days pay in lieu of notice. FOR AND ON BEHALF OF AUTHORITY (Sd.) MUHAMMAD ANWAR, Deputy Director (Confidential). Mr. Muhammad Aslam, S/o Hukam Din LS‑1, WAPDA House No. 275, White Road, Quetta.

4. The appellants have challenged the respective orders on the grounds that they were passed in abuse of the power vested in the Authority under the provisions of section 17(1‑A) of the WAPDA Act, 1958 as to deprive them of their service on account of their demanding legitimate rights of their employment. They have labelled the impugned orders as illegal and without lawful authority. They have alleged that the Authority took oppressive action against the appellants as to deter them from claiming their rights as the employees of the Authority. They have agitated that the charges levelled against them should have been inquired into under the WAPDA Employees (Efficiency and Discipline) Rules, 1978, by which they could have put up their defence and refuted the charges. The same grounds have been urged by the learned counsel for the appellants at the hearing of the appeal. He also urged that the action taken against the appellants was mala fide. He cited certain authorities which will be referred to hereinafter.

5. The respondents have resisted the appeals. They have contended that the appellants had resorted to rowdyism, so much so, that they indulged in assaulting the officers in the service of the Authority and holding illegal meetings to press their illegal demands. They have advanced the pica that the appellants had created such a situation that the Authority had to resort to the powers vested in it under section 17(1‑A) of the WAPDA Act, 1958. They have denied the allegations that there was any mala fides behind the action taken against the appellants. The learned counsel representing the respondent Authority reiterated the same grounds in opposition to the appeals and relied upon certain cases which will be referred to hereinafter.

6. As stated above, the impugned orders were passed by the Authority in exercise of powers vested in it under section 17(1‑A) of the WAPDA Act, 1958; which is reproduced below:‑ (1‑A) Notwithstanding anything contained in subsection (1) or any rules made, or orders or instructions issued, by the Authority, or in the terms and conditions of service of any person employed by, or serving under the Authority, the Authority may, at any time, retire or remove from its service any person without assigning any reason, after giving him not less than thirty days' notice or pay for the period by which such notice falls short of thirty days." The provisions of section 17(1‑A) of the WAPDA Act, 1958 have been examined by this Tribunal as well as by the Supreme Court in several cases. The leading case on the interpretation and scope thereof is the decision of the Supreme Court in the case of WAPDA v. Muhammad Arshad Qureshi and others, reported in 1986 SCMR

18. The Supreme Court has magnified `the exercise of powers under subsection (1‑A) of section 17 of the WAPDA Act, 1958 as under:‑ "

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 the power, the postulate of legislative authorisation 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 the instant cases, the competency of the Authority in having exercised its power under subsection (1‑A) of section 17 of the WAPDA Act, 1958 and the amenability of the appellants to the exercise of such power in respect of them are not disputed; but what is alleged is that the power so conferred was exercised mala fide for the reason that the appellants had agitated for achieving recognition of their entity as a body in the form of a Union of a section of the employees. There is no dispute that the action against the appellants was taken on the basis of their agitation for giving due recognition to the Union of the workers formed by them and their holding the positions of office‑bearers. Forming of the Union in an industrial establishment is provided under the Industrial Relations Ordinance, 1969 and certain procedure is provided thereunder. The law does not permit the workers to resort to violence or to adopt rowdyism or to indulge in any unfair labour practice as to press their demands but a procedure has been laid down for vindication of their rights. In the instant cases, the respondents have alleged that the appellants had resorted to violence inasmuch as that they badly assaulted two of the officers of the Authority and held unlawful meetings in the office premises and a criminal case had to be filed with the police. Of course, the appellants have denied that they had resorted to any rowdyism or violent activities but the fact remains that there was tussle between the appellants party and the respondent Authority over the recognition of a Union formed by a section of the workers represented by the appellants and the circumstances had gone to the extent that the Management had to make report to the Police of an incident of alleged assault on their officers. The extraordinary power envisaged under subsection (1‑A) of section 17 of the WAPDA Act of removing or retiring an employee in a summary manner laid down thereunder seems to have been conferred on the Authority to meet a situation causing irresistible interruption or interference in the affairs of the Authority. No doubt, the Authority did have alternate course of taking proceedings against its employees under the WAPDA Employees (Efficiency and Discipline) Rules, 1978; but the Authority did have discretion to have proceeded against the appellants either under the E&D Rules or taking action under the provisions of section 17(1‑A) of the WAPDA Act, 1958. The learned counsel for the appellants urged with emphasis that the Authority had deviated from guidelines laid by itself for making resort to the provisions of section 17(1‑A), where under the power was to be exercised in the cases of employees who had established reputation of being corrupt or were reasonably considered to be corrupt or who were pers1stently inefficient or the employees who were tried of criminal charges but had escaped punishment for lack of sufficient evidence or for reason of the witnesses having been won over etc. or against those employees who had two or more punishments to their discredit and had not reformed themselves. These guidelines were issued in the year 1982. The scope of the power was stretched further by the Authority itself and there was no bar under law for invoking the provisions of section 17(1‑A) of the WAPDA Act in a situation of the nature alleged in the instant cases. The learned counsel for the appellants placed reliance on the cases reported in PLD 1964 SC 21; PLD 1974 SC 291; PLD 1987 SC 421; 1989 SCMR 895; 1990 MLD 194 and 1991 SCMR 628 on the proposition that guidelines/instructions laid down by the Authority and having applicability to a larger extent, were deemed to be statutory rules. Of course, the guidelines/instructions issued by competent authority of a wide applicability are made for giving effect to in letter and spirit but they are issued for the guidance of the subordinate authorities and the competent authority is not thereby deterred from extending the provisions of law to other cases within its jurisdiction. In the instant case, the Authority itself approved taking action against the appellants under the provisions of section 17(1‑A) of the WAPDA Act and that was done within the sphere of the power conferred on the Authority by law.

7. The learned counsel for the appellants also contended that the Authority had made discrimination in removing the appellants from service by invoking its powers under section 17(1‑A) of the WAPDA Act only against the appellants, whereas four other employees, involved in the same charges, were proceeded against under the Efficiency and Discipline Rules and awarded minor punishments. This fact was not controverted by the learned counsel for the respondents but he argued that the other four employees were proceeded against under the E&D Rules because the role played by them was not of as serious nature as that played by the appellants and by doing so the Authority did not indulge in making discrimination. He made pointation of the involvement of the appellants in having indulged in violent activities. The explanation put forth by him appeared quite reasonable. The learned counsel for the appellants also urged that the appellants were entitled to full pay for thirty days for the notice period as provided in subsection (1‑A) of section 17 of the WAPDA Act but they were allowed only basic pay. The learned counsel for the respondents did concede that the appellants were entitled to the full pay they would have drawn during the notice period of thirty days and in case they were not paid full pay, they could lodge claim for the difference of pay. The wrong determination of pay for the notice period did not necessarily invalidate the impugned orders.

8. It is evident from the impugned orders that the authority did serve on the appellants a show‑cause notice in the light of the decision of the Federal Shariat Court upheld by the Shariat Appellate Bench of the Supreme Court in the case reported in PLD 1987 SC 304 and the appellants were afforded opportunity of hearing in person before making the orders of their removal from service. Thus, the impugned orders were passed in accordance with the provisions of section 17(1‑A) of the WAPDA Act, 1958.

9. The appellants have alleged mala fides behind the action taken against them under the impugned orders. They have not furnished particulars of the mala fides in the memo of appeal. The learned counsel for the appellants, during the course of arguments, wanted to place on record a bunch of documents as to substantiate the ground of mala fides. The production of the documents at that stage was opposed by the learned counsel for the respondents. However, the learned counsel for the appellants was allowed to make his submissions on the ground of mala fides and he was also permitted to file the relevant documents in support of his arguments. The learned counsel for the respondents also was allowed to refute the arguments made on the ground of mala fides and produce documents and he did it. The learned counsel for the appellants urged that the appellants were punished for ventilating their legitimate grievances against the WAPDA and the action taken against them was, therefore, mala fide. He also made reference to certain orders whereunder appellants Muhammad Aslam and Abdul Khaliq were transferred to d1stant places and, alleged that that was an action of victimisation of the appellants. The learned counsel for the respondents contended that the transfer orders were made in the public interest and not as a measure of victimisation of the appellants. The transfer orders passed during the period of the agitation by the appellants might not have been made as a matter of routine but they seem to have been made in the interest of good admin1stration and they could not be said that they were made as a matter of victimisation of the concerned officials.

10. All the above events, no doubt, indicate that certain strict orders were passed by the Authority or its subordinate officers but they did not tantamount to mala fides behind the action taken against the appellants in accordance with the provisions of section 17(1‑A) of the WAPDA Act, 1958.

11. It follows that the impugned orders of removal of the appellants from service were made by the competent authority in exercise of powers conferred under subsection (1‑A) of section 17 of the WAPDA Act, 1958 and there was no element of mala fides behind those orders but they were made in the situation of violent attitude adopted by the appellants in pressing their demands for recognition of a Union formed under their leadership by some of the workers. Thus, the orders are not liable to be set aside and the appeals are dismissed with no order as to costs. A.A./756/Sr.F Appeals dismissed.