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Appeal No. 433 (L) of 1982, decided on 19th May, 1983.

‑‑S. 17 (1‑A)‑Removal or retirement from service without assigning reasons‑Action to be taken for good, sufficient and convincing reasons and not in arbitrary manner‑Removal order passed on basis of alleged misconduct for which initially disciplinary proceedings recommended by competent authority‑Member (Power) instead of taking disciplinary proceedings as recommended taking decision for removal and thereafter case put up before Authority for orders- Decision of member (Power) and its approval contrary to policy guidelines given by Authority vide Memo. No. GMA (Admn.)/AD (Rev.)/050014 (A)/27049/27049‑268 dated 17‑4‑1982 regarding cases to which were to be put up for action under S. 17 (1‑A) Such action, held, open to objection as arbitrary and discriminatory- Accused having been punished for involvement in specific offence which not enquired into in regular departmental proceedings and without clear cut and specific findings, order of removal under S. 17 (1‑A), in circumstances, held, a mere cloak to shield nature of action taken hence could not be considered to be genuine and bona fide‑Such colourable exercise of powers by competent authority held, makes the action a nullity in law‑Retirement order, in circumstances, set aside by Service Tribunal‑Service Tribunals Act (LXX of 1973), S. 4.

Mian Mahmood Huslain for Appellant.

Faheem Ejaz for Respondent.

Date of hearing : 19th April, 19,83.

The appellant, who was appointed as a Junior Clerk in 1975 and, after promotion as U.D.C. in 1981, was working as Sub‑Divisional Clerk in Mustafabad Sub‑Division (Electrical), WAPDA, Lahore, was retired from service by an order dated 10th April, 1982, which is reproduced below:

"Water and Power Development Authority.

No. AD (REV)/OSOOI/5051453 Dated 10th April, 1982.

In exercise of the powers conferred on it under section 17 (1‑A) of the WAPDA Act, 1958, the Authority has decided to retire Mr. Mumtaz Hussain, Sub‑Divisional Clerk of Mustafabad Sub‑Division, WAPDA. Lahore, from service with immediate effect, without assigning any reason, by giving him 30 days' pay in lieu of notice,

For & on behalf of the Authority

(Sd.)

(Muhammad Anwar),

Assistant Director (Revenue)

WAPDA.

2. Against this order, he preferred an appeal before this Tribunal under section 4 of the Service Tribunals Act, 1973 which was admitted on 19‑8‑1982 and, having come up for regular hearing on 18‑4‑1983. is being disposed of by this order.

3. Among other points urged on behalf of the appellant, it stated that the order of premature retirement passed against him arbitrary and discriminatory 'and was not passed in a conscientious and fair manner, that it was passed in complete violation of the Authority's own instructions relating to cases that were to be taken up for action under section 17 (1‑A) of the WAPDA Act and that the Authority had not applied its mind to the facts of the case because no meeting of the Authority was held when the decision was taken.

4. After hearing both the parties in detail and perusing the relevant documents, we have come to the conclusion that there is no force in the allegation made by the appellant that no meeting of the Authority was held at the time when decision was taken to retire him from service. The respondent‑Department produced before us. a photocopy of me minutes of the meeting of the Authority held on 6th April, 1982, from which it appears that a summary, dated 4‑4‑1982, prepared by the Assistant Director (Review) was to be put up at the meeting of the Authority held on 6th April, 1982, in which action for removal/ retirement under section 17 (1‑A) of WAPDA Act was recommended in respect of 10 employees, including the appellant, ranging from the rank of Senior Engineer down to that of Assistant Lineman. The summary was discussed in the meeting of the Authority, as per minutes recorded on 6th April, 1982 by the General Manager (Administration) and confirmed by the. Members and the Chairman, between 6‑4‑1982 and 8‑4‑1982. We, therefore, reject this objection put forward by the appellant.

5. As regards the other two points, our findings are in favour of the appellant as explained below.

6. Although section 17 (1‑A) of the WAPDA Act empowers the Authority to remove or retire from service an employee of the organization without assigning any reason, the Tribunal has taken the view, which is in keeping with its decisions in respect of other similar cases, that, although no reason need be assigned for the action taken, it is expected that, when ever action is taken under the said provision of the law it would be‑eke for good, sufficient and convincing reasons and not in an arbitrary manner. In the instant case, the order of removal from service was passed on the basis of a report made by the Director (Commercial) Liaison, WAPDA, in which he had suggested disciplinary action for failure to enter, in the official documents, the application form for providing an industrial connection to the applicant. The Director had recommended disciplinary action, but the decision for removal was taken by Member (Power) and, thereafter, the case was put up to the Authority for orders. The decision of Member (Power) and its approval by the Authority were contrary to the policy guidelines given by the Authority itself in this behalf. The Office Memorandum (No. G. M. A. (Adorn.)/A. D. (R E V)/050014 (A)/27049/ 27049‑268), dated 17th April, 1982, issued over the signature of the General Manager (Administration), contained instructions regarding the cases which were to be put up for action under section 17 (1‑A) of the WAPDA Act. According to these instructions, recommendations were to be made in respect of the following categories of cases :‑--

(i) Cases of employees who had established reputation of being corrupt, or who were reasonably considered to be corrupt and/or were persistently inefficient.

(ii) Cases of those who had been tried in courts on criminal charges but had escaped punishment for lack of sufficient evidence, or for reason of witnesses having been won over or on technical grounds.

(iii) Employees who had two or more punishments to their discredit and had not reformed themselves.

So far as the appellant is concerned, his case did not come under any of the above, categories and, therefore, it was unfair for his case to be put up before the Authority for retirement under section 17 (1‑A) of the WAPDA Act. The action, therefore, taken against the appellant in contravention of the Authority's own instructions has rightly been assailed as arbitrary and discriminatory, as well as violation of the Authority's own instruction's in the matter. We, accordingly, uphold this objection.

7. Legally also, we find that the order is vulnerable, because it is not a case of retirement simpliciter but one which has been resorted to in order to facilitate action of a disciplinary nature which could not be successfully conducted in the ordinary course of things. As is clear from the relevant record, the appellant was punished for involvement in one specific offence which also had not been enquired into in regular departmental proceeding resulting in a clear‑cut and specific finding. Therefore, the order under section 17 (1‑A) was a mere cloak to shield the nature of the action take and cannot be considered to be genuine and bona fide. The Tribunal has, in so many cases, held that colourable exercise of powers by a competent authority, makes the action a nullity in law and we see no reason why a different view should be taken in the instant case.

8. In the light of the above, we accept the appeal and set aside the order of retirement from service passed against the appellant. We, however, make it clear that it will be open to the concerned authorities, if they so desire, to start regular proceedings against the appellant and decide the matter on merit and according to the prescribed procedure.

9. No order as to costs.

Appeal accepted.

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