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1984 Appeals Nos. 74(R), 75(R) and 76(R) of 1984, decided on 9th June,

‑‑ S. 4 read with West Pakistan Water and Power Development Authority Act (XXXI of 1958), S. 17(1‑A)‑Jurisdiction of Service Tribunal ‑ WAPDA employee ‑ Removal from ‑ service under S. 17(1‑A) of West Pakistan Water and Power Development Autho rity Act, 1958‑Within appellate jurisdiction of Service Tribunal.

‑‑ S. 17(1‑A)‑Scope‑Resort to S. 17(1‑A) merely to avoid pro ceedings of disciplinary action‑Cannot be considered proper and bona fide‑Action based on serious charges coming to light in preliminary inquiry‑Removal from service thus carrying stigma and amounting to punishment for misconduct‑Impugn ed removal order, in circumstances, held, could not be passed without due process of Efficiency and Discipline Rules and providing reasonable opportunity of defence to official concern ed‑Such action, further held, contrary to policy of Authority that "summary powers under S. 17 (1‑A) are to be exercised only in res pect of employees against whom evidence to achieve desired results by proceedings under Efficiency and Discipline Rules was not forth coming"‑Departure from policy guidelines which may or may not have force of statute, held, would certainly indicate arbitrariness and bad faith.

Syed Jamshed Ali for Appellants.

Shahid Hussain Jillani with Shabir Ahmed, D. R. for Respondent No. 1.

Date of hearing : 7th March, 1984:

‑The above .titled three appeals involving the same questions of facts and law are being disposed of by this consolidated order.

2. The relevant background giving rise to the instant appeals is that on some complaints alleging misuse of official powers in the matter of purchases of store materials, spare parts, furniture, tools and plants etc. during the financial years 1980‑81 and 1981‑82 in the Lahore Region of the WAPDA, a special audit was conducted. On the report, dated 6th October, 1982 submitted by the Chief Auditor, on the basis of afore said special audit, an Enquiry Committee consisting of the Chief Engineer (P. I. I.) as Convenor, the Director (Surveillance) and the Deputy Chief Auditor (Lahore Region) as Members was constituted vide General Manager (D) Office Order, dated 26th October, 1982 "for carry ing out a detailed enquiry". After making a thorough probe according ‑to its terms of reference, the Enquiry Committee in its detailed report held 87 officers/officials "responsible for the various lapses, omissions and commissions noticed during the enquiry" and thereby causing loss of Rs. 90,62,862 to the Authority. A break‑up thereof was also given men tioning the exact amount of the loss caused .by those officers/officials respectively. Thereon the Chairman, WAPDA, approved appointment of a Board consisting of General Manager (Admn.), General Manager (D) and General Manager (P) to review the finding of the Enquiry Com mittee and to submit its recommendation to the Authority. This Review Board in its note, dated 17th December, 1983 generally concurring in the conclusions and findings recorded by the Enquiry Committee, segregated the defaulting officer in the following three categories :‑

(a) Chairman, A.E.B., Lahore who was found by the Review Board guilty of major mistake of carelessly distributing the fund and remaining ignorant about the irregularities. According to the Review Board his control was lax and his orientation was different. However, he did act when he became aware of the irregularities but got no support from his senior subordinate officer,' which in the view of the Review Board, 'mitigates his inaction to some extent". It was, therefore, suggested by the Review Board that he should be given Chairman's Severe Dis pleasure (Record-able) and should also be transferred from the post.

(b) According to the Review Board the twelve officers mentioned in this category had 'committed very serious irregularities and have been the chief motivators and caused maximum loss to the Authority'. They were recommended to be removed from service under section 17(1‑A) of the WAPDA Act.

(c) In the opinion of the Review Board, eighteen officers mentioned in this category caused lesser financial loss to the Authority but were equally guilty in committing the irregularities" and it, therefore, recommended that action against them should be taken under the Efficiency and Discipline Rules.

(d) The three Superintending Engineers mentioned in category (d) and the officers mentioned in category (e), according to the Review Board, were 'responsible for various lapses and acts of omissions and commissions but did not act with mala fide intention' and it was, therefore; recommended that they may be served with a written warning.

3. The above recommendations were considered by the Authority in its meeting held on the 8th of January, 1984 and it was decided that :‑

(i) Instead of issuing severe displeasure/ written warning to the officers mentioned in categories (a) and (d) they should be 'suit ably admonished' through a personal letter from the Chairman, WAPDA.

(ii) Recommendation made in respect of officers mentioned in category (b) was approved.

(iii) The Review Board was desired to further examine the cases of eighteen officers mentioned in (c) category with a view to taking out those officers/officials whose acts of omissions and com missions were not of very serious nature.

(iv) In respect of officials falling in category (e) it was decided that they for the present, be kept under, strict observation, by the competent authorities to watch their future conduct'.

4. The three appellants having been included in category (b), orders for their removal from service were issued under section 17(1‑A) of the WAPDA Act, hence this appeal.

5. We have heard the learned counsel for the parties and gone through the record of the case including the proceedings and report of the Enquiry Committee.

6. The learned counsel for the Respondent‑Authority has firs "I raised a preliminary objection about the competence of the present appeal by contending that appeal against an order passed under section 17(1‑A) of the WAPDA Act does not lie to this Tribunal. It would suffice to say that similar objection had already been raised on behalf of the WAPDA but repelled by us after thorough consideration in a number of cases. For the reasons given in those cases it is held that the objection is without any substance and, as an appellate forum, this Tribunal is fully competent to entertain appeal against an order passed under section 17(1‑A) and to examine all questions of law and facts raised therein. We; therefore, proceed to consider the case on merits.

7. The learned counsel for the appellants raised several grounds of facts and law to assail the vires and validity of section 17(1‑A) and legality and propriety of the impugned orders. However, when con fronted with the position that the impugned orders were passed on the aforesaid enquiry report, his great emphasis was on the contention that if nothing was found against the appellants in the enquiry, then question of action under section 17(1‑A) did not at all arise. But if there was any' thing at all in that enquiry against the appellants, action could not be legally taken against them without giving them an opportunity to defend themselves, suggesting thereby that in such a case action could only be taken under the Efficiency and Discipline Rules. Having given our anxious consideration, we found a lot of substance in this contention. It is to be seen that the impugned action though purportedly taken under section 17(1‑A), was admittedly based on the serious charges levelled against the appellants in the enquiry report. It is our considered view and we held so earlier that resort to section 17(1‑A) of the WAPDA Act) merely to avoid the proceedings of disciplinary action, cannot be considered proper and bona fide. In the cases in hand the removal of the appellants was admittedly for specific charges and, therefore, carry a stigma with their conduct. Thus, the impugned removal clearly amounts to a punishment for misconduct which, in our view, could not be awarded unless the appellants were proceeded against under the Efficiency and Discipline Rules and were provided a reasonable opportunity to defend themselves.

8. At some previous occasion a decision of the Respondent‑Autho rity was brought to our notice that summary powers under section 17(1‑A) are to be exercised only in respect of those employees against whom evidence to achieve desired results by proceeding under the Efficiency an' Discipline Rules was not forthcoming. Th. policy of the Authority appears to be that if sufficient evidence in support of specific charges available against an employee, he must be proceeded against under Efficiency and Discipline Rules. It would thus appear that the Authority while taking the impugned action under section 17(1.A) disregarded and ignored its own policy guidelines which, it is urged, have almost the force of Rules and the Authority cannot be permitted to depart from the principle which it had laid down for itself. Such policy guideline may or may not have the force of Statute, in our opinion, departure there from would certainly indicate arbitrariness and bad faith. There fore, action taken against the appellants in an arbitrary and hapahzard manner is totally unjustified. The other aspect of the matter is more dark. For, according to the Enquiry Report, it was a glaring case of causing wrongful loss to the Authority by defaulting officers/officials to, the tune of nearly a crore of rupees. Strangely enough, however, the Chairman, A.E.B. and the three Superintending Engineers under whose supervision all the alleged bungling and serious irregularities were com mitted, were allowed to go scot free, while, the default of those officers noticed by the Enquiry Committee and the Review Board was apparently' sufficient to hold them guilty of at least inefficiency of gross/nature, which rendered them liable to appropriate punishment under the Efficiency and, Discipline Rules. Likewise, the guilt of the officers placed by the Review Board in category (c) was almost the same as was of the appellants. The question of causing more or less loss in the circumstances of the case. was absolutely immaterial. It is, therefore, simply not understandable as to why the Review Board recommended different treatment i.e. removal under section 17(I‑A) for the appellant and action under the Efficiency and Discipline Rules against the persons placed in category 'C'. This uncalled for and un-approvable discrimination aggravated when the Authority approved the removal of the appellant under section 17(1‑A) and did not approve the recommendation of proceeding against the eighteen officers under the Efficiency and Discipline Rules but rather ordered re‑examination of their cases. We could not know the result of the desired re‑examination. We are, therefore, safe in presuming that those officers/officials were also allowed to go scot free. It is further noticeable that the Authority did not approve even the recommendation, of serving with the written warning on the employees placed in category B', who were merely ordered to be kept, for the present, under strict: observation by the competent authorities. It is thus quite clear that ii the impugned action against the appellants was justified then all the remaining employees, mentioned above, were let off without any Justifi cation and valid reasons whatsoever. On the other hand, if they were rightly dealt with then this was a clear case of wrongful assassination of the appellant's service career. Indeed it is apparent on the face of the Authority's decision that action against the appellants was taken in an, arbitrary, whimsical and slipshod manner, while undue leniency, at the cost of public exchequer, was shown to the remaining accused officers/ officials. We are thus led to the conclusion that the Authority, for the reasons best known to it, has avoided the only right course of action i.e. to proceed under the Efficiency and Discipline Rules without any discrimi nation against all the persons involved in the affair.

9. For the foregoing reasons, we are clearly of the view that sec tion 17(1‑A) has been misapplied to‑ these cases and the impugned orders have not been passed in bona fide exercise of powers and, therefore, cannot be Sustained.‑ We accordingly accept the appeal, set aside the impugned order and direct that the appellant should be reinstated into service with effect from the date of the removal and with all the conse quential benefits deeming that the impugned order was never passed.

10. No order as to costs.

11. Parties be informed accordingly.

A. E. Appeal accepted.

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