Find a Lawyer

Appeal No 121(K) of 1982, decided on 18th September, 1984.

‑‑‑Administrative instructions issued by authority competent to alter or amend rules‑‑Effective and binding as statutory rules‑‑Amendment in rules or notification by authority having powers of subordinate legislation (rule making) cannot operate retrospectively‑‑Dispute relating to admissibility of pension to WAPDA employee removed/retired under S.17(1‑A) of West Pakistan Water and Power Development Authority Act, 1958‑‑Office Order of Authority, dated 25‑7‑1979 containing decision that person removed under S.17(1‑A) of Act, 1958, was entitled to pensionary benefits, held, an order making a rule‑‑Subsequent notifica tion, dated 28‑6‑1982 amending WAPDA Pension Rules disentitling such persons of pensionary benefits, held, cannot operate retrospectively‑ Refusal of pension to employee removed prior to issuance of notification, dated 28‑6‑1982, held, unjustified and legally ineffective.

P L D 1961 SC 105; P L D 1964 SC 21; P L D 1965 S C 633 and P L D 1964 S C 494 rel.

‑‑‑S.17 (1‑A)‑‑Interpretation of S.17(1‑A)‑‑Words "retire" and "remove from its service"‑‑Relate respectively to expressions "any person employed by" and "serving under the Authority"‑‑Authority empowered to retire only a WAPDA employee and to revert only a person serving with WAPDA on deputation to parent department‑‑Expression "remove from its service" means can be removed from service of WAPDA and not termination of incumbent's own service‑‑Removal from service‑‑A major penalty‑‑Can be imposed only after following procedure prescribed in Efficiency and Discipline Rules‑‑‑It would be too much to suggest that a WAPDA servant can be removed from service as a penal measure in an arbitrary and brute manner under S.17(1‑A)‑‑Such view, held, contrary to Constitution of Pakistan, 1973, law and injunctions of Islam WAPDA servant, held, can only be retired and cannot be removed from service as a penal‑measure‑‑Power of removal from its service under S.17(1‑A) can be exercised by Authority in respect of a person serving under it but not being its employee‑‑WAPDA servant removed under S.17(1‑A), held, entitled to pension and other retirement benefits.

Hameed Siddiqui for Appellant.

Zia Pervaiz for Respondent.

Date of hearing: 31st July, 1984.

.‑‑ The facts giving rise to the present appeal, in brief, are that the appellant while posted as Assistant Accountant in the Office of the Resident Representative, WAPDA, Karachi, was removed from service purportedly in exercise of the powers conferred on the Authority under section 17(1A) of the WAPDA Act, 1958, vide order, dated 2‑6‑1977. He agitated against his removal by filing an appeal before this Tribunal which was dismissed on the ground of limitation.

2. A petition for special leave to appeal against the order of this Tribunal was then filed by the appellant in the Supreme Court which was also dismissed. Thereafter, losing hope for reinstatement, the appellant made an application to the Respondent‑Authority for grant of pension in May, 1980. The pension case of the appellant was then processed in the Office of the Respondent‑Authority. The Senior Budget and Accounts Officer of the Respondent‑Authority vide his letter, dated 19‑11‑1981 submitted the pension case duly completed to the General Manager Finance of the Respondent‑Authority. However, vide Director (Admn.) letter, dated 4‑8‑1982 it was intimated to the appellant that in accordance with the Notification, dated 28‑6‑1982 the WAPDA employees removed under section 17(1A) of the WAPDA Act are not entitled for pension. The appellant agitated against the said decision by way of the departmental representation, dated 31‑8‑1982 contending that he could not be governed under the said Notification, dated 28‑6‑1982. The said representation was turned down as intimated to the appellant vide Manager Finance letter, dated 2‑11‑1982. The appellant then filed the present appeal before this Tribunal on 29‑11‑1982.

3. It was mainly contended on behalf of the appellant that he was removed under section 17(1A) of the WAPDA Act in 1977, and vide decision of the Authority contained in their Office Order, dated 25‑7‑1979 a person removed under section 17(1A) is held to be entitled to pensionary .benefits. It was urged that the decision contained in Notifica tion, dated 28‑6‑1982 does not have a retrospective effect and cannot be applied to the case of the appellant. On the other hand, the stand taken by the Respondent‑Authority is that the removal of the .appellant cannot be equated with compulsory retirement. The Authority's Office Order, dated 25‑7‑1979 are the administrative instructions and cannot supersede the prescribed rules which at the time of removal of the appellant, do not contain any provision entitling him to pensionary benefits. Vide Notification, dated 28‑6‑1982 the said Pension Rules were amended retrospectively providing that a person removed under section 17(1A) of the WAPDA Act shall not be entitled to any pension.

4. It is an admitted position that the Authority's decision contained in office Order, dated 25‑7‑1979 entitles the appellant to pensionary and other retirement benefits. The stand taken by the Respondent Authority that their said decision was merely administrative instructions and does not have the force of rules, is devoid of any substance. For, it is a well established legal position that even the administrative instruc tions issued by an authority competent to alter and amend rules can be as effective and binding as statutory rules. If any authority is needed on the point P L D 1961 S C 105 and P L D 1964 S C 21 may be referred to. Indeed a perusal of the Office Order, dated 25‑7‑1979 clearly shows that the decision of the Authority contained therein was arrived at after a thorough consideration of the question as to whether the WAPDA employees removed under section 17(1A) are eligible for pension and other retirement benefits. Needless to say that the Authority was fully competent to make or amend the rules of service. We are thus left in no doubt that the said decision of the Authority clearly intended to make a rule entitling a person removed under section 17(1A) to the pensionary benefits, and we construe the Office Order dated 25‑7‑1979 as an order making a rule. Also the stand of the Respondent Authority that the amendment carried out in Pakistan WAPDA Pension Rules by the Solidification, dated 28‑6‑1982 is to operate retrospectively, has no legs to stand on. It is also a well‑settled legal position that it is only a legislature which could give retrospective effect to that it ordains. According to a series of authorities of our superior Courts, amendment in rules or notifications does not operate retrospectively even if it is so mentioned in the amending provision. Admittedly it was a notification by the WAPDA in exercise of the powers of subordinate legislation and such power does not include a power to give retrospective effect. A power to legislate with retrospective effect has never been accepted as included in a power of subordinate legislation. It was affirmed by the Honourable Supreme Court in the cases reported as PLD 1965 SC 633 and P L D 1964 SC 494 that a notification by the Government could not have retrospective effect. This being the position, the action of giving retrospective effect to the amendment carried vide Office order, dated 28‑6‑1982 was absolutely incompetent and without lawful authority.

5. The foregoing discussion leads us to an irresistible conclusion that the impugned decision refusing pension to the appellant on the basis of the Notification, dated 28‑6‑1982 is unjustifiable and unsupport able on any ground and is accordingly declared to be illegal, incompetent, erroneous and legally ineffective.

6. Though the aforementioned reasons are quite sufficient for accepting the present appeal, we have approached the matter from another angle also. Section 17(1A) of the WAPDA Act reads as under:‑

"(1A) 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 assign g any reason, air giving not less than thirty days' notice or pay for the period by which such notice falls short of thirty days."

Though it is not very clear from the language employed in the provision, the only correct interpretation thereof would be that the words "retire" and "remove from its service" relate respectively to expression "any person employed by" and "serving under the Authority". In other words the legislature intended to empower the Authority to retire only, a WAPDA servant and to revert only a person serving on deputation with WAPDA to his parent department or organization. Indeed, by no stretch of law or imagination an employee of other organization department serving on deputation with the WAPDA could be retired by WAPDA, rather, could only be sent back to his parent department or organization if his services are no longer required by the WAPDA for one reason or the other. The only possible construction of expression "remove from its service" can be removal from the service of the WAPDA and not the termination of incumbent's own service.

7. It is to be further seen that the word "removal" has not been defined anywhere in the relevant statutes. Of course, in the WAPDA Employees (Efficiency and Discipline) Rules 'removal' has been prescribed as one of the major penalties which undeniably can be imposed only after following the procedure prescribed in the said Rules. Thus removal from WAPDA service under section 17(1‑A) and removal as a penal measure is quite different and distinct and can in no way, be equated with each other. It would be too much to suggest that a WAPDA servant can be removed from his service as a penal measure in an arbitrary and brute manner under section 17(1‑A) of the WAPDA Act. Under the Constitution and law a punishment cannot be imposed upon a person unless he is provided a reasonable opportunity at least to explain his conduct. There can again be no doubt that the legislature never intended to confer by section 17(1‑A) the power of removal from service of a WAPDA servant as a penal measure. The opposite view, in our opinion, would clearly be contrary to the Constitution, the law and the Injunction of Islam, which we are duty bound to follow.

8. The above analysis of the provision makes it abundantly clear that under section 17(1‑A) of the WAPDA Act, a WAPDA servant can only be retired and cannot be removed from service as a penal measure, while, power of removal from its service under the said provision can be exercised by WAPDA only in respect of a person serving under it but not being its employee. There, therefore, remains no option but to hold that the Respondent‑Authority acted illegally and incompetently in taking a decision to disentitle a person removed under section 17(1A) of the WAPDA Act to the pensionary and other retirement benefits. May we expect the WAPDA to reconsider its said decision in the light: of our above observations.

9. As a result the present appeal is allowed, the impugned decision is set aside and it is directed that the appellant be allowed pensionary and other retirement benefits in accordance with the decision of the WAPDA contained in office Order, dated 25‑7‑1979 and disregarding the Notification, dated 28‑6‑1982. There shall be no order as to costs.

A. E. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.