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Civil Petition for Special Leave to Appeal No. 160‑R of 1985, decided on 28th June, 1986.
(From the judgment/order of the Federal Service Tribunal, Islamabad, dated 9‑12‑1984 passed in Appeal No. 320(R) of 1984).
Constitution of Pakistan (1973)‑‑
‑‑‑Art. 212 (3)‑‑West Pakistan Water and Power Development Authority Act (XXXI of 1958), S.17 (1‑A)‑‑WAPDA employee‑‑Misconduct‑‑Removal from service when departmental inquiry had been started‑‑No allegations of mala fides made‑‑Validity of action‑‑Departmental inquiry instituted against employee and instead of taking that procedure to its logical end, employee was removed from service‑‑Order of removal set aside by Service Tribunal and employee re‑instated‑‑Leave to appeal granted to consider whether in absence of any allegations of mala fides, coram non judice and in view of law laid down by Supreme Court, action was rightly taken by WAPDA under S.17 (1‑A) of Act (XXXI of 1958) even when departmental inquiry had been started.
WAPDA v. Saeed Ahmad 1986 S C M R 725 and Abdul Karim v. The West Pakistan Province P L D 1956 S C (Pak.) 298 rel.
Asif Hussain Siddiqui, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 28th June, 1986.
MUHAMMAD AFZAL ZULLAH, J.‑
‑Leave to appeal has been sought by Water and Power Development Authority from judgment, dated 9‑12‑1984 of the Federal Service Tribunal; whereby, the order of removal of the respondent by the petitioner under section 17 (1‑A) of the WAPDA Act, 1958, was held to be in colourable exercise of power and was thus set aside with the direction that the respondent shall be re‑instated in service with consequential benefits on the assumption that the said order was never passed. '
The main reason which influenced the learned Members of the Tribunal was that an inquiry for misappropriation and misconduct had been instituted against the respondent and instead of taking that procedure to its logical end a short‑cut method of removal was adopted under 17(1‑A) which according to the learned Members had resulted in stigmatisation of the respondent. In these circumstances, the proper course as held by the Tribunal was to take the inquiry proceedings under the Efficiency and Discipline Rules to their logical end and not to take any action under section 17(1‑A) as the same was not permissible.
Learned counsel for the petitioner has relied on a judgment of this Court in WAPDA v. Saeed Ahmed 1986 S C M R 725. In particular reliance has been placed on the following observations at page 726 of the Report:
"Similarly, it cannot be said that every case of irregularity committed by an employee must be followed by a departmental inquiry under the Efficiency and Discipline Rules and action under section 17 (1‑A) is not permissible. Actually, it has been held that such an action is permissible even where departmental inquiry has beep started Abdul Karim v. The West Pakistan Province P L D 1956 S C (Pak) 298. The only ground on which such an order could be challenged was of mala fide and coram non judice."
Learned counsel has contended that there was no allegation of mala fides nor it was the case of coram non judice, therefore, it is covered by the afore‑quoted observations. That being so, action under section 17(1‑A) was rightly taken by the petitioner. This question needs consideration. Leave accordingly is granted to examine the same.
The second question raised by the learned counsel regarding limitation has been concluded by the findings of fact of the Tribunal with regard to the late delivery of the copy to the respondent of the order
impugned before it.
That being so, we decline to grant leave to appeal on the point of limitation. Leave, therefore, is granted only on one point noted above.
The operation of the impugned judgment was suspended by order, dated 13‑2‑1985. It shall continue in force during the pendency of the appeal which shall be made ready on the present record with liberty to the parties to file additional documents, if necessary.
M. I. Leave granted.
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