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Civil Appeal No. K‑126 of 1980, decided on 3rd April, 1986.

(On appeal from the judgment, dated 17‑1‑1979 of the Federal Service Tribunal Camp Karachi in Appeal No. 159(k) of 1976).

‑‑‑S. 17(1‑A) & (1‑C)‑‑Removal from service‑‑Bona fide exercise of power‑‑Authority starting disciplinary action against appellant under WAPDA Employees (Efficiency and Discipline) Rules, 1975 During pendency of proceedings removed from service under S. 17(1‑A) of Act (XXXI of 1958)‑‑Order impugned‑‑Held, if, while passing order of removal Authority was found to have exercised its power not bona fide, but for some extraneous consideration, such an order would stand vitiated‑‑Impugned order being mala fide in law, set aside‑‑Constitution of Pakistan (1973), Art. 212(3).

WAPDA v. Muhammad Arshad Qureshi 1986 S C M R, 18 ref.

Kunwar Mukhtar Ahmad, Advocate Supreme Court and Shabbir Ghaury, Advocate‑on‑Record for Appellant.

Respondent No.1 : Ex parte.

Talmiz Burney, Advocate Supreme Court and A.A. Dastgir, Advocate‑on‑Record for Respondent No. 2.

Date of hearing: 3rd April, 1986.

The appellant was an Executive Engineer in the service of the Water and Power Development Authority (WAPDA) and in May, 1974 posted as Executive Engineer (Stores). On 18‑5‑1975, a part of the Regional Stores was burnt on account of fire which obviously resulted in loss to the WAPDA. The appellant was served with a charge‑sheet on 1‑12‑1975 alleging that the fire on 18‑5‑1974 was a result of the acts of omission and commission on his as per details mentioned in the charge‑sheet. The said charge‑sheet was issued to the appellant under the West Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1975 and the appellant was called upon to submit his explanation within 15 days of the receipt thereof. The appellant submitted his reply to the charge‑sheet and according to him an inquiry was held by the Director‑General (Inquiries) WAPDA but no action was taken against him as result of this inquiry, although action was taken against some other persons in connection with this incident. However, on 15‑10‑1976, he received an office order, dated 19‑10‑1976 intimating that in exercise of the powers conferred on it under section 17(1‑A) of the West Pakistan WAPDA Act, 1958 the Authority had decided to remove him from service with immediate effect on payment of 30 days pay in lieu of 30 days notice.

Aggrieved by this order, the appellant moved, the Service Tribunal for redress but this appeal was dismissed by an order of the said Tribunal, dated 26‑11‑1978. Hence this appeal, with the leave of this Court.

Action has been taken against the appellant under section 17(1‑A) of the West Pakistan Water and Power Development Act, 1958. This section reads as follows:‑‑

"(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, 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".

This provision was added by the West Pakistan Water and Power Development Authority (Amendment) Ordinance 1975 published in the Gazette of Pakistan (Extra ordinary) on the 30th of September, 1975. The effect of this amendment was that the Authority had the option to consider whether any person serving under it should be removed under section 17(1‑A) or should be proceeded against under the Efficiency and Discipline Rules.

Before the Tribunal the appellant appears to have argued that the Authority had started action under the Efficiency and Discipline Rules but finding that the allegations against him could not be proved fell back on the provision of section 17(1‑A) for removing the appellant. This argument was repelled by the Tribunal as follows:‑‑

"The position would have been somewhat different if after section 17(1‑A) was added inquiry under the Efficiency and Discipline Rules had first been ordered and during the pendency of the proceedings order of removal under section 17(1‑A) had been passed. In that case the Authority could be considered to have exercised the discretion that the employee concerned had not committed such a fault for which he could be removed from service and thereafter it would have been difficult for the Authority to explain reasons for such change of orders while the enquiry proceedings were actually pending."

The learned counsel for the appellant points out that actually the charge‑sheet was issued to him under the Efficiency and Discipline Rules on 1‑12‑1975 i.e. after the addition of section 17(1‑A) and that it was during the pendency of the said proceedings that instead of passing any order under the Efficiency and Discipline Rules, the order of removal had been passed under section 17(1‑A). Therefore, the appellant was entitled to succeed on the basis of the view expressed by the Tribunal itself, which is quoted above.

However, it remains to consider the effect of the provisions of a new subsection (1‑C) which was added to section 17 by Ordinance LXXII of 1979, which provided‑‑

"(1‑C).‑‑Any order of removal or termination of service passed by the Authority, in exercise of the power conferred by subsection (1‑ A), shall not be called in question in any proceedings taken under the Industrial Relations Ordinance, 1969 (XXIII of 1969), or the Essential Services (Maintenance), Act 1952 (LIII of 1952), or under any law for the time being in force, before any Court, Tribunal or Commission and any order passed by any Court, Tribunal or Commission after the thirtieth day of September, 1975, and before the coming into force of the West Pakistan Water and Power Development Authority (Amendment) Ordinance, 1979, setting aside or modifying or declaring any order of the authority to be void and of no effect, shall stand vacated."

The important features of subsection (1‑C) were considered by this Court in WAPDA v. Muhammad Arshad Qureshi 1986 S C M R 18 and it was observed:‑‑

"The conspicuous features of subsection (1‑C) are that it has retrospective effect, acts as an ouster clause and nullifies certain specified decisions already rendered. Unlike subsection (1‑A) it has no non obstante clause. It immediately follows a subsection conferring unqualified jurisdiction on Service Tribunal with regard to terms and conditions of service and subsection (1‑A) contains nothing else but overriding terms and conditions of service. 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 that power, the postulate of legislative authorization 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."

Thus, if while passing the order of removal the Authority is found to have exercised its power not bona fide, but for some extraneous consideration, such an order would stand vitiated. We are of the opinion that the impugned order, dated 9‑10‑1976 passed by the Authority was mala fide in law and must be set aside. The judgment of the Service Tribunal, which affirmed the same, cannot also, therefore, be sustained.

This appeal thus succeeds and is allowed, but, in the circumstances, the parties will be left to bear their own costs.

M. I. Appeal accepted.

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