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Civil Appeal No. 803 of 1984, decided on 10th December, 1985.

(Against the judgment of the Federal Service Tribunal, dated 5-4-1984 in Appeal No. 3(Q) of 1983).

---Art. 212(3)--Service Tribunals Act (LXX of 1973), S.4(1)- Jurisdiction--West Pakistan Water and Power Development Authority Act (XXXI of 1958), Ss.17(1-A) & (1-C)--Leave to appeal granted to examine ouster of jurisdiction contained in S.17(1-C) of Act (X,X&I of 1958) and its effect on jurisdiction of Service Tribunal to deal with matters arising out of orders passed under S.17(1-A) of Act.--[Jurisdiction].

---S. 4(1)--West Pakistan Water and Power Development Authority Act (XXXI of 1958), Ss.17(1-A) & (1-C)--Service appeals--Ouster of jurisdiction--Service Tribunal has jurisdiction to entertain and dispose of service appeals arising out of orders passed under S.17(1-A) of Act (XXXI of 1958).--[Jurisdiction].

1986 S C M R 18 rel.

---S. 17(1-A)--Interpretation of--Removal from service under section 17(1-A) not a punishment--Removal from service under S.17(1-A) without assigning any reason while employee was under suspension on account of alleged irregularities--Appeal time-barred--Tribunal set aside order of removal with direction to continue/conclude disciplinary proceedings- Appeal to Supreme Court--None of legal grounds forming basis of judgment found tenable--Language of statute conferring power on Authority makes it a term and condition of employment itself--Removal is not in nature of punishment and is not to be preceded by a show cause notice or by conclusive proof of material taken against employee- Not correct view to say that where two powers are concurrently available any one of them can be used notwithstanding that initially it was intended or action had -been taken under other, held, not tenable power--Question of limitation and grounds of alleged irregularities having not been considered /dealt with by Tribunal, case remanded for disposal in accordance with law--Appeal accepted with costs.

Abdul Karim v. The West Pakistan Province P L D 1956 S C (Pak.) 298. ref.

Asif Hussain Siddiqui assisted by Khan Imtiaz Muhammad Khan, Advocate-on-Record for Appellant.

M.S. Siddiqui, Advocate-on-Record for Respondents.

Date of hearing: 10th December, 1985.

-Leave to appeal was granted in a number of other similar cases for examining the ouster of jurisdiction obtained in section 17(1-C) of the Water & Power Development Act (hereinafter referred to as the Act) and its effect on the jurisdiction of the Service Tribunal to deal with matters arising out of orders passed under section 17(1-A) of the Act.

The legal question on which leave to appeal was granted has been answered in Civil Appeal No. 101 of 1979 WAPDA and another v. Muhammad Arshad Qureshi etc. 1986 S C M R 18 It has been held that the Service Tribunal has the jurisdiction to entertain and dispose of the service appeals arising out of orders passed under the aforesaid a section of the Act. The limitation within which it can be done has also been indicated.

The case of the appellant has now come up for consideration on merits of the adjudication. The respondent Malik Ahmad Nawaz was a Line Superintendent Grade-1 attached with Executive Engineer, Quetta, as Technical Assistant. By an order, dated 12-6-1982 he was placed under suspension and the Superintending Engineer (Operation Circle) was directed to frame a draft charge-sheet and submit it to the office of the Area Electricity Board, Baluchistan, for approval. Before that happened on 31-7-1982, the respondent was removed from service with immediate effect under section 17(1-A) of the Act without assigning any reason by giving him thirty days' pay in lieu of notice.

The respondent claims to have filed a representation against this order on 7-9-1982 followed by a review petition on 14-9-1982 and then instituted an appeal in the Service Tribunal on 3-1-1983. An objection was taken by the appellant that the appeal was time-barred as no representation or review was competent and those filed were misconceived. The respondent controverted this and claiming that his appeal was not barred by time filed an application on 18-10-1983 under section 5 of the Limitation Act claiming condonation of delay if any had taken place. The appellant also justified the action on merits.

The Tribunal by an order, dated 5-4-1984 set aside the order of removal of the respondent and directed that "the disciplinary proceedings against the appellant would be brought to conclusion under the E&D Rules, 1978 and further action, if any, taken accordingly".

The legal ground on which the decision was based is re-produced hereunder--

"In this case, the appellant had been suspended on a specific charge which could have been enquired into. This was not done and in order to circumvent the disciplinary proceedings, which had been taken into hand after the suspension of the appellant, recourse was taken to the easy expedient of section 17(1-A). We disapprove application of the said section in this case, due to more reasons than one. First: the removal is a punishment which cannot be inflicted on anyone unless the person concerned has been heard and the charge established against him. In other words, the reasons of removal must be assigned because the removal is not termination simpliciter where reasons may not be assigned. A person who is removed loses his pensionary benefits, if any. He cannot, therefore, be deprived of his vested rights as a result of one sided proceedings. Second: the appellant was under suspension when removed, meaning thereby that the disciplinary proceedings were not taken to a logical conclusion. Third and last: There is no conclusive evidence, except of course one sided allegations from the WAPDA, to suggest that the charge stood established against the appellant. We are, therefore, unable to uphold the removal of the appellant and direct that he shall stand reinstated into service w.e.f. the date of his removal with consequential benefits".

The learned counsel for the appellant has contended before us that none of the legal grounds made the basis for the judgment are sustainable for an order of removal under section 17(1-A) is not a punishment that no reason is required to be assigned there under and that such an order contains no stigment or charge. It has also been contended that it is not necessary to conclude the disciplinary proceedings once initiated and that the material should not be such as to lead conclusively to the guilt of the employee before action is taken under section 17(1-A) of the Act.

We find that the submissions of the learned counsel for the appellant have weight. The language of the statute conferring power on the Authority under section 17(1-A) makes it a term and condition of the employment itself. It is not in the nature of punishment and is not to be preceded by a show-cause notice or by the conclusive proof if of material taken against the employee. It is also not correct in view of the law laid down by this Court in Abdul Karim v. The West Pakistan P L D 1956 S C (Pak.) 298 that where two powers are concurrently available any one of them can be used notwithstanding that initially it was intended or action had been initiated under the other power. There is no question of the evidence being conclusive or beyond reasonable doubt before authorising the Authority to take action under section 17(1-A). The language of the statute is clear. It admits of no ambiguity. Like all statutory powers the limitation of its being bona fide and for the purposes of the Act has to be read in the power itself. In that view of the matter none of the grounds on which the judgment of Tribunal is based is tenable. We set aside the judgment.

We find that on merits the Authority wanted to establish its bona fide in making that order on account of a number of general ground, namely, that he had reconnected the premises which had been disconnected for non-payment of dues; that he had tampered with the record; interfered unnecessarily in the affairs of other officers and formations with which he had no direct link or connection. It was also stated that he was repeatedly given verbal and written warnings during two years prior to taking action against him but practically with no result. He was also found guilty of misappropriation of the material belonging to WAPDA during the period; that he was posted in WAPDA Operation Sub-Division Sheikhmanda, Quetta. He was responsible for unauthorisedly replacing Electric Meters and reverting the meters. A report of the Superintending Engineer, Operation Circle, was attached by the appellant to support the bona fide of the order to satisfy the Tribunal. However, as none of these grounds have been taken note of, considered or dealt with for finding out whether the order had any taint of mala fide or not we have to remand these proceedings. While doing so, we would also indicate that the question of limitation which was controverted one has not been attended to and it shall be suitably dealt with in accordance with law. The appeal is accepted with costs in terms indicated.

M.I. Order accordingly.

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