Find a Lawyer

Civil Appeal No. 121 of 1984, decided on 9th December, 1985.

(Against the judgment, dated 9‑8‑1983 of the Federal Service Tribunal in Appeal No. 710(L) of 1982).

‑‑‑Art. 212(3)‑‑Service Tribunals Act (LXX of 1973), S.4(1)‑‑West Pakistan Water and Power Development Authority Act (XXXI of 1958), Ss.17(1‑A) & (1‑C)‑‑Leave to appeal granted to examine competence of an appeal before Service Tribunal in respect of an order passed under S.17(1‑A) in view of ouster clause contained in S.17(1‑C) of Act (XXXI of 1958).

‑‑‑S. 4(1)‑‑West Pakistan Water and Power Development Authority Act (XXXI of 1958), Ss.17(1‑A) & (1‑C)‑‑Appeal‑‑Ouster of jurisdiction‑ Legal question on which leave was granted stands answered in Supreme Court judgment reported at WAPDA and another v. Muhammad Arshad Qureshi 1986 S C M R 18.

‑‑‑Ss. 4(1) & 5(2)(b)‑‑West Pakistan Water and Power Development Authority Act (XXXI of 1958), S.17(1‑A)‑‑Service Tribunal‑‑Adjudication by‑‑Production of record duty of parties‑‑Removal from service under 5.17(1‑A) of Act (XXXI of 19581 challenged‑‑Authority failed to produce record before Service Tribunal despite being asked‑‑Case decided on basis of material available and employee re‑instated‑‑Appeal before Supreme Court‑‑Held: If appellant wanted to sustain its action and to satisfy Tribunal, it had to produce record on which it relied and for which no privilege or exception was claimed‑‑Appeal dismissed with costs in circumstances.

1986 S C M R 18 ref.

Iftikhar Ahmad, Advocate Supreme Court with M.A. Qureshi, Advocate‑on‑Record (absent) for Appellant.

Ch. Khalilur Rahman, Senior Advocate Supreme Court with Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondent.

Date of hearing: 9th December, 1985.

‑Leave to appeal was granted to examine the competence of an appeal before the Service Tribunal in respect of an order passed under section 17(1‑A) of the Water and Power Development Act (hereinafter referred to as the Act) in view of the ouster clause contained in‑section 17(1‑C) thereof.

The legal question on which leave to appeal was granted stands answered in 1986 S C M R 18 by our judgment separately recorded in this and in a number of other connected appeals disposed of on 28th of September, 1985.

The learned counsel for the appellant has taken us through the record in order to establish that even if the Service Tribunal had the jurisdiction to entertain and to deal with such an appeal, its judgment is not sustainable because what has been noticed and made a ground for setting aside the order of the appellant is not established on facts. According to the learned counsel, the action taken was bona fide, was based on relevant considerations and on reasonable grounds.

The respondent was in the service of the appellant and posted as Executive Engineer, Construction Division, WAPDA, Multan, when by an order, dated the 29th of July, 1982 passed under section 17(1‑A) of the Act he was removed from service with immediate effect without assigning any reason by giving him thirty days' pay in lieu of a notice. He filed a representation and therefore an appeal in the Service Tribunal. He pleaded that "the appellant has been subjected to a harsh and contrary action by the respondent authority without fulfilling the pre‑requisite legal conditions for the application of section 17(1‑A) of the WAPDA Act, 1958". The respondent also sought condonation of the delay filing the appeal by a separate application. The appellant converted that the action was mala fide.

The Service Tribunal asked the appellant to produce the record to sustain the action. It is recorded in its judgment that "the respondent authority has not shown us the file" (in spite of having been asked) on which the order of removal of the appellant was passed". After examining the likely causes of his removal the following finding was recorded by the Tribunal:‑‑

"In view of the above facts, the only material before us is the record of the annual Confidential Reports of the appellant. On going through this record, we find that the appellant was considered to be an efficient, hard‑working, honest and dependable officer. In these circumstances, we are of the view that it was not a fit case in which action under section 17(1‑A) should have been taken. We accept this appeal, set aside the order of removal of the appellant from service and reinstate him with effect from the date of his removal with all the consequential benefits including the emoluments, etc".

The contention of the learned counsel for the appellant is that a High‑powered Committee had been appointed. It had submitted its report in two volumes covering 332 pages and in that report the conduct of the respondent had come up for adverse comments. It was primarily on the basis of such an inquiry that the impugned action was taken against him.

It is not denied by the learned counsel for the appellant that the officers who reviewed the Inquiry Committee's report and even the Inquiry Committee itself had not recommended any such action or had commented adversely in its recommendation against the respondent by name. What had actually happened was that when this noting reached the General Manager, he introduced the name of the respondent alongwith three others. One such person (Rasul Khan) against whom on this note of the General Manager action was taken was subsequently reinstated. This fact has been admitted by the authority appellant in its memo of appeal to this Court in the following words:‑‑

"The Inquiry Committee in its report did not specifically recommend action against the respondent but in view of the facts brought out and established on evidence the respondent was found to have been involved in gross misconduct causing pecuniary loss to WAPDA."

If the appellant wanted to sustain its action and to satisfy the Tribunal, it had to produce the record on which it relied. It could not by withholding the record for which no privilege or exception was claimed get a finding of fact recorded in its favour. This Court has already pointed out in the case of Islamic Republic of Pakistan v. Dr. Safdar Mahmood P L D 1983 S C 100 that it is the duty of the parties to get resolved all questions of fact by the Service Tribunal' and the material in possession and power of the department/ Authority should be dutifully produced before it to facilitate an adjudication. The readiness of the appellant to produce these documents at this stage of the appeal is of no avail.

We find no merit in this appeal which is dismissed with costs.

M.I. Appeal dismissed.

Find a Lawyer Near You

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