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Civil Appeal No. 721 of 1984, decided on 10th December, 1985.

(Against the judgment, dated 25‑4‑1982 of the Federal Service Tribunal, Islamabad).

‑‑‑Art. 212(3)‑‑West Pakistan Water and Power Development Authority Act (XXXI of 1958), Ss.17(1‑A) & (1‑C)‑‑Leave to appeal granted to examine: (i) extent and scope of jurisdiction, if any, possessed by Service Tribunal in view of subsection (1‑C) of S.17 of Act (XXXI of 1958) in respect of orders passed under S.17(1‑A) and question whether Service Tribunal had not decided appeal on extraneous consideration of discrimination which ground was not specifically taken up in appeal.

‑‑‑S. 17(1‑A)‑‑Removal from service‑‑Service Tribunal not adverting to any of grounds taken up in memorandum of appeal but allowing it on ground of mala fide discrimination‑‑Supreme Court on appeal found that case compared with had distinguishing features and could not be made standard for concluding discrimination‑‑Decision of Tribunal proceeding on ground which was not tenable, and further that grounds taken up in appeal had not been attended to, appeal accepted with costs and case remanded for decision afresh.

Wasim Sajjad, Advocate Supreme Court with Rana Maqbool A. Kadri, Advocate‑on‑Record (absent) for Appellant.

Nawab Saeedullah Khan, Advocate Supreme Court with M.A. Qureshi, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 10th‑December, 1985.

‑Leave to appeal was granted in a number of appeals to examine the extent and scope of jurisdiction, if any, possessed by the Service Tribunal in view of subsection 1‑C of section 17 of Water and Power Development Authority Act (hereinafter referred to as the Act) in respect of orders passed under section 17(1‑A) of the Act. Another ground on which leave to appeal was granted was whether the Service Tribunal had not decided the appeal on an extraneous consideration that of discrimination as regards the case of Malik Mushtaq Ahmad which proceeded on entirely different. facts and which ground was not specifically. taken up in appeal by the respondent.

The respondent was in 1977 the President of the WAPDA Labour Union. He was working as supervisor, Building Circle, WAPDA. By an order, dated 3‑1‑1977 he was retired from service under section 17(1‑A) without assigning any reason with immediate effect on payment of thirty days pay in lieu of notice. He appealed to the Labour Court. He took his grievance to the Labour Court which ordered his reinstatement on 5‑12‑1977. However, an appeal was filed by the appellant in the Labour Appellate Tribunal which suspended the order of his reinstatement on 15‑12‑1977 ad interim and accepted the appeal and set aside his reinstatement order on 31‑12‑1977. In the meantime, the respondent had also filed an appeal before the Service Tribunal which was dismissed in default on 30‑3‑1978 but it was restored without notice to the appellant on 22‑4‑1979 on a misrepresentation by the respondent that dismissal had taken on 30‑9‑1978 and not on 30‑3‑1978. The grounds raised in the appeal were as follows:‑‑

"(a) That the order of removal is motivated by personal malice and vindictiveness on the part of the Major General Fazli Raziq, Chairman WAPDA.

(b) That appellant has been victimised on account of his lawful trade union activities.

(c) That the appellant has been condemned unheard.

(d) That section 17(1‑A) of WAPDA Act, 1958 has been misapplied and is colourable exercise of power on the part of the respondent.

(e) That the respondent had no authority to take action against the appellant under section 17(1‑A) of the WAPDA Act for his trade union activities.

(f) That the appellant removal/ retirement from service is unjustified, unwarranted and against law".

The Service Tribunal did not advert to any of the grounds taken up in the memo. of appeal re‑produced above but decided the appeal on the following reasoning:‑‑

"In the instant case the mala fide on the part of ‑WAPDA is established to our satisfaction inter alia for the main reason that the WAPDA had reinstated Malik Mushtaq Ahmad "in pursuance of the decision of the Punjab Labour Court" but in the case of the appellant it was not so done. This obvious discriminating treatment, by itself, is sufficient to conclude that the order removing the appellant from service is wholly devoid of good faith. Needless to say that any order made in bad faith, as in the case in hand, is nothing but mala fide. Such an order is a nullity in the eye of law and deserves only to be set aside".

The learned counsel for the appellant contended before us that the case of Mushtaq Ahmad presented no such identity on facts as to attract the ground of discrimination or to be made basis for granting relief to the respondent. He has admitted that Mushtaq Ahmad was removed on the same date when the respondent was retired under the same provision of law and that the Labour Court reinstated him also. The point of difference which ought to have been noted was that while in the case of the respondent a stay was granted by the Labour Appellate Tribunal no such stay was granted by the Labour Appellate Tribunal in the case of Mushtaq Ahmad. It was, therefore, under Court's interim order that the respondent was not reinstated in service and it was under order of the Labour Court, dated 9‑11‑1978 against which no stay order was granted against Mushtaq Ahmad that Musthaq Ahmad was reinstated in service. The subsequent re‑instatement was not in fact re‑instatement but re‑employment which had taken place on 27‑7‑1981 on an undertaking given by the Labour Union and on a fresh application made for appointment by Musthaq Ahmad. This subsequent event of 1981 could not be at all relevant for determining the question of taint attaching to the order of retirement made on 3‑1‑1977.

Another ground taken up by the learned counsel for the appellant is that in his application for restoration of appeal the respondent he had misrepresented to the Service Tribunal that it was dismissed for non‑prosecution on 30‑9‑1978 and obtained an order of its restoration when in fact that application itself was inordinately delayed as the dismissal in default had taken place on 30‑9‑1978.

We have examined the record with the assistance of the learned counsel for the parties and find that the facts go to establish that Mushtaq's case had certain distinguishing features and his case could not be made the standard for concluding discrimination against the respondent and find that the contention of the learned counsel for the appellant is fully borne out. It is also borne out that the date of dismissal of appeal in default was incorrectly given and the question of its restoration has to be examined afresh with the correct dates being taken note of by the Service Tribunal.

As the decision of the Service Appeal by the Service Tribunal proceeds on a ground which is not tenable and further that the grounds taken up in the Service Appeal had not been attended to, we accept this appeal with costs, set aside the judgment of the Service Tribunal and remand the case for decision afresh in accordance with law.

M.I. Order accordingly.

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