W.A.P.D.A. Versus ZULFIQAR ALI

1. MUHAMMAD AFZAL ZULLAH, J.‑‑All these appeals, except the last one filed by WAPDA, through leave of the Court are directed against various Judgments of the Federal Service Tribunal; 'whereby, while maintaining .the finding that the employees of the WAPDA concerned in these appeals were lawfully dealt with ‑ under section 17(1‑A) of the WAPDA Act, 1958; however, in each case, the order of removal was set aside by the Tribunal and instead the orders of retirement from service, in some of them with huge retirarrent benefits, were passed.

2. Leave to appeal was granted in these cases by different orders in order to examine the validity of the orders passed by the Tribunal altering removal from service to retirement from service.

3. The appeal by Abdul Nabi (C. A. No.408 of 1987) the last one in the aforerecorded particulars of appeals, is directed against he same Judgment of the Tribunal dated 25th August, 1986, against which WAPDA's Appeal Nos.407 particularised immediately above the appeal of Abdul Nabi is also directed; While WAPDA has sought the restoration of the removal of Abdul Nabi (employee); he has sought the reversal of the order of the Tribunal so as to avoid even his retirement ordered in the impugned judgment. We will take up the last two appeals; namely, No.407 and 408 in the first instance.

4. According to the impugned judgment, Abdul Nabi was involved in "gross irregularities". They relate to alterations and tampering with the records pertaining to meter reading of different consumers; failing to bill certain amounts against the interest of the Authority; and other irregularities. Our examination of the record at the instance of the learned counsel for Abdul Nabi, has revealed various instances which on surface appear as irregularities, but if established, could not be with any motive other than corrupt. It can be well assumed on the basis of high probabilities that if an individual is found having indulged in activities of corruption and or simple misappropriation during the short period noticed/scanned by the authority, he might unless shown otherwise, be in such a habit. The amounts mentioned in the record in this behalf are mostly in hundreds, few in thousands, but those undetected might be in still large figures.

5. After hearing the learned counsel for Abdul Nabi at some length and going through the record, we agree with the Tribunal that he was neither able to show that no action could be taken against him under section 17(1‑A) of the Act nor that any such action was male. fide. Accordingly, his Appeal No.408 of 1987 is dismissed on merits.

6. Now we take up the appeal of WAPDA (C.A.No.407 of 1987) in the case of Abdul Nabi wherein the relief sought is: the restoration of the order of removal of Abdul Nabi instead of his retirement, as directed by the Tribunal: It is necessary here to reproduce. the findings of the Tribunal in this case to illustrate the approach in all the orders passed by the Tribunal in such cases.

2. C.A.407 of 1987‑‑‑Judgment of the Tribunal dated 26‑6‑1986.

3. "2‑‑The learned counsel for the appellant has argued that the order was passed mala fide .....................................

4. 3.‑‑Besides the allegation of male, fide, mentioned above, the learned counsel for the appellant argued that there was no material whatsoever against the appellant justifying. an order under section 17(1‑A) of the WAPDA Act.

5. 4.‑‑The learned counsel tried to establish that the appellant was neither responsible for the wrong entries nor he did any act against the rules. According to him, the tampering with the record was not done by him and that certain . omissions in the record were made, because there was a direction that average should not be charged on the report of the meter reader, unless a separate direction is issued by the S.D.O.

6. 5‑‑We have held in so many cases ......... ... ..................... but we have to do only this much whether the material placed before the Authority was sufficient to justify the action. In this respect, the report submitted to the Authority did disclose that the appellant was involved in' gross irregularities. On the ground, therefore, the order under section 17(1‑A) cannot be set aside.

7. 6‑‑As regards mala fides arrainst the Executive Engineer, we do not thin the e learned counsellor the.appellant has been able to make out the case .

8. 7‑‑In spite of the fact that the circumstances did exist which compelled the Authority to pass an order under section 17(1‑A ) of the WAPDA Act, we think that since the appellant served the Autho rity for a long time, the order o removal from service was not justified . We, therefore, accept the appeal to the extent .that the order of removal be substituted by an order of retirement of the appellant from service, with consequential pensionary benefits .

9. 8‑‑ ..........................................................

7. The reasons in the orders of the Tribunal in the other appeals, for altering 'removal from service', to retirement from service; are also reproduced below.

10. C . A . No. 302 of 1986‑‑‑Judgment of the Tribunal dated 13‑5‑1986.

11. "2.‑‑...........................

12. In our opinion, there was sufficient material before the Authority for passing an order under section 17(1‑A) of the WAPDA Act. However, taking into consideration that this was a case of bribe and the normal rules oT punishment provided for in the WAPDA Employees (Efficiency & Discipline) Rules have not been invoked and also taking into consideration the long service _rendered by the appellant in WAPDA, we think that the order of removal under section 17(1‑A) deserves to be converted into an order o retirement and we direct accordingly.'

13. C.A.345 of 1986‑‑Judgment of the Tribunal dated 28‑1‑1985.

14. "3........................................................

15. We are satisfied that the respondent‑authority was justified in proceeding against the appellant under section 17(1‑A) of the WAPDA Act on the basis of material on record. At the same time, we are of the view that the nature of the charges in the appellant and the language employed in section 17(1‑A) of the WAPDA Act, removal of the appellant from service was not warranted and it was only proper and legal that he should. have been retired. We, therefore, modify the impugned order by substituting retirement for removal. Except................

16. Note:‑‑The allegations against Muhammad Sharif respondent in this appeal are of similar nature as have been noted regarding Abdul Nabi.

17. C.A.348 of 1986‑‑Judgment of the Tribunal dated 31‑10‑1984.

18. "4‑‑We have carefully gone through the service record of the appellant which we fi n d to be unsatisfactory. However, we also feel that the appellant should have been dealt with under section 17(1‑A) right at the time when the loss o Rs.27,300/60 had bee n established. That this was not done and the recoveries were being effected, it indicated that the Authority was satisfied that the appellant would a allowed to continue in service.

19. T he Authority has, therefore, punished the appellant more severely. This excessive punishment needs to be moderate. We have come to the conclusion that the ends of justice would be served if the order of removal is modified to that of retirement and we order accordingly."

20. Note:‑‑According to papers placed on record of the appeal, Muhammad Hussain, respondent, was involved in ten cases registered by the F.I.A. in which he was the accused person. In three of them the Superintending Engineer, as competent authority, had also found him guilty of causing loss to the WAPDA to the tune of Rs.27,300/60, which was ordered to be recovered from his salary (the matter in hand).

21. C.A.401/87‑‑Judgment of Tribunal dated 24‑8‑1986.

22. "5‑‑..........................

23. We have only to see whether there was enough material before the Authorit to ass an order under section 17(1‑A), and whether the order was passed bona fide without having any element of bad faith. The Authority was i nf ormed that the appellant had embezzled fts .24,700 in the posting o payments in the ledgers of a Sub‑Division while working as LK&BC. This was found out by a checking party.

24. "6.‑‑In view of these facts, we are of the view that there was sufficient material before the Authority in making impugned order under section 17(1‑A). However, taking into consideration of the act that the appellant had served the Authority or over 12 ears, we think t hat appropriate order would be an order re tirement from service and NOT of removal . The appeal is, therefore, partly accepted, and the impugned order of removal is converted to that of an order of retirement from service with consequential retiring benefits ."

8. It needs to be noted here that in the last mentioned appeal, Anwar Ali, respondent, was unrepresented at the time of hearing. We heard this appeal alongwith the other appeals on an assumption that the said respondent had also been served; but he had chosen not to be represented‑‑may be for the reason that, in some of the other appeals the learned counsel were representing the respondents in similar matters involving similar questions, on the point of conversion of 'removal' to 'retirement'. It is by now clear that the reasons given by the Tribunal in its order dated 24‑8‑1986 are not different from those in the others. In so far as the finding that the action under Section 17 (1‑A) was fully justified is concerned, said Anwar Ali had not challenged the order of the Tribunal in this Court as Abdul Nabi had done, by a separate appeal. The petition for leave to appeal was filed in the case of Anwar Ali in October, 1986. It is well known that a notice is sent by the AOR and subsequently by the Office in such like cases. There is no reason to assume that Anwar Ali was not served. Yet he chose not to engage any AOR nor did he appear himself before the Court. All the cases were heard together and the learned counsel appearing for other persons placed in the same position as Anwar Ali, argued the matter at length. Anwar Ali, if he would have appeared, would not have done better. Notwithstanding all this, keeping in mind the fact that Anwar Ali had gained an advantage from the Tribunal, we thought it fit to reserve the Judgment in this case. as also, in ail other cases. And with a view further to afford opportunity to Anwar Ali, efforts were made to secure his attendance, but without any success. Ultimately, when further pressed to appear and assist the Court he, according to the report, declined even to be served and the notice was returned to the Court accordingly. In these facts and circumstances, there was no use waiting any further. He would be deemed to have been proceeded ex parte.

25. After carefully examining the nature of each case and the orders of reduction cf punishment, when maintaining the finding of) guilty by the Tribunal; we are constrained to hold that no sufficient legal justification was shown for altering the penalty. These cases are, therefore, to be remanded to the Tribunal for re‑examination of the quantum of punishment. Accordingly we will not go into details of merits in this behalf in each case, lest it might prejudice the determination by the Tribunal as result of remand.

26. It is, however, necessary to highlight some questions of law of public importance.

27. It is now well‑settled that the Service Tribunals are forums of appeal on questions of law as also facts; with all the necessary powers to uphold, set aside or vary the orders, impugned before them. It is subject to the limitations imposed by any law‑‑like section 17(1‑A) of the WAPDA Act, 1958, as interpreted by this Court. That being so, the power to alter the punishment in appropriate cases has also been conceded to the Tribunals in a number of judgments by this Court. We, therefore, do not agree with the learned Counsel for the appellant that they have no such power.

28. It is now to be seen whether there is any limitation on this power particularly in cases dealt under section 17(1‑A) of WAPDA Act. One limitation is that the decisions of Tribunals being subject to appeal to this Court it is proper that, as on other questions, cogent reasons should be given for altering the punishment. This is also necessary so as to avoid criticism of arbitrariness on the part of the Tribunal itself.

29. The other obvious limitation is that in fact also it should not be arbitrary. The reasons to be stated in the order should satisfy the standards of reasonableness. Guidance in this behalf can be sought from the cases of similar nature decided by the superior Courts. For example, in matters of corruption and/or bribe the recent judgments by this Court on quantum of punishment in criminal cases, can be kept in mind. See Malik Muhammad Khan v. The State P L D 1987 SC 500. See also the same case on review, re‑heard and decided on 10‑5‑1988.

30. In the cases under section 17(1‑A) of the WAPDA Act, the position for sometime remained in doubt till the Supreme Court resolved the controversy about the competency‑ of the appeals before the Tribunal. There should be no more doubt about that aspect.

31. The question of alteration of punishment also came before this Court and it has been ruled that the Tribunal has the requisite power. But on account of paucity of reasons disclosed in the order Is impugned before this Court, difficulty is often felt in resolving the point at this level of final appeal stage. Be that as it may, it is necessary to reiterate the position already explained in one of the recent judgments of this Court. It was held in WAPDA v. Shah Imroz 1986 S C M R 840 as follows:‑

32. "In support of this appeal before us, it was contended that the Service Tribunal had no jurisdiction to question an order passed by WAPDA under the powers conferred upon it by section 17(1‑A) of the WAPDA Act and that in any case the Service Tribunal could not have substituted its own discretion for that of the Authority and to have set aside the orders of removal from service and substituted it with the order of reinstatement.

33. Both these pleas are without force. This Court has already held in WAPDA and another v. Muhammad Arshad Qureshi 1986 S C M R 18 that the Service Tribunal has the jurisdiction to hear and entertain appeals with regard to terms andi conditions of the WAPDA employees including appeals against its orders with regard to these matters passed under section 17(1‑A) and can set aside orders passed by the Authority under this provisions which are male fide, tainted with bias and not passed bona fide. In this case the Tribunal, after examining all the relevant facts, came to. the conclusion that the impugned order of the Authority was arbitrary . Hence it was not passed bona fide. Consequently, in view of the rule laid down by this Court in the case of Muhammad Arshad Qureshi, noted above, the Service Tribunal was not precluded. from setting aside the order of removal passed by the Authority and substituting it with the order of reinstatement". (Underlining ours).

34. In the other connected case of Firdaus Khan the aforestated legal position was reiterated at page 839 of the same report.

35. In the case of Shah Imroz it was‑ held that when the order' under section 17(1‑A) passed by the Departmental Authority is mala fide and tainted with bias and thus not passed bona fide, it would be within the power of the Tribunal to set aside the order of removal and substitute it with the order of reinstatement. This was thus treated as a very strong case for mitigation also. In the other case of Firdaus Khan the mitigation (given the other requisites regarding mala fides, etc.) was not that strong, therefore, the alteration of, removal to compulsory retirement (instead of reinstatement) was treated as the proper penalty. Thus, in order to remove the taint of arbitrariness from the orders of the Tribunal itself, it is essential that in such like cases, alteration of penalty should take place only after giving a firding of arbitrariness on question of penalty on the part of the WAPDA authority. In this context when the authority orders removal, in a case of bribe; while upholding the finding of gums , it might look odd for the appeal forum, to retire with all pensionary benefits, or to reinstate with the reward of the benefits of past emoluments. These observations are essential to illustrate the i point and not to be read as direction in the present cases. The Tribunal shall be at liberty to support its view with cogent reasons so as to remove the criticism of arbitrariness; or if no such cogent reasons are available, to change the view itself.

36. In the light of the foregoing discussion and the observations, these appeals are allowed. The impugned orders, to the extent of alteration of the penalty, are set aside. The cases are remanded to the Tribunal for such decision on the question of penalty in each case as it deems fit, in the light of the discussion on this point and the law.

37. M.B.A./W‑32/S Appeals allowed.