AFTAB AHMED WARSI Versus WAPDA
MUHAMMAD IRSHAD KHAN (MEMBER) ‑This order shall also dispose of Appeals Nos. 2 (L)/1982, 4(L)/1982, 5(L); 1982, 6(L)/1982 and 198(L)/ 1982 which involve the same questions of law and adjudicatable issue.
2. The relevant facts, in brief, are that the appellant, who holds a First Class Degree of B. Sc. in Mechanical Engineering, joined service of the respondent‑Authority as Junior Engineer in the year 1973. He was working in Machinery Pool Organization of the respondent till 1974 when he was sent on deputation to the Mechanised Construction of Pakistan Limited (hereinafter referred to as the M. C. P. L.), a Private Limited Company, floated in the Public Sector by the Government of Pakistan. By that time he was confirmed as a permanent employee of WAPDA. In 1977 he was promoted in the M. C. P. L. to the rank of Senior Engineer which post he held till 15th April, 1981 when the M. C. P. L. repatriated him to the respondent authority. When, however, he submitted his arrival report there the respondent declined to give him duty and rather asked him to go back to the M. C. P. L. The matter, for some time, remained under controversial correspondence between the WAPDA and the M. C. P. L. with the result that the appellant was not given duty either by one or the other. Meanwhile it so happened that on some writ peti tions filed by a number of other employees, who prior to the appellant, were alike repatriated to the WAPDA by the M. C. P. L. but were not allowed to join, the Honourable High Court in its judgment observing that refusal on the part of the WAPDA to let the writ petitioners join it was without lawful authority and of no legal effect, directed the WAPDA to entertain their arrival reports and treat them as its employees. The WAPDA when thus forced to accept the arrival reports of those writ petitioners it unwillingly entertained the joining report of the appellant also but, at the same time, got rid of him by first treating him as surplus and finally by ordering his retirement, vide its Office Order, dated 7th December, 1981 passed in purported exercise of powers under section 17 (1‑A) of the WAPDA Act, 1958, hence this appeal.
3. A preliminary objection, on behalf of the respondent‑Authority about the competence and maintainability of the present appeal was raised by contending that this Tribunal has no jurisdiction to hear the appeal against an order passed under section 17 (1‑A) of the WAPDA Act, 1958, which is immune from the scrutiny of Courts and Tribunals. The objection was already considered by us in some earlier cases but was repelled and, for the reasons given therein the preliminary objection raised herein is also repelled. It may, however, he pertinently added that section 17 (1‑A) is, in any case, governed by the judicial pronouncements of the superior Courts and the competent Tribunals which definitely denounce and deprecate mala fide and arbitrary and unjudicious exercise of discretionary powers. Since the impugned order has been challenged, inter alia, on the grounds of mala fide, coram non judice and arbitrary exercise of powers, it is well within the competence of this Tribunal to bear and decide this appeal. Further, without detracting from this conclu sion, we would like to add that the additional ground urged by the appel lant that provisions of section 17 (1‑C) are not attracted to the instant case because the appellant was retired, while, section 17 (1‑C) of the WAPDA Act covers the cases of only removal or termination of service (not retirement) is not without force.
4. On merits it was contended by the Respondent Authority that the impugned order is legal and bona fide as thereby the appellant was retired under section 17 (1‑A) on the basis of the Executive Director, M. C. P. L's. letter, dated 31st October, 1981 according to which the services of the appellant in M. C. P. L. were unsatisfactory The contention has no legs to stand on inasmuch as the correct position is found in letter, dated the 4th of February, 1981, of the Chairman, M. S. P. L./Additional Secretary, Ministry of Water and Power ; the relevant portion there from is reproduced below :‑
..It will not be correct to presume that the officials who were repatriated to WAPDA in the recent past, were sent back due to their inefficiency or indiscipline. In fact most of the repatriated officials have good record. They were repatriated only because M. C. P had no suitable jobs for them under the present circum stances. It is strange that instead of accepting those officials, who hold permanent lien in their parent department, WAPDA is refusing to take them back. As a principle WAPDA, and for that matter any lending department, should always be ready to absorb its employees on repatriation."
Since the requirement of manpower in M. C. P. remains fluctuating on the basis of work load, it will be unfair to expect M. C. P, to retain the deputationists even when there is no work for them. In these circumstances WAPDA's refusal to accept its employees is tantamount to the refusal of genuine rights of its own employees.
We may also point out that unless execution of some major projects is awarded to M. C. P., it is very likely that some more officials will have to be shortly repatriated to WAPDA. While doing so no charge can be substantiated against such officials on the basis of which WAPDA could terminate their service."
5. We have also perused the service record of the appellant who is found to have earned two Good and three Very Good Annual Confidential Reports in M. C. P. L. where he was also granted promotion in recogni tion of his merits, efficiency and remarkable performance. In these circum stances an impression cannot be avoided that the said letter, dated 31st October, 1981 alleging unsatisfactory service of the appellant was manoeuvred by the respondent‑Authority with an ulterior motive of taking action against the appellant under section 17 (1‑A) of the WAPDA Act. Even otherwise the genuineness of this letter is highly doubtful because it was issued under the signature of the Executive Director who was not competent and concerned person to issue such letter for which also there was hardly any occasion or justification. Based on such ingenuine and planted material only, the impugned order was nothing but mala fide and coram non judice, and therefore, is liable to be set aside at this score alone. It may, however, be pertinently added that it is averred by the respondent in the para-wise comments filed herein that "As WAPDA could not accommodate the appellant on repatriation, he invoked the writ jurisdic tion of the High Court." The correct position, however, is that the appellant never invoked the writ jurisdiction of the High Court but in fact it was so done by the other repatriated employees. The respondent's understanding about the matter, therefore, appears very efficient‑as efficient as the flights of thoughts of a biased man against the object of his bias. Be that as it may, it stands admitted by the respondent‑Depart ment that it could not accommodate the appellant on repatriation, while it was legally and morally bound to provide job and salary to the appel lant, who is its confirmed employee. In the circumstances, the respondent's refusal to take the appellant back on repatriation ultimately resulting in his premature retirement under section 17 (1‑A), in our view, is a glaring misdeed of victimisation, suppression and maltreatment of a young talented engineer. Indeed, the material on record clearly shows that, on the one hand, the WAPDA had been unlawfully and unjustifiably refusing to allow the appellant to join it on his repatriation and, at the same time, through advertisement in newspapers, it had been inviting applications for the post of Engineers. Needless to say that if there was any vacancy for which the applications were invited, the respondent‑Authority was bound first to adjust the appellant against such vacant post instead of inviting applications for fresh recruitment. It is thus quite clear that the appellant was subjected to high‑handedness of the respondent with a view to secure his exit in order to accommodate some other (favoured person, which was too arbitrary a measure to deprive the appellant of his livelihood and to deprive the Organization of his talent and experience. We have, there fore, no option but to conclude that the impugned action has been taken against the appellant with mala fide intention, though it has been taken in the garb of section 17 (1‑A), it is manifestly evident that the statutory provisions had been used as a cloak for the mala fide act. As ruled in the weighty pronouncements of the superior Courts, such orders and acts are nullity and do not exist in the eye of law.
7. Since the appeal is being disposed of on merits, we need not advert to the legal pleas raised by the appellant which are, inter alia, the following :‑
(i) That the impugned order is a nullity having been passed in violation of the principle of natural justice which is to be read in section 17 ((‑A) having not been specifically excluded there from.
(ii) That the impugned order having been passed in disregard of the respondent's own policy decision contained in Circular No. 44987/45107, dated 1st November, 1975 which has a force of Statute, is mala fide.
(iii) That WAPDA having been declared as an essential service as contemplated under the provisions of Pakistan Essential Services (Maintenance) Act, 1952, it was required under the law to show a reasonable excuse for prematurely retiring the appellant, failure to do so vitiates the impugned order.
8. In the result the appeal is accepted, the impugned order is set aside as never has been passed and it is directed that the appellant shall be reinstated into service with effect from the date of his premature retire ment with all the consequential benefits.
9. No order as to costs.
A. E. Appeal accepted.