MUHAMMAD ARSHAD Versus WAPDA
JUDGMENT 131
CH. HASAN NAWAZ (MEMBER).‑‑‑ The appellant a Meter Reader in the respondent's employment was removed from service by order dated 3‑2‑1982 in consequence of proceedings under the Pakistan WAPDA (E&D) Rules, 1978.
2. He challenged the validity of this order in a petition under section 25‑A of IRO, 1969 before the Punjab Labour Court No. 1, Lahore, which was accepted with an order of reinstatement in service with back benefits. The Labour Court's order of reinstatement dated 13‑9‑1982 was set aside by the High Court on 21‑4‑1984, in the respondent's writ petition on the ground that it was without jurisdiction.
3. Thereafter the appellant came to the Tribunal on 17‑5‑1984 with an Appeal No.153(L)/84 under section 4 of the Service Tribunals Act, 1973 which was dismissed on 23‑2‑1989 as incompetent on the ground that he had not availed of the departmental remedy before filing the appeal in accordance with the requirement of section 4(1)(a) of the Ad.
4. After having so failed in the Tribunal, he filed a departmental appeal on 5‑3‑1989 before the Superintending Engineer concerned (respondent No. 2) who set aside the order of removal on 14‑6‑1989 with the following order:
WATER AND POWER DEVELOPMENT AUTHORITY
Office Order No. C 34/C ???????????????????????????????? Dated 14‑6‑1989
Consequent upon consideration of an appeal dated 5‑3‑1989 lodged by Mr. Muhammad Arshad, Ex‑Meter Reader, Nawan Kot Sub‑Division (E), WAPDA, Lahore, against his removal from service orders passed by XEN Islampura Division, Lahore now renamed as Gulshan‑e‑Ravi Division, Lahore vide Office Order No. 49/EP‑13/Divn., dated 3‑2‑1982 and personal hearing given to him on 4‑6‑1989, the undersigned being the appellate Authority hereby set aside the orders of XEN referred to above by reducing the penalties as under:‑
(1) Reduction of pay to minimum of time scale.
(2) His Cadre is changed as Lower Division Clerk and consequently placed at the bottom of seniority list of Lower Division Clerks.
(3) The intervening period i.e. dismissal of appeal dated 23‑2‑1989 by the Federal Service Tribunal, Islamabad and date of retaking on duty as LDC to be treated as extraordinary leave.
(4) His services placed at the disposal of XEN. M/Road Divn. Lahore for further posting against vacant post in M/R‑II Sub‑Division, Lahore vice Mr. Muhammad Saeed, LDC compulsory retired from WAPDA service.
(Sd.)
(C.D. KHOKHAR),
SUPERINTENDING ENGINEER;
IIND LAHORE CIRCLE, LAHORE." ?????
This order has been made the subject of present appeal filed again by the appellant under section 4 of the Service Tribunals Act, 1973 where his contention is that, other circumstances apart, the order suffers from certain inherent illegalities which cannot be cured.
5. On reversal of the earlier order, one of the penalties imposed by the competent authority is the reduction of pay to the minimum of time scale. This order cannot apparently be sustained because no time has been fixed for which the appellant is required to stay at the minimum of time scale. We are in no doubt that under F.R. 29, a period for stay at the minimum of time scale should have been fixed.
6. The other penalty imposed was that his cadre was changed as Lower Division Clerk and he was consequently placed at the bottom of the seniority list of LDCs. This is also clearly against the provisions of rules. This question was examined by the Tribunal in Appeal No.237(L)‑87, decided on 6‑6‑1990. We took notice of provisions of rule 11(1) of the rules to find out the appellate authority's power on an appeal. It makes the following reading:
"An employee on whom a penalty is imposed, shall have a right to appeal to the authority competent to hear such appeals. The appellate authority may enhance, remit or reduce the penalty imposed by the competent authority. An employee on whom the appellate authority has imposed higher penalty than the one appealed against, shall have a right of further appeal to the next higher officer and, in the absence of the next higher officer, to the Authority."
7. It was held on the basis of these provisions that the powers of the appellate authority are not unfettered and they have to be exercised within the framework of Pakistan WAPDA (E&D) Rules, 1978. It was also held that the appellate authority was not competent to attach certain conditions to reinstatement of the appellant as LDC and that its order had to remain within the scope of rule 4 of the rules which does not provide for a change in the nature of employment.
8. In that case too, the appellant was reinstated in service as LDC in consequence of a departmental appeal. We feel that the question whether a Meter Reader or LDC belongs to the same cadre is immaterial for determination of the question involved. We hold that while deciding the departmental appeal if the appellate authority is of the opinion that the punishment awarded is to be modified, it can make that modification within the scope of Rule 4 and no penalty can be imposed which has not been mentioned in that rule. The competency of the appellate authority extends only to the imposition of any of the penalties mentioned in the rules. Therefore, the order in so far as it changes the nature of appellant's employment is not legally sustainable.
9. ? As for the other part of the order whereby intervening period was treated as leave extraordinary without pay, we are of the view that there is nothing wrong with it. It was within the competency of the appellate authority to treat that period as leave extraordinary without pay.
10. For these reasons, the appeal is accepted only in part and the impugned order of 14‑6‑1989 is set aside and substituted by an order of reduction of pay to the minimum of time scale for a period of two years. There will be no order as to costs.
A.A./793/Sr.F ????????????????????????????????????????????????????????????????????????? Appeal partly accepted.