ZAHOOR AHMAD Versus PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY
CH. HASAN NAWAZ (MEMBER): ‑‑ While he was in the WAPDA's employment as Executive Engineer, Operation Division Electricity, Bahawalnagar, the appellant was removed from service on 21‑7‑1982 under section 17(1‑A) of the WAPDA Act, 1958 with immediate effect without assignment of any reason with 30 days pay in lieu of notice. His appeal under section 4 of the Service Tribunals Act, 1973 to challenge the validity of the order of removal from service was accepted by the Tribunal on 5‑7‑1986 with the following observations:
"The‑ result is that we accept all these six appeals and set aside the orders signed by the Deputy Director (Confidential) dated 21‑7‑1982 and reinstate the appellants into service. The impugned orders shall be deemed never to have been passed.
It may be pointed out that the appellants more or less themselves were responsible for filing belated appeals. We have condoned the delay, but we do not think that they should be given the benefit of salary, etc. for the period during which they remained out of service. We, therefore, direct that the period from 21‑7‑1982 till the communication of this order shall be treated as extraordinary leave without pay. Nothing in this order shall prevent the Authority or the competent officers to proceed afresh against the appellants under section 17(1‑A) of the WAPDA Act or under the WAPDA Employees (Efficiency and Discipline) Rules, 1978."
2. On 20‑7‑1986, he submitted his arrival report to the Chairman, WAPDA (respondent No. 1) in consequence of the Tribunal's judgment dated 5‑7‑1986. Thereafter, he was again removed from service under the same provisions of law with the following Office Order dated 26‑8‑1986.
OFFICE ORDER
The case of Mr. Zahoor Ahmad, XEN, WAPDA who was reinstated into service by Federal Service Tribunal vide judgment dated 5‑7‑1986 was considered by Authority afresh.
(2) The Authority has decided to remove him from its service with immediate effect under section 17(1‑A), without assigning any reason, by giving him 30 days pay in lieu of notice.
FOR & ON BEHALF OF THV AUTHORITY
(Sd.)
Muhammad Anwar
Deputy Director (Confidential)"
3. It is worthwhile to mention that a day later on 27‑8‑1986 the following letter was addressed by the Office of Chairman Area Electricity Board, Multan to the appellant at his Lahore address.
"Subject:‑ REMOVAL FROM SERVICE UNDER SECTION 17(1‑A)
Enclosed please find Authority's Office Order No. AD(REV)05001/517/1522, dated 26‑8‑1986 alongwith Cheque No. 5483312, dated 27‑8‑1986 in lieu of notice period.
Please acknowledge receipt and return the duplicate copy of the office order for record in this office.
(Sd.)
Lt.‑Col. (Retd.)
QURBAN HASSAN KHAN,
Director Admn:
Area Electricity Board, Multan."
4. The present appeal under section 4 of Service Tribunals Act, 1973 was filed by the appellant on 1‑10‑1986 to challenge the validity of order dated 26‑8‑1986 after it was conveyed to him through covering letter dated 27‑8‑1986.
5. The first ground on which the impugned order is being assailed is that the appellant was removed from service under section 17(1‑A) of the Act by the Authority, without taking him on duty in accordance with the Tribunal's judgment dated 5‑7‑1986. It was contended by his learned counsel that he should have been reinstated in service; that "the respondents were under legal obligation to have reinstated him in service" before proceeding afresh against him under section 17(1‑A) of the Act. It was further contended that they removed him from service without reinstatement "in gross‑disobedience of order dated 5‑7‑1986 passed by the Tribunal", and that the order of 26‑8‑1986 impugned is ex facie, "mala fide" and "coram non judice".
6. We do not find it possible to agree with the learned counsel. A reference may be made to the relevant portion of the Tribunal's judgment already noticed by us. It says that "the result is that we accept all these six appeals and set aside the order signed by the Deputy Director (Confidential) dated 21‑7‑1982, and reinstate the appellant into service." It further said that the impugned order shall be deemed to have never been passed. It is clear from the Tribunal's judgment that the appellant had been reinstated in service by the Tribunal's decision and that no further order for his reinstatement was required to be passed by the Authority. Learned Tribunal went to the extent of laying down that the impugned order shall be deemed to have never been passed. Obvious result of this judgment was that the order of removal from service dated 21‑7‑1982, became extinct and that the appellant continued to remain in service. In view of the Tribunal's judgment, no order for his reinstatement was required to be 'passed by the Authority: There is no force in the contention that the impugned order is illegal on any such ground; more so in the presence of a specific direction that the period from 21‑7‑1982 to the communication of Tribunal's judgment shall be treated as extraordinary leave without pay.
7. Reference has been made in the grounds of appeal to the Authority's Circular No. C/SO‑E‑1(1096‑B) Admn/44987‑45107, dated 1‑11‑1975 enunciating the guidelines for initiating action under section 17(1‑A) of the Act, in support of the contention that such action can be taken only against dishonest, corrupt or highly inefficient officials. The learned counsel submitted that these provisions could not be pressed into service against the appellant "who had unblemished, unstained and blotless service record:'
8. The guidelines are no doubt there but we find no basis for the contention that the provisions of section 17(1‑A) of the Act could not be pressed into service in the appellant's case on that the impugned action taken against him was not warranted by the circumstances. As we see from the appellant's own pleadings in para. 3 of the grounds of appeal the appellant made certain purchases and executed work orders for concreting of 216 HT and 389 LT Structures, which he claims to have done with the approval of the competent Authority. It was, however, alleged on the basis of an inquiry that irregular purchases were made, and work orders for concreting of 216 HT and 289 LT Structures relating to Government connections were managed on the basis of forged approvals purporting to have been accorded by the Chairman, Electricity Board, Multan and issued by the Office of Deputy Director (Stores). A charge‑sheet was issued by the Martial Law Authorities where twenty‑four forged approvals were alleged to have been contrived in the name of the Chairman, out of which five approvals were attributed to the appellant. This allegation of forgery was undoubtedly of very grave and serious nature. However, we find that it seems to have gone without a specific denial in the appellant's substance less and evasive lengthy pleadings. Denial of these allegations can only be inferred or spelled out of these pleadings. There can hardly be anything worse than forgery and the appellant should have come out with a very strong and definite denial of the allegation instead of indulging into lengthy and purposeless pleadings, with a sidetracking tendency.
9. Reference may be made to the findings of Inquiry Committee which were arrived at after due deliberations. The Committee held him responsible for the following irregularities, omissions and commissions in the performance of his functions:
(i) Being Disbursing Officer and incharge of Division failed to observe canon's of financial propriety and various provisions of Central Public Works Accounts Code.
(ii) Failed to calculate requirement of material for his Division and resorted to huge local purchase of stores without any requirement and justifications.
(iii) Adopted the method of purchasing through limited inquiries instead of open tenders when there was no, urgency.
(iv) Furnished bogus certificates for pre‑audit of bills from the office of Director, Accounts A.E.B., Multan.
(v) Failed to prepare the estimate and arrange administrative approval from the competent authority before incurring expenditures on them.
(vi) Failed to maintain record of enlistment of contractors and issued purchase orders to the contractors who were not actually enlisted.
(vii) Issued false certificates for reasonability of rates and items purchased costing high rates.
(viii) Failed to check up his budget estimate, cash allocation for purchase and other works.
(ix) Split up the local purchases in order to avoid inspection and keep the transaction within his competence.
(x) Transgressed his financial powers and issued purchase orders to the extent of Rs.20,000 where the forged approvals were received by him.
(xi) Responsible for the loss to the Authority to the tune of Rs.10,75,947 due to acceptance of exorbitant rates in local purchases.
(xii) Responsible for unnecessary blockade of Authority's money to the extent of Rs.28 lacs excluding material costing Rs.9 lacs which was justifiably shown consumed by three Line Superintendents.
Extracts of inquiry report pertain to appellant and documents on which these findings are based have been attached as Annexure to show the bona fides of our action:'
Even a cursory glance over these findings can lead one to the conclusion that nothing was required to be found by the Authority to proceed against the appellant under section 17(1‑A) of the Act. They had every justification to pass the impugned order, which is by no means violative of the guidelines enunciated in the circular dated 1‑11‑1975.
10. It was argued by the appellant's learned counsel that he could be removed from service by the Authority under section 17(1‑A) of the Act only after giving him not less than 30 days notice or pay for the period by which such notice falls short of 30 days. He submitted that as borne out by letter-dated 27‑8‑1986. (Annexure) 30 days pay in lieu of notice was not given to the appellant. This being so, it was contended by the learned counsel that the impugned order was in clear violation of the provisions of section 17(1‑A) of the Act and that it is not legally sustainable. Another argument was that the impugned order could not be passed without serving him with a notice. However, we are of the view that there is no force in these arguments. Section 17(1‑A) of the Act empowers the Authority to remove any of its employees from service, without assigning any reason after giving him not less', than 30 days' notice or pay for the period by which such notice falls short of 30 days. It is not possible to spell out anything from these provisions placing the Authority under an obligation to serve him with a notice before an order of removal from service is passed. These provisions do not visualize a show‑cause notice and the only purpose is that an employee is not taken by surprise. A notice can be dispensed with if 30 days pay is given to the employee in lieu of notice. We do not find it possible to agree that a notice has necessarily to be given before an order of removal from service is passed.
11. Another ground is that Member, (Power) WAPDA Lahore issued a directive for the suspension of the appellant through letter-dated 13‑7‑1982 on a charge of misconduct under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978. However, order under section 17(1‑A) of the Act was passed instead of finalizing the disciplinary proceedings. The appellant's learned counsel contended that the order was illegal on account of the principle that if an Authority cannot do anything directly it cannot be done indirectly either, and that the impugned order was coram non-judice on that account. Here again we do not find it possible to agree, for it is settled law that the order of removal from service could be passed under section 17(1‑E‑) of the Act even if disciplinary proceedings had been ordered or initiated in the first instance.
12. In the case of WAPDA v. Muhammad Arshad Qureshi (1986 SCMR 18) it was ruled by the Supreme Court that "the matters required to be examined in scrutinizing the exercise of power under subsection (1‑A) are (a) the competency of the individual or body taking action under it, (b) the amenability of the individual in respect of whom such a power has been exercised, (c) the presence of taint of mala fides or bias in exercise of that power, the postulate of legislative authorization to the exercise of public power, being that it will be exercised bona fide."
13. I am of the view that the Supreme Court's observation hardly leaves anything to be decided in the present case. It is not in dispute that the impugned order has been passed by the competent authority and that the appellant was amenable for the exercise, of powers under section 17(1‑A) of the Act. This being so, the validity of the impugned order could be examined only in the presence of an allegation regarding mala fide, or bias in exercise of powers. Although the expression "mala fide" has been used at various places in the grounds of appeal, it has not been connected with any factual foundation in support of the allegations. It appears to us that it has been used only because of a sub‑conscious awareness that it has to be so used in a case of the kind where the legality of order under section 17(1‑A) of the Act is challenged. The grounds of appeal are without a clear statement of facts constituting malice or lack of bona fides in passing the impugned order:
14. For the reasons mentioned above, we hold that there is no force in this appeal. It is accordingly dismissed as being without any substance. There will be no order as to costs.
H.B.T./807/Sr.F Appeal dismissed.