WATERANDPOWERDEVELOPMENTAUTHORITY Versus FIDAMUHAMMADKHAN

MANZOOR HUSSAIN SIAL, J. ‑‑‑This appeal by leave of this Court arises out of the judgment dated 16‑3‑1993, of the Federal Service Tribunal, whereby Service Appeal No. 455(R) of 1992 filed by Fida Muhammad Khan respondent against the appellants was allowed to the extent that the order of his removal from service was converted into his compulsory retirement.

2. The relevant facts forming the background of this appeal are that Fida Muhammad Khan respondent was posted as SSC‑I at 33 Kv. Grid Station, Rawalakot SS&TL Division, Rawalpindi, when he was suspended on 22‑6‑1992 for having received illegal gratification amounting to Rs.2,17,000 from Maulvi Muhammad Mansoor and other residents of Afghan Refugees Camp Nos. I and II Ghazi, Tarbela in connivance with one Mr. Bismillah Jan and his son‑in‑law named Muhammad Iqbal, for electrification of the Refugee Camps. He was called upon to explain the allegation. He controverted the allegation and submitted affidavit of the complainant testifying that the respondent did not receive illegal gratification. The appellants were, however, not satisfied with the explanation furnished by the respondent, and by order dated 25‑10‑1992, under section 17(1‑A) of the WAPDA Act, 1958 (hereinafter referred to as the Act) removed him from service with immediate effect by giving him 30 days' pay in lieu thereof.

3. The respondent challenged the aforesaid order in appeal before the Federal Service Tribunal (hereinafter referred to as Tribunal), which was partly allowed vide impugned judgment referred to above.

4. Leave to appeal was granted by this Court on 4‑12‑1993, to examine the question whether the learned Tribunal after having maintained that illegal gratification was received by the respondent, was justified to convert the order of his removal from service to retirement because the respondent had returned the amount to the complainant.

5. In support of this appeal, learned counsel for appellants contended that by proceeding under section 17(1‑A) of the Act, WAPDA had already taken lenient view by removing respondent from service, the learned Tribunal had no jurisdiction to substitute or convert his removal from service to retirement. It was further contended that the return of the amount of illegal gratification to the complainant was not a valid ground to reduce the penalty awarded to the respondent.

6. Mr. Muhammad Munir Peracha, Advocate, learned counsel for the respondent, on the other hand contended that the very order of removal of the respondent from service under section 17(1‑A) of the Act was illegal inasmuch as that he was removed from service on the allegation of misconduct without providing him adequate opportunity to prove that he was maliciously involved in the case. The resort to summary procedure under section 17(1‑A) of the Act was not called for in the circumstances of the instant case. The next contention was that the Tribunal was competent to vary, modify or even set aside the order passed by WAPDA. The Tribunal incorporated in the order sufficient reasons for converting the punishment of removal from service to that of compulsory retirement, which it could competently do within the meaning of section 17(1‑A) of the Act. Learned counsel relied on WAPDA v. Abdul Sattar and others (1990 SCMR 934) to contend that in that case the learned Tribunal even after having found that there was material on the record to justify action under section 17(1-?A) of the Act, substituted the order of removal with that of retirement from service, taking into account the length of periods spent by them in the service of WAPDA.

It was further contended that the Service Tribunal not only could examine whether the order made by the Authority was supported by material, but in suitable cases it could substitute the order of the Authority with one, which it deemed to be more appropriate and cited Aijaz Nabi Abbasi v. WAPDA and another (1992 SCMR 774) in support of his submission.

7. Before adverting to the question of the validity of the impugned order of the Tribunal, altering the respondent's removal from service to retirement from service, it is necessary to consider the scope of the appellate jurisdiction of the Tribunal. In WAPDA v. Shah Imroz (1986 SCMR 840) the question of alteration of punishment also came into consideration and it was ruled that the Tribunal has power to alter the punishment. The relevant extract of the report reads:‑‑

"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 re?instatement.

Both these pleas are without force. This Court has already held in WAPDA and another v. Muhammad Arshad Qureshi (1986 SCMR 18) that the Service Tribunal has the jurisdiction to hear and entertain appeals with regard to terms and conditions of the WAPDA employees including appeals against the orders with regard to these matters passed under section 17(1‑A) and can set aside orders passed by the Authority under the provisions which are mala 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 re‑instatement."

Similarly in Aijaz Nabi Abbasi's case this Court held:‑‑

"However, in the present case as observed hereinabove, it was not even alleged before the Tribunal that the impugned action was mala fide or suffers from any of the above infirmities. The Tribunal has taken into consideration all aspects of the case and has substituted retirement in place of removal as under above subsection (1‑A) of section 17, an employee of WAPDA can either be removed or be retired."

It is, therefore, clear that in exercise of its appellate jurisdiction the Tribunal is empowered to alter, modify or even substitute the order under appeal with another order, if that is considered' more appropriate to the circumstances of the case. This view was reiterated by this Court in WAPDA v. Zahoor Ahmed 1991 SCMR 960. In that case, Zahoor Ahmed, Line Superintendent, was removed from service under section 17(1‑A) of the Act. On appeal the Tribunal altered the order of his removal from service to compulsory retirement. WAPDA filed petition for leave to appeal, which was dismissed by this Court in view of the rule laid down in the above‑noted cases.

8. ? The next question which falls for determination in this case is whether the order of the Tribunal converting respondent's removal from service that of retirement, was legally justified. In this regard the learned Tribunal in the including paragraph of the impugned order observed:‑‑

"We are of the view that the WAPDA Authority has not violated any law/procedure in taking the disciplinary action against the appellant. Since the amount of illegal gratification has been returned to the complainant, we feel that the quantum of punishment is excessive and requires consideration, and also keeping in view the length of service of the appellant. We, therefore, partly accept the appeal and modify the order of removal of the appellant to that of compulsory retirement. Ordered accordingly."

It appears that the learned Tribunal has taken into consideration the following two grounds for reduction of the penalty, namely:‑‑

(i) The return of the amount of illegal gratification to the complainant; and

(ii) The length of period spent by the appellant in the service of WAPDA.

It may be seen that in this case leave to appeal was granted to examine the contention of the learned counsel for appellant that the mere return of the mount of illegal gratification to the complainant could not be a valid ground for education of the punishment awarded to the respondent by the departmental authority. The other ground which weighed with the Tribunal for reduction of the penalty was the length of service rendered by respondent. Incidentally, this point was not noticed in the leave granting order.

In Muhammad lqbal Butt's case (C.P. No. 327 of 1987) decided alongwith Abdul Sattar's case (1990 SCMR 934), referred to above, there were serious allegations of corruption. He was proceeded against departmentally by WAPDA, but eventually taking action under section 17(1‑A) of the Act, he was removed from service. In appeal, the learned Tribunal converted the order of his removal from service to that of his compulsory retirement. WAPDA preferred petition for leave to appeal in this Court, which was dismissed alongwith several other petitions recognising length of service rendered by the employees as one of the grounds for alteration of their penalty.

9. After hearing learned counsel for the parties and going through the case‑law cited by them, we hold that where an employee is charged for misconduct and action under section 17(1‑A) of the Act is taken against him without holding regular proceedings under the disciplinary rules by providing him an opportunity to show falsehood of the allegations the Service Tribunal having exclusive jurisdiction to deal with the matters relating to terms and conditions of service, is competent to grant relief to the aggrieved person in appropriate case by passing order with conscious application of mind and based on valid reasons. It can justifiably substitute the retirement of the employee in Place of his removal from service, if so required.

We are, however, not oblivious of the fact that where there are serious allegations of corruption with no mitigating circumstance and after holding the employee guilty, the mere length of service can hardly be a determining factor to C alter his removal from service to retirement, with all the pensionary benefits.

10. In the instant case, the respondent had served WAPDA for sufficiently long period. Keeping in view the circumstances of the case, WAPDA eventually decided not to hold regular inquiry against the respondent under the relevant disciplinary rules but removed him from service by resorting to a penal action under section 17(1‑A) of the Act. He was, therefore, precluded to prove his non?-involvement in the matter and falsehood of the allegations levelled against him. The action taken by the appellants against the respondent was untenable as it amounted to his condemnation without affording him adequate opportunity of healing on allegations of misconduct.

11. For the foregoing reasons, the impugned order of the Federal Service Tribunal, altering respondent's removal from service to retirement, merits no interference.

Resultantly, this appeal fails and is, therefore, dismissed with no order as to costs.

A.A./W‑15315 ??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.