WATER & POWER DEVELOPMENT AUTHORITY vs Sheikh MUHAMMAD ALI
This matter arises from a petition for leave to appeal filed by the Water and Power Development Authority against the judgment of the Service Tribunal, which had set aside the removal of the respondent Executive Engineer ordered under section 17(1-A) of the Water and Power Development Authority Act and directed his reinstatement with consequential benefits. The core legal questions involved the jurisdiction of the Service Tribunal to entertain appeals against orders passed under section 17(1-A) of the Act, the effect of limitation where no objection was raised before the Tribunal, and the justifiability of the removal order. The Supreme Court held that the jurisdictional issue stood already resolved by earlier precedent and declined to interfere with the Tribunal's factual findings regarding the arbitrary and unjustified nature of the removal under its limited constitutional jurisdiction. The Court further held that a plea of limitation not raised before the Service Tribunal cannot be successfully raised for the first time before the apex court. The appeal was accordingly dismissed.
- Does the Service Tribunal have jurisdiction to entertain an appeal against an order passed under section 17(1-A) of the Water and Power Development Authority Act?
- Can a plea of limitation be raised for the first time before the Supreme Court when it was not urged before the Service Tribunal?
- Whether the Supreme Court will interfere with findings of fact by the Service Tribunal regarding the arbitrariness of an order under Article 212(3) of the Constitution?
- Section 17(1-A), Water and Power Development Authority Act
- Section 5, Limitation Act
- Article 212(3), Constitution of Pakistan 1973
1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to examine whether Service Tribunal had the jurisdiction to entertain an appeal against an order passed under section 17(1-A) of the Water and Power Development Authority Act (hereinafter referred to-as the Act).
2. The legal question raised in this appeal and in a few others stands disposed of 1986 SCMR 18.
3. So far as the merits are concerned, the respondent was posted as Executive Engineer, Khanewal Division, when on 21-9-1982 he was removed from service under section 17(1-A) of the Act. On an audit objection, a Committee had been set up to find out and fix the responsibility for certain irregularities committed by officers within the jurisdiction of Chairman, Area Electricity Board, Multan. The Committee recommended action against seven officers. While six others were given warning, the respondent was singled out for action under section 17(1-A) on the basis of a remark made by the General Manager (Administration) which was held by the Tribunal to be wholly unjustified. The Service Tribunal held that "It could not be said with any degree of. Certainty that the Authority's decision to remove the appellant under section 17(1-A) was taken with a fair and open mind". The Tribunal held that: -- "Considering the above facts and circumstances, we are satisfied that the action taken against the appellant under section 17(1-A) was not justified and consequently cannot be upheld."
4. His re-instatement in service with all consequential benefits was allowed.
5. The learned counsel for the appellant contended 'chat the service appeal before the Tribunal filed by the respondent was barred by 81 days and the application under section 5 of the Limitation Act seeking condonation of the delay was filed long after the appeal had been filed. Even though no objection had been taken by the appellant before the Service Tribunal on the ground of limitation, it was the duty of the Tribunal to give effect to the bar of limitation which appeared ex facie from the record before it. On merits it was contended that there were specific grounds found established on the record of which mention had been made in the nothings on the file which had been produced before the Service Tribunal. In such a background, the order impugned before the Service Tribunal was unexceptionable and not liable to interference by the Service Tribunal.
6. The remarks recorded by the General Manager which distinguished the case of the respondent from that of his other six colleagues were found by the Tribunal to be based on no material whatsoever. Besides, according to the Tribunal, the report of the Inquiry Committee clearly indicated that no monetary loss had been caused to the Authority by the act of the respondent. His record of service showed him to be an intelligent, hard-working and well-behaved officer. There was also the fact that he had taken action against F.F. Industry which had annoyed or was likely to annoy the Chairman for some personal reasons. It was after taking all these factors in view that the Service Tribunal considered the removal of the respondent to be arbitrary and unjustified on the material placed before it. With such a finding of fact, we would not, like to interfere in the limited jurisdiction possessed under Article 212(3) of the Constitution.
7. As regards the question of limitation, if the appellant had not raised or controverted it before the Service Tribunal in spite of an application under section 5 of the Limitation Act, having been filed by the respondent, this is not the stage where it can be successfully raised. The appeal is, therefore, dismissed with no order as to costs.