ZAIN YAR KHAN vs THE CHIEF ENGINEER, C.R.B.C., WAPDA. D.I. KHAN and another

1. ' WAJIHUDDIN AHMED, J.---The controversy in this appeal dates back to the year 1986-87 when the appellant was posted as a member of the Task Force constituted by WAPDA on the Chashma Right Bank Canal Project (CRBC). The appellant was then a Junior Engineer, C.R.B.C. Project. WAPDA, D.I.

2. Khan. It is the appellant's case that serious difficulties were encountered and unforeseen seepage took place when water was diverted to the canal, resulting in virtual formation of a lake in the adjoining areas and affecting plantations in the hinterland. It transpired that temporary acquisition of part of the land had to be resorted to and damage to trees, which, according to the appellant, were profuse, had to be made good and such, essentially, was worked out by the acquisition officers. The appellant has also maintained that valuable machinery was on the spot, which had to be salvaged and for such reason as well the damage to adjoining lands was allowed to be suffered. In fact, according to this version, an emergent situation and law and order problem, at the instance of the affectee land-owners, occurred and the Government had to resort to relief which ran into millions. Be that as it may, the problem that essentially concerns us is that whereas compensation for temporary acquisition of land for three years was confined to Rs,1,26,730, that for loss and irretrievable damage to the trees, the number whereof in association with the appellant counted to 4669, was worked out at Rs,26,58,581.05. A high level enquiry committee was constituted and such committee as late as in 1993, apparently, required the appellants' explanation regarding draft paras. 640 and 647. In response, a statement dated 20-10-1993 was submitted by the appellant wherein the appellant explained his position and pleaded orders of his superiors in defence, including the Chief Engineer concerned. The matter stood put at that level for a while and a charge-sheet coupled with statement of allegations dated 2-5-1994 was served on the appellant. The charge-sheet is reproduced hereunder:- "Whereas you Mr. Zain Yar Khan son of Hamid Yar Khan while posted as Junior Engineer (Mechanical). In Machinery Division, C.R.B.C. Project, WAPDA, D.I. Khan committed the following acts of omission and commission:

1. In Chashma Right Bank Canal Project, D.I. Khan land measuring

137. 15 Kanal In village Malkhel Pukka was acquired for three years for borrow area. The total cost of the borrowed land was fixed as Rs,1,26,730 @ Rs,230 per kanal per year plus levelling and dressing charges.

3. ' In addition to the cost of land Rs,29,53,978.94 were paid as compensation for 4669 Nos. Damaged trees. The Nos. Dimension and kinds of trees assessed and cottoned by you with the collaboration of other executive/Revenue staff is highly exaggerated and unfounded as established by the Enquiry Committee. The Authority has, therefore, sustained a substantial loss due to your act of omissions/commissions.

2. The list of trees prepared by you and other staff were found tampered and overwritten. The Award was also based by the Land Acquisition Collector on these doubtful lists of trees before the Enquiry Committee in contravention of the Authority's instructions.

3. The estimate of the damaged trees was not prepared and approved by the competent Authority.

4. Even list of trees were not got approved by the Chief engineer as required under the rules before submission to the Land Acquisition Collector for Award of compensation. Thus, you are involved in act of sheer disregard to the Authority's instructions.

4. You were neither competent nor authorised to make assessment of the trees as per Section-XI Clause-N of the WAPDA Delegation of Financial Powers.

5. 1978. Therefore, you intentionally assessed and prepared the list of tree to achieve your ulterior motive.

6. ' Whereas the above acts constitute misconduct in terms of Rule-5 (iv) of WAPDA Employees (Efficiency & Discipline) Rules, 1978.

7. ' The competent Authority also feels that the above acts on your part call for imposing penalty specified in Rule-4 of the said rules.

8. ' Now therefore you Mr. Zain Yar Khan son of Hamid Yar Khan, Junior Engineer (Mechanical)

9. Chashma Right Bank Canal Project, D.I. Khan are required to send your written defence reply within fourteen (14) days of the receipt of the charge-sheet and also to state whether you desired to be heard in person.

10. ' In case no reply is received within this period, it will be presumed that you have no defence to offer and ex parte action shall be taken against you under the rules.

11. ' A statement of allegations and copy of Enquiry Report is enclosed herewith."

12. ' The appellant made his reply dated 17-5-1994 and the matter dragged on for quite some time when on 7-3-1995 an office order of even date was addressed by the Chief Engineer, C.R.B.C.

13. Project, to the appellant. The order is this:-- "OFFICE ORDER

1. Mr. Zain Yar Khan, Junior Engineer (Mechanical) was issued charge sheet under rule-5 (iv) of Pakistan WAPDA (E&D) Rules, 1978 applicable to him on the charges of 'Misconduct' on account of irregularities committed by him on Chashma Right Bank Canal-Award No,90 regarding temporary occupation/use of land and damages of trees.

2. After careful consideration of the reply of Mr. Zain Yar Khan, Junior Engineer to the charge-sheet, hearing him personally and consideration of his reply to the show-cause notice, I hold him guilty of the charges and being the competent Authority have decided to impose upon him the major penalty of reduction to lower stage by 04 steps in his time scale (BPS-18) for a period of one and half year without cumulative effect under Sub-Rule-I(b)(i) of Rule-4 of WAPDA Employees (E&D)

14. Rules, 1978."

15. ' Meanwhile, the appellant had preferred a departmental appeal and had also approached the Federal Service Tribunal, but before the Tribunal the under-noted order dated 9-8-1995 in the departmental appeal was produced:-- "Office Order ' After considering the departmental appeal dated 16th January, 1995, of Mr. Zain Yar Khan, Junior Engineer (Mech) of C.R.B.C. Project, D.I. Khan, I, Jan Sardar Gul, G.M., (Water) North, being appellate authority, hereby set aside the orders passed by C.R. C.R.B.C. Vide Office Order No,CRBC/CE/1851-56, dated 3rd March, 1995, on technical grounds with instructions for retrial of the case afresh by C.R.

16. C.R.B.C. After issue of charge-sheet and holding of enquiry through Director Enquiry WAPDA, as per WAPDA (E&D) Rules, 1978.

17. ' General Manager (W) North. WAPDA, Peshawar (Jan Sardar Gul)"

18. ' Because pursuant to such order the punishment imposed on 7-3-1995 was recalled and a fresh enquiry was directed, the appeal before the Service Tribunal was dismissed on 23-10-1995, as having been rendered infructuous.

19. In resultant Civil Petition No, 667 of 1995, leave was granted on 14-2-1996 to consider whether the order passed by the appellate authority, remanding the case without specifying reasons therefor, was an order appropriately made within the scope of powers under the Pakistan WAPDAI Employees (Efficiency & Discipline) Rule.

20. 1978.

21. ' Before us in this appeal, it has been convassed by Mr. Muhammad Khan Khakwani, A.S.C., that the applicable rule 11, while such invests the appellate authority with a number of alternatives, does not specify an order of remand for a fresh enquiry. A cross-reference is made to corresponding Rule 15 in the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975, where due power of remand has expressly been conferred as an incident of the departmental appeal. Rules 11 and 15 respectively are reproduced hereinbelow for comparison:-- Rule 11 of Pakistan WAPDA Employees (E&D) Rules, 1978.

22. "11. Appeal.--(1) 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.

(2) The appeal shall comply with the following requirements:-

(a) It shall contain all material statements and ground relied upon and shall be complete in itself;

(b) It shall specify the relief desired;

(c) It shall be submitted through proper channel;

(d) It shall be made within two months of the date on which orders were passed under rule 5.

(3) The appeal shall be forwarded, as soon as possible, to the appellate authority with all relevant records and with the comments of the officer against whose order the appeal had been filed.

(4) The appellate authority shall consider.--

(a) Whether the facts on which the orders were based have been established;

(b) Whether the facts established afford sufficient ground for taking action

(c) Whether the penalty impose is excessive, adequate or inadequate; and

(d) There has been substantial compliance of these rules and after such consideration shall pass such orders as it thinks proper.

23. Rules 15 of Punjab Civil Servants (E&D) Rues, 1975.

24. "15. Determination of Appeal.-- (1) The appellate authority shall cause notice to be given to the appellant and the authority of the authorised Officer imposing penalty of the time and place at which such appeal will be heard. The appellate authority shall send for the record of the case, if such record is not already with it. After perusing such record and hearing the appellant, if he appears, and the representative of the punishing authority, if he appears, the appellate authority may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may:

(a) reverse the finding and acquit the accused; or

(b) order and direct that further of fresh inquiry be made or

(c) after the finding maintaining the penalty or with or without altering the finding reduce the penalty, or

(d) subject to the provisions of sub-rule (2), enhance the penalty.

25. ' [Provided that where Governor [or Chief Minister] is the appellate authority, he may, in his discretion, designate any officer, except the one against whose orders the appeal has been preferred, for the purpose of affording the appellant an opportunity of being heard in person and submit the case to the Governor for final determination of the appeal.]

(2) Where the appellate authority proposes to enhance the penalty, it shall

(i) by order, in writing, inform the accused of the action proposed to be taken and the grounds of the action; and

(ii) give him a reasonable opportunity to show cause against that action;

(3) In dealing with an appeal, the appellate authority, if it thinks additional evidence to be necessary, may either take such evidence itself or direct it to be taken by the authorised officer and when such evidence has been taken the appellate authority shall thereupon proceed to dispose of the appeal."

26. ' It has been contended that a Court or other judicial forum can only interpret but has no power to make or promulgate laws. Correspondingly, if there be an omission or lacuna, such cannot be supplied or filled merely by straining the rules of interpretation.

27. It is true that the Courts have to interpret the law as they find it. A casus omissus, again, ought not to be created by interpretation alone, save in a case of strong or unavoidable necessity. In the context, however, a legislation is to be closely examined and its intendment is to be explored before arriving at the conclusion that the matter gives rise to a casus omissus.

28. ' However, the question , remains whether the instant one is a case presenting either a deliberate or an accidental omission. To start with, in order to discover the purported omission, comparative provisions in two sets of rules, framed by two distinct agencies, cannot fairly be put in juxtaposition with each other. Further, where a right of appeal is, generally, conferred and the appellate powers are merely amplified and elaborated, such elucidation of the powers cannot be read as restrictive of the well-established and time honoured incidents of an appeal. Thus, if a legislative measure was merely to say that an aggrieved employee, on whom a penalty is imposed, shall have a right of appeal before the appellate authority, the omission to spell out the extent of appellate powers, unless a contrary intention appeared, would not imply that the appellate forum did not have the conventional appellate powers to draw upon. In point is the most widely resorted right of appeal under Section 96 of the Code of Civil Procedure, 1908, and its negative postulates in the following section 99. These provisions recognise a wide array and variety of orders, as implicit and incidental to a first appeal and those, even though curtailed by section 99, embrace also due jurisdiction to remand. This, therefore, is not a situation presenting a casus omissus, but one merely exhibiting a common and ordinary power in a departmetntal appeal, which inherently implies a jurisdiction to remand. The illustrative sections 6 and 99 of the Code are these.

29. Section 96 of the Civil Procedure Code.

30. "96. Appeal from original decree.- -(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with consent of parties.

31. Section 99 of the Civil Procedure Code.

32. "99. No decree to be reversed or modified for error or irre ularit not affecting merits of jurisdiction.-- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court."

33. Further, even where the Ejusdem Generis rule does not, in a conventional manner, apply, a residuary general power, as in Rule 11(4)(d) to "pass such orders as it deems proper". Vesting in the appellate authority, does imply a jurisdiction to remand.

34. ' This throws up the question, as finding mention in the leave-granting order, whether the appellate order suffered from an incurable infirmity bereft as it was. Of reasons resulting in the remand. There can be no gain-saying the fact that a quasi judicial order should, in principle, carry due reasons.

35. Indeed, as has lately been recognised, in virtue of the newly added section 24-A in the General Clauses Act, 1897, even an administrative authority, office or person, making an order or issuing a direction under the powers conferred by or under any enactment, is now obligated, so far as necessary or appropriate, to give reasons for making the order or, as the case may be, for issuing the direction. In eventualities where due reasons are missing from such an order, an affectee stands armed with a right to require the authority, office or person concerned, to furnish due reasons and an obligation attaches in response to furnish such to the aggrieved party. In departmental appeals, equally covered by section 24-A (ibid). But belonging to a higher genus, as the same attract quasi judicial functions, necessary treatment of reasons therein, cannot but be a sine qua non for orders issuing therefrom. Even so, the fora, in which such orders are questioned, in the instant case the Service Tribunal and ultimately this Court, have a discretion either to simply set aside the departmental appellate orders for want of necessary reasons or, where the justice of a case so demands, to discover the reasons, if discernible from the record, to uphold the finding, if the finding appears to be otherwise just, convenient and purposeful.

36. In the foregoing background, it is manifest from the record that the order of the competent Authority imposing the major penalty of reduction on the appellant to lower stage by 4 steps in his time scale (BPS-18) for a period of one and a half years, without cumulative effect under sub-rule

(I) (b) (i) of rule 4 of the WAPDA Employees (Efficiency & Discipline) Rules, 1978, was unlawful inasmuch as no due enquiry was held and nothing appears on the record to show that others equally or higher placed than the appellant, similarly involved, were likewise dealt with. Such order was, therefore, justifiably set aside in the departmental appeal.

37. ' The only question is whether the order of remand for a fresh enquiry was warranted. The record shows that the high level Enquiry Committee came to the conclusion that the number of trees shown lost or damaged, as above, was for too large in an area where the tree population was by no means thick. It is also incontrovertible that the appellant was associated in working out the number of trees, which resulted in the payment of a very substantial compensation. No doubt it is true that many officers of WAPDA and matching number of those of the acquisition department were involved in the process. A comprehensive determination, therefore, had to be duly reached and responsibility fixed. Of that the appellant has to share his burden but definitely not alone. He seems to have disputed the number of trees, which were ultimately worked out but does not appear to have produced any copy of the list which he ought to have maintained if he had subscribed to the same. The matter, therefore, was eminently fit for further enquiry but in the preview of the enquiry should have been associated all others who had any role to play. Such, at all events can be ensured now and the acquisition officers may also be examined for apportionment of their parts, which corresponding intimations to their respective departments. In the process, it should also come up for examination as to why such a serious matter was taken up so belatedly and which of the functionaries were involved in the delay.

38. Meanwhile, though we uphold the orders of the appellate authority and the Service Tribunal, following thereupon, we would expect that during the interregnum the appellant would not be denied his ordinary rights of promotion and move-over, if any, subject to the final orders passed in course of time. The appeal is dismissed, but the dismissal would not carry any costs.