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Petitioner: S.M. RIZWAN ABIDI VS Respondent: CHAIRMAN, WAPDA, LAHORE
1991 P L C (C
1991 P L C (C.S.) 750
[Federal Service Tribunal
Present: Syed Ally Madad Shah, Chairman and Misbahullah Khan, Member
S.M. RIZWAN ABIDI
Versus
CHAIRMAN, WAPDA, LAHORE
Old Appeal No. 150(L) of 1987 and New Appeal No. 351(R) of 1989, decided on 22nd January, 1990.
(a) Pakistan Water and Power Development Authority Employees (Retirement) Rules, 1979---
----R. 3(b)---Retirement---No ambiguity existing in provisions contained in R.3(b) of Pakistan WAPDA Employees (Retirement) Rules, 1979 that an employee could be retired from service by the competent Authority at either of two stages i.e. one on completion of 25 years of service qualifying for pension and other retirement benefits and other on attaining age of 55 years as might be directed by competent Authority in public interest---No bar, thus, existed to review of case of an employee at either of two aforesaid stages whichever occurred first, and allowing the employee to continue in service arid retiring him from service at stage of happening of second event---View taken by a Bench of Service Tribunal holding that case of a WAPDA employee once reviewed for retirement from service at stage of completion of his 55 years could not be reviewed again for his retirement from service on his completing 25 years service qualifying for pension, gratuity and retirement benefits was distinguished.
(b) West Pakistan Water and Power Development Authority Act (XXXI of 1958)---
----Ss. 3 & 4---Pakistan Water and Power Development Employees (Retirement) Rules, 1979, Rr.2(a) & 3(b)---Competent Authority to order retirement of WAPDA employee---Competent Authority means `Authority' or an officer designated by Authority to exercise power of competent Authority---Term `Authority' means Pakistan Water and Power Development Authority and WAPDA established by 8.3 of WAPDA Act, 1958, consisting of a Chairman and not more than three members appointed by Government as provided in S.4(1) of WAPDA Act, 1958---Question in case of appellant, a Grade-19 officer, was as to who was competent Authority for purpose of his retirement---Chairman of `Authority' was appointing Authority and `Authority' at relevant time consisted of Chairman and three members who were competent to retire him but retirement of appellant was ordered by Chairman and one of three members of `Authority -- Held, order of retirement of appellant from service was not made by competent Authority as envisaged by law---Order of retirement was set aside and appellant was ordered to be reinstated in service with full back benefits---Final decision for retirement of officers of rank of Superintending Engineers, Chief Engineers and officers of equivalent status was to be taken for purpose of retirement by full authority after the decision at a meeting of Authority.
Nasir Saeed v. WAPDA P L D 1987 S C 421; Province of East Pakistan and another v. Nur Ahmad and another P L D 1964 S C 451 and P L D 1970 SC 98 rel.
(c) Pakistan Water and Power Development Authority Employees (Retirement) Rules, 1979---
------R. 3(b)---Constitution of Pakistan (1973), Art. 203-D---Retirement-- Requirement of show-cause notice in the light of judgments of Federal Shariat Court and Shariat Appellate Bench of Supreme Court---Notice not given to appellant before ordering his retirement---Order of retirement did not suffer from any legal infirmity on account of absence of show-cause notice---Federal Shariat Court while examining under Art. 203-D of the Constitution, the provisions of certain laws relating to retirement of civil servants and holding them as being repugnant to injunctions of Islam and recommending their repeal did not make mention of WAPDA Act, 1958 and similarly judgment passed in appeal by Shariat Appellate Bench of Supreme Court did not make mention of WAPDA Employees because there was no appeal against- decision of Federal Shariat Court in that behalf---Appellant, a WAPDA employee who was ordered to be retired from service without issuing a show-cause notice, his Order of retirement, thus did not suffer from any illegality on account of absence of show-cause notice in circumstances.
PLD 1984 FSC 34 and PLD1987SC 304 rel.
(d) Pakistan Water and Power Development Authority Employees (Retirement) Rules, 1979--
----R. 3 (b)---Retirement at the age of 55 years ---Mala fides---Communication of adverse remarks---Retirement could be made at any one of two stages i.e on completion of 25 years of service qualifying for pension or on attaining age of 55 years---No taint or mala fide intention of retiring authority in this connection could be alleged without a tangible evidence in support thereof---Communication of adverse remarks recorded earlier when employee was serving another Organization would not furnish ground to impute mala fides of Authority in having made order of retirement of employee on attaining age of 55 years.
Syed Jamshed Ali for Appellant.
Muhammad Amir Akbar Khan for Respondent.
Date of hearing: 14th January, 1990.
JUDGMENT
SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mr. S.M. Rizwan Abidi, who was Director (Civil), T & G Power, WAPDA has preferred this appeal against Order No. WW-Admn-96034/E.I/2879, dated 2-4-1987 of his retirement from WAPDA service on attaining the age of 55 years, issued by the Chief Engineer (Adm.) Water, WAPDA, Lahore.
2. The order impugned by the appellant was issued in exercise of powers contained in Rule 3 (b) of Pakistan WAPDA Employees (Retirement) Rules, 1979. It has been assailed on three grounds: firstly, that it was not passed by the competent authority; secondly, that it was made without serving on the appellant any show-cause notice; and thirdly, that it was not issued under bona fide exercise of powers conferred by law. Elucidating the grounds, the learned counsel for the appellant has urged that the decision of retiring the appellant from service on attaining the age of 55 years was taken by only the Chairman and one Member and not by the Full Authority as required by the rules and the instructions issued from time to time and has placed reliance on the decision of the Supreme Court in the case of Nasir Saeed v. WAPDA, reported in P L D 1987 SC 421. He has next urged that the appellant's case for retirement was reviewed at the stage of his completing 25 years service and he was continued in service and his case could not be reviewed second time even for considering his retirement on completion of 55 years service. He has placed reliance on the judgment of a Bench of this Tribunal in Appeal No. 163 (L)/86, decided on 12-2-1989. He has also urged that the order of retirement of the appellant from service without show-cause notice offended the natural principle of justice that nobody can be condemned unheard as held by the Federal Shariat Court in the case in re: The Civil Servants Act (LXXI of 1973), reported in P L D 1984 FSC 34, upheld by the Appellate Shariat Bench of the Supreme Court, reported in P L D 1987 SC at page 304. He has also made reference to the decision of the Supreme Court in the case of Province of East Pakistan and another v. Nur Ahmad and another ( P L D 1964 S C 451). He has lastly urged that exercise of a power conferred by law has to be exercised bona finely and he has placed reliance on the cases reported in P L D 1970 SC 98; P L D 1980 SC 22; and P L D 1981 Pesh. 1, and has also made reference to a judgment of a Bench of this Tribunal in Appeal No. 282 (L)/86, decided on 6-8-1989.
3. On the other hand, the respondents have resisted the appeal contending that the order of retirement of the appellant on attaining the age of 55 years was passed in accordance with the Pakistan WAPDA Employees (Retirement) Rules, 1979 before the principle of natural justice in retiring a public servant from service with show-cause notice was enunciated by the Federal Shariat Court and the Appellate Shariat Bench of the Supreme Court. The learned counsel appearing on their behalf has contended that the decision of retirement .of the appellant from service on attaining the age of 55 years taken by the Chairman and one member was deemed to be the decision of the Authority in view of the provisions of- subsection (2) of section 7 of the Pakistan WAPDA Act, 1958. He has next contended that the decision of the Federal Shariat Court and the Appellate Shariat Bench of the Supreme Court did not extend to the actions taken earlier and he has made reference to the provisions of Articles 203-D, 203-F and 203-H of the Constitution. He has also contended that the WAPDA Act and the rules made thereunder were not under review of the Federal Shariat Court or the Appellate Shariat Bench of the Supreme Court. According to him, the question of retirement of the appellant could be reviewed at both the stages of his putting the service of 25 years or and his attaining the age of 55 years. He has urged that the appellant was retired from service under bona fide exercise of powers conferred on the Authority.
4. The questions raised in the appeal, as aforesaid, involve interpretation and applicability of the Pakistan WAPDA Employees (Retirement) Rules, 1979 (hereinafter referred to as the Retirement Rules, 1979). It would be advantageous to reproduce them in extenso:----
"In exercise of the powers conferred by section 18 of the WAPDA Act, 1958 (West Pakistan Act No. XXXI of 1958), the Pakistan Water and Power Development Authority is pleased to make the following rules namely:-
(1) Short title application and commencement. --(a) These Rules may be called the Pakistan WAPDA Employees (Retirement) from Service Rules, 1979.
(b) They shall apply to all WAPDA employees except deputationists from the Federal or a Provincial Government or those on probation, or borne on work-charged establishment.
(c) They shall come into force at once.
(2) Definitions
In these Rules unless there is anything repugnant in the subject or context:---
(a) `Authority' means the Pakistan Water and Power Development Authority.
(b) `Appointing Authority' means the officer designated as such in the Delegation of Orders issued by the Authority from time to time.
(c) `Competent Authority' means the Authority, or the appointing authority or an officer designated by the Authority to exercise powers of the competent Authority'.
(d) `Employee' means a person who has been directly recruited by the Authority or has been absorbed in the service of the Authority on transfer from, or on termination of his lien in his parent department of the Federal or Provincial Government, as the case may be.
(3) Retirement from Service.
Notwithstanding anything to the contrary contained in the order or the letter of appointment of an employee or in the terms of his service or in any other rule applicable to him, the WAPDA employee shall retire from service;
(a) In the case of an employee holding the post in Grade-20 or equivalent post, on such date as the `competent authority' may in the public interest direct.
(b) In any other case on such date after he has completed 25 years of service qualifying for pension, gratuity, or other retirement benefits or on completion of the 55th year of his age, as the `competent authority' may in the public interest direct, or
(c) Where no such direction is given under clause (a) or (b), as the case may be, on completion of 60th year of his age.
(4) In the case of those WAPDA employees who, on the date of promulgation of these Rules, had completed 25 years of service or had attained the age of 55 years, an order in terms of clause (b) or (c) of Rule 3, may be passed within six months of the date of promulgation of these Rules.
Note:- An employee who is retired under Rule 3 or Rule 4 will be entitled to L.P.R. subject to title, provided he applies within 15 days of the date of issue of the retirement order, and in case L.P.R. is granted the order of retirement shall take effect from the date of expiry of such leave:'
5. The Retirement Rules, 1979, reproduced above, place the WAPDA employees in two categories: (i) that of those in Grade-20 or in equivalent posts; and (ii) of those in other grades. The appellant was a Grade-19 officer and his case fell within the compass of clause (b) of Rule 3 which envisages that an employee in a grade other than Grade-20 shall retire from service after completion of 25 years 'of service qualifying for pension, gratuity and other retirement benefits, or on completion of the 55th year of his age, as the `competent Authority' may, in the public interest, direct. It is not disputed that the appellant had completed 25 years of service qualifying for pension, gratuity and other retirement benefits and his retirement was ordered on attaining the age of 55 years. There does not seem any ambiguity in the provisions contained in clause (b) of Rule 3 that an employee can be retired from service by the `competent Authority' at either of the two stages, one that of completion of 25 years of service qualifying for pension and other retirement benefits, or on. Attaining the age of 55 years, as may be directed by the `competent authority' in the public interest, and there does not seem any bar to the review .of the case of an employee at either of the two stages whichever occurs first, and allowing the employee to continue in service and retiring him from service at the stage of the second event. We are unable to subscribe to the view of a learned Bench of this Tribunal in Appeal No. 163 (L)/86, decided on 12-2-1989 holding that the case of a WAPDA employee once reviewed for retirement from service at the stage of completion of 55 years could not be reviewed again for his retirement from service on completing 25 years service qualifying for pension, gratuity and other retirement benefits.
6. The important question, however, for consideration is whether the impugned order of, retirement of the appellant from service was made by the `competent Authority'. The term `competent Authority' defined in clause (a) of Rule 2 of the Retirement Rules, 1979 means the `Authority' or the appointing authority, or an officer designated by the Authority to exercise powers of the `competent Authority'. The term `Authority' defined in clause (a) of Rule 3 ibid means the Pakistan Water and Power Development Authority. The Water and Power 'Development Authority was established under section 3 of the Pakistan Water and Power Development Authority Act, 1958 (hereinafter referred to as the Pakistan WAPDA Act, 1958), consisting of a Chairman and not more than three Members to be appointed by the Government as provided under subsection (1) Of Section 4 of the Pakistan WAPDA Act, 1958. The `appointing Authority' defined in clause (b) of Rule 2 of the Retirement Rules, 1979 means the officer designated as such in the Delegation of Orders issued by the Authority from time to time. In the case of the appellant, the Chairman of the `Authority' was the appointing authority. The impugned order of retirement of the appellant from service was made by the Chairman and one Member whereas it has been stated before us that the Authority at the relevant time consisted of the Chairman and three Members. Obviously, the impugned order was not passed by the Authority, but it was passed by the appointing, authority and one of the three Members of the `Authority'. By virtue of the definition of `competent authority' contained in clause (c) of Rule 2 of the Retirement Rules, 1979, the impugned order made b5 the Chairman, being the appointing authority, could be the order by the `competent Authority' but for certain orders issued later referred to hereinafter Under office order, dated 4th May, 1980, a copy whereof is Annexure `N' at page 50 of the memo -of appeal, certain instructions were issued for processing of the cases to be dealt with under Rule 3 of the Retirement Rules 1979. Another office order was issued on 20th May, 1980, whereby the Authority had decided that for annual review in accordance with Rule 2 (c) of the Retirement Rules, 1979, the cases of WAPDA employees', who were to complete 25 years service or on attaining the age of 55 years after 1st July, 1980, had to be initiated by the appointing authorities in order to give fair chance to the employees and the review of the cases was to be carried out in the manner indicated therein. It was directed that such cases of officers in B-19 and 20 were to be reviewed by the M.D. concerned and the final order was to be passed by the Full Authority. The same instructions were reiterated in Office Memorandum issued on 3rd May, 1983. The previous orders were amended vide office memorandum, dated 14/15th January, 1984, whereby it was, inter alia, provided that the cases of the officers in B-19 and 20 were to be reviewed by the M.D. concerned and they were to be discussed in the Authority's meeting before the final views were formulated and the final decision was to be taken by the Full Authority. Further, orders were issued under Office Memorandum dated 2-1-1985, whereby the Office Memorandum, dated 14/15th January, 1985 was amended as to provide, inter alia, that the cases of Superintending Engineers, Chief Engineers and the officers of equivalent status were to be reviewed by the M.D. concerned and they were to be discussed in the Authority's meeting before the final views were formulated and the final decision was to be taken by the Full Authority. It follows that the final decision for retirement of the officers of the rank of Superintending Engineers, Chief Engineers and the officers of the equivalent status were to be finality decided for the purpose of retirement by the Full Authority after their discussion at the meeting of the Authority. By virtue of these instructions, the argument by the learned counsel for the respondent that the decision, of retirement of the appellant by the Chairman and one Member, who constituted quorum at the meeting of the Authority under subsection (2) of Section 7 of the Pakistan WAPDA Act, 1958, was deemed to be the order by the Full Authority, does not hold ground. The provisions of the Retirement Rules, 1979 and the effect of the aforesaid orders issued by the Authority from time to time was considered by the Supreme Court in the case of Nasir Saeed v. WAPDA, reported in P L D 1987 S C 421, relied upon by the learned counsel wherein it was held that only the Authority was the competent authority to pass orders of retirement envisaged under clause (b) of Rule 3 of the Retirement Rules, 1979 in respect of Grade-20 officers. The same rule applies to the Grade-19 officers as well as they stood' equated with the Grade-20 officers in the aforesaid orders issued by the Authority from time to time. Accordingly, the impugned order of retirement of the appellant from service made by, only the Chairman and one Member was not made by the `competent authority' as envisaged by law. It may also be added that it was urged at the hearing by the learned counsel for the appellant that the tenure and office of the Chairman, who passed the order had expired earlier and he had become functus officio. However, no concrete evidence was made available. Query was made from the departmental represen tatives and they too could not make definite statement. As such, no definite finding can be given on this objection except making observation that if the Chairman had actually become functus officio in holding the office of the Chairman, the impugned order was made without lawful authority on that ground as well.
7. The next question urged by the learned counsel for the appellant, indeed very important in its nature, is that of the requirement of show-cause notice before taking such' action, in the light of the judgment of the Federal Shariat Court in the case of In re: The Civil Servants Act (LXXI of 1973), reported in P L D 1984 FSC at page 34, partially approved by the Shariat Appellate Bench of the Supreme Court as reported in .P L D 1987 S C 304. The Federal Shariat Court, while examining, under Article 203-D of the Constitution, the provisions of the Civil Servants Act, 1973, held that the provisions of section 13 (i) and (ii) of the Civil Servants Act. 1973 were repugnant to the Injunctions of Islam, and directed that the v should be repealed. Exactly the same ruling was given separately in respect of the analogous provisions contained in the Punjab Civil Servants Act, 1974, the Sindh Civil Servants Act, 1973, the N.-W.F.P. Civil Servants Act, 1993 and the Balochistan Civil Servant Act, 1974. Simultaneously similar provisions contained in the Pakistan Cantonments Servants Rules, 1954 and the Pakistan WAPDA Act, 1958 and few other laws of like nature also were considered by the Federal Shariat Court and it was held that the provisions of those Acts were not repugnant to the Injunctions of Islam. The decision is reported in P L D .1986 FSC 200. Both the decisions of the Federal Shariat Court were appealed against before the Shariat Appellate Bench in the Supreme Court. The order of the Curt is reproduced below:----
"ORDER OF THE COURT
By majority the following appeals are dismissed: Shariat Appeal No. 6 of 1983; Shariat Appeals Nos. 15, 19 and 34 of 1984; Shariat Appeal No. 1 of 1985. And Shariat Appeal No. 14 of 1984, is allowed. The provisions of the Statutes and statutory rules specified below under challenge, in these appeals, are found to be repugnant to the Injunctions of Islam; in so far as they do not provide for due notice of the action proposed to be taken and opportunity of showing cause against such action;
(i) Section 13 clauses (i) and (ii) of Civil Servants Act, 1973.
(ii) Section 12, clauses (i) and (ii) of Punjab Civil Servants Act, 1973.
(iii) Section 13, clause (i) of Sindh Civil Servants Act, 1973.
(iv) Section 13, clauses (i) and (ii) of Balochistan Civil Servants Act, 1974.
(v) Section 13, clause (i) of the N.-W.F.P. Civil Servants Act, 1973.
(vi) Sub-rule (3) of Rule 44 of Pakistan Cantonment Servants Rules, 195 framed under the Cantonments Act, 1924. .
The competent authorities are hereby allowed a period of six months from today (11-3-1987) to amend the law so as to bring it into conformity with the injunctions of Islam, failing which they shall cease to have legal effect.
The appellants in cases other than Shariat Appeal No. 14 of 184 shall pay the cost of those who appeared to oppose them at the rate of Rs.3,000 per individual. The appellant in Shariat Appeal No. 14 of 1984 shall be paid as Rs.3,000 as costs by the respondents therein."
8. There is no mention in the order of the Shariat Appellate Bench of the Supreme Court, reproduced above, of the provisions of the Pakistan WAPDA Act, 1958. It appears from the judgment of the Shariat Appellate Bench in the. Supreme Court that reference to the provisions of the Pakistan WAPDA Act, 1958 was made at the hearing of the appeals. Following observations were mace by His Lordship Mr. Justice Dr. Nasim Hasan Shah in the concluding part of his judgment, which did refer to the employees of the Statutory Corporations like WAPDA, Cantonment Boards and Universities etc.
"Thus, although it is not possible to contend that the Holy Qur'an ordains that it is necessary to issue show-cause notice to a person before condemning him and, therefore, the competent authority, acting in good faith, can take the action of prematurely retiring a civil servant as provided for in subsections (i) and (ii) of section 13 of Civil Servants Act, 1973 and the corresponding provisions of the Provincial Service Laws, but I feel that on the basis of the verses of the Holy Qur'an cited above it can fairly be submitted that the principle emanating from the verses, cited above, and the practice of the Almighty Allah which is evidenced therefrom entitles a civil servant to be informed of the reasons/grounds wherefore his retirement has been directed in "public interest". He should be told why the action has been taken against him and in the words of God Almighty be asked to read his own record which has been responsible for the fate that has befallen him. Furthermore, since an appeal is competed before the Service Tribunals against the action taken against him, the affected civil servant will be in a better position to challenge the order passed against him in case he feels that he has not been dealt with justly and fairly.
I further feel that no difference exists in this respect between the cases of civil servants who are in the employ of the Government and employees of the Statutory Corporations like WAPDA, Cantonment Boards, Universities etc. I would, therefore, agree with the submissions on this point made by Mr. Khalil Ramday, Additional Advocate-General (Punjab). Hence the employees of all such organisations must also be intimated the reasons/grounds for their premature retirement which may be ordered under provisions similar to those under which the civil servants are liable to be retired.
His…
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