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Petitioner: ABDUL SATTAR VS Respondent: CHAIRMAN, WAPDA, LAHORE
1993 P L C (C
1993 P L C (C.S.) 758
[Federal Service Tribunal]
Present: Abdul Razzak A. Thahim, Chairman and M. Ilyas Lodhi, Member
ABDUL SATTAR
versus
CHAIRMAN, WAPDA, LAHORE
Appeal No. 299(R) of 1986, decided on 24th January, 1993.
(a) Service Tribunals Act ‑(LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑West Pakistan Water and Power Development Authority Act (XXXI of 1958), S.17(1‑A)‑‑‑Jurisdiction of Service Tribunal‑‑‑Service Tribunal was competent to entertain and scrutinise an order made under S. 17(1‑A) of Act XXXI of 1958, with regard to the competency and amenability of the individual in respect of whom such power had been exercised and presence of taint of mala fides or bias.
1987 SCMR 1947 and 1987 PLC (C.S.) 441 ref.
WAPDA v. Muhammad Arshad Qureshi and others 1986 SCMR 18 rel.
(b) West Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑
‑‑‑‑S. 17(1‑A)‑‑‑Removal from service amounting to discrimination ‑‑‑Effect‑‑ Authority while examining employee's case along-with other employees had observed that although employee was found responsible but it was to a lesser degree‑‑‑Employee in spite of that was removed whereas another officer barged of same misconduct was retired while the third accused employee was reinstated by Service Tribunal and that decision was upheld by Supreme Court‑‑‑Employee was thus not liable to have been dealt with differently and furthermore, he was also granted pardon by the Martial Law Authorities and ordered to be reinstated in service‑‑‑Employee was thus, Discriminated and whole action against him was mala fide and biased which was not sustainable‑‑‑Employee was ordered to be reinstated in service with hack benefits.
Muhammad Sardar Khan v. Senior Member (Establishment) Board of Revenue. Puniab. Lahore 1985 SCMR 1483 rel.
(c) West Pakistan Water and Power Development Authority Act (XXXI of 1958)‑ ‑
‑‑‑‑S. 17(1‑A)‑‑‑Provision of S. 17(1‑A) of Act XXXI of 1958‑‑‑Persons against whom such provision can be invoked‑‑ ‑Provision of S. 17(1‑A) of the Act XXXI of 1958, can only be invoked against the person who was in service of the Authority constituted under the Act XXXI of 1958‑‑‑Employee, in spite of 0:c orders of Service Tribunal (in earlier round of litigation) and the Martial Law Authorities, having not been allowed to resume duty for a day even, by the authority, at the time of the passing of the impugned order was not in the service of the Authority, thus his removal from service was bad in law and could not be maintained‑‑‑Authority's action by not complying with orders of reinstatement itself showed its mala fides.
Muhammad Asghar Malik for Appellant.
Syed Iftikhar Ahmed for Respondents.
Dates of hearing: 25th and 26th November, 1992.
JUDGMENT
ABDUL RAZZAK A. THAHIM (CHAIRMAN).‑‑‑Appellant Mr. Abdul Sattar was initially recruited as Accounts Clerk in WAPDA w.e.f. 7‑1‑1962. He qualified the departmental accounts examination and was promoted as Budget and Accounts Officer on 26‑4‑1979 and was posted in the Office of the Director of Accounts, Area Electricity Board, Multan. He was put charge of Banking Imprest Section and worked there for more than three dears. It is alleged that during the year 1981, irregular purchases were made and work orders were executed in the Bahawalnagar Division on the basis of forged approval purportedly accorded by the Chairman, Area Electricity Board, Multan and he failed to exercise proper check while pre‑auditing the contractors' bills and did not observe the relevant rules with the result that funds to the tune of Rs.37 lacs were released without allocation and thus violated the instructions of the Authority. He was also charged that he was responsible for creating a revolving fund from where he had been meeting try additional demands of Divisions before their release and actual. Transmission from the General Manager (P), WAPDA and also failed to affect recovery income tax from the contractors Bills in violation of Income Tax Ordinance 1979.
2. The appellant was removed from service on 21‑7‑1982 and under section 17(1‑A) of the WAPDA Act, 1958. In addition, the Chairman, Area Electricity Board, Multan got registered criminal cases against the appellant and others and his case was referred to the Summary Military Court for trial. He was found guilty by the Military and sentenced to one year R.I. with a fine of Rs.1 lac vide judgment dated 19‑12‑1983. He preferred appeal before the Deputy Martial Law Administrator, Sector No. 3 Multan who granted him pardon and directed his reinstatement in service by order dated 30‑9‑1984. He reported for duty to General Manager, Finance WAPDA who refused to take him on duty on the ground that he was removed under section 17(1‑A) of the WAPDA Act and this action was independent of the criminal action taken by the Martial Law Authorities. The appellant Mr. Abdul Sattar then Appeal No. 12(L)/84 before the Tribunal which was accepted judgment dated 5‑7‑1986. In pursuance of the decision of the Tribunal, appellant reported for duty on 20‑7‑1986 but the Authority did not allow him to join and instead passed an order dated 26‑8‑1986 for his removal under section 17(1‑A) of the WAPDA Act. He again filed Appeal No. 299(R)/86 before this Tribunal but his appeal was dismissed by judgment dated 8‑11‑1988.
3. Being aggrieved by the judgment of the Tribunal, Mr. Abdul Sate: filed Civil Appeal No. 52 of 1990 before the Supreme Court. The order of Tribunal was set aside and the case has been remanded to the Tribunal rehearing of the appeal.
4. We have heard the learned counsel for the appellant Mr. Muhammad Asghar Malik, Advocate and Mr. Syed Iftikhar Ahmed Shah, Advocate for respondents at length.
5. The contention of the learned counsel for the appellant is that some other officers namely Mr. Rao Ziledar Khan and Mr. Mushtaq Ahmad, who were removed under section 17(1‑A) of the WAPDA Act, were reinstated by the Tribunal with full back benefits and the decisions were upheld by the Supreme Court. Therefore, the removal of the appellant is bad in law and it is argued that case of appellant is identical to that of Mr. Rao Ziledar Khan and Mr. Mushtaq Ahmad and order of removal of Abdul Sattar is mala fide. 70 Syed Iftikhar Ahmed, Advocate for the respondent submitted that order in removal is in accordance with law.
6. Besides the appellant, five other employees of WAPDA namely M/s. Zahoor Ahmad, Akhtar Hayat, Muhammad Sharif, Ameeruddin and Rana Afzal Hayat, were also removed from service under section 17(1‑A) of the WAPDA Act, 1958. They filed Appeals Nos. 753(L)/82, 296(L)/83, 297(L)/83, 419(L)/83 and 22(L)/84 respectively before this Tribunal under section 4 of the Service Tribunals Act, 1973 read with subsection (1‑B) of section 17 of the WAPDA Act, 1973 and all the appeals were accepted and orders of their removal from service were set aside on the grounds that there was no specific order of the Authority for removing the appellants under section 17(1‑A). In those judgments dated 5‑7‑1986, it was observed that competent authority could proceed afresh against the appellants under section 17(1‑A) of the WAPDA Act or under the provisions of WAPDA Employees (E&D) Rules, 1978.
7. The Authority once again invoked the provisions of section 17(1‑A) of the WAPDA Act against the appellant and passed the following order on 26‑8‑1986, reproduced below:
"1. The case of Mr. Abdul Sattar, Budget and Accounts Officer Banking, 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."
The appellant Mr. Abdul Sattar challenged that order before the Tribunal and his Appeal No.299 (R)/86 was dismissed on 8‑11‑1988. Being aggrieved against this order, he went in appeal before the Supreme Court and filed CPLA No.52/90, and the case has been remanded to the Tribunal by judgment dated 2‑2‑1992.
8. There are so many cases of identical nature whereby officers and Accountants were removed and the aggrieved persons filed separate appeals. One Rao Ziledar Khan who was Budget and Accounts Officer at the relevant time was also removed from service under section 17(1‑A). It is on the record that the appellant Mr. Abdul Sattar, some time worked during the absence of Rao Ziledar Khan and charges against both the officers, to some extent, are identical. The appeal of Rao Ziledar Khan before the Tribunal succeeded and the Supreme Court also upheld the decision of the Tribunal and set aside the removal of the appellant therein (1987 SCMR 1947). The difference between the two cases is that in the case of Mr. Abdul Sattar it was left open to the Authority to initiate fresh proceedings and pass appropriate orders, if so advised, and they did so and removed the appellant under section 17(1‑A) WAPDA did not implement order of Tribunal in case of Rao Ziledar Khan and filed appeal in Supreme Court, same was dismissed and consequently Rao Ziledar Khan was reinstated and it is stated that he got full benefits of reinstatements. It appears that while deciding the case of the appellant Mr. Abdul Sattar in Appeal No. 299 (R) of 1986 on 8‑11‑1988, the facts of the case of Rao Ziledar Khan were not pointed out to the Tribunal, otherwise the Tribunal should not have permitted the WAPDA to fill up the lacuna and pass fresh order under section 17 (1‑A) of the WAPDA Act.
9. It was also argued on behalf of the appellant that in another identical case of Mr. Mushtaq Ahmad, a Divisional Accountant at Bahawalpur Division, at the relevant time, was also removed under section 17(1‑A), filed appeal before the Tribunal and his Appeal No. 19(L) of 1983 was accepted with full back benefits. It was also submitted that WAPDA did not file any appeal against the said judgment, with the result that Rao Ziledar Khan and Mir. Mushtaq Ahmad are in service. We have gone through the record of Appeal No. 19(L)/83 of Mr. Mushtaq Ahmad. In that appeal, it was observed that the appellant who was only an Accountant and the allegations against him were that he had not controlled the activities of the Executive Engineer who committed certain irregularities, was not supposed to have a supervisory role on the acts of the Executive Engineer. In this case, reference was made to in identical case of Abdul Latif Qureshi decided by this Tribunal (1987 PLC (CS) 441, wherein it was held that Divisional Accountant was not responsible t;)r controlling the activities of the Executive Engineers but the responsibility lay on the hands of the Director of Accounts of the area and that decision was upheld by the Supreme Court in the case reported in 1987 SCMR 1348. it also on record that Mr. Mushtaq Ahmad was also convicted by the Martail Law Authorities and was removed under section 17(1‑A). There appears to be no explanations from the Advocate for respondents for not filing appeal in Supreme Court in case of Mr. Mushtaq Ahmad.
10. In the present case, the appellant was granted pardon by the Deputy Martial Law Administrator, Sector No. 3, Multan. He reported for duty 3‑10‑1984 but he was not allowed to resume duty and once again the Tribunal accepted the appeal of the appellant against removal from service but in spite of all that, he was not reinstated in service and fresh order unit section 17(1‑A) was passed. These points have also been considered by the Supreme Court while disposing of Civil Appeal No. 52/90 of the appellant and it has been observed as under:‑‑
".. We agree. It was obligatory for WAPDA to implement the order ~1f the Martial Law Court especially after the above‑noted clarification.
Be that as it may, after the order of the Service Tribunal dated 5‑7‑1986, setting aside the earlier order of removal under section 17(1‑A) dated 21‑7‑1982 was passed and reinstatement of the appellant orders, the appellant, even under the said orders, was to be reinstated. The fresh order of removal dated 2G‑8‑1986 with reinstating the appellant was an order passed against a person who was not yet in service of WAPDA and hence non esse, His removal from service, in these circumstances, was of no effect. Unfortunately the Service Tribunal despite the detailed order which it has passed has not discussed either this question nor some other important grounds raised by the appellant before it. Hence the order dated 8‑11 1988 passed by it cannot be upheld.
We would, therefore, allow this appeal, set aside the order passed by the Service Tribunal dated 8‑11‑1988 and remand the case to the Service Tribunal for rehearing the appeal filed by the appellant against the order dated 26‑8‑1986 and disposed it of expeditiously, if possible within three months from today."
11. There are some other circumstances. On 20‑5‑1982, GMF (P) Mr. Manzoor A. Sheikh sent a note to Member (Power)/Member (Finance) that a senior officer be deputed to Multan to investigate the cases against some approvals bearing the forged signature of the Chairman, Area Electricity Board, Multan and the bills were paid after pre‑audit by office of Director Accounts, Multan. In the inquiry report charges were levelled against Mr. Mushtaq Ahmed, Divisional Accountant and Rao Ziledar Khan, Budget and Accounts Officer and others, but the name of the appellant Mr. Abdul Sattar is not included in that report. In paragraph 38 of the report, the following officers were mainly made responsible for the acts of fraud and forgery, misuse of official position and causing loss to the Authority,
(1) Mr. Mehboob Ali, Senior Clerk, AEB, Multan.
(2) Mr. Zahoor Ahmed, XEN, Bahawalnagar.
(3) Mr. Akhtar Hayat, S.D.O., Bahawalnagar.
(4) Mr. Amiruddin, A.S.O., Bahawalnagar.
(5) Mr. Mushtaq Ahmad, Divisional Accountant, Bahawalnagar.
(6) Mr. Afzal Hayat, Line Supdt.‑I, Minchinabad.
(7) Mr: Safdar Iqbal, Line Supdt: II, Minchinabad.
(8) Mr. Muhammad Sharif, Line Supdt.‑II, Bahawalnagar.
however, in the same report the following officers of the Office of Director Accounts, Area Board, Multan, were also found responsible, but to a lesser d~gr~e:‑‑
(1) Rao Ziledar Khan, B&A Officer.
(2) Mr. Abdul Sattar, B&A Officer.
(3) Mr. Ghulam Mustafa Shad, B&A Officer.
Removal of the aforementioned officers was recommended under section 17(1‑A), but in the case of Mr. Ghulam Mustafa Shad, retirement was recommended.
12. The Authority after the judgment of the Tribunal dated 5‑7‑1986 started fresh proceedings by submitting a detailed summary and invited opinion of the Members of the Authority. The General Manager (Admn.) Brig. (Retd.) Asadullah Khan vide his note dated 7‑8‑1986 made the following observation:‑‑
"My Authority consider to take action afresh against all the six officers named above under section 17(1‑A), WAPDA Act for their removal from service without assigning any reason on payment of 30 days' pay in lieu of notice."
This note was sent to Member (Water), who recorded the following note on 7‑8‑1986:‑‑
"Action already taken against these officers by Authority was set aside by the Tribunal on a technical ground that the order of Authority was not unequivocal specific etc.
I was not a party to the earlier decision having joined Authority later. Perusal of the report of Inquiry Committee at Multan shows that all these officers have been, found guilty of serious acts which speak of gross ulterior motive on their part. They all be removed from service under section 17(1‑A)."
Member (Power) observed as under vide his note dated 11‑8‑1986:‑‑
"I was also not a party to earlier decision. I have also the same view that all the six officers named in para. 118 ante be removed from service under section 17(1‑A)." ‑
Member (Finance) agreed with Member (Water) and Member (Power) vide his note dated 12‑8‑1986.
13. Finally, the Chairman on 24th August, 1986 passed the following order:‑‑
"The‑findings of the Enquiry Committee against the officers are well reasoned and were also enquired into by a high powered enquiry committee. All these six officers do not deserve to be‑ retained in service of the Authority and be removed under the abovesaid provision ‑ section 17(1‑A) of law."
In earlier summary; the Chairman on 19‑7‑1982 made the following observations:‑
"One of the major flaws is that people m WAPDA HQ have not gone out to visit and inspect. If the Finance, the Audit and Commercial and the Distribution people in HQ visit, we will have few frauds. Please instruct your people to visit under a regular programme."
With great hesitation, we can say that these observations of the Chairman while passing the impugned order under section 17(1‑A) have not been considered at all and there is no reference to it.
14. The jurisdictional controversy of the Tribunal over the orders passed under section 17(1‑A) of the WAPDA Act, 1958 stands settled in the case of WAPDA v. Muhammad Arshad Qureshi and others 1986 SCMR 18 and the Tribunal is competent to entertain and scrutinise an order made under section 17(1‑A) with regard to the competency of the individual the amenability of the individual in respect of whom such power has been exercised and the presence of taint of mala fide or bias. Therefore, this case has been examined in the light of the Hon'ble Supreme Court aforesaid decision. The WAPDA have laid down certain guidelines for the cases which are to be scrutinised for taking action under section 17(1‑A) and those guidelines were circulated under Office Memorandum No. GMA(Admn.)/AD(REV)/050014(A)/27049‑238, dated 17‑4‑1982 and they are:‑‑
"(i) Cases of employees who had established reputation of being corrupt, or who were reasonably considered to be corrupt and or were persistently inefficient.
(ii) Cases of those who had been tried in Courts on criminal charges but had escaped punishment for lack of sufficient evidence or for reason of witnesses having been won over or on technical grounds.
(iii) Employees who had two or more punishments to their discredit and had not reformed themselves."
None of the above ingredients is present in the appellant's case. While examining the case of the appellant by the Authority, as mentioned above in paragraph 11, it was observed that the appellant was found responsible but to a lesser degree, but in spite of that; he too was removed by inv9king the aforesaid provision of section 17(1‑A), whereas another officer, namely Mr. Ghulam Mustafa Shad was recommended to be retired, and the third accused officer namely Rao Ziledar Khan was reinstated by the Tribunal and the decision was upheld by the Supreme Court. Therefore, it is obvious that the appellant was not liable to have been dealt with under the aforesaid guidelines and furthermore the appellant was also granted `pardon' by the Martial Law Authorities and ordered his reinstatement in service. In other words, the material against the appellant on which he was convicted had vanished and even then the appellant was not reinstated. Reliance is placed in this respect on 1985 SCMR 1483 (Muhammad Sardar Khan v. Senior Member (Estb.) Board of Revenue, Punjab, Lahore). In our opinion, the appellant was discriminated and whole action against him was mala fide and biased.
15. Section 17(1‑A) can only be invoked against the person who is serving under the Authority but in the present case WAPDA in spite of the orders of the Tribunal and the Martial Law Authorities did not allow the appellant to resume duty for a day even. Therefore, at the time of passing of the second order under section 17(1‑A), when the appellant was not in service of WAPDA, was bad in law and cannot be maintained. By not complying with two orders of‑reinstatement itself shows mala fide.
16. Lastly, the learned counsel for the appellant referred to a decision of this tribunal in Appeal No. 318(L)/83 (315(R)/84) (Muhammad Rashid v. Chairman, WAPDA, Lahore) and contended that the facts of this case are identical to the appeal of the appellant, and the Tribunal after discussing in detail the role and duties of the Budget and Accounts Officer, did not approve of the action of WAPDA in removing the appellant under section 17(1‑A) and ordered his reinstatement. That decision of the Tribunal was upheld by the Supreme Court in the case reported in 1986 SCMR 588.
17. The upshot of the above discussions is that there is clear discrimination on the part of WAPDA and mala fide in taking action against the appellant, in view of the cases of Muhammad Rashid, Mushtaq Ahmad, Rao Ziledar Khan and Abdul Latif Qureshi, referred to above in the preceding paragraphs, so far the allegations are concerned, and the order of removal of the appellant dated 26‑8‑1986 is set aside. The appellant shall be reinstated in service with all back benefits in accordance with law. No order as to costs.
A.A./791/Sr.F Appeal accepted.