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Petitioner: SHAHID M. AKHTAR and 4 others VS Respondent: CHAIRMAN, WAPDA, LAHORE and another
Court Name: Federal Service Tribunal Judge(s): Ali Madad Shah, Ch. Hassan Nawaz, Kh. Abdul Jalil Title: SHAHID M. AKHTAR and 4 others vs CHAIRMAN, WAPDA, LAHORE and another Case No.: Appeals Nos, 74(R), 75(R), 76(R), 117(R) and 118(R) of 1984 Date of Judgment:1989-06-22 Reported As: 1990 PLC (C.S.) 411 Result: Appeals dismissed
JUDGMENT
JUDGMENT CH. HASAN NAWAZ (MEMBER).--We are concerned in this judgment with the disposal of five appeals, giving rise to identical questions of law and facts, filed under section 4 of the Service Tribunals Act, 1973 by the appellants against the orders of their removal from service passed by respondent No, 1 on 12-1-1984 under section 17(1-A) of the West Pakistan WAPDA Act, 1958. 2. Out of these appeals, the first three were accepted by the Tribunal through judgment dated 9-6- 1984 where it was held that the impugned orders were arbitrary, discriminatory and had not been passed in bona fide exercise of powers and that they could not, therefore, be legally sustained. The appellants were ordered to be reinstated in service from the date of removal with all consequential benefits. 3. The other two appeals, which were heard by a different Bench, were accepted on 15-12-1984, following the Tribunal's earlier judgment dated 9-6-1984 in the other three appeals, with the observation that "it is not possible to give a different decision, especially when the arguments advanced by other Bench carried considerable weight and that, under the circumstances, they had no choice but to dispose of these appeals in the same manner in which the other appeals had been decided". Here again, the impugned orders were set aside with all consequential benefits. 4. On appeal, the Tribunal's judgments dated 9-6-1984 and 15-12-1984 were set aside by the Supreme Court and the cases were remanded for a fresh decision. 5. During the course of arguments before the Supreme Court, the respondents' (now appellants) learned counsel argued that the Tribunal had not addressed itself to various points raised in their appeals, on a finding that the action taken against them was vitiated on account of arbitrariness and mala fides. He submitted that they were entitled to get the orders of the removal from service
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set aside on the basis of other pleas taken by them in their appeals, which had not been decided by the Tribunal. 6. On these arguments the Supreme Court made the following observations: "We have gone through the memorandums of appeals submitted by the respondents and agree that there were other pleas raised by them which needed consideration and have not been decided. In these circumstances, the orders of the Service Tribunal dated 9-6-1984 in Civil Appeals Nos, 805, 806 and 808 of 1984 are set aside and these cases remanded back to the Service Tribunal, for decision of these appeals afresh in the light of the other pleas raised by them." 7. When the Tribunal again became seized of the matter on remand, all the five appellants made applications for an order allowing them to add certain other pleas to those already taken, by amending their appeals. Their petitions were, however, rejected by the Tribunal on 27-3-1986 on the ground that there was no justification for the addition of other pleas. 8. The appellants again went to the Supreme Court with civil petitions to get the necessary relief. They were, however, dismissed by the Court on 30-6-1986 and 23-11-1986 with the observation that they were incompetent on account of having been directed against an interlocutory order passed by the Tribunal. It may here be mentioned as a material circumstance that during the course of arguments, the petitioner's learned counsel sought clarification of the Court's intention while disposing of their appeals by a consolidated judgment passed on 14-12-1985, in respect of the question raised in the miscellaneous petitions. It was observed that if the petitioners are able to show that the action against them was indeed actuated by mala fides, the Tribunal would not be debarred from taking note of this fact. 9. As it could be understood from the arguments at the Bar during fresh hearing of the appeals, there was some confusion regarding the scope of examination of the matters involved, to be made by the Tribunal. It was contended by the respondents' learned counsel that the question of mala fides and discrimination having already been finally decided by the Supreme Court, could not be raised again after remand and that the appellants could rely only upon other pleas which had not been considered and decided by the Tribunal in its earlier judgment and in respect of which the Supreme Court had not given any decision. On the other hand, the appellants' learned counsel claimed that on remand all the questions raised in the appeals have become alive for adjudication, including those in respect of mala fides and discrimination. Before proceeding further, it is, therefore, necessary to determine the gamut of our examination. 10.In this respect, the following observations of the Supreme Court in their judgment dated 14-12- 1985 are important: "The Tribunal, in the said cases, based its decision mainly on the hypothesis that the cases of all the persons who were scrutinised by the Enquiry Committee stood on the same footing and that WAPDA was guilty of according different treatment to the different officers who were all involved in the alleged misconduct and that it had, thereby, been guilty of unfair discrimination. Hence, its order, insofar as the three respondents are concerned, was arbitrary and mala fide." 11. What followed is also material: "We regret that we cannot subscribe to this approach of the Tribunal. No basis was laid by it for asserting that the cases of all the officers, whose conduct was being inquired into by the Enquiry Committee, were identical. Unless the identity of interest and conduct of all the officers is established, the mere fact that a particular kind of action has been recommended against some of them and another type of action recommended against others, cannot make the action ordered as unjustified discrimination." 12. It is clear that the Supreme Court took due notice of the Tribunal's approach to the question of discrimination in its judgment dated 9-6-1984. It was based on the surmise that the cases of all the persons concerned stood on the same footing and that WAPDA was guilty of according different
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treatment to different officers, irrespective of whether they were equally involved in the alleged misconduct. It was this approach which did not find favour with the Supreme Court on the ground that no basis had been laid by the Tribunal for an assertion that the cases of all the officers involved in the matter were identical. This gave rise to the observations that "unless the identity of interest and conduct of all the officers is established, the mere fact that a particular kind of action has been recommended against some of them and another type of action recommended against others, cannot make the action ordered as unjustified discrimination". In my view, they are clearly suggestive of the fact that the Tribunal should have laid a basis for the averment that the cases of all the officers, or at least some of them, were similar to those of the appellants, before giving a finding of discrimination, as could have inserted arbitrariness and malice into the impugned order. In this view of the matter, therefore, it is possible to make an address, in this judgment, to all the facts which would go to establish that different treatment was given to some officers other than the appellants, involved in the same matter on identical allegations and proved to have been equally liable. It can be seen that lenient view of the matter was taken by the Authority in so far as they were concerned, in spite of the fact that they had been found guilty of similar irregularities causing monetary loss even, though it might have been lesser in quantum. 13. Even the question of mala fides can also be gone into as result of the Supreme Court observations in their order dated 30-6-1986 that if the appellants are able to show that the action against them was indeed actuated by mala fides, the Tribunal would not be debarred from taking note of this fact. These observations apart, it should be legally possible for us to determine this question of mala fides in consequence of a finding regarding discrimination, which we can record on the basis of the Supreme Court's judgment; and which is so for the simple reason that a discriminatory action is evidently bound to be arbitrary, mala fide and in violation of the principles of natural justice. 14. Fair and effective examination of point involved, would require recapitulation of the facts of the case. Shahid M. Akhtar appellant remained incharge as Executive Engineer of the Street Light Division, Lahore in the year 1981 and then Gulberg Construction Division till 18-5-1983 before his transfer to Kasur. Amjad Hadayat Butt appellant was incharge of Shandara Division as Executive Engineer from 1981 to 28-8-1982, the date on which he was suspended. Mr. Muhammad Makhdoom Tariq appellant remained in the same capacity in Civil Lines Division, Lahore from year 1981 to 28-8- 1982 when he too was suspended. Kh. Abdul Waheed appellant remained posted as an Executive Engineer Chunian till May, 1981 before his transfer as Deputy Director WAPDA; whereas Zameer Hussain Bhatti appellant had been incharge of Islam Pura Division, Lahore from the same year to 4- 10-1982. 15. A special audit was conducted in the Lahore Region of the WAPDA in respect of the years 1980- 81, 1981-82 on certain complaints of misuse of official powers in the matter of purchase of store materials; which resulted in the Chief Auditor's report on 6-10-1982. On scrutiny of this report, an Inquiry Committee was constituted with the Chief Engineer (P.I.I.) as convener, the Director (Surveillance) and the Deputy Chief Auditor, Lahore Region as Members, through General Manager (D) Office Order dated 26-10-1982, for carrying out a detailed inquiry. The Inquiry Committee submitted an exhaustive report, whereupon a board consisting of General Manager (Administration), General Manager (Distribution) and G.M.F. (P) was constituted to review the findings of the committee and submit its recommendations to the authority. 16. In their report dated 17-12-1983, Review Board noticed the following irregularities in the region during the relevant period: "(a) Huge purchases were made by the Executive Engineers which were far above their actual requirements. When the Inquiry Team went around they found many items still lying in the stores. (b) Many purchases were made from bogus firms or firms which were not dealing in those items
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e.g. steel furniture were purchased from dealers of electrical goods. (c) Letter pads of some reputable firms were used but in actual fact they were never issued any tender enquiry. Excessive rates were paid causing considerable financial loss to the Authority. The total loss as determined by the Inquiry Committee comes to Rs,90,62,862.59. (d) Practically every tender was issued as emergent tender to keep the purchases within the financial powers of the Executive Engineers. Other tenders were issued with the approval of Superintending Engineers to keep them under the value' of Rs,20,000 to avoid inspection from Chief Engineer (MI)." 17. In their recommendations, the Board divided the officers involved in different categories in the following manner: (a) Sardar Noor Alam Khan. Chairman AEB, Lahore. "His major mistake was that without realising the consequences of his action, he distributed the funds to his Divisions and remained ignorant about the irregularities till the Contractors Association reported to him as such. His control was lax and his orientation was different. However, he did act when he became aware of the irregularities, but got no support from his senior subordinate staff. This mitigates his inaction to some extent. It is therefore, recommended that he should be given Chairman's Severe Displeasure (Recordable) and should also be posted out of this appointment." (b) "The following officers/officials are recommended to be removed from service under section 17(1-A) of the WAPDA Act, 1958 with immediate effect, without assigning any reason by giving them 30 days' pay in lieu of notice, as required under the law:-- (1) Mr. Muhammad Makhdoom Tariq Mufti, XEN. (2) Mr. Shahid M. Akhtar, XEN. (3) Khawaja Abdul Waheed, XEN. (4) Mr. Zamir Hussain Bhatti, XEN. (5) Mr. Amjad Hidayat Butt, XEN. (6) Mr. Saeed Malik, B&AO. (7) Mr. Muhammad Hanif, Divisional Accountant (with Mufti). (8) Mr. Hamid Iqbal, Divisional Accountant (Street Light Divn.) (9) Mr. Arshad Imran Butt, Divisional Accountant (Chunian). (10) Mr. Jamil Bhatti, Divisional Accountant (with Zamir Bhatti). (11) Mr. Abdul Latif Qureshi, Divisional Accountant. (12) Mr. Salahuddin, Divisional Accountant (Shandara Division)." (c) "Action should be taken under (E & D) Rules against the following officers/officials:-- (1) Ch. Muhammad Rashid Khan, S.E. (2) Mr. Mushtaq Ahmad, S.E. (3) S. Iftikhar Ali Shah, Director (Accounts). (4) Mr. Mazhar Nawaz Khan Khakwani, XEN. (5) Mr. Abdul Ghaffar Khan, XEN. (6) Mr. Salahuddin, XEN. (Gulberg Divn. and Shalimar Const. Divn.) (7) Mr. Muhammad Saleem, XEN. (8) Mr. Talat Mahmood, XEN. (9) Mr. Ansar Haider, XEN. (Shalimar Const. Divn.) (10) Mr. Asif Najib B&AO. (11) Mr. Asghar Awan, B&A (12) Mian Muhammad, B&AO (13) Mr. Nazir Ahmad Khan, B&AO. (14) Mr. Ismail Bhatti, B&AO. (15) Mr. Abdul Qadeer Khan, Divisional Accountant
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(16) Sh. Hafiz Ahmad, Divisional Accountant (17) Mr. Muhammad Akram, Divisional Accountant (18) Mr. Muhammad Younus Butt, Divisional Accountant" (d) "The following officers may be served with a written warning: (1) Mr. Anwar Herl, S.E. (2) Mr. Abdul Sattar Akhtar, S.E. (3) Mr. Asghar Ali Randhawa, S.E. (e) "The remaining employees as mentioned in paras. 4, 6, 10 (Annex. A) of the inquiry report who are responsible for various lapses and acts of omission and commission may also be served with a written warning." 18. These recommendations of the Board were considered in the Authority's meeting on 8-1-1984 and the following decisions were made:-- "(a) Recommendations of the Board regarding officers in category (b) for action under section 17(1-A) of the Act may be approved. (b) As for categories (a) and (d), instead of issuing "severe displeasure" (recordable) to Sardar Noor Alam and warnings in writing to three Superintending Engineers of paragraph (d), they should be suitably "admonished" through a personal letter from Chairman WAPDA. These officers, in the opinion of Member (Power), were professionally competent and men of integrity. (c) About the officers in (e) above, it was recommended that they should for the present be kept under strict observation by the Competent Authority to watch their future conduct. (d) As for category (c), the Authority desired "that the eighteen cases recommended for action under the Efficiency and Discipline Rules" be further examined by the Review Board with a view to taking out those officers/officials whose acts of omissions and commissions were not of very serious nature." 19. From this account it is abundantly clear that different treatment was given to various officers involved in the matter. In the first place, it was recommended by the Board that lenient view of the matter should be taken in respect of Sardar Noor Alam Khan (respondent No, 2) Chairman, Area Electricity Board. Then, whatever the Committee's report, the officers falling in other categories were recommended by the Board for a different action. Further, as we see, the Authority in turn approved the Board's recommendations only in respect of category (b) officers and about those falling in category (c) it was decided that the Board's recommendation for action under the Efficiency and Discipline Rules be examined afresh by them with a view to taking out those officers/officials whose acts of omissions and commissions were not of very serious nature. Deviation was also made in the case of category (e) officers about whom it had been recommended by the Board that they should be warned in writing, in that the Authority decided that they should for the present be kept under strict "observation by the Competent Authority to watch their future conduct". 20. It appears from the record that all the officers in category (b), including the appellants were removed from service under section 17(1-A) of the Act, with the exception of M/s. Mr. Muhammad Hanif and Mr. Jamil Bhatti, Divisional Accountants who were in Government service. During the course of arguments, the appellants' learned counsel requested that the Tribunal should take judicial notice of the fact that the remaining five officers, namely M/s. Hamid Iqbal, Arshad Imran Butt, Abdul Latif Qureshi and Salahuddin came to the Tribunal with appeals under section 4 of the Act which have been accepted. Similar appeal filed Mr. Saeed Malik, Budget and Accounts Officer is, however, still awaiting decision. 21. It will be sufficient to make a reference only to the case of Abdul Latif Qureshi 1987 PLC (C.S.) 441, where the Tribunal refused to approve drastic action under section 17(1-A) of the Act under the circumstances of the case. It was found that he failed to check unnecessary and excess purchases
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of store materials made by the Executive Engineer without administrative approval and technical sanction. The Tribunal held that all purchases were made on the demand of Field Officers after obtaining non-availability certificate from the Competent Authority and no violation was committed by him. In this case, the Supreme Court refused leave to appeal to WAPDA (1987 SCMR 1348). may be mentioned that Mr. Qureshi had been working with Mr. Amjad Hidayat Butt while he was incharge of McLeod Road Division, Lahore. 22. Out of eighteen officers in category (c) there were six Executive Engineers, two Superintending Engineers, namely Ch. Muhammad Rashid Khan and Mr. Mushtaq Ahmed and ten officers who pertained to the account side. Since comparison is to be made regarding treatment given to the officers of the status of Executive Engineers, we will confine our notice to what happened to the six Executive Engineers in (c) category, leaving out the other twelve officers who were different in class. 23. Out of the Executive Engineers of (c) category, Mr. Muzaffar Nawaz Khakwani had been incharge of Rang Mahal Division and Garden Town Division during the period in question. The penalty awarded against him was that he was reduced four stages below in the time scale in respect of the irregularities in each of the two Divisions (order dated 11-12-1985 from the office of General Manager (Distribution). In the case of Abdul Ghaffar, Executive Engineer, only the punishment of censure was considered as adequate (order dated 30-10-1984 of the General Manager (Distribution). Mr. Salahuddin, Executive Engineer who had been incharge of Shalimar Construction Division and Gulberg Division, was awarded penalty of reduction by three stages below in the time scale for a period of two years for irregularities committed in each Division. The two penalties were ordered to run concurrently (order dated 11-12-1985) passed by General Manager (Distribution). The penalty awarded against Muhammad Saleem, Executive Engineer was reduction in the time scale by two stages for a period of two years (order dated 6-12-1985) passed by the General Manager (Distribution). Likewise, Mr. Talat Mahmood, Executive Engineer was also reduced in the time scale by two stages for a period of two years by order dated 11-12-1985 passed by the General Manager (Distribution). The last in the category is Mr. Insar Hayder, Executive Engineer, incharge of Shalimar Construction Division at the relevant time, in whose case a warning in writing was considered sufficient, by order dated 26-2-1984 passed by Chief Engineer (Administration). It may be mentioned for facility of reference that these orders were placed on record during the course of arguments. 24. Detailed notice of the different nature of treatment given to other officers of the status of appellants will be complete only if advertence is made to certain other facts appearing from the record. We find it from the observations of the Review Board that generally speaking, the financial and administrative picture in Lahore Area Board was quite dismal. As we see from the summary of the report of the Inquiry Committee placed on the record by the respondents in Appeal No, 258(L)/86, the extent of total loss found to have been caused was Rs,90,62,862.59. The break up is immaterial and it would be enough to say that it was on account of excess amount paid for various items and purchase of obsolete, sub-standard and unnecessary material. It can also be noticed from the summary that there were eighteen Divisions in the Region with twenty-seven incumbents during the relevant period at different times. The recommendations made by the Board and a reference to proceedings of the Authority would bear out that out of these twenty-seven incumbents, five Executive Engineers, that is to say the appellants, in category (b) were removed from service and in category (c), as already notice before, six Executive Engineers were subjected to disciplinary proceedings resulting in lesser punishments. 25. This detailed analysis hardly leaves anything to be desired in pointing out and emphasising the fact that different treatment was meted out to officers of the category of appellants. Having thus taken stock of the nature of this treatment, all what is now required to be seen on the question of discrimination is as to what is the nature of allegations against the Executive Engineers of category
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(c) and those against whom no action has been taken at all. Further what irregularities were found by the Committee in their report to have been committed by the Executive Engineers against whom no action was taken and those who were allowed to go with lesser punishments. The question of whether minor loss was caused by them will ordinarily be irrelevant and of no consequence, for what is material with reference to the gravity of punishment, is the nature of offence and not the quantum of loss resulting from it. 26. First we take the cases of six Executive Engineers falling in (c) category: (a) Mr. Mazhar Nawaz Khakwani, was found to have purchased material at higher rates, and sub- standard material. He also resorted to splitting, made unnecessary purchases, purchased centralised items, and made purchases beyond his competence. He also made purchases without obtaining administrative approval and technical sanction (paras. 119-271 of Volume 2 of the inquiry report). (b) Mr. Abdul Ghaffar Khan, Executive Engineer made purchases at higher rates. He also purchased sub-standard material and was also found involved in splitting (para. 92 volume 2). (c) Mr. Salahuddin, Executive Engineer made purchases at higher rates, purchased sub-standard material, was found involved in splitting of the purchase orders, made unnecessary purchases, purchased centralised material, did not maintain proper record of work orders and purchased line T & P without administrative approval and technical sanction (paras.230 and 259 of volume 2). (d) Mr. Muhammad Saleem Executive Engineer was found to have purchased items at higher rates, purchased sub-standard material, split the purchase orders and made unnecessary purchases of line T & P without administrative approval and technical sanction (para. 284 of the report volume 2). (e) Mr. Talat Mahmood, Executive Engineer was found responsible for making purchases at higher rates, purchased sub-standard material, was also found involved in splitting the purchase orders, made unnecessary purchases and purchased line T & P without administrative approval and technical sanction (para. 284 volume 2). (f) Mr. Insar Hayder, Executive Engineer was found to have purchased material at higher rates, sub- standard material, line T&P without administrative approval and technical sanction and was also found responsible for splitting (para. 249 volume 2). It may be pointed out that the allegations of causing loss by purchasing material at higher rates, purchase of sub-standard material, unnecessary purchases, and splitting of orders were common in the case of the appellants and category (c) Executive Engineers. It is also a common factor that these irregularities caused loss to the Authority, irrespective of its quantum. This being so, it is extremely difficult to agree with the contention of the respondent's learned counsel that the classification was rational from the point of view of quantum of punishment. 26.We might as…
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