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Petitioner: MUHAMMAD NAWAZ VS Respondent: CHIEF ENGINEER, COORDINATION (WATER), WAPDA
1990 P L C (C
1990 P L C (C.S.) 280
[Federal Service Tribunal]
Before Kh. Abdul Jalil and Ch. Hasan Nawaz, Members
MUHAMMAD NAWAZ
versus
CHIEF ENGINEER, COORDINATION (WATER), WAPDA and another
Appeal No. 322(L) of 1984, decided on 4th September, 1989.
(a) Service Tribunals Act (LXX of 1973)‑‑
‑‑‑S. 4‑‑‑West Pakistan Water and Power Development Authority (Efficiency and Discipline) Rules, 1978, R. 2(3)‑‑‑Dismissal‑‑‑Appellant who was working as a Time‑keeper in Mechanised Construction of Pakistan (Equipment Workshop) was dismissed from service by WAPDA on the charge of misappropriation‑‑ Appellant confessed and even deposited misappropriated amount in acknowledgement of criminal misappropriation of money and begged for being apologised‑‑‑Appellant also took exception to the authority of WAPDA passing his dismissal order and applicability of Rules of WAPDA contending that he was not an employee of WAPDA and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was applicable to his case‑‑ Mechanised Construction of Pakistan (Equipment Workshop) was in fact a unit of W.APDA which was an establishment carried on under the authority of Federal Government where statutory Rules of service, conduct and discipline were applicable to its employees and provisions of Ordinance VI of 1968 were not applicable‑‑‑Held, orders against appellant were passed by a competent authority adopting prescribed procedure and rules.
P L J 1980 Tribunal Cases 57; 1978 P L C 201, 256, 374, 479, 480; 1979 P L C 446; 1981 P L C 219; 1980 P L C 480; Inayat Ali v. WAPDA P L J 1980 Tr.C. 57; WAPDA v. Muhammad Manzoor 1982 P L C 1025; Bashir Ahmad v. Superintending Engineer, IV Lahore Circle 1981 P L C (C.S.) 777; WAPDA v. Ashraf Ali 1984 P L C 1003; Muhammad Ashraf Naeem v. XEN Cantt. 1985 PLC (C.S.) 390; 1975 P L C 1; P L D 1975 Kar. 274 and P L D 1976 Kar. 1176 ref.
Malik Abdur Raz7aq v. WAPDA P L D 1973 Lah. 188; 1986 P L C (C.S.) 5;1976 P L C 305(2) and West Pakistan WAPDA Employees Central Union (Registered) v. WAPDA 1965 P L C 829 rel.
(b) West Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑
‑‑‑S. 18‑‑‑West Pakistan Water and Power Development Authority (Efficiency and Discipline) Rules, 1978‑‑‑Rules framed by WAPDA under section 18 of the Act are statutory rules‑‑‑Water and Power Development Authority is not only competent but bound to make disciplinary rules to carry out purpose of section 18 of Act.
(c) West Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑
‑‑‑S. 3‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1W), S. 1(4)(a), proviso‑‑‑Statutory body‑‑‑Water and Power Development Authority, is an establishment carried on under control of Federal Government with its own statutory rules of service and the fact is not necessarily inconsistent with fact of its being a body corporate entitled to acquire and hold property with perpetual succession and common seal‑‑‑Authority being an establishment carried on under the authority of the Federal Government within meaning of provision to S. 1(4)(a) of the Ordinance would exclude the application of Standing Orders to its employees.
(d) Words and phrases‑ ---
‑‑ Word "statutory", meaning of.
Mian Mahmood Hussain for Appellant.
Ch. Ghulam Hasan Gulshan with Mohammad Yameen, Asstt. D.R. for Respondents.
Date of hearing: 4th July, 1989.
JUDGMENT
CH. HASAN NAWAZ (MEMBER).‑‑The appellant has challenged the validity of order of his dismissal (Aftnexure‑E) passed by respondent‑1 in consequence of proceedings under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, on 4‑7‑1984, when he was working as Time‑keeper with the Mechanised Construction of Pakistan Limited, in the present appeal under section 4 of the Service Tribunals Act, 1973 filed in the background of the following facts.
2. Although the appellant claims to have been appointed as Accounts Clerk in the Machinery Pool Organisation (MPO) on 23‑11‑1961, the respondents' case is that he was appointed in the first instance on work charged establishment and then brought on to the regular cadre with effect from 1‑10‑1970 through letter No. PF/104/1985 of 1971 when he was working as‑Time‑keeper in compliance with the direction of Chief Engineer, MPO, WAPDA (Annexure‑11 with the written statement). Anyway his services were transferred to the Mechanised Construction of Pakistan Limited with effect from 1‑9‑1974.
3. While he was working as Time‑keeper in MCP (Equipment Workshop), Faisalabad, the appellant was served with charge‑sheet, dated 30‑8‑1983 (Annexure‑A), accompanied by the following statement of allegations:
"While posted as Time‑keeper MCP Equipment Workshop, Faisalabad for the period from 23-4‑1961 to date Mr. Muhammad Nawaz son of Ahmad Khan, Time‑keeper committed the following irregularities:
(1) After preparation of pay‑rolls of shops/sections/offices he failed to compile the Grand Summary of the pay rolls and seek pass order from the competent authority.
(2) He distributed pay envelopes in advance to the employees although these were required to be delivered by the Cashier in the presence of incharge concerned to the employees and obtain receipts thereof.
(3) He used to change the amount in the pay‑roll sheets for Rs. 2,000 or 3,000 each month and simultaneously increase the totals, of summary sheets of the pay‑rolls. Thus he had misappropriated MCP's funds each month to this extent which added to Rs. 44,500.
(4) He confessed the allegations of misappropriation before local Enquiry Committee and refunded the amount of Rs.44,500 misappropriated by him through fraudulent means as per details given in the charge‑sheet:"
4. Because of its importance in the decision of this appeal, the explanation submitted by the appellant (Annexure‑B) in response to the charge‑sheet deserves a detailed address. It is to the following effect:
"The Chief Engineer (Coordn.),
WAPDA, Wapda House,
Lahore.
Through Proper Channel:
Subject: CHARGE‑SHEET
The reply to charge‑sheet dated 30‑8‑1983 is given below received with Manager (WW), MCP, Faisalabad's letter No. MCP/M (WW)/Inq/1157, dated 22‑11‑1983:‑‑
(1) The grand summary of the pay‑roll was prepared as per practice due to late receipts of attendance/leave order etc. and because of lost movement charges in the pay‑rolls due to Labour pressure.
(2) The pay envelopes were handed over to the concerned incharge on the pay day as per previous practice and never delivered in advance.
(3) I have already admitted misappropriation and refunded the amount in full, even excess amount has been deposited by me, which may kindly be refunded to me after similar adjustment if any during the following months, no misappropriation has been made:‑‑
No.
Month
Deposited amount
Actual amount
1.
1/80
Rs. 2,000
Nil
2.
9/81
Rs. 4,500
3,000
3.
1/82
Rs. 500
Nil
It is therefore requested that the amount of Rs.4,090 may please be refunded to me.
4. I have already admitted and deposited the amount. ,
2‑5. I am a WAPDA employee, transferred en bloc to MCP which is a commercial organisation. I am a manual worker for the purpose of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which is applicable to WAPDA as per PLJ Tribunal Cases, 1980 page 57‑‑Paragraph 2 read with P L C 1975. In accordance with the provision of the above referred, the charge‑sheet was required to be served upon me within one month whereas the same has been served after a lapse of more than one year even after the refund of said amount. The charge‑sheet, therefore, is null & void in the eyes of law as has been held by the Honourable Courts vide P L C 1978 page 201, 256, 374, 479, 480, P L J 1979, P L J 1981 and therefore, no action is to be taken on the basis of above charge‑sheets. It is, therefore, requested that the charge‑sheet may kindly be withdrawn and I may be apologised.
5. An inquiry into the matter was held by the WAPDA's Inquiry Officer who found in his report (Annexure‑I with the written statement) that all the allegations against the appellant had been established on the basis of evidence recorded by him; where after, he was served with notice dated 25‑3‑1984 (Annexure‑C) by respondent No. 1, under Rule 5(v) of the Rules calling upon him to show cause within a period of 14 days from the date of receipt of the notice, why provisionally determined penalty of dismissal of service should not be imposed against him.
6. The appellant's explanation in writing addressed to respondent No. 1 (Annexure‑D) in response to the aforementioned final show‑cause notice is equally important. It makes the following reading:
"Humbly I submit the few lines for your sympathetic reconsideration, as the penalty provisionally proposed is higher/major which may please be converted into lesser/minor, keeping in view the following facts:‑‑
(1) the enquiry proceedings have not been processed according to the procedure, because the charge‑sheet was served after lapse of one year from the first formal explanation. As such the action was time‑barred and should be treated as null and void as per Standing Orders contained in section 4 of Standing Order 15 of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 and constantly held by the Honourable Courts vide P L C 1978 page 201, 256, 374, 479, 480, 1979 P L C 446 and 1981 P L C 219. This fact had already been enumerated but the Enquiry Officer has not given his verdict in this connection.
(2) The Enquiry Officer has also not given his tentative conclusion regarding the exact recoverable amount. The amount worked out for recovery was Rs.40,500 but the total amount deposited by me was Rs.44,500. The excess amount of Rs.4,000 may please be refunded to me or the same amourit may please be forfeited as a penalty by deducting the proposed penalty in lieu of it.
(3) In the light of the above facts, when there are several defects in the enquiry procedure and when the whole loss of the authority has been indemnified, it is earnestly requested that the major punishment proposed as dismissal from service, may please be re‑assessed by converting into minor penalty other than dismissal/removal from service enabling me to feed my big family, in the name of `Allah' and Islamic Republic State.
(4) Lastly, it is requested that I may very kindly be permitted to be heard in person to elaborate the circumstances in my defence please."
7. As already noticed, respondent No. 1 passed the impugned order of dismissal dated 4‑7‑1984 (Annexure‑E) after due consideration of the report of the Inquiry Officer, the appellant's explanation in writing and what he said in defence during personal hearing. He came to the Tribunal with the present appeal after an unsuccessful departmental appeal under Rule 11 of the Efficiency and Discipline Rules.
8. Cancellation of the impugned order is being sought on the following grounds:
(a) The allegations made against the appellant in the charge‑sheet have not been proved.
(b) The appellant being an employee in NPS‑7, respondent No. 1 was not competent to hold disciplinary proceedings and pass the impugned order, which consequently was without lawful authority.
(c) The impugned order is void ab initio, because the charge‑sheet was served after one month of the date of alleged misconduct in violation of the mandatory provisions of Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
9. In defence, it has been pleaded that respondent No. 1 was competent to initiate disciplinary proceedings and pass the impugned order, which was the result of lawful and regular disciplinary proceedings during which the appellant confessed having misappropriated a sum of Rs. 40,500. It was further pleaded that the provisions of Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were not applicable to this case.
10. It is abundantly clear from the statement of facts that on merits, the appellant does not have even semblance of a case. To say nothing of other material on the record including the report of the Inquiry Officer where the allegations against him were held to have been established, he stated in his explanation to the charge‑sheet (Annexure‑B) that he already made confession of misappropriation and that the misappropriated amount had been paid by him to the authority. He also said in his explanation that a sum of Rs.4,000 had beer, paid in excess of the misappropriated amount and he asked for its refund. Even in his explanation (Annexure‑D) to the final show‑cause notice, he made a mention of the fact that he had deposited an amount of Rs. 44,500 with the authority and that an amount of Rs. 4,000 had been paid in excess, which should be paid to him. Although there is no mention of a confession in this explanation, but it does cause an impression that he deposited a sum of Rs. 44,500 in acknowledgement of criminal misappropriation of money.
11. We may make a reference to the allegations made in paragraph 4 of the departmental appeal, where it was said that the Inquiry Officer forced him "to make a preliminary statement on 22‑2‑1984, before the prosecution evidence in the presence of prosecution witnesses" and that "the mode of inquiry procedure adopted by the Inquiry Officer was apparently illegal". These allegations were repeated in the grounds of appeal. There is, however, no substance in the assertion that the appellant was forced to make any statement by the Inquiry Officer. The record shows that he voluntarily made confession of his guilt and that the charge of criminal misappropriation was established against him beyond all reasonable doubt.
12. We might as well make a reference to paragraph 8(b) of the grounds of appeal where it is pleaded that "all the allegations levelled in the charge‑sheet have not been proved, inasmuch as the duties of the appellant were such which could not be resulted into the commission of such misconduct". It was further stated that "the appellant could not be held responsible for the commission of such misconduct as the appellant was not responsible nor the appellant have performed such duties which have been levelled against the appellant in the charge‑sheet".
13. In the first place, it is incorrect to say that all the allegations made in the charge‑sheet had not been established. As we see from the report, the Inquiry Officer has clearly held that he is proved to have been guilty of all the charges levelled against him. While separately dealing with the four charges, he held that the appellant was guilty. This apart, we are constrained to observe that the averments made in paragraph 8(b) of the grounds of appeal hardly make any sense. It is pleaded that "all the allegations levelled in the charge‑sheet have not been proved inasmuch as duties of the appellant were such which could not be resulted into the commission of such misconduct." It is extremely difficult to understand what exactly was meant to be conveyed by these pleadings. The statement that the allegations have not been proved because of the nature of the appellant's duties, hardly conveys any sense. Likewise, other pleadings in this paragraph lead us to the same conclusion. Whether a particular charge has or has not been proved, can either be ascertained from the report of the Inquiry Officer or determined on the basis of material on record and it has got nothing to do with the nature of appellant's duties. Some straining of mind may probably reveal that what the appellant wanted to plead was that the allegations mentioned in the charge‑sheet could not have possibly been made against him because what he is alleged to have done was beyond the scope of his duties and that he could not possibly have committed the offences mentioned in the charge‑sheet. Even if this be the intention or the message to be conveyed by these pleadings, we are inclined to hold that this does not promote his case in the presence of a voluntary confession of misappropriation of amounts belonging to the Authority. It is, therefore, factually incorrect that the allegations in the charge‑sheet did not pertain to his duties. This apart, we feel inclined to say that pleadings in A paragraph 8(b) of the grounds of appeal are rather evasive in nature and that they tend to establish that the appellant had been guilty of the allegations made against him; for instead of side track, he could have plainly said that he never made any misappropriation and that the charge against him was false. That he did not do so, is a convincing circumstantial evidence to show that he has been guilty of the offence of misappropriation.
14. The other point which requires determination is whether Chief Engineer, Coordination (Water) WAPDA (respondent No. 1) was not competent to initiate the disciplinary proceedings and pass the impugned order against the appellant. In paragraph 5 of the grounds of appeal, it was pleaded that since the appellant was drawing pay in NPS‑7, the Chief Engineer Coordination was not competent to undertake disciplinary proceedings against him. The examination of this point requires an address to the definition of competent authority in the Efficiency and Discipline Rules. Under Rule 2(3), "competent authority" means the Authority or the appointing authority, or an officer to whom the appointing authority is subordinate, or an officer designated by the Authority to exercise powers of the competent authority. In view of this definition, the aforementioned pleadings appear to be without any substance. It has not been stated as to who was the appointing authority of the appellant. Nor is there any mention of the fact as to how Chief Engineer Coordination (respondent No. 1) could not be the competent authority. It was stated at the Bar by the respondent's learned counsel that Superintending Engineer was the appointing authority of employees of BPS‑7. I1 this be so, and there is no reason why it should not be believed as the correct position, respondent No. 1 would evidently be the competent authority in view o1 the aforementioned definition in Rule 2 of the Rules, considering that the Superintending Engineer is an Officer subordinate to the Chief Engineer.
15. In his arguments in writing, however, the appellant's learned counsel set up a different case. It was contended that the appellant was appointed as Accounts Clerk by the then Chief Accountant WAPDA, which post has been renamed as General Manager, Finance (Water) and that his terms and conditions of service are regulated by the provisions of Accounts Service Rules, 1966 and that respondent No. 1 was not, therefore, competent to pass the impugned order. It was further contended that the appellant was not working under any Authority subordinate to respondent No. 1, which could have made him competent to pass the impugned order in accordance with the definition of "competent authority" contained in the Rules.
16. We have noticed that the letter of appellant's appointment has not been produced. In the absence of this document, we do not find it possible to hold that he was appointed as Accounts Clerk by the Chief Accountant. As already seen; the respondent's case is that he was appointed as Accounts Clerk on work-charged establishment (MPO) in the first instance on 23‑11‑1961 and that he was subsequently brought on to regular cadre with effect from 1‑10‑1970 in compliance with the Chief Engineer's instructions given through letter No.PF/104/1585 of 1971 (Annexure 11). In the presence of these pleadings, it was the appellant's duty to have produced either the letter of his appointment or any other evidence to show that he has been appointed as Accounts Clerk by the then Chief Accountant, WAPDA. No such evidence, however, has been produced and we are, therefore, obliged to hold that there is no basis for the contention that his terms and conditions are regulated by the provisions of Accounts Service Rules, 1966. Even the contention regarding re‑designation of Chief Accountant as General Manager. Finance (Water) would be irrelevant and meaningless in the absence of the proof of the fact that he was appointed by the Chief Accountant, WAPDA. Further, we feel that the learned counsel's arguments in writing are rather vague and by no means convincing in their own right, to show that respondent No. 1 was not the Authority, competent to initiate the disciplinary proceedings and pass the impugned order, especially in the face of respondent's contention that he was employed in the first instance on work-charged establishment, which post was not borne on any cadre and that the post of Time‑keeper was borne on the executive cadre rather than the Accounts cadre. We may add to it the fact that the aforementioned letter Annexure‑11, conveying the information that he had been brought on to regular cadre as Time‑keeper, was issued by one Muhammad Aslam Arain of Workshop Office which according to the respondent's contention was under the administrative control of Chief Engineer Coordination, WAPDA who has now been designated as Chief Engineer Administration (Water), WAPDA.
17. We might as well make a reference to letter No. Ail(Adnln) MFC/MCP/7364, dated 25‑8‑1983 addressed by Manager Finance (Coordination) to the Chief Engineer (Coordination) Water, WAPDA, on the subject of disciplinary action against the appellant. The following paragraph of this letter is material:
"Mr, Muhammad Nawaz, Time‑keeper is not borne o accounting cadre. He is an employee of the executive cadre and as such it has been decided by G.M. (Admn.) vide his remarks in the margin of para. 3(c) and para 8 of the attached noting that charge‑sheet in respect of Mr. Muhammad‑Nawaz, Time‑keeper, MCP, be served by C.E. (Coord.) (Water). A charge‑sheet alongwith statement of allegations in respect of Mr. Muhammad Nawaz, Time‑keeper, MCP Equipment Workshop, Faisalabad duly vetted by MCP is, therefore, enclosed herewith for arranging its submission to the Managing Director, MCP, for further action duly signed by the competent authority."
18. It is thus abundantly clear that the appellant was borne on the executive cadre and that respondent No. 1 was competent to pass the impugned order. There was nothing legally wrong either with the service of charge‑sheet or the show‑cause notices, which ultimately led respondent No. 1 to the passage of the order of appellant's dismissal from service. We have not been able to lay our hands on anything from the record, which could have made it possible to assail respondent No. 1's competency on any ground.
19. After having been seen that the impugned order of dismissal from service was competent and justified on merits, the only other point which requires examination is whether the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are applicable to WAPDA employees. It was formulated during the course of arguments in writing by the appellant's learned counsel on the basis of allegations made in paragraph S of the grounds of appeal which are that the disciplinary proceedings against the appellant resulting in the order of his dismissal from service are a nullity, because the charge‑sheet was not served within one month of the date of alleged misconduct or from the date of knowledge of that misconduct, in accordance with the "mandatory provisions of Standing Order 15(4) of the Ordinance". It may be noticed that the question dealt with by the appellant's learned counsel in the arguments in writing is wider in scope than the point raised in the grounds of appeal which pertained only to the provisions of Standing Order 15(4) of the Ordinance. We will examine the significance of this circumstance after having dealt with the main question raised in the arguments.
20. The basic consideration for determination of the question is provided by section 1(4)(a) of the Ordinance under which it applies to every Industrial establishment or Commercial establishment wherein twenty or more workmen are employed, directly or through any other person, whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve months; provided that nothing in the Ordinance shall apply to Industrial and Commercial establishments carried on by or under the Authority of Federal or any Provincial Government, where statutory rules of service, conduct, or discipline are applicable to the workmen employed therein.
21. A meticulous application to the proviso would justify the conclusion that the provisions of the Ordinance are not applicable to the employees of WAPDA. The manner m which it has been drafted leads us to a special point of view. It lays down we repeat for the sake of emphasis, that nothing in the Ordinance…
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