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Petitioner: WAPDA and others VS Respondent: SIKANDAR ALI ABRO and others
Court Name: Supreme Court of Pakistan Judge(s): Raja Afrasiab Khan, Saeeduzzaman Siddiqui, Sh. Ijaz Nisar Title: WAPDA and others vs SIKANDAR ALI ABRO and others Case No.:Civil Appeals Nos.28, 29, 90, 91, 535, 537, 439, 440, 441, 1123, 1124, 1125, 1177
JUDGMENT
Reported As: 1998 SCMR 137 Result: Order accordingly Judgment JUDGMENT ' SAIDUZZAMAN SIDDIQUI, J.---The abovementioned fourteen civil appeals with the leave of this Court are filed against the judgments of learned Federal Service Tribunal, dated 11-3-1996, 21-7- 1996, 26-11-1996, 23-12-1996, 24-12-1996, 30-12-1996, 2-1-1997, 23-1-1997 and 20-6-1997. In all these appeals, except Appeal No,28 of 1997, the respondents who were the employees of Water and Power Development Authority (hereinafter to be referred as the Authority' only), were removed from service on various charges of embezzlement, misappropriation, causing financial loss to the Authority, negligence in duty, indiscipline or insubordination, by the Authority under the provisions of section 17 (1-A) of the Pakistan Water and Power Development, Authority Act, 1958 (hereinafter to be referred as 'the Act' only). The respondent No,1, in Civil Appeal No,28 of 1997 was, however, compulsorily retired from service on charges of negligence of duty and causing financial loss to the Authority (appellant). These cases came up for hearing before different benches of this Court on different dates and leave was granted in all these cases to determine the scope of section 17 (1- A) of the act especially after it was amended on 6-7-1994 by Act XIII of 1994. 2. The learned counsel for the appellant jointly raised the following contentions in support of the above appeals:--
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(i) That under section 17 (1-A) of the Act the Authority has the discretion to dispense with the service of any employee of WAPDA and this right available to the Authority has not been affected in any manner by the change introduced in the language of section 17 (1-A) of the Act by Act XIII of 1994; (ii) That the removal of an employee of WAPDA under section 17 (1-A) of the Act by the Authority, did not carry with it any stigma and as such recourse to Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, hereinafter to be referred as 'the Rules' only, was not necessary for such removal; (iii) That the appeals before the learned Tribunal were barred by time and in spite of specific objection having been raised before the Tribunal in this behalf, the learned Tribunal failed to decide the same; (iv) That all the respondents were served with a show-cause notice and were also allowed opportunity of sending representation to the Authority besides affording them right of personal hearing in the cases and as such the action taken against them under section 17 (1-A) of the Act, did not suffer from any infirmity; and (v) That the Chairman alongwith another member of the Authority was competent to take any decision on behalf of the Authority in view of the provisions of section 7 of the Act which fixed the quorum for the meeting of the Authority as two only, consisting of Chairman and any other member. 3. The learned counsel for the respondents, in reply to the . Above contentions of the appellant, jointly argued:-- (i) That the action of Authority in removing some of the respondents from service while letting off others and inflicting lesser penalties was discriminatory as the allegations against all were identical; (ii) That an employee of WAPDA could not be removed under section 17 (1-A) of the Act, without holding enquiry as provided under 'the Rules' if the allegations on which his removal was sought amounted to. Serious allegations and carried stigma; (iii) That after the amendment of 1994, the scheme of section 17 (1-A) of the Act was changed and the procedure for removal of an employee under section 17 (1-A) (ibid), was brought at par with the disciplinary proceedings' under 'the Rules' and as such no action under section 17 (1-A) could be sustained without following the procedure prescribed under 'the Rules' ; (iv) That the appeals filed by respondents before the Tribunal were within time as before preferring such appeals, the respondents were obliged to file appeal or representation to the Authority as held by this Court in the case of Gulbat Khan v. WAPDA (1992 SCM R 1789); and (v) That the Service Tribunal having jurisdiction to condone the delay in filing the appeal, has exercised that discretion which will not be " ' interfered with by this Court unless the discretion is found to have been exercised arbitrarily and perversely. ' In order to appreciate the contentions of the parties in the true perspective, k is necessary to state here briefly the allegations against the respondents and action taken by the Authority in each case. 4. Civil Appeal No,28 of 1997 The respondent in this case at the relevant time was posted as Resident Engineer at T.P.S. Guddu. The allegations against him in the show-cause notice served on him on 9-12-1994 was, that on account of his negligent attitude and mala fide intentions, excess payments were made to M/s. Al Sakhi Petroleum Service, Guddu, which resulted in huge financial loss to the Authority and proportionate responsibility of respondent in that behalf was fixed at Rs,5,01,920.51 by the Enquiry Committee. The respondent in, his reply to the show-cause notice dated 2-1-1995 denied the
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allegations and asked for a copy of enquiry report and reserved the right to file a detailed reply to the show-cause notice after receipt of enquiry report. The respondent was then served with another show-cause notice dated 20-4-1995, directing him to attend the office on 26-4-1995 at 9 a.m. For personal hearing in connection with misappropriation of Rs,3 millions by way of payment of P.O.L. To M/s. Al-Sakhi Petroleum, Guddu. The respondent was finally retired from service on 7-5- 1995 with 30 days' pay in lieu of notice period. The learned Service Tribunal in appeal filed by respondent, set aside the order of compulsory retirement and in spite of a finding that respondent was equally responsible alongwith personnel serving in supplies/Accounts Department, ordered his reinstatement in service with all back benefits. Civil Appeal No,29 of 1997 ' The respondent in this appeal was serving as Locomotive Engine Driver ME Units 3 and 4 T.P.S. Guddu at the relevant time. He was served with a show-cause notice dated 8-12-1994, wherein he was charged in the same manner as the respondent in Civil Appeal No,28 of 1997: The proportionate liability of the respondent in the amount of loss which the Authority suffered on account of negligence and mala fide attitude of the respondent, was determined by the Enquiry Committee at Rs,3,85,710.17. In his reply to the show-cause notice, the respondent denied the allegation and took the plea that within his charter of duties, the question of any payment at the behest of respondent to Al-Sakhi Petroleum, Guddu, did not arise. The respondent at the same time also asked for copy of enquiry report holding him responsible for the losses caused to the Authority. The Authority after granting personal hearing to respondent removed him from service on 17-7- 1995 with immediate effect, under section 17 (1-A) of the Act by giving pay for 30 days in lieu of notice. On appeal, the learned Service Tribunal came to the conclusion, that other persons who were equally involved in the fraud case with him were either exonerated or visited with lesser penalty, and therefore, the respondent who was an employee belonging to a lower grade was entitled to be treated leniently. The learned Tribunal, accordingly, modified the punishment of removal from service to that of stoppage of three increments without accumulative effect from 17- 7-1995 and ordered his reinstatement in service. The intervening period was directed to be treated as leave without pay. On the question of limitation, the learned Tribunal found the appeal as within time and condoned the delay. Civil Appeals Nos.1123, 1124 and 1125 of 1997 ' The respondents in these appeals were served with show-cause notices containing identical allegations of embezzlement/misappropriation of public money amounting to. Rs,5,31,169 and deliberate .Concealment of cash vouchers worth Rs,26,24,865 to avoid further detection of fraud and misappropriation by each one of them. The respondents took similar pleas in defence in their respective replies and denied all allegations and asked for a copy of report holding them responsible for misapprorpiation/embezzlement and concealment. By office order dated 5-5-1996, which stated that after considering the reply submitted by respondents and hearing them in person, the Authority removed them from service on account of their involvement in embezzlement of public money amounting to Rs,5,31,169. On appeal the learned Service Tribunal found that the action taken by the Authority was not proper in view of denial of the charges by respondents, and the nature of charges which could not be established without holding regular enquiry. The learned Tribunal also came to the conclusion that in view of the change in the constitution of Authority after substitution of section 4 of the Act by Ordinance XLII of 1995, the decision could not be taken as per past practice without all the members associating in the meeting. The removal of respondents from service, in the above 3 cases was, accordingly, set aside by the learned Tribunal and cases were remanded to the authority for afresh decision in accordance with the law. Civil Appeal No,439 of 1997
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' The respondent in this appeal was charged by the Authority with the allegations of having broken/open the lock of Quarter No,F/7 allocated to a Senior Clerk of WAPDA and taking over its illegal possession, carrying on immoral and nefarious activities in the said quarter, refusing to vacate the said quarter on being asked by the Chief Engineer (GSO), Islamabad and failure to comply with the transfer order and report for duty on the new place of posting, in the show-cause notice dated 12-11-1995, served on him. The respondent denied all allegations in his reply to the show-cause notice. The Authority, however, after considering his reply and giving him personal hearing removed him from service with immediate effect vide office order dated 4-6-1996. The learned Tribunal on appeal file by respondent against the above decision of the Authority, following its earlier decision in Service Appeals Nos.217, 218 and 223(L) of 1996, allowed the appeal filed by respondent and remanded the case to the Authority for a fresh decision in accordance with the law. Civil Appeals Nos.440 and 441 of 1997 ' The respondents in these appeals were serving as Customer Services Officer and S.D.O. Respectively, in Division-2, Islamabad, at the relevant time. In the show-cause notice dated 25-7- 1995, served on the respondent in Civil Appeal No,440 of 1997, the allegations were that he in connivance with respondent in Civil Appeal No,441 of 1997 revised an energy bill of an Industrial concern from Rs,1,41,062 to Rs,21,679 and thus caused loss of revenue to the authority amounting to Rs,1,19,383 which amounted to gross misconduct. Similarly, the respondent in C.A. No,441 of 1997, was served with a charge-sheet dated 13-12-1994, alongwith statement of allegations, and he was asked to reply to the allegations within 14 days. This was followed by the show-cause notice dated 25-7-1995, which stated that while posted as S.D.O., the respondent arranged issuance of a fraudulent credit note amounting to Rs,1,19,383 to an Industrial consumer in connivance with the respondent in Civil Appeal No,440 of 1997. He was also 'accused of managing reversal of energy meter and replacement of Kalamzoo Card and amending the forwarding list to correspond to fraudulent note which amounted to gross misconduct. ' Both the respondents denied the allegations but the Authority after considering their reply and affording them personal hearing, removed them from service. Both respondents challenged their removal from service before the learned Service Tribunal. ' One of the learned members of the Tribunal (Mr. Nasim Sabir Syed) in the case of respondent in Civil Appeal No,440 of 1997, came to the conclusion that the real culprit in the case was the respondent in Civil Appeal No,441 of 1997 and there. Being no proof of collusion between the two respondents, the penalty of removal from service imposed on respondent in Civil Appeal No,440 of 1997 was very harsh and accordingly, reduced the penalty of removal from service into stoppage of two increments for these years. However, in the case of respondent in Civil Appeal No,441 of 1997 this learned member came to the conclusion that he was rightly found guilty by the Authority and accordingly, rejected his appeal. ' The other learned member of the Tribunal (Mr. Muhammad Raza Khan), did not agree, with Mr. Nasim Sabir Syed, and following the ratio of the earlier judgment of the Tribunal in Service Appeals Nos.217, 218 and 323(L) of 1996, set aside the order of Authority in both, the cases and remanded the same for a fresh decision in accordance with the law. The third learned member of the Tribunal (Mr. Noor Muhammad Magsi) agreed with the opinion of Mr. Muhammad Raza Khan. As a result thereof, by majority opinion of the learned Tribunal, the cases stand remanded to Authority as aforesaid. Civil Appeals Nos.90 and 91 of 1997 ' The respondents in these two appeals were initially served with the charge-sheet and statement of allegations dated 29-9-1993 wherein they were accused of humiliating and beating the S.D.O. Muhammad Munir with shoes. After initiation of disciplinary proceedings against them on the basis of above charge-sheet, the respondents were served with a show-cause notice dated 24-10-1993,
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under section 17 (1-A) of the Act. In reply to the show-cause notice dated 24-10-1993, the respondents denied the allegations and asked for the copies of Enquiry Report and the statements of witnesses on the basis of which they were found guilty. They also pleaded that the criminal case registered against them on these allegations failed and they were acquitted. The Authority, after considering their defence and hearing them in person removed them from service under 'office order dated 6-4-1995. On appeal, the learned Tribunal came to the conclusion that the respondents were not associated with the enquiry on the basis of which they were found guilty of the charge of giving shoe beating to the S.D.O. And they were also not afforded opportunity to cross-examine the witnesses produced before the Enquiry Officer, which violated the principles of natural justice. On these considerations the order of the Authority removing the respondents from service was set aside, leaving it open to the Authority to either proceed against the respondents under the Rules or under section 17 (1-A) of the Act in accordance with the law. Civil Appeal No,379 of 1997 ' The respondent in this appeal was a billing supervisor in the Office of R.O. Garden Town, Lahore. He was served with a notice under section 17 (1-A) of the Act wherein it was alleged that he reduced the energy bills of customers by making wrong entries, and thus, caused loss to the Authority to the tune of Rs,4,632,463. The respondent in his reply took up the plea that no loss was caused to the Authority as this amount was recovered through subsequent bills. The Authority after considering his reply and giving him a personal hearing removed him from service holding him involved in allowing bogus refund to customers to the tune of Rs,46,32,463. On appeal, the learned Tribunal did not go into the merits of the case and following the ratio of its earlier decisions in Service Appeals Nos.539(R), 217, 218 and 223(L) of 1996, set aside the order of the Authority to hold de novo proceedings against the respondent under the Rules instead of proceedings under section 17 (1-A) of the Act. Civil Appeal No,1177 of 1997 ' The respondent in this appeal was removed by the Authority under section 17 (1-A) of the Act by order dated 25-7-1996, on the charges that during his tenure as Deputy Director (Administration), he made 132 appointments during the subsistence of a ban on fresh appointments by the Government, in violation of recruitment Rules. The respondent contested the above allegations and took the plea that he was neither the Selecting Authority nor the Appointing Authority and he simply issued appointment letters after the recommendations by Selection Committee. It was also alleged by the respondent that the fact that out of 132 appointees, 68 were approved for appointment by the Chief Engineer after their appointment, established that the appointments were made under the direction of Chief Engineer. ' The learned Tribunal while hearing the appeal field by respondent against his removal from service, took the view that summary procedure in the case, was adopted to save higher officers involved in the case of wholesale irregular appointments. The learned Tribunal also took the view that the decision to remove the respondent from service was not of the Authority as all of its members were not associated in the decision. On these considerations, the appeal was accepted, the order of removal of respondent from service passed by the Authority was set aside and the case was remanded for holding a regular enquiry in the case. Civil Appeal Nos.535 and 537 of 1997 ' The respondents in the above appeals while serving as S.D.O. And sub-divisional clerk respectively, at Jhang, were served with identical show-cause notices under section 17 (1-A) of the Act on 3-8- 1995, alleging embezzlement/misappropriation of public money amounting to Rs,5,31,169 and deliberate concealment of cash vouchers worth Rs,26,24,865. They denied the above allegations but the Authority after considering their reply and granting them personal hearing removed them from service vide office order dated 5-5-1996. On appeal the learned Tribunal found that the
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charges were stereotype and all were charged with the same amount which was not possible in the circumstances of the case. In the final analysis, the learned Tribunal set aside the order of removal of respondents from service and remanded their cases for a fresh decision in accordance with the law. 5. From the facts stated above, it is quite clear that almost in all the above cases, the respondents have been removed from service on charges which carried with it stigma. The letters removing the respondents in Civil Appeals Nos.535, 537, 1123, 1124 and 1125 of 1997 from services are dated 5-5- 1996 and they read as follows:- "Annex-H 6366911/2259 0/0 G.M. (M&S) WAPDA, 731-WAPDA House, Lahore M & S/DD(REV)05008/160/6365-69, 5-5-1996 OFFICE ORDER ' After considering his defence reply dated 26-8-1995 to the show-cause notice issued vide Letter No,M&S/AD(REV) 05008/160/4311, dated 3-8-1995 and granting him personal hearing on 10-4-1996, the Authority in exercise of the powers conferred on it under section 17(1-A) of WAPDA Act, 1958, has decided to remove Mr. Liaqat Ali, S.D.O., Construction Sub-Division, T.T. Singh, WAPDA, from WAPDA service, with immediate effect on account of his involvement in embezzlement of public money amounting to Rupees 5,31,169 while posted as S.D.O., City Sub-Division, WAPDA, Jhang. FOR & ON BEHALF OF THE AUTHORITY (Sd.) (Hashmat Ali Kazmi), Director (Confidential) ' Mr. Liaqat Ali S.D.O., Construction Sub-Division, Toba Tek Singh, WAPDA, A . E. B . , Faisalabad. C.C. To: (1) Secretary WAPDA, WAPDA House,, Lahore w.r. To his U.O. No,S/AD (Coord) 03003/MTG/1383-1429, dated 25-4-1996. (2) Chairman A.E.B. WAPDA, Faisalabad. (3) Cheif Engineer (Admn) Power, WAPDA House, Lahore. (4) General Manager Finance (Power), WAPDA, WAPDA House, Lahore." Civil Appeal No,537 of 1997 Annex-B 6366911/2259 0/0 G.M. (M&S) WAPDA, 731-WAPDA House, Lahore M & S/AD(REV)05008/160/6390-94 5-5-1996 OFFICE ORDER ' After considering his defence reply dated 26-8-1995 to the show-cause notice issued vide Letter No,M&S/AD(REV) 05008/160/4413, dated 3-8-1995 and granting him personal hearing on 10-4-1996, the Authority in exercise of the powers conferred on it under section 17 (1-A) of WAPDA Act, 1958, has decided to remove Mr. Mukhtar Ahmad, S.D.C., Circle Office, Jhang from WAPDA service, with immediate effect on account of his involvement in embezzlement of public money amounting to Rupees 5,31,169 while posted as Divisional Accountant, Jhang Division, WAPDA, Jhang. FOR & ON BEHALF OF THE AUTHORITY (Sd.) (Hashmat Ali Kazmi), Director (Confidential). ' Mr. Mukhtar Ahmad, S.D.C., Circle Office, WAPDA, Jhang, A.E.B., Faisalabad. c.c. To: (1) Secretary WAPDA, WAPDA House, Lahore w.r to his U.O. No,S/AD (Coord) 03003/MTG/1393-1429, dated 25-4-1996. (2) Chairman, A.E.B. WAPDA, Faisalabad. (3) Chief Engineer (Admn.) Power, WAPDA House, Lahore.
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(4) General Manager, Finance (Power), WAPDA, WAPDA House, Lahore." Civil Appeal No,1123 of 1997 "6366911/2259 WAPDA LAHORE. 0/0 GM l(M&S) WAPDA 731-WAPDA House, Lahore M & S/DD(REV)05008/160/6370-74 5-5-1996 OFFICE ORDER ' After considering his defence reply dated 14-9-1995 to the show-cause notice issued vide Letter No,M&S/AD(REV) 05008/160/4312, dated 5-8-1995 and granting him personal hearing on 10-4-1996, the Authority in exercise of the powers conferred on it under section 17 (1-A) of Wapda Act, 1958, has decided to remove Mr. Ali Akbar, Division Accountant, Office of R.O. (Power) WAPDA Gojra from WAPDA service, with immediate effect on account of his involyement in embezzlement of public money amounting to Rs,5,31,169 while posted as Divisional Accountant, Jhang Division, WAPDA, Jhang. FOR & ON BEHALF OF THE AUTHORITY Mr. Ali Akbar, Divisional Accountant, 0/0 Revenue Officer (Power), WAPDA, Gojra, A.E.B. Faisalabad. (Sd.) (Hashmat Ali Kazmi), Director (Confidential). C.C. To: (1) Secretary WAPDA, WAPDA House, Lahore w.r. To his U.O. No,8/AD (Coord) 03003/MTG/1383-1429, dated 25-4-1996. (2) Chairman, A.E.B. WAPDA, Faisalabad. (3) Cheif Engineer, (Admn.) Power, WAPDA House, Lahore. (4) General Manager, Finance (Power) WAPDA, WAPDA House, Lahore." Civil Appeal No,1124 of 1997 "Pakistan Water and Power Development Authority 6366911/2259 0/0 GM(M&S) WAPDA WAPDA, LAHORE. 731-WAPDA House, Lahore M&S/DD(REV)05008/160/6385-89 5-5-1996 OFFICE ORDER ' After considering his defence reply dated 23-8-1995 to the show-cause notice issued vide Letter No,M&S/AD(REV) 05008/160/4316, dated 3-8-1995 and granting him personal hearing on 18-4-1996, the Authority in exercise of the powers conferred on it under section 17 (1-A) of WAPDA Act, 1958, has decided to remove Mr. Muhammad Yusaf S.D.C., Shah Jewna, Sub-Division, from WAPDA service, with immediate effect on account of his involvement in embezzlement of public money amounting to Rs,5,31,169 while posted as S.D.C., Saddar Sub-Division, Jhang. FOR & ON BEHALF OF THE AUTHORITY ' Mr. Muhammad Yousar S.D.C., Shah Jewna Sub-Division, A.E.B. WAPDA, Faisalabad. (Sd). (Hashmat Ali Kazmi), Director (Confidential). C.C. TO: 1. Secretary WAPDA, WAPDA House, Lahore w.r. To his U.O. No,S/AD(Coord)03003/MTG/1383-1429 dated 25-4-1996. 2. Chairman A.E.B., WAPDA, Faisalabad. 3. Chief Engineer (Admn,) Power, WAPDA House, Lahore. 4. General Manager Finance (Power), WAPDA House, Lahore." Civil Appeal 1125 of 1997 "Annex-C M&S/DD(kev)05008/160 /6380-84 0/0 G.M. (M&S) WAPDA,
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731 -WAPDA House, Lahore Dated 5-5-1996 OFFICE ORDER ' After considering his defence reply dated Nil to the show-cause notice issued vide Letter No,M&S/AD(REV)05008/160/4314, dated 3-6-1995 and granting him personal hearing on 10-4-1996, the Authority in exercise of the powers conferred on it under section 17(1-A) of WAPDA Act, 1958, has decided to remove Mr. Asif Muzaffar, Accounts Clerk, Chiniot Division, WAPDA, from WAPDA service, with immediate effect on account of his involvement in embezzlement of public money amounting to Rs,5,31,169 while posted as Accounts Clerk, Jhang Division, WAPDA, Jhang. FOR & ON BEHALF OF THE AUTHORITY. (Sd.) (Hashat Ali Kazi), Director (Confidential). Asif Muzaffar, Accounts Clerk Chiniot Division, WAPDA, A.E.B., Faisalabad. C.C. To : 1. Secretary WAPDA, WAPDA House, Lahore w.r. To his U.O. No,S/AD(Coord)03-03-Mug/1389-1429, dated 25-3-1996. 2. Chairman AEB, WAPDA, Faisalabad. 3. Chief Engineer (Admn), WAPDA House, Lahore 4. General Manager Finance (Power) WAPDA, WAPDA House, Lahore Similarly, the letter dated 24-4-1996 served on the respondents in Civil Appeal Nos.440 and 441 of 1997 removing them from service are also identical and read as follows:-- "6366911/2259 0/0 GM(M&S) WAPDA, WAPDA, LAHORE 731-WAPDA House, Lahore M&S/DD(C)05002/1702/6337-41, 24-4-1996. OFFICE ORDER ' After considering his defence reply…
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