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Petitioner: SAEED AHMAD VS Respondent: WAPDA
Court Name: Federal Service Tribunal Judge(s): Sir Abdul Rashid, A. D. Razi-ur-Rehman Title: SAEED AHMAD vs WAPDA Case No.: Appeal No, 22 (L) of 1981 Date of Judgment:1983-11-02 Reported As: 1984 PLC (C. S.) 188 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' A. 0. RAZIUR RAHMAN (MEMBER).-This is an appeal against the order of dismissal passed against the appellant by the_Water and Power Development Authority under rule 5 (v) of the WAPDA Employees (Efficiency and Discipline) Rules, 1978. The impugned order, which is dated 26th January, 1981, is reproduced below. "OFFICE ORDER ' Mr. Saeed Ahmad, 0. S. D. (Assets Accounting) WAPDA, was called upon to explain his position under rule 5 (iv) of Pakistan .WAPDA ' Employees (E & D) Rules, 1978, on the charges of misconduct. ' After careful consideration of his replies the Authority has decided to impose the major penalty of dismissal from service upon the officer under rule 4 of the aforesaid Rules. ' Accordingly, Mr. Saeed Ahmad, 0. S. D. (Assets Accounting) is hereby dismissed from service with immediate effect. For and on behale of the Authority (Sd.) (ASAD ULLA H KHAN), General Manager (Admn.), WAPDA" 2. Since the impugned order was passed by the Authority itself, as defined in the West Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, there is no higher authority to whom he could go up in appeal or apply for review of the said order, under rule 11 of the said Rules. He, therefore, preferred an appeal before this Tribunal on 19th February, 1981, which was admitted for hearing on 22nd December, 1981 and, after notice to the respondent, was heard on 17th April, 1982,
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21st April, 1982, 13th May 1982 and 25th May, 1983. At the end of the hearing, on 25th May, 1983, it was ordered that the appellant would give detailed notes on certain case files, to which he had made reference earlier, and that the respondent-department would submit comments on these notes within a fortnight after their receipt. It was also ordered that the Tribunal would issue orders for further hearing, in case it was considered necessary. Since further hearing was not considered necessary, no orders to this effect were issued and the case is being disposed of on the basis of the case record, the documents filed by the parties, the notes submitted by the appellant and the comments thereon furnished by the respondent. 3. The facts of the case are that the appellant joined WAPDA on 24th June, 1973 as Project Accountant, Power Station, which was a Grade 19 post. On 1st July, 1968, he was promoted and appointed as Comptroller, Reclamation, and subsequently transferred as Comptroller, Indus Basin Projects on 6th February, 1973. In his capacity as Comptroller he held a rank higher than that of Project Accountant. After some time, that is, on 6th December, 1975, he was further promoted and appointed as Director General Budget Finance and Co-ordination, in Grade 20, and was also given the additional charge of Chief Auditor in the same grade. On 19th December, 1977, he was placed exclusively incharge of the office of the Chief Auditor. Of 16th June, 1980, he received summons from Summary Military Court No, 45, at Lahore, for appearance either in person or through a representative to depose in a case against a Contractor, Abdul Qayyum Khan Arif. In response to this summons, he nominated the Deputy Chief Auditor, who appeared before the Court on the due date. Shortly after this, the appellant was transferred from the post of Chief Auditor to that of 0. S. D. (Assets Accounting), under the General Manager, Finance (Power), by an order dated 22/24th June, 1980. Neverthless, on 7th July, 1980, he received another summons for appearance before the Summary Military Court on 10th July, 1980. This time, he was required to appear in person. The appellant did not attend the Court on the date fixed as, according to him, he was not feeling fit. Thereafter, another summons was served on him on 12th July, 1980 for appearance on 19th July, 1980. The appellant failed to appear on this date also. Therefore, the Summary Military Court went to his residence on 20th July, 1980 to record his statement. According to the appellant, the Summary Military Court briefed him about the case under enquiry and, thereafter, recorded his evidence. He was cross-examined both by the Court and a representative of WAPDA. Eleven days later, that is, on 31st July, 1980, the Authority served a show-cause notice on the appellant, under rule 5 (iv) (a) of the West Pakistan WAPDA Employees (E & D) Rules, 1978, against the imposition upon him of one or more of the major penalties prescribed under the said Rules. This action was taken against him on the ground that he had made certain statements before the Summary Military Court which were alleged to contain serious baseless allegations against the Chairman, WAPDA, and other senior officials of the Authority, which amounted to breach of "service discipline" and 'unbecoming of an employee of WAPDA', by doing which he had become guilty of 'misconduct', within the meaning of rule 2 (5) of the West Pakistan WAPDA Employees (E & D) Rules, 1978. On llth August, 1980 the appellant approached the Honourable High Court, Lahore, for a writ under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, for restraining the respondent from taking action against the appellant and for a declaration that he still continued to be the Chief Auditor under the Authority, in NPS-20. The Honourable High Court granted interim stay, by an order dated 16th August, 1980, but, after hearing the parties at length, vacated the said order and dismissed the writ petition, on the ground that it was premature, since the disciplinary proceedings against the appellant had not yet been completed and the appellant could not contend at this stage, as he had done in the writ petition, that the respondent had no intention of abiding by the relevant Efficiency and Discipline Rules in dealing with his case. However. The Honourable High Court had observed that it was correct that disciplinary proceedings against the petitioned were to be governed by the relevant Rules and that the respondent could not proceed against him except
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in accordance with the rules. Subsequently, the appellant preferred an appeal before the Honourable Supreme Court, who also agreed with the High Court and held that the petitioner's writ petition was premature. This order was passed on 29th November, 1980, ' But, prior to this, the appellant had submitted his reply to the show-cause notice on 28th October, 1980, in which it was stated by him that, in the course of the hearing of the writ petition before the Honourable Supreme Court, the Authority's counsel had made a statement withdrawing the finding of misconduct, on the basis of which action was proposed to be taken against him. The appellant also submitted that, under rule 21 of the West Pakistan WAPDA Employees (Conduct) Rules, 1978, the evidence given by the appellant before the Summary Military Court was protected from action and also that, under rule 25 of the said Rules, any person aggrieved by any evidence given before a Court of Law could file a suit in a competent Court for vindication of his character and public act. For this reason, the appellant pleaded that, at the time of the issue of the show-cause notice, the Authority had not been appraised of the relevant rules on the subject, for which reason it was necessary that the Authority judiciously considered the issue and decided the matter with reference to the rules and independent legal advice which could be obtained from the Law Ministry. In reply to this explanation, the Authority informed the Appellant that he was simply trying to side-track the issue with a view to delaying a decision of the case. He was, therefore, allowed time up to 4th December, 1980, to furnish his explanation, failing which it would be presumed that he had nothing more to add. In response to this letter, the appellant asked for an attested photo copy of the report on which the charges against him were based, so that he might prepare his explanation. By a memo. Dated 30th November, 1980, the appellant was informed as under :- "You are advised to procure a copy of your statement before the Summary Military Court from the IQ, SMLA Sector-I, Lahore. This is a public document and a copy thereof can be had at a nominal price." ' The appellant, on 1st December, 1980, approached the HQ MLA, Zone-A (Legal Branch), Lahore for a copy of his evidence. He followed this up with further references on the subject on 4th December, 1980 and 23rd December, 1980. In reply to these, the MLA Zone-A sent the following reply on 30th December, 1980. "The proceedings of the said case are still with Headquarters, DMLA, Lahore and, according to the relevant rules of the Manual of Pakistan Military Law, a copy of the proceedings cannot be supplied till such time then the proceedings are countersigned by the authorities concerned." Meanwhile, on 3rd December, 1980 and 4th December, 1980, the appellant addressed two letters to the WAPDA Authorities requesting, inter alia, for photo copy of the Report on the basis of which the charges against him were preferred and also for being allowed to consult the record of the cases to which reference had been made in the show-cause notice, dated 30th November, 1980. In these letters, the appellant had also drawn attention to the fact that the accused person in the case before the. Summary Military Court, Mr. Abdul Qayyum Khan Arif, had been acquitted as a result of a review petition filed by him with the MLA Zone A, and further that the three cases about which he had deposed before the Summary Military Court were also to be investigated by the F. I. A. And the appellant had been directed by the Authority to make a statement before the F. I. A. On the basis of these facts, he contended that "the whole matter being subjudice, there are no grounds for holding my evidence in the Court to be false or frivolous at this stage." He also prayed that he may be allowed to proceed on leave pending retirement, for which he had already made an application earlier on 20th November, 1980. In reply to these letters, the appellant was informed by the General Manager (Administration), through his letter dated 18th December, 1980 that perusal of his letters showed that he was again trying to delay the submission of his explanation on one pretext or the other, that his demand to consult the three cases referred to could not be acceded to, since these cases had not been processed through him and his statement before the Military Court concerning these cases was, prima fade, based on conjectures and, therefore, consultation of the record
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pertaining to the said cases was not relevant to the submission of his explanation. He was, therefore, told that yet another opportunity was being provided to him to furnish his explanation by 24th December, positively, failing which further action would be taken under the E & D Rules, without affording further opportunity. Alongwith this reply, a photo copy of his statement before the Summary Military Court was also furnished to the appellant. This was followed, on 21st December, 1980, by another letter from the appellant, in which he repeated his request for the documents asked for by him and for arranging consultation by him of the files mentioned by him previously. As already mentioned earlier, the Headquarters, Martial Law Zone A informed the appellant on 30th December, 1980 that, as the proceedings of the Summary Military Court had not yet been countersigned by the concerned authorities, copy of the proceedings could not be supplied at this stage. However, on 26th January, 1981, the impugned order was passed. 4. The main grounds on which the impugned order has been appealed against are summarised below (a) The order was passed in mala fide and colourable exercise of powers vested in the Authority. (b) None of the acts alleged by the Authority amounts to misconduct, as defined in the West Pakistan WAPDA Employees (Conduct) Rules, 1978, and the appellant did not act in a manner contrary to the interests of the Authority. In principle, the term "misconduct" could not be applied by any stretch of imagination to the appellant's appearance in a Court and his making statement therein, even though as a defence witness for an accused person. (c)The appellant's conduct in appearing before the Summary Military Court was protected and it could not be termed as misconduct. Actually, the appellant had shown no keenness to appear and tender evidence before the Summary Military Court and avoided doing so till the Court itself visited him in his sick-bed and recorded his evidence. This aspect of the matter had been completely ignored by the Authority, resulting in a miscarriage of justice. (d) The respondent was already biased against the appellant, as disclosed by the tone and contents of the letter dated 31st July, 1980, wherein it was stated that it had been established that allegations had been made by the appellant with a view to malign and defame the Chairman and other senior officials of WAPDA. (e) The definition of "misconduct", as contained in sub-rule (3) of rule 2, does not apply to the facts and circumstances of the case. (f) The evidence given by the appellant before the Summary Military Court could also not be treated as an act of omission or commission which, in the opinion of the competent authority, was unbecoming of WAPDA employees and, therefore, an act of misconduct in terms of clause (xii) of sub-rule (5) of rule 2. Because it was not within the discretion of the appellant to depose or refuse to depose before the Summary Military Court. (g)Since the respondent had treated the action of the appellant, in giving evidence before the Summary Military Court, as breach of service discipline and unbecoming of an employee of the Authority and, therefore, an act of misconduct, without any enquiry and without giving him hearing, the subsequent proceedings were not competent and amounted to a fraud. (h) The proceedings against the appellant were also conducted contrary to and in violation of the procedure laid down in rules 5 and 6 of the WAPDA Employees (E & D) Rules, 1978, about which fear had been expressed by the appellant before the Honourable High Court at Lahore in his writ petition and about which an assurance has been given by the counsel for the respondent before the High Court, on the basis of which the said Court had observed that disciplinary proceedings against the petitioner were to be governed by the (E&D) Rules applicable to the employees of the respondent and that the respondent could not proceed against the petitioner, except in accordance with the Rules.
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(0 Even if the statements made by the appellant before the Summary Military Court were intended to malign and defame the Chairman and other senior officials of WAPDA, they could not be held to be derogatory to and against the interests of the Authority, because the Authority is a separate and distinct entity from the Chairman and his associates and defaming of the Chairman and other senior officials was not synonymous with defaming the Authority itself. (j) If the Chairman and other concerned officials were aggrieved with the statement made by the appellant before the Summary Military Court, it was open to them to proceed against him in a Court of Law, but they could not invoke the powers of the Authority to punish the appellant under the (E&D) Rules. (k) Among other things, the respondent's mala fide is borne out by the manner in which, within a few days of the appellant's deposing before the Summary Military Court (19th June, 1980), he was transferred from the post of Chief Auditor to the non-existing post of 0. S. D. (Assets Accounting), for no other reasons than to remove the appellant from the Audit Department, so as to prevent him from having access to documents and information exposing the faults of the Chairman and the other officials. ' Although the Authority was the appellate authority in this case and the Chairman WAPDA was the competent authority, it was the Authority and not the Chairman who passed the impugned order, with the result that the appellant was deprived of his right of appeal before the Authority, which he was entitled to under the Rules. In this manner, his case was prejudiced, (m) The Authority, by refusing to furnish the appellant with the report, on the basis of which disciplinary action was initiated against him, and also to make available for his examination the files wanted by him, definitely prejudiced him in his defence, thus vitiating the entire proceedings. 5. The stand of the respondent is summarized below : (i) The transfer of the appellant from the post of the Chief Auditor to that of O.S.D. Was not actuated by any malice towards the appellant and was not ordered mala fide or in colourable exercise of powers, but purely for administrative reasons, on account of the failing state of health of the Appellant, who was suffering from diabetes and could not perform the duties of the Chief Auditor, which are of a strenuous nature and call for frequent and extensive tours. According to the letter of the appellant's appointment, the Authority was competent to change his place of service, appointment, designation, responsibilities or duties, as it thought fit. Therefore, this action of the respondent could not be impugned either on administrative or legal grounds. (ii) As an internal Auditor, the appellant was required, under his charter of duties, to act according to and carry out the instructions and orders of the respondent Authority and to point out to the Authority irregularities committed by the subordinate officers, but the Appellant started going behind the scope of his duties and started finding fault with the actions and duties taken by the respondent Authority. WO The Authority did not take exception to the appellant participating in the enquiry undertaken by the Martial Law Authorities but to his volunteering malicious and defamatory statements, as part of his designed campaign of vilification against the Chairman and other senior officials of the Authority. (iv) The allegations made by the appellant, in bis statement before the Summary Military Court, constituted misconduct, in that they were baseless, malignant and defamatory in character. The appellant did not have personal knowledge of the events which formed the basis of the allegations and the very act of the appellant in volunteering to give evidence in favour of Mr. Abdul Qayyum Khan Arif against the Chairman, WAPDA and other functionaries of WAPDA was sufficient to prove his mala fide. (v) The files wanted by the appellant for preparing his defence were refused to him, because they had not been processed by him and he was only indulging in dilatory tacts by asking for them.
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(vi) There was no violation of rules in the respondent dispensing with a formal enquiry under rule 5 (iii) of the E & D Rules, because, in this case, sufficient material was available to justify the taking of just and equitable decision without holding formal enquiry. The fact that there was no need for enquiry was recorded in the relevant file by the competent authority, namely, the Chairman on 26th July, 1980. (vii) The allegations levelled against the Chairman and other functionaries of WAPDA by Mr. Abdul Qayyum Khan Arif, the accused before the Summary Military Court, were falsified by the said Court and thus it was clear that the appellant also had committed the offence of giving defamatory statement, in the form of evidence in favour of Mr. Abdul Qayyum Khan Arif, to malign the said officials of WAPDA. (viii) The act of the appellant in making defamatory, baseless and frivolous statements before the Summary Military Court was an act unbecoming of an officer and thus misconduct within the meaning of the term. In spite of the distinction between WAPDA and its Chairman and other Members, it makes no difference whether the Chairman and other functionaries are defamed or the WAPDA is defamed as a corporate body. Therefore, by defaming the Chairman and other functionaries of WAPDA, the appellant defamed WAPDA itself and committed an act unbecoming of an employee of WAPDA. 6. The crux of the question before us is whether there was sufficient justification for the respondent to dismiss the appellant from service on the basis of the evidence tendered by him before Summary Military Court No, 46, at Lahore, and whether the said action was taken according to and in conformity with the procedure prescribed in this behalf. 7. From the details of the case recited earlier and from the averments and admissions made by the respondent, it is clear that the impugned action against the appellant was taken on account of the evidence tendered by him before the S.M.C. It has been asserted by the respondent-Department itself that, in its opinion, the statements made by the Appellant, in the course of his testimony, were defamatory to the Chairman and some of his colleagues. For this reason, the Authority proposed to dismiss the appellant from service. It is clear that, even before the action was initiated against the appellant, the Authority had made up its mind. That it had also developed a bias against the appellant is evident from a number of circumstances. For example, the show-cause notice served on the Appellant spoke of a report to the effect that be had made certain baseless allegations against the Chairman. But, when the appellant requested for a copy of the report, the same was not supplied to him. Later, he was supplied a copy of the evidence tendered by him before the S.M.C. After quite a long time, which, however, is not the same thing as a report to the effect that he had made baseless accusations. This indicated that the Authority was in so much of a hurry to punish the appellant that it omitted even the elementary requirement of acquainting the appellant with the material on which the case against him was based. Subsequently, when the appellant wanted to consult some files and documents of the Authority, this facility was denied to him on the specious plea that relevant case had not been processed by him and he was only indulging in dilatory tactics by asking for them. Such an attitude could be adopted only by a person who was dealing with the case with a closed mind and a pre-determined decision to get rid of the appellant. Not only that, immediately after he had made his statement before the S.M.C. The appellant was shunted away from the key job of Chief Auditor to .a superfluous and inoceuous post of O.S.D. The plea that this action was taken because the appellant was suffering from Diabetes is too absurd a pretence to be even seriously taken notice of How it suddenly dawned on the Authority, within a few days of the evidence of the appellant before the S.M.C. That his ailment was so serious as to require his being shifted from the job of Chief Auditor, has not been explained. On the other handy there is collateral evidence of the personal motives of the Chairman and his colleagues being at the root of the actions against the appellant, in the averment made before us
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that though as an internal Auditor, the appellant was required under his charter of duties, to act according to, and carry out the instructions and orders of the Authority and to point out the irregularities committed by the subordinate officers, the Appellant started going behind the scope of his duties and started finding fault with the actions and duties taken by the Authority." It is obvious that the appellant had made himself a person a non grata with the Authority, because of his finding fault with the actions of the Authority and even going to the extent of making statements against the Chairman and other high officials of the Authority before the S.M.C. The decision was, therefore, taken to punish him. But pending infliction of the punishment, he had to be incapacitated from preparing his defence and also to be prevented from having access to material that might be used to incriminate the Chairman and other high officials of the Authority. For this reason, the appellant was shifted from his job and refused, point blank, access to the files he wanted to consult for preparing his defence. In the face of all this, how can anybody refuse to believe that the personal involvement of the Chairman in the matter had determined the nature of the action taken against the Appellant, in utter disregard of the rules and the principles of natural justice ? 8. In this connection, it is relevant to observe that both the Hon'able Lahore High Court and the Hon'ble Supreme Court had dismissed the petitions of the appellant on the ground that…
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