' JAVED IQBAL, J---This petition for leave to appeal is directed against the judgment dated 10-2- 2000 passed by the Federal Service Tribunal whereby the appeal preferred on behalf of petitioner has been dismissed and order concerning his retirement dated 13-9-1980 has been kept intact.
2. Precisely stated the facts of the case are that the petitioner was retired from service by the competent authority on 23-4-1999 in exercise of powers conferred upon it under section 17(1-A)(a) of WAPDA Act, 1958 (hereinafter referred to as the WAPDA Act) with all retiring benefits and three months' pay as contemplated under section 17(1-AB) of the WAPDA Act. The petitioner being aggrieved made representation against the order of his retirement which was rejected by means of order dated 4-6-1999. The petitioner preferred an appeal in the Federal Service Tribunal which was also dismissed on 10-2-2000, hence this petition.
3. Mian Mahmood Hussain, learned Advocate Supreme Court appeared on behalf of petitioner and contended emphatically that the learned Service Tribunal has not dilated upon the contentions as agitated before it nor decided the same but on the contrary appeal has been disposed of in a haphazard manner which resulted into serious miscarriage of justice. It is argued that the main controversy revolves around section 17(1-A)(a) of WAPDA Act, which was never considered by the learned Federal Service Tribunal which caused serious prejudice against the petitioner. It is next contended that specific allegations were levelled against the petitioner in accordance with the provisions as contained in rile 6(2) of the Service Tribunals (Procedural) Rules, 1974 alongwith affidavit, contents whereof were neither disputed nor denied by the respondent but the question of mala fides was not adverted to and decided in its true perspective by the learned Federal Service Tribunal. It is urged with vehemence that the Service Tribunal has not examined the relevant record at all and thus it is a case of misreading and non-reading of relevant material and thus the judgment impugned is liable to be set aside on this score alone. It is pointed out that in fact the petitioner was retired on false allegation levelled by defaulting consumer which could not have been decided without having a full-fledged inquiry and therefore, the retirement of the petitioner is not in accordance with law and prescribed procedure.
4. Mr. Abdur Rehman Madni, learned ASC appeared on behalf of caveator and supported the judgment impugned being free from any illegality or infirmity with the submission that the petitioner has rightly been retired by the competent authority by exercising powers conferred upon it under section 17(1-A)(a) of the WAPDA Act with all retiring benefits and no injustice whatsoever has been done to the petitioner.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have perused the judgment impugned. It is regretted to note that all the contentions agitated before the Service Tribunal and questions raised on behalf of petitioner were neither dilated upon nor decided by the learned Federal Service Tribunal which resulted in grave miscarriage 5f justice. It hardly needs any elucidation that unbridled and unfettered authority has not been conferred upon the "Competent Authority" of WAPDA to shunt out its employees at its own whims and wishes without completion of necessary legal formalities as has been done in this case which aspect of the matter has been ignored by the learned Service Tribunal. The petitioner had alleged specific mala fide alongwith affidavit which was altogether ignored by the learned Service Tribunal which otherwise is competent to examine as to whether order passed by the Authority under section 17(1-A) of the WAPDA Act is bona fide or mala fide. In this regard we are fortified by the dictum as laid down in WAPDA v. Zulfiqar Ali (PLD 1988 SC 693), relevant portion whereof is reproduced hereinbelow for ready reference:-- "In the case of Shah Imroz it was held that when the order under section 17(1-A) passed by the Departmental Authority is mala fide and tainted with bias and thus, not passed bona fide, it would be within the power of the Tribunal to set aside the order of removal and substitute it with the order of reinstatement. This was thus treated as a very strong case for mitigation also. In the other case of Firdaus Khan the mitigation (given the other requisites regarding mala fides, etc.) was not that strong, therefore, the alteration of removal to compulsory retirement (instead of reinstatement) was treated as the proper penalty. Thus, in order to remove the taint of arbitrariness from the orders of the Tribunal itself, it is essential that in such-like cases, alteration of penalty should take place only after giving a finding of arbitrariness on question of penalty on the part of the WAPDA Authority. In this context when the Authority orders removal, in a case of bribe; while upholding the finding of guilty, it might look odd for the appeal forum, to retire with all pensionary benefits, or to reinstate with the reward of the benefits of past employment. These observations are essential to illustrate the point and not to be read as direction in the present cases. The Tribunal shall be at liberty to support its view with cogent reasons so as to remove the criticism of arbitrariness, or if no such cogent reasons are available, to change the view itself."
6. It would not be out of place to mention here that the scope of section 17(1-A) has been examined time and again by this Court and finally settled in case WAPDA v. Sikandar All Abro (1998 SCM R 137), relevant portion whereof is reproduced hereinbelow:-- "9. We now proceed to consider whether on account of change in the language of section 17(1-A) of the Act introduced by Act III of 1994, the scope and scheme of section 17(1-A) (ibid), has been changed so that the above interpretation of the provision of section 17(1-A) has become inapplicable. We have already reproduced earlier in this judgment the original text of section 17(1- A) as well as its provisions as they now stand after the amendment of 1994. The insertion of the words "after informing him in writing of the grounds on which such action is proposed to be taken and giving him an opportunity of showing cause in writing against the action, within a period of fourteen days" in place of "without assigning any reason, after giving him not less than thirty days' notice or pay for the period by which such notice falls short of thirty days". In our view though it did not take away the discretion of Authority completely to remove its employee, but it did have the effect of curtailing such discretion. Under section 17(1-A) of the Act as it originally stood, the Authority could remove an employee without disclosing the reasons for such removal by just giving the concerned employee either 30 days' notice or pay in lieu thereof. However, under the amended section 17;1-A), the Authority now cannot remove an employee without first informing him the grounds on which action for his removal from service is being taken and allowing him an opportunity of showing cause in writing against the proposed action. This change in the procedure for removal of an employee under section 17(1-A) of the Act, in our view, is intended to remove the taint 'of arbitrariness, if any, in such action. This, however, does not mean that the discretion available to Authority under section 17(1-A) to dispense with the services of an employee has been taken away by the amendment of 1994. The amendment introduced in section 17(1-A) by Act XIII of 1994 has the effect of only circumscribing the discretion of the Authority by providing a different procedure for removal of employee from service. The contention of the respondents that after amendment in the language of section 17(1-A), a detailed enquiry is must in every case of removal of an employee from service under section 17(1-A) (ibid) does not appear to be correct. Similarly, the contention of respondents that where in the first instance the Authority elected to proceed under the Rules, it could not take action under section 17(1-A) of the Act, is devoid of force. The language of section 17(1-A), even after amendment, does not admit of any such construction. The underlying object of section 17(1-A) of the Act, even after its amendment by the Act XIII of 1994, remained unchanged and the Authority still has the discretion to dispense with the service of an employee through recourse to section 17(1-A) provided the removal did not carry with it any stigma and the procedure laid down in the section is strictly followed by the Authority. The learned counsel for the respondents relied on Ghulam Hadi Baloch v. Collector of Customs (1987 SCM R 602) and Zarar Khan v. Govt. Of Sindh and others (PLD 1980 SC 310), in support of their contention that where the Authority first chooses to proceed against its employee under the detailed procedure it could not subsequently change its mind and follow another procedure prescribed under the Rules. These cases are quite distinguishable. In both the above cited cases the proceedings were initiated under the Government Servants (Efficiency and Discipline) Rules, 1973. In the case before us, there was no legal bar for the Authority to have recourse to the provisions of section 17(1-A) of the Act, even where proceedings under the Rules were initiated in the first instance against an employee as held by this Court in WAPDA v. Muhammad Ali (supra.)
10. From the preceding discussion, it follows that even after amendment in section 17(1-A) of the Act, the Authority is competent to remove an employee from Service through recourse to the provisions of section 17(1-A) of the Act provided the removal does not carry with it any stigma on the concerned employee and the grounds of removal are such that they could be determined within the ambit of procedure prescribe& under section 17(1-A) of the Act. As a corollary, it follows that where the Authority intends to remove an employee on serious charges which required detailed enquiry to establish the same and it also carried stigma on the concerned employee the 'Authority' could not have recourse to the provisions of section 17(1-A) of the Act for removing such employee from service."
7. A bare perusal of the above said verdict would reveal that no unfettered powers have conferred upon the Competent Authority to take action under section 17(1-A) of the WAPDA Act. It is worth- mentioning that no show-cause notice whatsoever was issued, no reasoning worth the name was assigned and no proper opportunity of hearing was afforded which amounts to misuse and abuse of powers but this too escaped from the notice of the learned Service Tribunal which ex facie is demonstrative of the fact that the entire record was not read with diligent application of mind. As mentioned herein-above, the attribution of mala fides with specific accusation duly supported by affidavit, contents whereof were not controverted, should have been adverted to and decided by the learned Federal Service' Tribunal.
8. It has also been observed with grave concern that the departmental appeal preferred on behalf of petitioner has been dismissed in a perfunctory and slipshod manner by means of an non- speaking order. The General Manager, WAPDA (Lahore) had decided the appeal in a haphazard, careless, casual and mechanical manner in oblivion of the fact and the dictum laid down by this Court in Pakistan and others v. Public at large and others (PLD 1987 SC 304) wherein it was held that WAPDA employees must be apprised of and intimated regarding the reasons of their premature retirement. It would not be out of place to mention here that in view of the said dictum the relevant section was amended by means of Act No,XIII of 1994 and an opportunity of show-cause notice was given. In case of Ejaz Nabi Abbasi v. WAPDA (1992 SCM R 774) this aspect of the matter was taken care of with the following observations:-- "11. Though section 17(1-A) of the Act seemingly confers on the Authority plenary power to remove or to retire an employee of WAPDA at any time without assigning any reason after giving him not less than thirty days' notice or pay for the period by which such notice falls short of thirty days, however, it does not mean that the Authority enjoys above power unfettered or unbridled or arbitrary. The object of conferring such power seems to be to make easier for the Authority to remove from Service surplus and/or inefficient and/or corrupt employees without holding long drawn departmental enquiry in order to make the establishment more viable and efficient and, therefore, exercise of the above power should be directed to achieve the above objective. It is to be exercised in good faith by the repository of the power, untainted with bias or mala fide or consideration other than the above objective and, therefore, any action in violation of the above basic norms will warrant interference by the Tribunal and this Court."
9. In sequel to above mentioned discussion the petition is converted into appeal which is accepted, the order of retirement dated 23-4-1999 and the judgment impugned are set aside with the direction that the petitioner shall be reinstated in service immediately with all back-benefits as admissible under the rules. The competent authority would, however, be at liberty to initiate fresh action if deemed fit and proper subject to all legal exceptions and strictly in accordance with law.