B. G. N. KAZI (MEMBER).-Muhammad Arshad Qureshi scan of Rehmat Ali Qureshi who was employed as confirmed Assistant in the Office of Resident Engineer, Gas Turbine Power Station, Shahdara, Lahore was removed from service on payment of 30 days' pay in lieu of 30 days' notice by the Water and Power Development Authority in exercise of powers conferred on it under section 17(1-A) of the West Pakistan WAPDA Act, 1958. The appellant alleges that the impugned order is mala fide and also in excess of the power given under section 17(1-A) of tie Act, He has stated that he had unblemished record of service till he was suspended on 30th April, 1975 on account of alleged charge of helping a contractor with tampering with official documents. He had submitted a detailed representation before Member (Power) WAPDA explaining the entire case and asserting his innocence. The matter was referred to an Enquiry Committee constituted by the Resident Engineer, Gas Turbine Power Station, Shuhdara and he was ordered to appear before the said committee on 3rd/4th, July, 1975. His explanation was not considered satisfactory and charge- sheet dated 29th September. 1975 was issued which was not accompanied with any statement of allegations. The appellant submitted detailed reply to the charge-sheet on 4th October, 1975 wherein he categorically denied the charges levelled against him.
2. Finally respondent No. 2 ordered the holding of formal enquiry by Enquiry Officer WAPDA, under the West Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1966. The enquiry was held on a number of days and the matter continued to linger on as the relevant record was not made available either to the Enquiry Officer or to the appellant for inspection. The appellant has alleged bias on the part of the Resident Engineer and has stated that although respondent No. 1 passed order that he may be allowed to see the relevant file, the Resident Engineer who was personally interested and involved in the matter under enquiry had not allowed him inspection of the file. It is further alleged by the appellant that on 22nd September, 1976 the Representative of respondent No. 2 brought the record to the Court of the Enquiry Officer and in spite of the repeated orders of the Enquiry Officer to show the record to the appellant, the representative declined to do so and the case was adjourned to 21st October, 1976. The Enquiry Officer made it clear that he would refer the matter to the respondent No. 2 that the file in question be made available to the appellant for inspection before the enquiry could continue. While enquiry was fixed for hearing on 21st October, 1976, the appellant received the impugned order -- which was communicated to him on 13th October, 1976 and he actually informed the Enquiry Officer on 20th October, 1976 about the order.
3. The appeal was admitted on 31st December, 1976 and notice was issued to the respondents on whose behalf Mr. Tajammul Hussain Khan, Advocate filed preliminary objections on maintainability of appeal. Since, rule 13 of the Service Tribunals (Procedure) Rules, 1974, provides for objections to be filed by the respondents and there is no provision in the rules for any preliminary objections the same have been treated as objections specially as no application for being permitted to file further objections was made. There are no parawise comments on the allegations of the appellant with regard to mala fifes etc., which are therefore considered as uncontested. The only objections raised are legal ones which may be stated as under :-
(i) That it was not obligatory on the respondents to assign any rea--sons for removal of the appellant under section 17(1-A) of the West Pakistan WAPDA Act, 1958.
(ii) That the provisions of section 17 (1-A) of the Act being manda--tory, the Tribunal is not vested with the jurisdiction to enquire into the reasons prompting the order of removal.
(iii) That the pendency of departmental enquiry against the appellant was a departmental affair which cannot be construed as a matter pending before Tribunal or Court of competent jurisdiction and therefore, the appellant cannot invoke the jurisdiction of the Tribunal.
4.I shall deal with the preliminary objections raised on behalf of the respondents in the first instance. With regard to objections Nos. 1, 2 and 3 it is true that there is Do provision in the West Pakistan WAPDA Act, 1958 that reasons have to be assigned for passing an order of removal after giving 30 days notice or pay in lieu thereof. Section 17 (1-A) makes it clear that the removal can be ordered without assigning any reason. However in the West Pakistan Water and Power Development Authority (Amendment) Ordinance of 1975 which amended the West Pakistan Water and Power Development Authority Act, 1958 by adding section 17 (1-A) aforesaid, there is further provision in section (1-B) that service under the Authority is declared to be service of Pakistan and every person holding a post under the authority, not being a person who is on deputation to the authority from any Province, shall be deemed to be a civil servant for the purposes of Service Tribunals Act, 1973 (Act LXX of 1973). This Tribunal, therefore, has jurisdiction as the impugned order is with regard to removal front service and concerns the terms and conditions of service of the appellant. The counsel or the respondents who actually appeared and argued the appeal on behalf of the respondents could not give any reason for ouster of the jurisdiction and powers of this Tribunal as an administrative Tribunal for looking into the matter and therefore the preliminary objections are overruled. Although the legal position is clear, it may here be state; that in the decision reported in PLD 1976 Lah. 492 in view of the employees of WAPDA becoming civil servants within the meaning section 2 (a) of Act LXX of 1973 with effect from 30th September, 1975 it was held that the High Court no longer can entertain any proceeding in respect of any matter falling within the jurisdiction of the Service-- Tribunal.
5. On behalf of the respondents the learned counsel raised the contention that WAPDA being a statutory Corporation the law of Master and Servant applies to the relationship between the authority and --the appellant. There is no dispute that the petitioner is governed by the statutory rules namely West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules framed by the authority under a provision in the West Pakistan Water and Power Development Authority Act, 1958. There are various decisions of the superior Courts to the effect that the power of the master therefore the fire an employee at his sweet will was not available even before the amendment by which section 17 (1-A) was added to the Act and therefore it was held that even if it is deemed to be contract of service the term of engagement and power of controlling and dismissing the worker being provided by the statutory Rules, they knock the bottom out of applicability of the ordinary or general law of Master and Servant. It was so held in the decision reported in PLD 1973 Lah.
188. In that decision it was held that Constitutional guarantees available to civil servants are not attracted but an employee of statutory Corporation in not per se subject to general law of Master and Servant and that in case there are conditions contained in statute or statutory Rules with regard to engagement, terms of employment, removal from service or control of such employees the general law of Master and Servant shall give way to these conditions.
6. Similarly in the decision reported in PLD 1976 Kar. 1121 it was held that in case there vas mandatory provision of law governing manner of exercise of power by a statutory Corporation the same created service rights of employee which could not be violated by employer by setting up doctrine of indoor Management.
7. Coming to the merits of the appeal, as already stated, the allegations of the appellant with regard to mala fides have not been even commented upon on behalf of the respondent. The party alleging mala fides, therefore, can be said to have proved the same. It may be --pointed out that the aforesaid allegations are fully supported by a letter addressed to the Chief Engineer. Thermal Plants C & O by the Enquiry Officer, WAPDA, a photostat copy of which has been made available by the appellant. In the letter it war, pointed out to the Chief Engineer that the files sent with his letter were returned because of the condition imposed by him that the accused should not be allowed to see them. The Enquiry Officer further pointed out that if the Chief Engineer considered that the contents of the files were confidential or secret he should have in the normal manner claimed privilege of withholding the files. It is also clear from letter that representative of the Chief Engineer even interrupted the proceedings before the Enquiry Officer and files had been taken away creating an embarrassing situation for the Enquiry officer and giving the impression to the accused that he was being discriminated against. It is significant to note in this respect that the appellant had alleged bias on the part of the said Chief Engineer who according to him was favouring the Resident Engineer who was involved in the same enquiry. It is also quite clear that although a specific date had been fixed for the enquiry no intimation was sent to the Enquiry Officer and the impugned order in the meantime was passed. These circum--stances, therefore, further support the allegations of mala fides in this case.
8. The impugned order shows that it has been passed in excess of powers given under section 17 (1-A) of the West Pakistan WAPDA Act, 1958 inasmuch as under that provision no stigma is attached to the employee and it merely provides power of removal from service simpli--citer. In the instant case as is apparent from para. 2 of the impugned order the authority also decided to debar the appellant from working with WAPDA in any capacity whatsoever which at least where WAPDA is concerned amounts to order of dismissal not envisaged by sec Lion 17 (1-A) aforesaid.
The debarring of the appellant from working with WAPDA in any capacity whatsoever shows bias and proves mala fides as alleged by the appellant. The order, therefore, cannot be maintained and it is hereby set aside. The appellant be re-instated in service with all the consequential service benefits.