ABDUR RASHID (MEMBER).--While serving as mechanic, air-conditioning plant WAPDA, the appellant vide letter No. 1660-63/EMD/WAPDA/P.F. Dated 27-3-1979, was directed to furnish an explanation by the Executive Engineer, E & M Division, WAPDA . The said explanation is reproduced: "EXPLANATION You made a complaint, dated 8-3-1979 to Member (Finance) and Secretary, WAPDA, against officers of E & M Division of WAPDA House, Lahore that tubes of the Boilers at Air-Condi--tioning Plant have been replaced unnecessarily only to justify the earlier purchase of 550 Tubes, with ulterior motive-,.
(2) The matter was fully investigated, and it has been proved that under the direction of the Chief Inspector of Boilers, Government of Punjab, Lahore, the work of replacement of tubes was carried out, with bona fide intention.
(3) It is, thus evident that, you made a false attempt to involve officers of E & M Division by levelling frivolous charges against them and tried to defame them in the eyes of the Authority.
(4) You are hereby called upon to explain for making a false com--plaint and creating unnecessary hindrance in the execution of the job, and further that why you should not be dealt with under WAPDA Employees (Efficiency and Discipline) Rules, 1978.
(5) Your explanation should reach the undersigned through Sub---Divisional Officer (Mechanical), WAPDA House, Lahore within 7 days from the receipt of this letter.
2. The appellant in his reply, dated 4-4-1979 reiterated that his earlier complaint dated 8-3-1979 was based on facts and that the truth would come out if an impartial enquiry were conducted.
3. After a period of about 14 months, a show-cause notice, dated 14-6-1980 was served on the appellant which is reproduced: "SHOW-CAUSE NOTICE You, Mr. Bashir Ahmad Piracha, Mechanic, Air-conditioning Plant, WAPDA, WAPDA House, Lahore, are hereby charged as under:
(i) That you, while working as Mechanic at Air-Conditioning Plant, WAPDA House, Lahore, sent a complaint, dated 8-3-1979 to Member (Finance) and Secretary, WAPDA, against the officers of E & M Division of WAPDA House, Lahore, alleging therein that tubes of the Boilers at Air-conditioning have been un--necessarily replaced only to justify the earlier purchase of 550 tubes, with ulterior motives.
(ii) This complaint was thoroughly investigated and it has been proved that the work of replacement of tubes was carried out with bona fide intention under the direction of the Chief Inspector of Boilers, Punjab, Lahore. Evidently you made a false and baseless complaint against your superiors with a view to tarnishing their image in the dyes of the Authority. Thus, you have com--mitted an act of gross misconduct.'
(2) Under rule 5 (iv) of the West Pakistan WAPDA Employees (E & D) Rules, 1978, you are hereby required to put in your written defence within seven days of the receipt of this Show-Cause Notice as to why one of the major/minor penalties as defined in rule 4 of the aforesaid Rules applicable to you, should not be imposed upon you, for the above-mentioned acts of omissions and com-- missions, stating at the same time whether you desire to be heard in person.
(3) If no reply is received within the stipulated period, it will be presumed that you have no defence to offer and an ex parse action will be initiated against you.
(Sd.)
(HAIDER ALI), Project Director/ Superintendent Engineer, Building Circle, WAPDA."
4. The appellant replied to the show-cause notice on 24-6-1980 highlighting two points. First, how and when the allegations levelled by him had been investigated since he was not aware of any such investigation and second that the show cause, which ought to have been served on him within one month of his explanation, dated 4-4-1979 but had been served after a period of over 14 months was actually, time-barred.
5. Vide Office Order, dated 20-7-1980, the appellant was removed from service. The said office order is reproduced: "OFFICE ORDER Mr. Bashir Ahmad Piracha, Mechanic, Air-Conditioning Plant, WAPDA House, Lahore was served with show-cause notice, dated 14th June, 1980 under rule 5 (iv) of West Pakistan WAPDA Employees (E & D) Rules, 1978 on the charges of making baseless and frivolous allegations against the senior officers of the Authority. Mr. Piracha has not refuted the allegations.
(2) After consideration of the case I, being the competent authority in this case, has decided to impose a major penalty i.e. Removal from service, upon the official under rule 4 of the WAPDA Employees (E & D) Rules. Accordingly, Mr. Bashir Ahmad Piracha, Mechanic, Air-Conditioning Plant of WAPDA House is hereby removed from the service, with immediate effect, as the charges are proved against him.
(Sd.)
HAIDER ALI, Project Director/S. E.
Building Circle, WAPDA."
6. The appellant preferred a departmental appeal on 19-8-1980 against the impugned order of removal. The appeal was rejected vide letter, dated 1-12-1980. Thereafter, the appellant came up before the Federal Service Tribunal on 9-12-1980 under section 4 of the Service Tribunals Act, 1973 and filed his present appeal which is being disposed of by this order.
7. We have heard the learned counsel from both sides. Reliance has, also, been placed on certain enquiry reports which we shall advert to, at their appropriate place.
8. It is reflected in the explanation dated 27-3-1979 as well as the show-cause notice, dated 14-6- 1980 referred to above, that the appellant levelled an allegation against certain WAPDA officials in that 550 air-con--ditioning tubes had been purchased at exorbitant rates (viz. Rs. 1,500 per tube as against actual price of Rs. 350 a piece) that such a large quantity of purchase was not called for.
This allegation which was in two parts was, in turn, forged by WAPDA to remove the appellant as it had, according to the respondents, proved to be false. To see, which side has the boot on, we are depending upon the following documents:
(a) An enquiry by Director Rules and Regulations, dated 2-4-1977 submitted to General Manager S&GA).
(b) Final Report by Enquiry No. 71-M/77 by Director Complaints and Investigation, WAPDA as a follow up to (a) above, dated 3-12-1977.
(c) F.I.A. Central Zone, Lahore, dated January, 1982.
9. The material portion of the Director, Rules and Regulations 3-page report is reproduced: "The complainant has laid great stress on the purchase of 550 boiler tubes for the air-conditioning plant at Rs. 1,500 each. I have verified from Senior Store Keeper and have also inspected the pipes.
Pipes purchased by C. E. P & D are all foreign made and a number of them have been used in the boilers. As far as the allegations about high cost is concerned, since the laid down procedure had been followed and contract awarded to the lowest tenderer, there--fore, it is not for me to cast any judgment on this as on the face of it, all seems to be in order."
The above quotation should suffice to show that the said Director has enquired into half of the allegation and that; too, without making any dent.
10. The Director of Complaints in his -18-page enquiry report has among other things, said: "Thus, the tubes worth 8,25,000 @ Rs. 1,500 each have been purchased solely on the advice and recommendation of XEN (E & M) because being factory trained he was a better judge of such tubes. In the process, nobody bothered to find out if the rates offered by the supplier were also genuine."
"In the light of the descripancies and contradictions discussed above there are good reasons to suspect that after all correct type of tubes may not have been purchased at so exorbitant a price.
In order, therefore, to find out if genuine tubes have been purchased, sample from the newly- purchased tubes has been submitted for proper Laboratory tests through Chief Engineer, I & S, WAPDA, Gulberg, Lahore, and as soon as its result is received it will be forwarded. In the meanwhile this report is submitted for taking departmental action against Mr. Bashir Ahmad Piracha as recommended earlier."
11, Relevant portion of the F. I. A. Report is reproduced: "It relates to the purchase of 550 boiler Tubes. Some samples of Tube were sent to Laboratory and its Test Report shows that the Tubes were of specified material and stated 'the test satisfactory. The WAPDA files were examined which show that the requirement for replacement of Tubes was made after full scrutiny and on the report of subordinate officer in the field. The enquiry has revealed that admittedly the WAPDA officers purchased a. Huge quantity of this material without any justification because unconsumed quantity in large volume is still lying in the store with them. However, the Tubes presently available in stock have been tested and the material has been found of required specification. Though a large sum of money was spent about a few years back without any expected demand in the near future, but WAPDA may be justified in keeping the stock in readiness for any emergency ,which may have required replacement of boiler Tubes in operation. The allegation may be dropped."
12. The above extracts, which are there for anyone to see, leave no doubt in our mind that--
(a) the tubes were purchased at excessive rates since no one either in WAPDA or the F.I.A. Really went into the question of prices and it is here that the State has, on the face of it, suffered a financial loss ;
(b) the quantity of 550 tubes has been far in excess as clearly men--tioned by F.I.A. Also, during the course of the hearing it was brought to our notice that even after seven years, a large number of tubes are still in stock.
13. We have come to the irrestistible conclusion that those at the helm of affairs in WAPDA, may brand the allegations of the appellant as "frivolous" they have not only not been disproved, we, in fact, find substance in them for future enquiry. To brush the allegations aside as "frivolous", therefore, does no credit to the WAPDA. This is as far as the present appeal on merits goes.
14. We find certain technical flaws which would, in themselves suffice to set aside the proceedings.
First and foremost, the appellant has been removed under rule 5 (iv) of E & D Rules, thus by passing the enquiry. It is true that the competent authority may dispense with the enquiry but this prerogative has to be exercised judiciously and not arbitrarily. The present was one such case where an enquiry was an indispensable requirement. We are, therefore, quite clear in our mind that the authority has exercised power arbitrarily and not judiciously. Second and in continuation of the foregoing, the appellant was not afforded a reasonable opportunity of defence. He has been removed on the basis of enquiry reports at paras. 4(a) and (b) but he was not allowed to be present throughout. The evidences has obviously, been recorded behind his back without affording him a reason--able opportunity of defence.
15. We have come to the obvious conclusion that this appeal must succeed both on merits and for technical reasons. We, therefore, accept this appeal and order that the appellant shall stand re- instated into service with effect from the date of his removal with consequential benefits as if he had never been removed.
16. Any future action against the appellant if contemplated, shall be taken in the light of D. O. Dated 10-1-1978 from Secretary, Water and Power, Government of Pakistan which is reproduced below: "Abdul Majid MuftiD. O. No. CDN-3 (4)/77 V-II Secretary Government of Pakistan Ministry of Water and Power Islamabad, the 10th January, 1978.
Sub :Stoppage of Transfer/Retrenchment/Victimisation in Corporations.
My dear Chairman, It has been reported that a number of enquiries have recently been held to probe into the affairs of different Corporations which have been indulging in malpractices, corruption or mismanagement.
After preliminary probe pending formal thorough enquiry, some Corporations have been harassing/victimising those officials who have voluntarily provided information regarding the malpractices/corruption.
It has been decided that no retrenchment, posting and or suspension of any officer/official in your Corporation against whom any enquiry has already been ordered or is in progress or has been completed but the competent authority's orders are awaited, should be effected without prick approval of the Headquarters M.L.A.IC.M.L.A.'s Secretariat, Rawalpindi, as the case may be. All such cases should be directly forwarded for clearance with reasons for the proposed action, under intimation to this Ministry. The Government decision is being brought to your notice for immediate compliance.
With regards, Major-General Fazli Raziq, Chairman WAPDA, WAPDA House, Lahore.
Yours sincerely, (Sd.)
17. No order as to costs.(ABDUL MAJID MUFTI)"
18. Parties be informed.