JUSTICE SHAH ABDUR RASHID (CHAIRMAN). -Mian Mahmood, appellant, while serving as Line Superintendent Grade-11, under the Water and Power Development Authority (WAPDA), was suspended from service on 17-10-77. He approached the Labour Court, and the said Court on 8-11- 77, kept in abeyance the effect of suspension order. Thareafter, a charge sheet dated 21-11-77, with statement of allegations was served on the appellant, to which he replied in detail. The WAPDA recalled the order of appellant's suspension and the petition of the appellant before the Labour Court, challenging the said order became infructuous and was, on 1-12-77, disposed of accordingly.
However, by another order of 30-4-78, the WAPDA removed the appellant from service under section 17 (1-A) of the Water and Power Development Act, 1958 (hereinafter referred, to as the 1958 Act).
2. The order dated 30-4-78 made by the WAPDA was challenged by the appellant before the National Industrial Relations Commission (N.I.R.C.) on 14-5-78 under section 6 of the Pakistan Essential (Maintenance) Services Act. 1952, and the said Commission on 15-5-78 stayed the order of removal of the appellant from service till the decision of his petition and allowed him to continue to serve as Line Superintendent. Finally, 'on 12-12-79, the N I R.C. Accepted the petition of the appellant and ordered his re-instatement into service by setting aside WAPDA's order dated 23-4- 78 passed under section 17 (1-A) of the 1958 Act.
3. On 19-12-79, subsection (1-C) was inserted in section 17 of the 1958 Act, which had the effect of ousting the jurisdiction of all Tribunals including the Labour Court and the N.I.R.C. From interfering in any order passed under section 17 (1-A) of the 1958 Act. The said subsection further provided that any order passed by any Tribunal interfering in an order of WAPDA, made under section 17 (1-A) shall be void and of no effect and shall stand vacated. Consequently, taking benefit of this provision, the WAPDA, by order dated 6th (or 7th) January, 1980, vacated the order of re- instatement of the appellant into service, which it had passed in compliance with the order dated 15-5-78 of the N.I.R.C., and as a result, relieved him of his duties with immediate effect.
4. The aforesaid order was challenged by the appellant in the High Court under Article 199 of the Constitution. Simultaneously, he applied for the suspension of the said order. The High Court on 16- 1-80 suspended the operation of the order, but finally on 12-6-82, dismissed the petition. The WAPDA that had earlier honoured the order of the High Court, by suspending the order of removal of the appellant from service, withdrew the said order when appellant's petition was rejected on 26-1-80, and as a conse--quence, the appellant again stood removed from service under section 17 (1-A) of the 1958 Act.
5. On 22-6-82, the present appeal was filed, wherein the order made under section 17 (1-A) of the 1958 Act and subsequent orders made against the appellant by the WAPDA have been challenged.
Since the appeal had been filed long after the expiry of the period of limitation, the appellant also applied for condonation of delay.
6. At the very outset, the learned counsel for respondent has challenged the jurisdiction of this Tribunal to interfere in the impugned order. He has argued that the language of section 17 (1-A) of the 1958 Act is plain enough to indicate that if the WAPDA passed any order that would be final, because it is not required to give any reason for passing an order under the said section. Though the learned counsel did not seriously press the point, yet it appears that further stand of the WAPDA is that section 17 (1-C) too bars the jurisdiction of the Tribunal from interfering in the orders of WAPDA. The second objection which the learned counsel took up before us pertains to limitation. It has been argued that the appellant did not bona fide go from one forum to another for seeking his redress against the impugned orders and that if his intention was honest, then he could have straightaway come to the Tribunal when order under section 17 (1-A) of the 1958 Act was first passed against him as he was a Civil Servant for the purpose of the Service Tribunals Act, 1973, by virtue of the provisions of section 17 (1-B) of the 1958 Act.
7. It was also urged that at least the period spent in pursuing the remedy before the High Court cannot be excluded for computing the period of limitation, for the reason that under section 14 of the Limitation Act, 1908, the time spent in a wrong forum can be excluded only if the causes of actions in the two forums is the same, and the first forum dismisses the claim for want of jurisdiction. It was pointed out that the High Court did not dismiss the petition of the appellant for want of jurisdiction but it disposed it of on merits. It was also urged that in the High Court, the vices of section 17 (1-C) was the subject-matter of adjudication, while before the present Tribunal, the appellant claims that the action taken against him is mala fide.
8. As far as the jurisdiction of this Tribunal is concerned, we are afraid there is not much substance in the arguments of the learned counsel for the respondent. When subsection (1-A) was inserted in section 17 of the 1958 Act, the legislator simultaneously, by the same amending legislation, inserted subsection (1-B) in that section. The two subsections when read together would clearly indicate the intention of the legislature that the Service Tribunal should act as an appellate authority to check any discri--minatory actions of the WAPDA under section 17 (1-A). The contention that the language of section 17 (1-A) does not permit of interference on any grounds whatsoever is devoid of any force. As far as the mala fide actions are concerned, such actions are without jurisdiction and as such have no force of law, and can be struck down. In this respect, reference may be made to the case of Federation of Pakistan v. Saeed Ahmad Khan (PLD1974SC151) in which it was held in clear terms that a mala fide act is an act without jurisdiction and even the constitution-making body cannot be considered to have 'validated it. The same view was also enunciated by the Supreme Court in the case of State v. Ziaur Rahman (PLD1973SC49) wherein it was observed that an act done mala fide is an act done without jurisdiction, and that no legislator, when .It grants power to take action or to pass an order, contemplates mala fide exercise of power. The Court was further emphatic in saying that mala fide order is a fraud on statute.
9. The learned counsel for the respondent has referred to the case of Muhammad Khan v. Border Allotment Committee (PLD 1965 SC 623) wherein the court recognised the power of legislature to validate any act of the Government whatsoever; but this case was discussed in Ziaur Rahman's case, and the final view which has since held the field is that any act done mala fide is an act without jurisdiction and can neither be validated by the legislature nor it has the force of law.
10. All acts done mala fide by WAPDA under section 17 (1-A) can, obviously be questioned before us.
However, it is to be seen whether those) acts which are not mala fide can too be challenged before the Service Tribunal under section 4 of the Service Tribunals Act, 1973. The very' fact that under subsection (1-B) of section 17 of the 1958 Act, the employees of WAPDA have been made civil servants goes to show that the Service Tribunal can exercise its powers under section 4 of the Service & Tribunals Act, 1973 in respect of any orders passed by WAPDA or any functionary thereof.
The Service Tribunal has full power to modify or to alter the orders of WAPDA. It can substitute its own order for the order of WAPDA in suitable cases. The fact that the language of section 17 (1-A) indicates that the WAPDA can pass an order of retirement or removal without assigning any reason, does not mean that it can pass an order without any reason or that such an order will not be open to appeal before the Service Tribunal.
11. The learned counsel for respondent referred to an unreported case of the Supreme Court in Civil Petition No. K-216 of 1979 (Muhammad Naseem v. WAPDAI. In that case, the Supreme Court was dealing with the view enunciated by the Tribunal that it can interfere in orders under section 17 (1- A) only if the orders are passed mala fide. The Supreme Court refused to accept the appeal of the employee of the WAPDA by referring to the language of section 17 (1-A), but if the judgment is read as a whole, then it would be clear to indicate that the question of jurisdiction of the Tribunal was left open in that case. The Supreme Court in the case of M. Yamin Qurshi v. Islamic Republic of Pakistan (PLD 1980 SC 27) and the Lahore High Court in the case of M. Aslam Bajwa v. Federation of Pakistan (PLD 1,974 Lah. 545) have clearly held that the Service Tribunal has vast power of deciding on appeal the cases of civil servants and its jurisdiction is in no way limited by any provision of law or constitution. In fact, the very language of Article 9 12 of the Constitution gives exclusive jurisdiction to the Service Tribunal in all matters relating to the terms and conditions of the persons in the service of Pakistan in respect of whom law is framed and the Tribunal is established.
12. As far as the scope of section 17 (I-C) is concerned, that clearly relates to Tribunals other than the Service Tribunal. That is the only way in which subsections (1-B) and (1-C) can be reconciled. In any case, while enacting sub-section (1-B), the legislature by implication ousted the jurisdic--tion of all courts and Tribunals including the High Court and conferred the jurisdiction on the Service Tribunal. It cannot be said that by inserting subsection (1-C), it ousted the jurisdiction of the Service Tribunal as well in matters arising out of the orders under section 17 (1-A) : for in that case neither the High Court nor the Civil Court, nor any other forum including the Service Tribunal shall have jurisdiction to give remedy to an aggrieved employee. In any case, the jurisdiction of the High Court under Article 199 of the Constitution cannot be ousted by this crafty method.
13. For the foregoing reasons, we are clearly of the view that we have full jurisdiction to interfere in an order passed by the WAPDA under section 17 (1.-A) or in any order that may be passed by it or any of its functionaries that affects the terms and conditions of its employees.
14. As far as the question of limitation is concerned, the appeal is barred by time, because the appellant could come to the Tribunal within 30 days of the order that was passed under section 17 (1-A). He however, first went to the Labour Court and then to the National Industrial Relations Commission, and got the redress. This shows that the Labour Court and the N.I.R.C. Were under the wrong impression that they had jurisdiction to interfere even after the enactment of subsection (1- B) in section 17 of the 1958 Act The period spent before the Labour Court and the N.I.R.C. In these circumstances, can be excluded because the appellant bona fide believed that the said forum had jurisdiction to interfere in the orders of the WAPDA in his case. However when after the insertion of subsection (1-C), the appellant himself went to the High Court on the cancellation of the order of his re-instatement, that Court did not dismiss his petition for want of jurisdiction and it appears that both the parties submitted to the jurisdiction of the said Court Before that Court, the appellant wanted to get his order of removal set aside by getting section 17 (1-C) struck of as being ultra vires the powers of the law maker. The proceedings before the High Court were, therefore, such as would not come to the rescue of the appellant to seek shelter behind section 14 of the Limitation Act, 1908.
This view was also taken in the case of Abdus Sattar v. Bibi Paindah (PLD 1952 Bal. 27) However, since in view of the fact that the legal position was fairly complicated and there were different decisions by different Courts on the specific point, we consider that it is a fit case in which the period spent before the High Court should be condoned under section 5 of the Limitation Act, and we direct accordingly.
15. Coming to the facts of the case, the substance of allegation contained in charge sheet dated 21-11-1977, is to the effect that the appellant energised the premises of two prospective subscribers prior to the premises of one Mian Muhammad, though the latter, according to the merit and time of his application, had a prior right of getting connection for his premises. Further allegation was that connection to Mian Muhammad was refused by the appellant wrongly on the ground that single phase L. T. Line was not existing in the block and that the estimate was to be prepared when two more phases are provided by the housing society. According to the department, the ground for refusal to give connection was frivolous on the face of it, because from the same L. T. Line two other applicants had been given connections for domestic purposes whose applications had been received later than that of Mian Muhammad.
16. As already stated, the proceedings on the basis of charge-sheet were not carried through, and instead WAPDA passed an order under section 17 (1-A) of the 1958 Act and removed the appellant.
The appellant's main grievance is that since before taking action under section 17 (1-A), an inquiry had been initiated against him, those proceedings should have been taken to the end. His contention is that the Inquiry Officer after examining the evidence against the appellant submitted a report that the appellant was not guilty and exonerated him of the charges. He contends that the respondent Authority having found no reasonable excuses to terminate the services of the appellant on disciplinary grounds mala fide invoked the provisions of the section 17 (1-A) of the 1958 Act.
17. We have gone through the record of the case. We find that the action against the appellant under section 17 (1-A) was proposed by Mr. M. R. Choudhry, General Manager (Distribution) WAPDA, on 16-10-1977, independently, and the different officers who dealt with the case under that section for submission to the Authority, were not aware of the fact that the appellant had been suspended from service with effect from 17-10-1977, or that any charge-sheet had been served upon him. The contention of the appellant that he was exonerated in the inquiry proceedings is also not correct because the report on which he relies was not of the Inquiry Officer appointed under the WAPDA (Efficiency and Discipline) Rules. It was an independent recommendation for consideration which had been made by F the Executive Engineer. This report is neither connected with the discip--linary proceedings nor with the proposed action under section 17 (1-A). The fact is that the Executive Engineer, Gulberg Division, Lahore, who submitted the so-called report was not to be appointed as Inquiry Officer and if the report is seen as a whole, it does not exonerate the appellant, as alleged by him.
18. Apart from the above- fact, the appellant has not been able to bring on record the facts constituting mala fide on the part of all or any of the Members bf the Authority, or of any person who could influence the Authority by his recommendation. The element of mala fide is totally missing in the case. Not only that the appellant has not been able to establish mala fide, the department has disproved it positively.
19. The last question to be decided is whether the order under section 17 (1-A) was justified. In view of the peculiar circumstances existing in the WAPDA, section 17 (1-A) was inserted to weed out undesirable persons ' without apparently attaching any stigma. The record which we have been shown, is sufficient to establish that the appellant's hands are not clean and he does not deserve to remain in service of the WAPDA. The action under section 17 (1-A) was well justified. We uphold the order of the Authority and dismiss this appeal with costs which is fixed at Rs. 100.