SAEED AHMAD vs WAPDA

' 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, 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 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 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.

(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.

(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 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 "so far no disciplinary action against him has been taken" and that there was 'enquiry' proceedings pending against the appellant. In fact, it was observed by the Lahore High Court that it was "premature at this stage to contend that the respondent had no intention to abide by the Efficiency and Disciple Rules. While this was the position at the time the petitions were dismissed, as later developments have shown, no enquiry proceedings were undertaken at all and, in our view, neither the letter nor the spirit of the E & D Rules observed.

9. There is no doubt that dismissal from service is an extreme penalty, which could be justified only in the case of misconduct of the most extreme degree. In the instant case, we find, from the averments made before us by the parties and the documents produced by them, that the appellant was required by the Summary Military Court to tender evidence in a case in which Mr. Abdul Qayyum Khan Arif, a contract*, was being tried by the said Court for having made false and baseless allegations against the Chairman and other high officials of WAPDA regarding their conduct in the award and processing of contracts for supplies and services. The appellant was required, at first, to appear before the Court in his official capacity, either in person or through a representative. The appellant, at first, sent his Deputy, but the Court required his own personal appearance and fixed a date for the purpose. The appellant could not appear on the said date on the ground of illness and so, on a subsequent date, the Court itself visited the appellant in his sick bed and recorded his evidence in the presence of the accused. The statements made in the deposition by the appellant were considered by the Authority to be baseless, malicious and defamatory of the Chairman and other high officials of WAPDA and, therefore, punishable as misconduct under the Rules. The Authority appears to have been so thoroughly convinced of the guilt of the appellant that it did not consider the holding of an enquiry to be at all necessary and, therefore, it decided to serve a show-cause notice on the appellant, under ,Rule 5 (is) of the WAPDA (E & D)

' From the material on record, it is evident that this action of the Authority was hasty, uncalled for and unjustified. The charge against the appellant was never so clear and precise, nor so obvious, as to require no evidence, oral or documentary, to establish its correctness. It was not even brought home to the accused. Therefore, when the appellant asked for details, as well as for the production of files and documents, to enable him to refute the charges, he was fully justified in doing so and the only reasonable course for the respondent was to hold a proper enquiry under Rule 6 of the (E and ID) Rules and decide the matter on the basis of the enquiry report. The respondent, however, did not do so, but merely kept on insisting on the appellant furnishing his explanation in reply to the show-cause notice. While doing so, it (respondent) even refused to supply the files and documents wanted by the appellant and closed the matter by issuing the order of dismissal. All this was highly arbitrary and an abuse of the power conferred under the E & D Rules. The option given to a concerned authority to proceed against an employee, whether by charge sheeting him; and subjecting him to enquiry proceedings or straightaway requiring him to show-cause against a proposed action, is not one to be exercised arbitrarily, or at the sweet will of the concerned authority. This Tribunal has invariably taken the view that the concerned authority can dispense with the enquiry proceedings only when the case is prima facie so clear, convincing, and cast-iron as to be taken to have been established and requiring no further evidence to prove it. By the very nature of the allegations against the appellant, and by virtue of the fact that the appellant denied the allegations and undertook to refute them, the presumption that the charges against him had been established was baseless and an act of wishful thinking on the part of the respondent. AU other actions taken thereafter, culminating in the impugned order of dismissal, were based on weak legal footing and cannot, therefore, be sustained. On this ground alone, if on no other, the impugned order cannot be upheld and must be set aside.

10. On merit also, we do not find sufficient justification for the action taken against the appellant by the respondent. For this purpose, we shall have to examine the question whether the evidence tendered by the appellant before the Summary Military Court was false and malicious and defamatory of the Chairman and other high officials of WAPDA and whether, by virtue of its being defamatory of the Chairman and other high officials, it was unbecoming of an employee of WAPDA and, therefore, an act of misconduct punishable under the (E & D) Rules.

11. So far as the question whether the statements made by the appellant were objectionable or not is concerned, we find that the evidence which was recorded before the Summary Military Court did contain a number of serious allegations against the Chairman of WAPDA. But that, by itself, does not make it objectionable, either under the Civil or the Criminal Law or under the rules of the department. No independent authority has given the finding that the statements made by the appellant before the Summary Military Court were false frivolous, baseless, malicious or defamatory. We do not know what the observations of the Summary Military Court on 'these statements were We do not even have the authentic version of the appellant's deposition before the Court, because the Martial Law Authorities declined to give a copy of the same to the appellant, in spite of requests. But, we do know that the accused before the Summary Military Court was convicted by the said Court but his conviction was set aside by the higher Martial Law authorities.

In these circumstances, it would be too much of a wild claim for anybody to make, as had been done by the Authority in its show-cause notice, that it had been established that the appellant had made statements which were actionable.

12. The statements made by the appellant before the Summary Military Court contained references to actions and decisions of the Chairman, which, in the opinion of the appellant, were either irregular or not above-board. On this basis, he had expressed the view that the Chairman must have committed these irregularities, which, as claimed by him, had resulted in loss to the Authority and gain to some other parties and that these could not have been committed without any quid pro quo return for the favours done. There is no doubt that these statements cast serious reflections on the official conduct and integrity of the Chairman. But in order to establish that these statements were malicious and defamatory, positive evidence had to be adduced to establish that these statements were made not in the interest of justice, particularly to protect the public interest, but with the sole object of disgracing and bringing into disrepute the Chairman and his colleagues.

No such evidence was actually brought on record. But, the only point made on behalf of the respondent was that, since the appellant had no personal knowledge of the case to which he had made reference in his evidence, the files relating to these cases not having passed through him, the allegations levelled by him were the result of his personal malice against the Chairman and other high officials and were intended only to defame them. We are unable to accept the view that merely because, according to the respondent, the files referred to had not passed through the appellant, his reference to these cases was malicious and the allegations pertaining to them defamatory in character. These disclosures made by the appellant before the Summary Military Court were, no doubt, prima facie made in the public interest. But, merely because, according to the respondent, these files had not passed through the appellant, the plea, that his statement relating to these were malicious, cannot be accepted. Even if the files had not passed through him, but he had knowledge of them and he could speak about them with confidence, his disclosures must be treated as being in the public interest, even though the conclusions drawn by him many not be inevitable or irrefutable. Conclusions based on reason and commonsense, even if they are debatable, need not be treated as malicious, merely because they damage somebody else's character or reputation. Likewise, however, serious, an allegation cannot be considered to be defamatory merely because it damages the reputation of an individual or individuals. The circumtames in which such a statement is made, the person or persons before whom it is made, the manner in which it is made and the purpose for which it is made are relevant for determining whether they are defamatory or otherwise. If the appellant had made accusations against the Chairman and his colleagues in a public meeting or in an article in the press, or by means of a booklet or a hand bill, the action would certainly have been treated as coming within the definition of defamation. But since he made the accusations before a Court of Law and, in support, had adduced reasons and arguments, his action would not be considered to be defamatory, unless it could be established that this was done with no other intention but that of bringing into disrepute, and causing harm to, the other party. In the present case, no action was taken by the respondent to bring home to the appellant that his action was defamatory and he was not given, an opportunity of disproving this charge. Therefore, it could not be said merely on the basis of the accusation in the show-cause notice, that the statements made by him before the Summary Military Court were malicious and defamatory.

13. Apart from the question of defamation, there is also the question of the truth or veracity of the allegations levelled by the appellant before the Court. It could not be decided to proceed against the employee without first establishing that the statements made by him before the Court were false and baseless. The Chairman, who was an .Interested party in the matter, did not, before persuading the Authority to contemplate the dismissal of the appellant from service establish that the statements made by him before the Summary Military Court were baseless. It was not enough that the Chairman or the Authority should have believed them to be baseless. What was necessary was that it should have been brought home to the employee that his statements were baseless or untrue and he should have been given an opportunity to dispel this belief. Since nothing of the sort was done, it has to be accepted that the accusation that the appellant had made false and baseless statements before a Court of Law cannot be taken for granted. In fact, the Summary Military Court, which examined the appellant, does not appear to have given any finding to the effect that the statements made by the appellant were false and baseless. On the other hand, from the fact that the accused before the Summary Military Court, who was convicted by the said Court was later let off by the relevant Martial Law authority, it would appear that no case was made out against him and, consequently, it was unlikely that the evidence given in his defence by the appellant could be found to have been false and baseless. In such circumstances, it would be absurd to accept the departmental stand, as implied in the show-cause notice, that a clear case of false statements having been made, with a view to defaming the Chairman and his colleagues, had been established and all that the appellant had to do was to explain why he should not be punished for the same. No case had been established and, therefore, the question of a show- cause notice did not arise at all.

14. However, even if it were conceded that the appellant had made statements which were, besides being baseless, defamatory of the Chairman and his collegues, it should have been treated as a simple case of misconduct of the appellant in relations to the Chairman and his collegues and not involving the Authority against the Appellant. This might appear to be a fine distinction, but it must be kept in mind that defamation of the Chairman is something distinct from defamation of the Authority and when the prestige and reputation of the Chairman were involved, it was unfair for him to have invoked the powers and the prestige of the entire Authority to punish the offender, without even the semblance of a trial. As we have already seen, the Chairman, who was the really aggrieved party. Should have figured as the prosecutor and the matter should either have been referred to an Enquiry Officer or Committee or been probed by other members of the Authority than the Chairman. But, what really happened was that action was both initiated and finalised by the Authority, under the guidance of the Chairman himself. This certainly did not conform to the well established and accepted notions of justice, either administrative or legal.

15. So far as we are concerned, we are not in a position to adjudicate whether the evidence given by the appellant before the Summary Military Court was false or otherwise. The Chairman of WAPDA is not on trial before us and, therefore, we cannot pass any judgment on the conduct of the Chairman, in connection with the award of contracts and other matters to which reference was made by the appellant in his deposition before the Summary Military Court. All we can say is that the appellant took the stand before us that his answers to questions put by the Summary Military Court were supported by the enquiry reports of the F. I. A., F. L C. And a Martial Law Officer in a number of cases. In this connection, he specifically mentioned that there was an opinion given in writing by the Public Prosecutor of the Ministry of the Interior at Lahore in the enquiry undertaken by the F. I. A. Into the contract for the erection of 210 M. W. Guddu Thermal Power Station to a Russian Firm for an amount which exceeded the lowest ofter by more than $ 33 million, including a difference of about $ 20 milion in foreign exchange. In this case, according to the appellant, the finding of the Public Prosecutor was that the Chairman had granted the contract to the Russian Firm through illegal means, benefiting the said firm exorbitantly and he had also observed that, according to the legal position, the Chairman's conduct, in his view, fell under section 3 (1) (a) of the Prevention of Corruption Act II of 1947. Likewise, he also mentioned that the same Public Prosecutor had opined in the enquiry into the award of contract for 500 K.V. Powers from Faisalabad to Guddu, to an Italian firm in performance to the lowest tenderer, that the circumstances and documents threw the liability of the grant of the illegal contract to the said firm in the Chairman, WAPDA ; the General Manager, T & G ; the Member (Power), and the Chief Engineer, 500 K. V. And others. We do not like to go into the question whether the opinion expressed by the Public Prosecutor in the two cases was correct or otherwise, but the fact that they were expressed, or even that enquiries relating to these cases were undertaken by the F. I. A. Is clearly indicative of the fact that the conduct of the Chairman was under examination by a concerned agency of the Government. In this connection, the respondent has taken the stand before us that no case was registered against the Chairman by the F. I. A. We do not know on what basis he makes this claim, but there is ample evidence on record, including Memo. No, S.

0. (Coord)/02018/59-81, dated 14th October, 1980, issued by the Secretary, WAPDA to the appellant and two other employees of the WAPDA, asking them to attend the F. I. A. Office for being examined by them at the time and date indicated, to show that matters relating to the affairs of WAPDA were under investigation by the Agency. In the case of these facts and circumstances, we cannot accept the view that we should hold that the statements made by the appellant before Summary Military Court were entirely false and baseless. On the other hand, the manner in which the Chairman and his collegues and the Authority reacted to the statements made by the appellant clearly provides grounds for suspicion that they wanted to silence the appellant by all possible means, in order to prevent him from creating further difficulties and problems for them. As is obvious, they had good grounds for apprehending that the appellant, who was an important officer in the organization, particularly conversant with the Authority's business deals and financial transactions, would be much too dangerous a person to be allowed to furnish to the said agency information available to him in his official capacity.

16. Both in the written objection filed by the respondent and in course of the arguments before us, much stress was laid on behalf of WAPDA on the point that the appellant had gone out of his way to contact Mr. Abdul Qayyum Khan Arif to furnish him with information incriminating the Chairman and other Members of the Authority, which was clearly a breach of service discipline amounting to misconduct. The appellant denies having contacted Abdul Qayyum Khan Arif but stresses that the latter got him summoned as a witness before the Summary Military Court and, although he avoided appearing before the Court, he could not refuse to give evidence when the Court itself visited him at his residence to record the evidence. No evidence was also adduced to prove that the appellant had approached Mr. Abdul Qayyum Khan Arif and offered to furnish him information against the Chairman. However, we are unable to believe that Mr. Abdul Qayyum Khan Arif could have got the appellant summoned as a witness without having had any personal contact with him and it is most unlikely that he did not have an indication, directly or indirectly, that the appellant was in possession of information which might be helpful to him in his defence and that the appellant would place the said information before the relevant Authority, if so required. This might appear to be objectionable from the strictly departmental point of view. But, it could be taken to be and act of indiscipline only if it were held that a departmental subordinat must always conduct himself according to the wishes of his superiors even on occasions when there is a clear conflict between loyalty to his employer and allegiance to the larger public interest. Moreover, when the conduct of the employer himself is the subject of an enquiry, the rules of discipline framed by the employer cannot be invoked to impugn the conduct of the employee in deposing against the employer. In this case, a higher authority was examining the conduct of the Chairman and his colleagues and it was not open to them to dictate what a subordinate of theirs who, was a witness, should depose. If they felt that they had been defamed in the Court of Law, it was open to them to seek remedy in any competent forum, as laid down in rule 25 of the WAPDA Employees (Conduct)

Rules, but not through the backdoor of departmental disciplinary action.

17. It is also interesting to note that the respondent-Department has, in its averments before us, tried to emphasise the point that the general conduct of the appellant as Chief Auditor was not satisfactory, because, instead of working on the lines indicated to him, he had started finding fault with the Authority, its policies and decisions. This statement on the part of the respondent fits in with the contention of the appellant that he had differences with the Chairman and some of his colleagues, because of his criticism of their actions, that it was these differences that he had referred to in his evidence before the Summary Military Court and that it was exactly because the Chairman and his colleagues disliked his independent and critical attitude that they resented the evidence that he tendered before the Court and punished him for the same. There is, no doubt, a great deal of force in the contention of the appellant that the Chairman disapproved criticism of his actions and exposure of these before the Court and, therefore, he decided to get rid of him.

18. To sum up the case, it is clear to us that the appellant was dismissed from service because he had seriously jeopardised the position of the Chairman of WAPDA and some of his colleagues by deposing on behalf of a person who had levelled very serious charges of misconduct against them and for which the Chairman had got him hauled up for trial by a Summary Military Court. The Summary Military Court had convicted the accused, but had neither passed any strictures against the appellant nor accused him of perjury or recommended action against him on the basis of the evidence given by him. Later, the punishment awarded to the accused was set aside by the competent authority. But, in spite of all this, the departmental enquiry was dispensed with, the summary procedure adopted and show-cause notice against dismissal from service served. He was not even provided with sufficient material to understan the basis of the charge of misconduct against him. He was also not give adequate opportunity of putting, up his defence, so much so that he w not even given access to the files and documents he wanted to make us of in his defence. He was thus condemned unheard. He was also shunte away from his post, both as a punishment and as a precaution. Besides, while the allegations levelled against the Chairman and his colleagues by the accused in the trial before the Summary Military Court were sub judice, the Chairman, who was himself an interested party, decided to us the full weight of the powers of the Authority to punish the appellant who had deposed against him in the case thus, in a way making himself a judge in his own cause. Simultaneously, having decided to punish the appellant for his alleged misconduct, he also closed the doors of appeal on him b getting the matter decided by the Authority itself, in the very first instance.

19. For the above infirmities, both on merit and in law, from which the action of WAPDA suffers, we hold that the impugned order cannot be sustained.

20. The appeal is, therefore, upheld and it is ordered that the appellant be reinstated in service, with effect from the date of his dismissal, together with all the consequential benefits.

21. No order as to costs.

22. Parties to be informed.